LEAVE TO APPEAL IN FORMA PAUPERIS Felton Burks ("petitioner") is currently incarcerated at the Cotton Correctional Facility in Jackson, Michigan. He filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his pro se application, petitioner challenges his convictions for two counts of first-degree criminal sexual conduct, Mich. Comp. Laws § 750.520b(1)(e); one count of assault with intent to do great bodily harm less than murder, Mich. Comp. Laws § 750.84; and one count of possession of a firearm in the commission of a felony, Mich. Comp. Laws § 750.227b. For the following reasons, the petition for writ of habeas corpus is denied.
A jury convicted petitioner of the aforementioned offenses following a trial in the Wayne County Circuit Court. The Court will quote 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):
Defendant was convicted of sexually assaulting his long-term girlfriend's 18-year-old daughter. The victim testified that before the charged incident occurred, defendantinappropriately touched her when she was 15 years old. The victim was asleep and awoke to find that defendant had removed her panties and was touching her vaginal area. The victim started crying, and defendant apologized and asked her not to tell anyone. The victim later reported the incident to a school social worker during her senior year of high school. The victim's mother talked to a protective services worker, said that nothing happened, and that she "didn't want [the victim] anymore." The victim did not pursue the matter, and subsequently recanted her claim. The victim avoided defendant, and no other incident occurred until October 2005.
On October 14, 2005, the victim visited from college. On October 15, 2005, at about 2:45 a.m., the victim's mother was at work, and the victim was asleep on a loveseat in the basement. Defendant, who had been drinking alcohol, sat on the loveseat, told the victim that he loved her, and eventually indicated that he was going to have sex with her. A chase and struggle ensued, defendant repeatedly threatened to kill the victim, and the victim cried and pleaded with defendant not to assault her. Eventually, the victim fled up the stairs, but defendant caught her, put her arms behind her back, and pushed her down the stairs. Upon hitting the basement floor, the victim lost consciousness. When she awoke, defendant was on top of her, covering her mouth, repeatedly stating that he loved her, and threatening to rape her, kill her, and dump her body. The victim removed her underwear as defendant directed, and defendant digitally penetrated the victim's vagina and performed oral sex on her. Defendant stopped when he thought he heard someone, and directed the victim to go in an upstairs bedroom. Once upstairs, defendant retrieved a gun from a dresser, and indicated that he was not going to jail. Defendant thereafter put down the gun, performed oral sex on the victim, and put his penis in her vagina. Defendant ejaculated into a towel, pulled up his pants, pointed the gun at the victim, and said, "say goodnight." The victim pleaded with defendant not to kill her, and defendant began indicating that he was going to commit suicide. Defendant directed the victim to return to the basement and dress. Defendant also returned to the basement, drank alcohol, threatened to kill the victim if she moved, and discussed committing suicide before falling asleep.
At about 8:00 a.m., the victim went upstairs after hearing her mother. Shortly thereafter, when the victim and her mother were en route to the mall, the victim disclosed the incidents to her mother. The victim's mother initially supported the victim and attempted to report the incident to the police, but subsequently sided with defendant. The victim's uncle took the victim and her mother to the hospital. The examining physician testified that the victim was "very tearful, anxious, distraught," and had "fresh" bruising and abrasions on her right shoulder and back. Other witnesses observed similar physical injuries on the victim, and that the victim was visibly shaken, nervous, and scared.
The defense denied any wrongdoing, and presented an alibi defense. Crystal Ivanic testified that she and defendant had an affair for a year, and on October 15, 2005, defendant called her at 12:40 a.m., arrived at her home at 1:00 a.m., and left between4:00 and 5:00 a.m.
People v. Burks, No. 269569, at *1-2 (Mich. Ct. App. Jul. 17, 2007).
The Michigan Court of Appeals affirmed the conviction and the state Supreme Court denied leave to appeal. Id., lv. den. 480 Mich. 1032 (2008).
Petitioner then filed a post-conviction motion for relief from judgment pursuant to M.C.R. 6.500, et. seq., which the trial court denied. People v. Burks, No. 05-012184-01 (Wayne County Circuit Court, March 10, 2009). The state appellate courts again denied petitioner leave to appeal. People v. Burks, No. 291599 (Mich. Ct. App. Oct. 13, 2009); lv. den. 486 Mich. 927 (2010).
Petitioner seeks a writ of habeas corpus on the following grounds:
I. Whether or not the trial court abused its discretion by allowing a prosecution witness to give essentially expert opinion evidence, [which] served to improperly bolster the testimony of the complaining witness in this close-credibility contest, and deprived petitioner of his state and federal constitutional right to a fair trial contrary to United States Supreme Court precedent.
II. Whether or not the trial court abused its discretion in admitting other-act evidence, comprised of an unsupported allegation of a prior touching and denied petitioner his state and federal constitutional right to a fair trial contrary to United States Supreme Court precedent.
III. Whether or not petitioner was denied his Sixth and Fourteenth Amendment rights to a fair trial and due process of law through improper questions and argument of [the] prosecutor, and the prosecutor's deliberate failure to obtain potentially exculpatory DNA testing contrary to United States Supreme Court precedent.
IV. Whether or not petitioner's Fifth Amendment right to a fair trial was violated when he was denied the right to an impartial jury contrary to United States Supreme Court precedent.
V. Whether or not petitioner was denied his Sixth and Fourteenth Amendment rights to the effective assistance of counsel throughout the adversary and appellate procedures [in contravention of] United States Supreme Court precedent.
VI. Whether or not petitioner's Fifth Amendment right to a jury trial [was] violated where there were structural defects of jurisdictional significance that are contrary to United States Supreme Court precedent.
VII. Whether or not petitioner's Sixth and Fourteenth Amendment rights to the effective assistance of counsel were violated due to a conflict of interest that is contrary to United States Supreme Court precedent.
28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), imposes the following standard of review for habeas cases:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
A decision of a state court is "contrary to" clearly established federal 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, 405-406 (2000). An "unreasonable application" occurs where "a state court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case." Id. at 409. A federal habeas court may not "issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 410-411.
The Supreme Court has explained that "a federal court's collateral review of a state-court decision must be consistent with the respect due state courts in our federal system." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The "AEDPA thus imposes a 'highly deferential standardfor evaluating state-court rulings,'and 'demands that state-court decisions be given the benefit of the doubt.'" Renico v. Lett, 130 S. Ct. 1855, 1862 (2010) (quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)). "[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, 131 S. Ct. 770, 786 (2011)(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has emphasized "that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003). Ultimately, "a habeas court...
