Batey v. Haas

• Decision Date: 30 April 2013
• Docket Number: CASE NO. 05-CV-73699-DT
• Parties: MICHAEL DENNIS BATEY, Petitioner, v. RANDALL HAAS, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

MICHAEL DENNIS BATEY, Petitioner,

v.RANDALL HAAS, Respondent.

CASE NO. 05-CV-73699-DT

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Dated: April 30, 2013

HONORABLE DENISE PAGE HOOD

UNITED STATES DISTRICT JUDGE

OPINION AND ORDER ON REMAND DENYING THE PETITION FOR WRIT OF

HABEAS CORPUS, DECLINING TO ISSUE A CERTIFICATE OF

APPEALABILITY, AND GRANTING LEAVE TO APPEAL IN FORMA

PAUPERIS

This matter is on remand from the United States Court of Appeals for the Sixth Circuit. Michael Dennis Batey, ("Petitioner"), presently confined at the Parnall Correctional Facility in Jackson, Michigan, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his habeas petition, filed both pro se and through his attorneys Jonathan D. Hacker and Anton Metlitsky, petitioner challenges his conviction for first-degree criminal sexual conduct, M.C.L.A. 750.520b. For the reasons stated below, the petition for writ of habeas corpus on remand is DENIED.

I. Introduction

Petitioner was convicted of the above offense following a jury trial in the Allegan County Circuit Court. Petitioner was acquitted of a second count ofcriminal sexual conduct. This Court recites verbatim the relevant facts relied upon by the Michigan Court of Appeals, which are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):

A jury convicted defendant Michael Batey of first-degree criminal sexual conduct (CSC I) for engaging in oral sex with his nephew, MA. The trial court sentenced Batey to fifteen to forty-five years' imprisonment. He appeals as of right. We affirm.

I. Basic Facts And Procedural History

According to MA, Batey began to abuse him sexually was when he was fourteen or fifteen years old. On that first occasion, MA said, he and Batey were in the field behind Batey's house picking berries in the bushes while MA's brother, JA, was at the house. Batey reportedly asked if he could see MA's penis. MA first said no, but after Batey persisted, he said yes. MA claimed that he saw then that Batey had his penis out of his pants, JA was standing there, and Batey started to masturbate in front of him. The next day, MA said, Batey told him that he wanted to fellate him. MA initially said no, but eventually relented after Batey reassured him that this sort of behavior between uncles and nephews was normal. After Batey performed fellatio on MA, he asked MA if MA would perform the same act on him. MA again resisted the idea, but finally agreed to perform the act after additional persuasion from Batey. MA testified that this type of sexual activity went on every time he went over to Batey's house for about a year, and that he had oral sex with Batey approximately twenty-five times.

After the prosecutor charged Batey with CSC I and the case went to trial, JA testified that he started drinking when he was about thirteen and that Batey gave him alcohol every time he went to Batey's house. "He would get me all plastered and I'd wake up and my pants would be down, you know, it was scary." JA stated that Batey gave him cigarettes and money and told him, "don't tell anybody." JA said that he would protest this conduct sometimes, when he was not drunk, but then he would finally accede to it. As JA said, "I was heterosexual and I was getting confused ... thought I was gay ... confused, say I'm gay,then change my mind and say I'm not gay." JA claimed that Batey manipulated him, he had "mind play over me." JA also said that he had oral sex with Batey so many times that he could not recall the exact number of instances. He also claimed to have had anal sex with Batey several times.

JA also recalled seeing Batey molest MA. For instance, JA recalled one occasion when he was standing in front of the doorway at Batey's house, he could see into the bedroom when Batey was performing oral sex on MA. JA said that he became confused and did not know whether to tell anyone, nor did he know if anyone would believe him. According to JA, the next month he asked MA what he would say to their mother if JA told her what he saw. When MA was admitted to Pine Rest, a residential rehabilitation program, JA told his parents that he knew why MA had a nervous breakdown. When they asked him why, "I told them everything, I just opened up." He told them about "[a]ll the sexual molestation, everything with me and [MA] and Mike [Batey]."

Robin Zollar, a psychotherapist who specializes in sexual assault and sexual abuse, also testified for the prosecution at trial. She said that child victims of sexual assault normally do not tell anyone immediately. According to Zollar, there is "delay in disclosure" because of embarrassment, pressure, secrecy or coercion. In her view, it was not uncommon to find mental health problems in children who are victims of sexual abuse because of the betrayal of trust. Nor would she find it strange if a child victim recanted any accusations of molestation, denying that it occurred.

Several of Batey's friends and former lovers testified on his behalf, either to impeach the credibility of MA and JA or to provide alibi testimony. Batey did not testify. ¹

People v. Batey, No. 227117, * 1-2 (Mich.Ct.App. August 27, 2002).

Petitioner's conviction was affirmed on appeal. Id., vacated in part, 469 Mich. 900; 668 N.W. 2d 628 (2003)(Kelly, J. would remand for consideration of defendant'sallegations of prosecutorial misconduct). On remand, the conviction was again affirmed. People v. Batey, (On Remand) No. 227117 (Mich.Ct.App. December 30, 2003); lv. den. 471 Mich. 882; 686 N.W. 2d 487 (2004)(Kelly, J., with Cavanagh, J., dissenting).

Petitioner then filed a petition for writ of habeas corpus with this Court, in which he sought habeas relief on the following grounds:

I. The Petitioner was denied a fundamentally fair trial, where his Sixth and Fourteenth amendment rights were violated, when a juror decided not to disclose information about her relationship with a prosecution witness, the father figure of the complaint, during voir dire.

II. Petitioner's Sixth and Fourteenth Amendment rights were violated, where the trial court denied motions to dismiss due to deliberate destruction of Brady material, resulting in manifest injustice.

III. Petitioner was denied fundamental fairness and due process, where the trial court refused Brady material to be disclosed to the defense.

IV. Petitioner was denied a fundamentally fair trial and denied equal protection under color of the law through the Sixth and Fourteenth amendments.

V. Petitioner was denied a fundamentally fair trial, where the court denied admission of Brady evidence, which worked to Petitioner's actual and substantial disadvantage, resulting in error of constitutional dimension.

VI. Petitioner's due process rights through the Fourteenth Amendment were violated, which denied a fundamentally fair trial and contributed to a miscarriage of justice, by the questioning and closing argument of the prosecution.

On April 23, 2007, this Court entered an opinion and order holding the petition for writ of habeas corpus in abeyance to allow petitioner to return to thestate courts to properly exhaust certain claims that had not been presented to the state courts as federal constitutional claims. The Court also administratively closed the case.See Batey v. Burt, No. 05-CV-73699; 2007 WL 1218705 (E.D. Mich. April 23, 2007).

Petitioner subsequently filed a post-conviction motion for relief from judgment pursuant to M.C.R. 6.500, et. seq., which was denied by the trial court. People v. Batey, No. 99-11109-FC (Allegan County Circuit Court, September 5, 2007). The Michigan appellate courts denied petitioner leave to appeal. People v. Batey, No. 280958 (Mich. Ct. App. January 11, 2008); lv. den. 482 Mich. 971, 755 N.W.2d 178 (2008).

On October 9, 2008, petitioner filed a motion to reopen the petition for writ of habeas corpus. In addition to seeking habeas relief on the six claims contained in his original petition, petitioner also filed an amended petition, in which he sought habeas relief on the following additional claim, which this Court will designate as his seventh claim:

VII. The petitioner was denied his Fifth, Sixth, and Fourteenth constitutional Amendment rights where he was denied effective assistance of both trial and appellate counsel, when his appellate counsel did not raise the issue of ineffective assistance of trial counsel, nor did he properly raise the constitutionality of the issues which were raised on direct appeal of right.

On March 10, 2009, this Court reopened the petition for writ of habeas corpus and amended the caption to reflect that petitioner's warden at the time ofthe reopening of his habeas petition was Carol Howes. The Court also gave respondent sixty days to file a supplemental answer. On May 11, 2009, respondent filed a supplemental answer in this case.

On June 30, 2010, this Court granted the petition for writ of habeas corpus, finding that petitioner had been deprived of the right to present a closing argument when the state trial court prohibited defense counsel from commenting during closing argument about the sexual activity between the minor victims, that petitioner had been denied a fair trial where the prosecutor committed misconduct by making repeated comments and references to petitioner's homosexual orientation, and that trial counsel had been ineffective for failing to object to the prosecutor's misconduct and that appellate counsel was ineffective for failing to raise the issue of trial counsel's ineffectiveness on petitioner's appeal of right. Batey v. Burt, No. 05-CV-73699; 2010 WL 2650019 (E.D. Mich. June 30, 2010). Because the Court granted petitioner relief on these claims, the Court declined to address petitioner's remaining claims. Id.

The United States Court of Appeals for the Sixth Circuit subsequently reversed this Court's decision to grant petitioner habeas relief and remanded the matter to this...