Boulding v. Bell

• Decision Date: 29 October 2012
• Docket Number: Case Number 1:10-CV-12476
• Parties: TIMOTHY BOULDING, #472529, Petitioner, v. THOMAS BELL, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

TIMOTHY BOULDING, #472529, Petitioner,

v.THOMAS BELL, Respondent.

Case Number 1:10-CV-12476

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN NORTHERN DIVISION

Dated: October 29, 2012

Honorable Thomas L. Ludington

OPINION AND ORDER DENYING PETITION FOR A WRIT OF

HABEAS CORPUS, DENYING CERTIFICATE OF APPEALABILITY,

AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

Petitioner Timothy Boulding seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Following a jury trial in the Oakland County Circuit Court, Petitioner was convicted of three counts of first-degree criminal sexual conduct in violation of § 750.530b(1)(a) of the Michigan Compiled Laws. He was sentenced to concurrent terms of 25 to 40 years imprisonment in 2004.

In his petition, Petitioner raises claims concerning the admission of other acts evidence, the use of perjured testimony, the validity of his sentence, and the effectiveness of trial and appellate counsel. The claims lack merit. The petition will be denied, as will a certificate of appealability and leave to proceed in forma pauperis on appeal.

I

Petitioner's convictions arise from his sexual assault of his six-year-old granddaughter at his residence in Bloomfield Township, Michigan on February 27, 2003. The Court adopts the summary of the trial testimony provided by defense counsel on direct appeal before the Michigan Court of Appeals. Those facts are as follows:

Mashuna Moore, 7, lived with her mother, siblings and an aunt. She identified Defendant as her grandfather. [Sometimes called "dad."] The last time she had seen Defendant was at his house where she and her siblings played with blocks in the living room. Defendant called her to his bedroom and where she was alone with him. Her siblings had come with her but they were refused admittance. Defendant locked the door and told her to take off her clothes. At that time he was clothed but when he was on the bed he was wearing only a shirt although she did not see him take his clothes off. He was on the bed laying down clad in a shirt; no pants or underwear. She undressed except for her shirt which he instructed [her] to keep on. She placed her clothes on the side of the bed. He then told her to get on top of him; he was on his back dressed only in his shirt and was under the covers. He kissed her on the mouth for a short time. She got on top of him on her stomach which touched his private parts. [She pointed to her vaginal area.] His private parts touched her private parts and went inside where "He wiggled it around." She saw his private parts when he put his private parts in her. He "went up and down on me." He also used a thing called a "binky" and some Vaseline. He put the Vaseline on her private parts as well as his. It was on the bed when he inserted the binky. He lay flat on his stomach and got it from the closet. He put his mouth on her private parts "In between," using his tongue which went in between her private part; also a finger which he put inside her private parts. She was kind of under the covers. A binky is an object which is put in a baby's mouth and which was kept in his closet on top of his bed. [A picture of this in the closet was admitted into evidence.] She identified a picture of the bed. The Vaseline was kept in his drawer on top of the bed. His actions "felt nasty and it hurt." She did not tell him it hurt. He put the Vaseline on his finger and put it in her private parts. He also put the Vaseline on his private parts. The binky was moving when put into her private parts. She could feel it poke her. The actions also occurred on the bean bag chair located in front of the bed. He asked her whether she liked it but she could not remember her answer. When ordered, she got off the bed onto the bean bag chair.

When Defendant put his private parts in her he fell off the bean bag chair, following which his wife, Laura, arrived. He did not get up; he just scooted from the bed to the bean bag chair. Before that, Mashuna's brother tried to enter but Defendant would not permit [it]. After he fell, she put her clothes back on and left the room. After the ambulance came for Defendant, Laura took Mashuna and her siblings home.

The first person to whom Mashuna told this was her mother, Deon, who took her to the hospital where she was examined. Defendant had told her not to tell anyone. When asked if she was told to say what Defendant did, she answered that she did not know. She said she told the doctor what happened.

Demetrius Boulding, 13, is Mashuna's brother. When his brother went to use the bathroom, the witness went to check because he was also concerned about hissister. When he went to the bedroom he saw Defendant naked and was told to step out of the room so Defendant could get dressed. The only people who were not in the living room were Mashuna and Defendant. When the witness went into the bedroom, Defendant was laying on the floor wearing nothing but a shirt, no diaper. This frightened him. He had seen him with just his shirt before but then his sisters were not present. The diaper, worn by defendant, was by the bed. Defendant said he broke his leg falling out of the wheelchair. When he walked into the room, Mashuna was leaning against the wall and was dressed. She appeared as if something [scary] had occurred, as if she was in trouble. She was frightened because Defendant was naked. He said the door was not locked but was closed; he heard it slam. Defendant told him he had fallen from the wheelchair, but told his brother that he fell from the bean bag chair and told the mother that he fell from the bed.

Deon Boulding,15, Mashuna's brother, said Mashuna got sleepy and wanted to take a nap. He had to use the bathroom and when he came out she was gone. Something told him to look and make sure she went to take a nap. He looked around and when got to Defendant's room she ran out and told him that Defendant had broken his leg. She had been gone five to 15 minutes. She was panicking like she was shocked. She was dressed. Defendant was not wearing anything on his bottom. When he told them to leave the room everyone left except Mashuna. Defendant said into Mashuna's ear, "don't worry. Everything's going to be okay." It was Mashuna who told him of the occurrence. They had their own rooms to sleep in so there was no reason she should have to go to Defendant's room. Defendant told him that he fell off the bed.

Doctor Lisa Ann Braun, a physician in the emergency department of Children's Hospital of Michigan, was told by Mashuna that Defendant "tried to do something nasty to me." He tried to kiss her on the mouth and put a binky (a pacifier) in her and tried to put his private parts into her private parts. When asked she pointed to her vaginal area. She indicated pain in her private area. Her hymen was unbroken but there was a bruising present on the left side of the hymen; red in color, done within 24 hours of the examination. The significance was trauma to her genital area in the form of bruising which was consistent with her history. The witness could not say it was the result of sexual abuse.

Detective James Cutright found a pacifier on a shelf in a cabinet in the headboard of the bed. In a shelf below that he found a container of lubricant and underneath the bed, in a drawer, he found a jar of Vaseline.

Forensic scientist Tara Reinholz compared a DNA sample from Defendant and one from Mashuna and a swab from the pacifier and could not exclude the two individuals from the comparison.

Tamara Boulding, now 20, Defendant's daughter, said when she was five, Defendant sexually molested her, penetrating her with his fingers, penis and orally almost everyday until she became eleven. He told her that if she told anyone he would go away for a while and would "whoop" her.

Helena Boulding, now 23, Defendant's daughter, spoke of abuse from an early age until age 13 or 14. She described penis and oral sex on her and on him; in her anal area. He also used a small toy. This happened on a daily basis, telling her not to tell.

Deon King, now 31, Mashuna's mother and Defendant's daughter was curious how Defendant could fall out of a chair so low to the floor and break his leg. Mashuna came to her the next morning and told her that Defendant "was freaking on me," telling her to take her panties and pants off, kissing her and feeling "on my butt." He was kissing her private parts and put her on top of his and was rubbing her back and forth. He put Vaseline on her private parts and put his finger and the binky inside of her; when she told him it hurt he told her to be quiet. He put the Vaseline on his private parts. If she told anyone he would go to jail. He kissed her private parts when she was in the bed; she saw his private parts.

When the witness was younger the same thing happened to her from six to 15 and 16; Defendant had sex with her on a number of occasions, describing the acts including the use of sexual toys. This stopped when she physically fought him off. Her children never went to his house until he was in a wheelchair. After this happened to Mashuna, the witness noticed her exhibiting a lot of anger and having nightmares. Her sons told her Defendant was lying naked on the floor (from the waist down). When they went to help him he told them, except for Mashuna, to get out. Mashuna told her it was her fault that Defendant broke his leg, "I'm going to be in trouble." The witness later found that this happened to Mashuna on more than one occasion and that her other daughter was in the bed when it happened.

Laura Jean Boulding, Defendant's wife described the jelly Defendant uses to insert his catheters and the Vaseline in which he dips his suppositories. She explained the pacifier as a gag gift. When she came home the day in question she found that he had fallen out of his chair and broken his leg. At the time he was wearing a t-shirt, Depends and socks. When she had left, he was wearing a fleece suit. Defendant is paralyzed from his

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