Freese v. Horton

• Decision Date: 13 February 2023
• Docket Number: 19-cv-10967
• Parties: James William Freese, Petitioner, v. Connie Horton, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

James William Freese, Petitioner,
v.
Connie Horton, Respondent.

No. 19-cv-10967

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

February 13, 2023

OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS, DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS

Judith E. Levy United States District Judge

Petitioner James William Freese, a prisoner currently incarcerated at the Central Michigan Correctional Facility, seeks a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner is challenging his Alpena County, Michigan, convictions on five counts of first-degree criminal sexual conduct. Mich. Comp. Laws § 750.520b(1)(b). He argues that his trial counsel was constitutionally ineffective because he failed to investigate and present expert witness testimony and failed to object to a significant sentencing variable.

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Because the Michigan Court of Appeals' decision denying these claims was not contrary to nor an unreasonable application of Supreme Court precedent, the petition for habeas corpus is denied. The Court also denies a certificate of appealability and grants Freese leave to proceed on appeal in forma pauperis.

I. Background

The Michigan Court of Appeals summarized Petitioner's case as follows:

This case arises from allegations that defendant sexually molested his two nieces, KS and TM, for many years beginning in the 1990s. Their disclosures of abuse came after a criminal investigation was initiated against defendant's son for sexually abusing KS's daughter. Both women testified extensively about repeated abuse at the hands of the defendant over several years commencing when each was around 12 years of age. Following a four-day trial, a jury found defendant guilty as charged of five counts of first-degree criminal sexual conduct

People v. Freese, No. 330251, 2017 WL 1488990, at *1 (Mich. Ct. App. Apr. 25, 2017) (per curiam), aff'd 501 Mich. 952 (Mem) (Jan. 3, 2018). Following his convictions, Petitioner received a sentence of 10 to 40 years for each count to be served concurrently, as well as lifetime electronic monitoring. Id. at *1.

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Petitioner filed a direct appeal by right. There, he attacked his convictions by arguing the trial court erred in declining to hold an evidentiary hearing before ruling on a motion for a new trial; that newly discovered evidence, in the form of a psychologist's expert opinion, merited a new trial; and that his trial counsel was ineffective for failing to investigate or present such an expert witness. Freese, 2017 WL 1488990, *1-*2.

Petitioner also raised a sentencing claim of error, that offense variable (“OV”) 6,^[1] which addressed the number of victims placed in danger by the offense, was improperly assessed against him. Finally, Petitioner raised an ineffective assistance of counsel claim related to his sentencing challenge, arguing that his attorney should have objected to the OV 6 score because multiple victims were not present when Petitioner committed each offense. While the court of appeals addressed whether OV 6 was incorrectly applied, Freese, 2017 WL 1488990, *3, it did not rule on or mention Petitioner's related ineffective assistance challenge. The state court of appeals affirmed Petitioner's convictions and sentence. Id.

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at *3. The Michigan Supreme Court affirmed the appeals court's decision in a standard form order. People v. Freese, 501 Mich. 952.

Petitioner filed this timely petition for a writ of habeas corpus through his attorney, raising two issues:

1. that his trial counsel was ineffective for failing to investigate or present an expert on human sexuality, which was necessary for the defense under the facts of this case; and

2. that his trial counsel was ineffective for failing to object to a significant sentencing variable, which resulted in the erroneous inflation of the sentencing range applied to Petitioner's sentence.

II. Legal Standard

A § 2254 habeas petition is governed by the heightened standard of review set forth in the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”). 28 U.S.C. § 2254. To obtain relief, habeas petitioners who raise claims previously adjudicated by state courts must “show that the relevant state-court ‘decision' (1) ‘was contrary to, or involved an unreasonable application of, clearly established Federal law,' or (2) ‘was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.'” Wilson v. Sellers, 138 S.Ct. 1188, 1191 (2018) (quoting 28 U.S.C. § 2254(d)). The focus of this standard “is not whether a federal court believes the state court's

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determination was incorrect but whether that determination was unreasonable-a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007). “AEDPA thus imposes a highly deferential standard for evaluating state-court rulings and demands that state-court decisions be given the benefit of the doubt.” Renico v. Lett, 559 U.S. 766, 773 (2010) (internal citations and quotation marks omitted).

Ultimately, “[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) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). A state court's factual determinations are presumed correct on federal habeas review, 28 U.S.C. § 2254(e)(1), and review is “limited to the record that was before the state court.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

However, “the stringent requirements of § 2254(d) apply only to claims that were ‘adjudicated on the merits in State court proceedings.'” Bies v. Sheldon, 775 F.3d 386, 395 (6th Cir. 2014) (citing Cullen, 563 U.S. at 181). If the state court did not adjudicate a claim on the merits, the Court may examine the issue de novo. Rompilla v. Beard, 545 U.S. 374,390 (2005)

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(citing Wiggins v. Smith, 539 U.S. 510, 534 (2003); see also Bies, 775 F.3d at 395 (citing Cullen, 563 U.S. at 182; Robinson v. Howes, 663 F.3d 819, 822-23 (6th Cir. 2011)). In other words, under those circumstances, “the deferential standard of review mandated by the AEDPA does not apply.” Higgins v. Renico, 470 F.3d 624, 630-31 (6th Cir. 2006).

III. Discussion

A. Failure to Investigate or Present Expert Witness

Petitioner argues two theories of ineffective assistance of trial counsel in his petition. His first is that counsel failed to investigate and present a psychologist as an expert witness at trial. Freese, 2017 WL 1488990, at *2. The state court held that the defense “had ‘a well-reasoned and conventional defense' attacking the credibility of the complaining witnesses[]” without an expert, and therefore the failure to procure one was strategic. Id. The court declined to “substitute its judgment” for counsel's on the issue of trial strategy. Id. It rejected the ineffective assistance challenge because calling an expert “regarding ‘typical' behaviors of either victims or perpetrators would not have

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altered the outcome of the trial”; hence, Petitioner did not show he was prejudiced by counsel's failure. Id.

Claims for habeas relief based on ineffective assistance of counsel are evaluated under a “doubly deferential” standard. Abby v. Howe, 742 F.3d 221, 226 (6th Cir. 2014) (citing Burt v. Titlow, 571 U.S. 12, 15 (2013)). The first layer of deference is the familiar deficient performance plus prejudice standard of Strickland v. Washington, 466 U.S. 668, 68788 (1984). That is, a habeas petitioner must show “that counsel's representation fell below an objective standard of reasonableness[,]” and “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Lafler v. Cooper, 566 U.S. 156, 163 (2012) (citations omitted). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Williams v. Lafler, 494 Fed.Appx. 526, 532 (6th Cir. 2012) (per curiam) (quoting Strickland, 466 U.S. at 694)). Strickland requires a “‘strong presumption that counsel's conduct [fell] within the wide range of reasonable professional assistance.'” Abby, 742 F.3d at 226 (citing Strickland, 466 U.S. at 689).

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AEDPA provides the second layer of deference, under which a federal habeas court may “examine only whether the state court was reasonable in its determination that counsel's performance was adequate.” Abby, 742 F.3d at 226 (citing Burt, 134 S.Ct. at 18). “The pivotal question is whether the state court's application of the Strickland standard was unreasonable,” which “is different from asking...