Cummings v. Rapelje

• Decision Date: 09 August 2016
• Docket Number: Case Number 11-10003
• Parties: CHAD CUMMINGS, Petitioner, v. LLOYD RAPELJE, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

CHAD CUMMINGS, Petitioner,
v.
LLOYD RAPELJE, Respondent.

Case Number 11-10003

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

August 9, 2016

Honorable David M. Lawson

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

Petitioner Chad Cummings, a prisoner in the custody of the Michigan Department of Corrections, was convicted of several criminal sexual conduct charges relating to the sexual abuse of his then-girlfriend's twelve-year-old daughter. He was sentenced to concurrent minimum prison terms totaling thirty years. He challenges the constitutional validity of his convictions and sentences raising a host of issues, fifteen in number, in his petition for a writ of habeas corpus. Because none has merit under the highly deferential standard of review prescribed by 28 U.S.C. § 2254(d), the Court will deny the petition.

I.

The petitioner was tried and convicted by a Berrien County, Michigan jury on March 6 though 8, 2007. At trial, the victim, N.M., testified that the petitioner moved in with her mother, Judy Dusoe, with whom she was living in October 2004. N.M. was twelve years old at the time. Just before Christmas of that year, Dusoe sent the petitioner and N.M. to the grocery store. When they discovered that the store was closed, and while in the petitioner's car, the petitioner asked N.M. if she "wanted him." N.M. did not remember responding, but the petitioner drove a while and then pulled off the side of a road, where he told N.M. to pull her pants and underwear down. The

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petitioner penetrated N.M.'s vagina with his fingers and his penis. The petitioner told N.M. not to tell anyone about the incident, particularly her mother.

N.M. testified that the petitioner had sex with her again in January 2005 and again after she turned thirteen years old, between five and ten times in all, sometimes in his car and sometimes in the trailer. The incidents involved both digital and penile penetration of N.M.'s vagina. The last sexual encounter occurred in May 2005, by which time N.M. was living with her father.

One incident in particular occurred on the afternoon of May 8, 2005, which was Mother's Day, when N.M. and Cindy Bickering, a family friend (sometimes referenced in the record as "Bickner"), went to the petitioner's home. The petitioner asked Bickering to go to a store to get some liquor. The petitioner and N.M. had sexual intercourse again during Bickering's absence. When Bickner returned, all three of them drank alcohol. N.M. went to sleep in the petitioner's bed. N.M. testified that she believed that the petitioner's mother came to his home that night.

The following morning, Bickering and N.M. went with the petitioner to Michigan City, Indiana and checked into a hotel. The petitioner and Bickering smoked crack cocaine before Bickering left. The petitioner again had sex with N.M. The three later returned to the petitioner's trailer in Michigan. The petitioner brought a jet-ski back to the trailer. The petitioner subsquently set the jet-ski on fire behind the trailer. The police and fire department were called to extinguish the fire. A police officer verified that this fire occurred on the evening of May 9.

N.M.'s father, Duane Maddox, testified that she left his house at about 6:00 p.m. on Mother's Day, and he did not hear from N.M. until the next morning. N.M. returned to his home on the following Tuesday afternoon. Although N.M. did not say anything, she looked tired, her hair was "ratty," and it appeared as though she had "had a rough time." Maddox took N.M. to the Child

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Advocacy Center, but she would not say anything about the petitioner. Before that, N.M. told her father she had been at Gary Johnson's house.

The petitioner was on electronic tether for another offense during May of 2005. The defense called Shelly Graham, a parole agent for the Department of Corrections, who testified about the tether records. Graham testified that the petitioner was authorized to leave his home on May 8 (Mother's Day) for work, and the records showed that he left his home several times that day. Graham was not able to verify through the records that the petitioner was actually at his job on either May 8 or May 9. The petitioner's employer testified that the petitioner could not have been at work on May 8 because their company did not operate on Sunday. The petitioner's employer did not know if the petitioner worked for him on May 9.

N.M. eventually reported the petitioner's sexual abuse to a teacher. She also reported the sexual incidents to her mother the same day, and later spoke to a forensic interviewer, Barbara Welke, at the Child Advocacy Center. Welke was permitted to give an opinion as an expert witness and explained that delayed or gradual disclosure of sexual abuse by minors was not uncommon.

Judy Dusoe testified that she noticed that the petitioner spent much more time with N.M. than with her other two daughters. Dusoe asked N.M. if there was more to it, but N.M. did not tell her anything about the sexual relationship. Dusoe also testified that in July 2005, N.M. apologized for stating that the petitioner had done something inappropriate to her. Dusoe said that Layla Lawson, the petitioner's cousin, was present when she heard this remark. The petitioner was present as well, and he denied that anything inappropriate was going on. N.M. did not remember this conversation.

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The petitioner's trial attorney impeached N.M. with several prior inconsistent statements. N.M. previously stated that she, the petitioner, and Bickering had gone to Michigan City on the same day that she and the petitioner had sex in the trailer, explaining that because the petitioner's mother had arrived, they had stayed at the hotel in Michigan City for a few days. However, in an interview with Welke, N.M. denied anything had happened and had actually fabricated an elaborate story of where she was over Mother's Day weekend. When N.M. finally told Welke what had happened, N.M. stated the reason she had not said anything earlier was her fear that her sisters would be taken away from her mother. N.M. had not been entirely consistent about the number of times she had sex with the petitioner in his car rather than in his trailer.

Charles Kotaska, an acquaintance of Judy Dusoe, testified for the defense. He stated that Dusoe had talked about framing the petitioner for criminal sexual conduct. Kotaska indicated that N.M. informed him that the petitioner had not done anything inappropriate to her. N.M. told Kotaska that she made the allegations for her mother's sake and had made similar allegations before to get the petitioner and Dusoe back together. N.M. denied making these remarks to Kotaska.

The jury convicted the petitioner of four counts of first-degree criminal sexual conduct, Mich. Comp. Laws § 750.520b(1)(a) and (1)(b)(i), and one count of third-degree criminal sexual conduct, Mich. Comp. Laws § 750.520d(1)(a). He was sentenced as a fourth felony habitual offender to concurrent prison terms of 30 to 62.5 years on each count of first-degree criminal sexual conduct, and 24 years, two months to 62.5 years for third-degree criminal sexual conduct. The petitioner's convictions were affirmed on direct appeal. People v.Cummings, No. 281545, 2009 WL 1352014 (Mich. Ct. App. May 14, 2009); lv. den. 485 Mich. 1074, 777 N.W.2d 154 (2010).

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On January 3, 2011, the petitioner filed a habeas petition, which was held in abeyance on May 6, 2011 so that the petitioner could return to the state courts to exhaust additional claims. He filed a post-conviction motion for relief from judgment in the state trial court, which was denied. People v. Cummings, No. 2006-406086-FC (Berrien County Circuit Court, June 23, 2011). The Michigan appellate courts denied the petitioner leave to appeal. People v. Cummings, No. 310944 (Mich. Ct. App. July 3, 2013); lv. den. 495 Mich. 934, 843 N.W.2d 206 (2014).

On August 11, 2014, the Court granted the petitioner's motion to lift the stay and permitted the petitioner to file an amended habeas petition, which raised the following claims:

I. Trial counsel was constitutionally ineffective in failing to challenge a biased juror for cause or removing with peremptory challenge.

II. The prosecution presented legally insufficient evidence that petition [sic] committed the offense thereby denying his right to due process under the federal and Michigan Constitutions and his conviction should be vacated.

III. Appellate counsel's refusal to provide an indigent petitioner with a copy of his transcripts of the trial court proceedings so as to allow the petitioner to fully and fairly exercise his right to file a pro per supplemental brief pursuant to admin. Order 2006-6, Std. 4, denies the petitioner his First Amendment right to access the courts, and his due process rights to a full and fair appeal of right.

IV. The petitioner was denied his Sixth Amendment right to effective assistance of counsel at trial where trials [sic] counsel's overall conduct fell below an objective standard or reasonableness.

V. The trial court violated petitioner's due process rights by denying petitioner's motion for appointment of substitute counsel where a conflict developed over fundamental trial tactics and defense counsel failed to subpoena exculpatory witnesses despite repeated demands from his client.

VI. The trial court abused its discretion, denied petitioner a fair trial, and denied petitioner his right to present a defense where the court prevented several defense witnesses from testifying stating that said witnesses violated the sequestration order.

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VII. Petitioner submits that he is entitled to resentencing without habitual offender sentence enhancement because he did not receive actual notice of a timely filed notice of sentence enhancement.

VIII. Defendant was prejudiced by testimony from a "forensic expert" that offered the jury her expert opinion of complaints [sic] credibility.

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