Burton v. Bock

• Decision Date: 26 May 2004
• Docket Number: No. 00-10198-BC.,00-10198-BC.
• Citation: 320 F.Supp.2d 582
• Parties: Bradley BURTON, Petitioner, v. Barbara BOCK, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

Page 582

320 F.Supp.2d 582

Bradley BURTON, Petitioner, v. Barbara BOCK, Respondent.

No. 00-10198-BC.

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

May 26, 2004.

COPYRIGHT MATERIAL OMITTED

Rolf E. Berg, State Appellate Defenders Office, Detroit, MI, for Plaintiff.

Brad H. Beaver, Department of Attorney General, Lansing, MI, for Defendant.

OPINION AND ORDER CONDITIONALLY GRANTING PETITION FOR WRIT OF HABEAS CORPUS

LAWSON, District Judge.

The petitioner, Bradley Burton, a state prisoner currently confined at the Thumb Correctional Facility in Lapeer, Michigan, has filed a petition for the writ of habeas corpus through counsel pursuant to 28 U.S.C. § 2254. The petitioner was convicted of first- and second-degree criminal sexual conduct following a jury trial in the Kalkaska County, Michigan Circuit Court in 1995 and sentenced to concurrent terms of thirty to sixty years imprisonment on the first-degree count and ten to fifteen years imprisonment on the second-degree count. The petitioner raises claims concerning the prosecution's questions and comments on his post-arrest silence. He also argues that the state trial judge's folksy gloss on the concept of reasonable doubt corrupted the standard instruction later given at the conclusion of the trial to the point of misleading the jury as to the burden of proof that must be met by the State under the Due Process Clause. The Court does not find merit in the petitioner's first claim relating to evidence of his refusal to submit to further questioning by police. However, the Court concludes that the state trial court's instructions to the jury on reasonable doubt impermissibly diminished the State's burden of proof below that required by the Constitution and that there is a reasonable likelihood that the jury convicted the petitioner under a lesser standard. The Court, therefore, will issue a conditional writ of habeas corpus.

I.

The petitioner's arrest and conviction arise from the alleged sexual assault of nine-year-old Agatha and ten-year-old Corrine Goodrich in Kalkaska County, Michigan on January 12, 1995. At the time of the incident, the girls lived with their mother, Dorothea Hankins, and visited their father and his new wife, Carl and Laura Goodrich, on weekends. The petitioner was Ms. Hankins' boyfriend. He occasionally babysat the girls while their mother was at work.

At trial, Agatha, who was turning ten years old, and Corrine, age eleven, both testified that they played a game of "truth or dare" with the petitioner on January 12, 1995 while he babysat them at a trailer home he shared with another man, Al Bretzloff. During the game, Corrine and Agatha both "mooned" the petitioner. The petitioner pulled down his shorts and dared both girls to touch him with their hands. He also dared them to put their mouths on his penis, and they complied. See Trial Tr., vol. I, pp. 63-77, 98-106.

Deanna Huntley, the girls' step-sister, testified that Corrine told her about the incident the weekend after it occurred. Corrine reported that she and Agatha played "truth or dare" with the petitioner. During the game, she (Corrine) dared Agatha and the petitioner to "play with themselves" and dared Agatha to put the petitioner's penis in her mouth. Corrine also said that there were dares for Corrine and Agatha to "play with" the petitioner. After Deanna spoke with Corrine, she had the girls report the incident to her mother and the girls' father.

A social worker, a protective services worker, and a pediatrician testified at trial regarding their contacts with the girls. Additionally, Detective Vencent Woods testified about his investigation of the sexual assault allegations and his conversations with the petitioner. Detective Woods testified that the petitioner came to the police station for questioning but was not placed under arrest. Woods advised the petitioner of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and the petitioner signed a waiver form and agreed to speak with him. The petitioner discussed his relationship with the girls, admitted babysitting them on occasion, but denied ever playing "truth or dare" with them. Woods informed the petitioner that he wanted to set up a date for him to speak with other officers. Before the date was set, the petitioner indicated that he was finished talking to police. Trial Tr., vol. II, at 28-32.

The defense called Al Bretzloff, the owner of the trailer where the petitioner stayed, as a witness. He stated that the petitioner brought the two girls over to his trailer to babysit, the girls went into the petitioner's bedroom to go to bed around 8:00 p.m., and the petitioner went into the bedroom between 9:30 p.m. and 10:00 p.m. On cross examination, Bretzloff stated that although he was watching television in the living room next to the bedroom, and the door to the bedroom where the petitioner and the girls were supposedly sleeping was slightly open, he could not fully see into the room and "had no idea what went on in the bedroom." Trial Tr., vol. II at 56.

The petitioner testified on his own behalf at trial. He admitted babysitting the girls on January 12, 1995 and stated that he made them dinner and sent them to bed. He denied playing the "truth or dare" game with them. Trial Tr., vol. II, at 63-72.

At the close of trial, the jury found the petitioner guilty of first-degree and second-degree criminal sexual conduct. The trial court subsequently sentenced him to concurrent prison terms as noted previously.

Following his convictions and sentencing, the petitioner filed an appeal of right in the Michigan Court of Appeals raising several claims of error, including those raised in the present petition. The court of appeals affirmed the petitioner's convictions and sentence in an unpublished per curiam opinion. People v. Burton, No. 191400, 1998 WL 1992861 (Mich.Ct.App. March 3, 1998). The petitioner filed a delayed application for leave to appeal in the Michigan Supreme Court, which was denied. People v. Burton, 459 Mich. 1000, 616 N.W.2d 173 (Mich.1999).

The petitioner, through legal counsel, filed the present petition for the writ of habeas corpus on May 26, 2000, raising the following claims:

I. Petitioner's constitutional right to be free from adverse inferences from his assertion of Miranda rights was violated by the prosecutor's elicitation and argument that Petitioner's decision not to answer "further questions" reflected a lack of cooperation and the trial court's refusal to permit Petitioner to mitigate the damage by explaining his actions.

II. Petitioner's constitutional right to a proper jury instruction on reasonable doubt was violated by the instructions which consistently denigrated the standard including a burden shifting requirement that the jury "assign a true, substantive reason" to any doubt before acquitting.

The respondent filed an answer to the petition on November 13, 2000 asserting that the claims should be denied based upon procedural default and for lack of merit.

II.

The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214 (April 24, 1996), govern this case because the petitioner filed this habeas petition after the AEDPA's effective date. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). That Act "circumscribe[d]" the standard of review federal courts must apply when considering applications for a writ of habeas corpus raising constitutional claims. See Wiggins v. Smith, 539 U.S. 510, ___, 123 S.Ct. 2527, 2534, 156 L.Ed.2d 471 (2003).

As amended, 28 U.S.C. § 2254(d) 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.

28 U.S.C. § 2254(d). Therefore, federal courts are bound by a state court's adjudication of a petitioner's claims unless the state court's decision was contrary to or involved an unreasonable application of clearly established federal law. Franklin v. Francis, 144 F.3d 429, 433 (6th Cir.1998). Mere error by the state court will not justify issuance of the writ; rather, the state court's application of federal law "must have been objectively unreasonable." Wiggins, 539 U.S. at ___, 123 S.Ct. at 2535 (quoting Williams v. Taylor, 529 U.S. 362, 409, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); internal quotes omitted). Additionally, this Court must presume the correctness of state court factual determinations. 28 U.S.C. § 2254(e)(1) ("In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct."); see also Cremeans v. Chapleau, 62 F.3d 167, 169 (6th Cir.1995) ("We give complete deference to state court findings unless they are clearly erroneous.").

The United States Supreme Court has explained the proper application of the "contrary to" clause as follows:

A state-court decision will certainly be contrary to [the Supreme Court's] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases....

A state-court decision will also be contrary to this Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and...