Brannon v. Rapelje

• Decision Date: 13 September 2022
• Docket Number: 14-cv-11212
• Parties: ROBERT K. BRANNON, Petitioner, v. LLOYD RAPELJE, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

ROBERT K. BRANNON, Petitioner, v. LLOYD RAPELJE, Respondent.

No. 14-cv-11212

United States District Court, E.D. Michigan, Southern Division

September 13, 2022

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

GERSHWIN A. DRAIN U.S. DISTRICT COURT JUDGE

I. Introduction

This 28 U.S.C. § 2254 habeas case returns to the Court on remand from the Sixth Circuit. See Brannon v. Rapelje, 672 Fed.Appx. 557, 562 (6th Cir. Dec. 5, 2016). Petitioner Robert Brannon was convicted in the Monroe Circuit Court after a jury trial of first-degree criminal sexual conduct. Mich Comp. Laws § 750.520b. Brannon filed his habeas petition raising eleven claims. See ECF No. 1. This Court granted the petition based on Petitioner's first claim asserting ineffective assistance of counsel for failing to consult with a defense expert. See ECF No. 8. The undersigned declined to address Petitioner's other claims. Id.

Respondent appealed, and the Sixth Circuit reversed and remanded the case for consideration of Petitioner's remaining claims. See ECF No. 28. The Court set a briefing schedule to allow the parties to file supplemental briefs, but the parties opted to rely on their original submissions. See ECF Nos. 32, 33, and 35.

For the reasons that follow, the Court will DENY the petition. None of Petitioner's remaining claims merit habeas relief. The Court will also deny a certificate of appealability.

II. Factual Background

The Michigan Court of Appeals summarized the facts of Petitioner's case:

Defendant was convicted of engaging in sexual penetration with a six-year-old niece in the summer of 1995, at the home of the victim's maternal grandparents in Temperance, Michigan. The alleged act of penetration involved defendant's insertion of a crayon into the victim's anal opening. The victim did not tell anyone else about the incident until approximately ten years later, after she learned that defendant had sexually molested one of her aunts (defendant's sisterin-law). That aunt testified that she was 15 years old when defendant first sexually assaulted her, and that defendant engaged in inappropriate sexual contact with her on several subsequent occasions. Like the victim, the aunt delayed telling anyone about the sexual assaults. The aunt testified that she did not tell anyone because defendant threatened to leave her sister if she told. The aunt additionally testified that she did not want to disrupt the family and that defendant assured her that he was not engaging in inappropriate conduct with anyone else. Defendant argued at trial that the victim's testimony was not credible, and he also presented an alibi defense to show that he was never at the home of the victim's grandparents during the summer of 1995.

People v. Brannon, No. 303267, 2013 WL 4528453, at *1 (Mich. Ct. App. Aug. 27, 2013).

Following his conviction, Petitioner filed a motion for new trial. The motion raised claims of ineffective assistance of counsel, prosecutorial misconduct, great weight of the evidence, and the erroneous admission of evidence. The trial court denied the last three claims in an opinion and order dated February 25, 2009, and it granted an evidentiary hearing on Petitioner's first claim. The evidence presented at the hearing largely concerned trial counsel's failure to consult with and hire an expert witness to challenge the prosecution's experts. The trial court found that counsel was ineffective and granted a new trial. The Michigan Court of Appeals affirmed. The prosecutor appealed, and the Michigan Supreme Court vacated the order granting a new trial and remanded the case to the trial court to reinstate Petitioner's conviction. This ineffective assistance of counsel claim was Petitioner's lead habeas claim and formed the basis for the Court's grant of relief that was reversed by the Sixth Circuit. The issue is therefore no longer part of the case.

On remand from the Michigan Supreme Court, the trial court sentenced Petitioner to 20-40 years. Petitioner thereafter filed a claim of appeal. Petitioner's appellate counsel filed a brief in the Michigan Court of Appeals that raised the following claims:

I. Trial counsel rendered ineffective assistance of counsel by failing engage [sic] in a reasonable investigation when deciding to pursue expert witness testimony, and when counsel failed to challenge the MCL 768.27a evidence under a MRE 404(b)(1) and MRE 403 analysis.

A. While the order from the [Michigan] Supreme Court is governed by the “law of the case” doctrine, Mr. Brannon is raising an independent basis of ineffective assistance of counsel based on failure to investigate.

B. Trial counsel's representation fell below an objective standard of reasonableness when counsel failed to engage in a reasonable investigation when deciding to pursue expert witness testimony.

C. Trial counsel's representation fell below an objective standard of reasonableness when he failed to object to the testimony of the complainant that she “knew” that her [aunt] had been molested previously by Mr. Brannon, when he failed to challenge the MCL 768.27a evidence under a MRE 404(b)(1) and MRE 403 analysis.

D. Counsel was ineffective for failing to seek to obtain the complainant's medical and/or psychological records to challenge the complainant's veracity.

E. The totality of trial counsel's ineffectiveness so prejudiced Mr. Brannon as to deprive him of a fair trial.

II. The prosecutor's comments during closing arguments that the evidence was completely “uncontroverted” and that Mr. Brannon “doesn't challenge that [the offense] occurred” violated the [sic] Mr. Brannon's Fifth Amendment rights, as the comments directed the jury's attention to Mr. Brannon's decision not to testify, and Mr. Brannon was denied effective assistance of counsel by his attorney's failure to object.

III. The conviction should be set aside because it is against the great weight of the evidence, and a miscarriage of justice will it [sic] is allowed to stand.

IV. MCL 768.27a violates the constitutional right of the presumption of innocence and infringes on the Supreme Court's authority.

V. Mr. Brannon's due process rights under the federal and state constitutions were violated when the trial judge failed to hold an evidentiary hearing to determine the scope of [the victim's aunt's] testimony.

VI. Mr. Brannon's due process rights under the federal and state constitutions were violated when the trial judge refused to disqualify prosecutor Anne McCarthy from prosecuting the case, when defense counsel established that she was likely to be a witness at trial.

VII. Offense variable 2 (“OV2”) of the judicial sentencing guidelines, for “bodily injury”, was incorrectly scored at 25 points in computing the recommended minimum sentence range for the offense.

VIII. The trial court abused its discretion in imposing a 20 to 40 year sentence, when the sentence exceeded the sentencing guidelines, but the reasons given for imposing it rather than a sentence within the guidelines were inadequate and improper and did not justify departure.

IX. Mr. Brannon must be resentenced because the sentencing judge failed to give reasons for the extent of the departure.

The Michigan Court of Appeals affirmed Petitioner's conviction and sentence in an unpublished opinion. Brannon, 2013 WL 4528453. Petitioner subsequently filed an application for leave to appeal in the Michigan Supreme Court that raised the same claims. The Michigan Supreme Court denied the application by standard form order. People v. Brannon, 843 N.W.2d 191 (Mich. 2014) (Table).

III. Legal Standard

Section 2254(d) curtails federal habeas review of state convictions for claims adjudicated on the merits by state courts. A habeas petitioner must demonstrate that the state court adjudication was “contrary to” or “involved an unreasonable application of” clearly established Supreme Court law. A decision is “contrary to” clearly established Supreme Court law if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An “unreasonable application” occurs when “a state court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case.” Id. at 409.

Under this standard, a federal habeas court may not “issue the writ simply because that court concludes in its independent judgment that the relevant statecourt decision applied clearly established federal law erroneously or incorrectly.” Id. at 410-11. “[A] state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

IV. Discussion

A. Ineffective Assistance of Trial Counsel

As indicated, the Sixth Circuit reversed the grant of habeas relief based on Petitioner's first allegation of ineffective assistance of counsel. Petitioner's second, third, and fourth habeas claims raise additional claims of ineffective assistance of counsel. None merit relief.

In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court set forth a two-prong test for determining whether a habeas petitioner's counsel was ineffective. First, a petitioner must prove that counsel's performance was deficient. This requires a showing that counsel made errors so serious that he or she was not functioning as counsel guaranteed by the Sixth Amendment. Id. at 687. Second, the petitioner must establish that counsel's...