Carrier v. Burton

• Decision Date: 27 July 2021
• Docket Number: 1:19-cv-723
• Parties: Trevor James Carrier, Petitioner, v. DeWayne Burton, Respondent.
• Court: U.S. District Court — Western District of Michigan

Trevor James Carrier, Petitioner, v. DeWayne Burton, Respondent.

No. 1:19-cv-723

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

July 27, 2021

REPORT AND RECOMMENDATION

Ray Kent, United States Magistrate Judge.

This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. Petitioner Trevor James Carrier is incarcerated with the Michigan Department of Corrections at the Muskegon Correctional Facility (MCF) in Muskegon Muskegon County, Michigan. On August 27, 2014, after a two-day trial, an Emmet County Circuit Court jury found Petitioner guilty of 16 counts of first-degree criminal sexual conduct (CSC-I) perpetrated against three female cousins over a period of years, in violation of Mich. Comp Laws § 750.520b. On October 8, 2014, the court sentenced Petitioner to 16 concurrent prison terms of 25 to 50 years.

On September 3, 2019, Petitioner timely filed his habeas corpus petition raising eight grounds for relief, as follows:

I. [Petitioner was] denied a fair trial when the trial court improperly denied his motion for mistrial after the officer in charge of the case testified the complainants were very truthful.

II. Trial court allowed testimony of prior bad acts which were more prejudicial than probative and increased jury confusion.

III. Ineffective assistance of trial counsel. Counsel failed to (A) request production of res gestae witnesses, (B) advise of mandatory minimum 25-year sentence including plea deals (C) do basic pretrial investigation, (D) contact and subpoena known alibi, res gestae, and expert witnesses, (E) object to prosecutorial misconduct, (F) impeach prosecution's witnesses, and (G) [introduce] evidence of location [of alleged offenses].

IV. Prosecutorial misconduct [, including] . . . faulty investigation . . . suppressed evidence and witnesses[ solicitation of] knowingly false/perjured testimony[, and failure] to endorse res gestae witnesses.

V. 14th and 6th Amendment state and federal rights to due process were violated when trial court failed to appoint new counsel.

VI. Due process rights were violated when his transcripts were altered and missing.

VII. 6th, 5th, and 14th Amendment rights under Michigan and United States constitutions were violated when the cumulative effect of constitutional violations denied [Petitioner] due process.

VIII. Denied 6th Amendment right to effective assistance of appellate counsel for (A) failing to raise meritorious claim of ineffective trial counsel at trial and pretrial, (B) failure to raise prosecutorial misconduct, and (C) failed to request an evidentiary hearing needed to create a reviewable record.

(Pet., ECF No. 1, PageID..) Respondent has filed an answer to the petition (ECF No. 9) stating that the grounds should be denied because they are not cognizable, procedurally defaulted, and/or meritless. Upon review and applying the standards of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (AEDPA), I find that the grounds are meritless or not cognizable. Accordingly, I recommend that the petition be denied.

Discussion

I. Factual allegations

The Michigan Court of Appeals described the facts underlying Petitioner's convictions as follows:

The three victims testified to a longstanding pattern of sexual abuse by defendant. Defendant is the cousin of all three victims. The abuse involved oral sex acts, penile-vaginal intercourse, digital penetration, and anal penetration. The abuse started before the victims' teenage years.

(Mich. Ct. App. Op., ECF No. 10-9, PageID.987.) “The facts as recited by the Michigan Court of Appeals are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1).” Shimel v. Warren, 838 F.3d 685, 688 (6th Cir. 2016). Although Petitioner denies that the events described by the victims occurred, his habeas challenges do not call into question the accuracy of the appellate court's description of the testimony.

Petitioner, with the assistance of counsel, appealed his convictions to the Michigan Court of Appeals, raising two issues-the same issues he raises herein as habeas grounds I and II. (Pet'r's Appeal Br., ECF No. 10-9, PageID.901.) The Michigan Court of Appeals rejected Petitioner's challenges by unpublished opinion issued February 16, 2016. (Mich. Ct. App. Op., ECF No. 10-9, PageID.987-990.) Petitioner, again with the assistance of counsel, filed an application for leave to appeal to the Michigan Supreme Court raising the same issues he raised in the court of appeals. (Pet'r's Appl. for Leave to Appeal, ECF No. 10-10, PageID.995.) By order entered September 6, 2016, the supreme court denied leave to appeal. (Mich. Order, ECF No. 1010, PageID.991.)

On October 23, 2017, Petitioner filed a motion for relief from judgment in the Emmet County Circuit Court raising several issues, including the issues he raises in this Court as habeas grounds III through VII. By opinion and order issued June 27, 2018, the trial court denied relief. (Emmet Cnty. Cir. Ct. Op. and Order, ECF No. 10-11, PageID.1118-1125.) Petitioner filed an application for leave to appeal that decision to the Michigan Court of Appeals. By order entered December 12, 2018, the court of appeals denied leave. (Mich. Ct. App. Order, ECF No. 10-11, PageID.1014.)

Petitioner then filed an application for leave to appeal to the Michigan Supreme Court. The application raised the issues Petitioner raises in this Court as habeas grounds III through VIII. By order entered July 29, 2019, the Michigan Supreme Court denied leave to appeal. (Mich. Order, ECF No. 10-12, PageID.1308.)

This timely petition followed.

II. AEDPA standard

The AEDPA “prevent[s] federal habeas ‘retrials'” and ensures that state court convictions are given effect to the extent possible under the law. Bellv. Cone, 535 U.S. 685, 69394 (2002). An application for writ of habeas corpus on behalf of a person who is incarcerated pursuant to a state conviction cannot be granted with respect to any claim that was adjudicated on the merits in state court unless the adjudication: “(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 upon an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” 28 U.S.C. § 2254(d). “Under these rules, [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.” Stermer v. Warren, 959 F.3d 704, 721 (6th Cir. 2020) (quoting Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)) (internal quotation marks omitted)). This standard is “intentionally difficult to meet.” Woods v. Donald, 575 U.S. 312, 316 (2015) (internal quotation omitted).

The AEDPA limits the source of law to cases decided by the United States Supreme Court. 28 U.S.C. § 2254(d). In determining whether federal law is clearly established, the Court may not consider the decisions of lower federal courts. Williams v. Taylor, 529 U.S. 362, 381-82 (2000); Miller v. Straub, 299 F.3d 570, 578-79 (6th Cir. 2002). Moreover, “clearly established Federal law” does not include decisions of the Supreme Court announced after the last adjudication of the merits in state court. Greene v. Fisher, 565 U.S. 34, 37-38 (2011). Thus, the inquiry is limited to an examination of the legal landscape as it would have appeared to the Michigan state courts in light of Supreme Court precedent at the time of the state-court adjudication on the merits. Miller v. Stovall, 742 F.3d 642, 644 (6th Cir. 2014) (citing Greene, 565 U.S. at 38).

A federal habeas court may issue the writ under the “contrary to” clause if the state court applies a rule different from the governing law set forth in the Supreme Court's cases, or if it decides a case differently than the Supreme Court has done on a set of materially indistinguishable facts. Bell, 535 U.S. at 694 (citing Williams, 529 U.S. at 405-06). “To satisfy this high bar, a habeas petitioner is required to ‘show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.'” Woods, 575 U.S. at 316 (quoting Harrington, 562 U.S. at 103).

Determining whether a rule application was unreasonable depends on the rule's specificity. Stermer, 959 F.3d at 721. “The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.” Yarborough, 541 U.S. at 664. “[W]here the precise contours of the right remain unclear, state courts enjoy broad discretion in their adjudication of a prisoner's claims.” White v. Woodall, 572 U.S. 415, 424 (2014) (internal quotations omitted).

The AEDPA requires heightened respect for state factual findings. Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir. 1998). A determination of a factual issue made by a state court is presumed to be correct, and the petitioner has the burden of rebutting the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011) (en banc); Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir. 2003); Bailey v. Mitchell, 271 F.3d 652, 656 (6th Cir. 2001). This presumption of correctness is accorded to findings of state appellate courts, as well as the trial court. See Sumner v. Mata, 449 U.S. 539, 546-547 (1981); Smith v. Jago, 888 F.2d 399, 407 n.4 (6th Cir. 1989).

Section 2254(d) limits the facts a court may consider on habeas...