Fuller v. Lafler
| Decision Date | 12 October 2011 |
| Docket Number | Case No. 08–12684. |
| Citation | 826 F.Supp.2d 1040 |
| Parties | J.D. FULLER, Petitioner, v. Blaine LAFLER, Respondent. |
| Court | U.S. District Court — Eastern District of Michigan |
OPINION TEXT STARTS HERE
J.D. Fuller, Kincheloe, MI, pro se.
John S. Pallas, Michigan Department of Attorney General, Lansing, MI, for Respondent.
Petitioner J.D. Fuller, presently confined at the Michigan Department of Corrections's Chippewa Correctional Facility in Kincheloe, Michigan, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 to challenge his 2003 convictions of seven counts of first-degree criminal sexual conduct (CSC I) and two counts of second-degree criminal sexual conduct (CSC II), involving his granddaughters, who were age ten and six at the time of the incidents. He offers several reasons why his convictions and sentences are unconstitutional, including prosecutorial misconduct, insufficient evidence, improper admission of “other acts” evidence, ineffective assistance of trial and appellate counsel, and improper sentencing. But his main contention is that his right to confront his accuser guaranteed by the Sixth Amendment was abridged when he was not allowed to cross-examine his older granddaughter about her other sexual experiences to show where she might have acquired knowledge of the graphic sexual acts committed by the petitioner that she described in her testimony. The petitioner exhausted all of these claims in the state court either on direct appeal or post-conviction motion. The respondent contends that the petition was filed out of time, many of the claims are barred because the petitioner did not raise them first on direct appeal, and none of the claims has merit. The Court is unimpressed with the respondent's procedural defenses, but it does believe that the convictions and sentences are constitutionally sound. Therefore, the Court will deny the petition.
The criminal charges stem from incidents that occurred between January 2002 and May 2003. The petitioner was the senior pastor at a church in Ypsilanti, Michigan. The victims in this case were his granddaughters, SP, aged ten, and YH, aged six. They stayed in his home in Detroit for several days at a time while their mother worked. Three of the CSC I convictions and one of the CSC II convictions pertained to the younger granddaughter, YH, and involved incidents of digital penetration. The other four CSC I convictions and one CSC II conviction involve the older granddaughter, SP, and result from three incidents of fellatio and one incident of digital penetration.
Because the petitioner's claims include allegations of insufficient evidence and possible fabrication of information by one of the children, the trial evidence will be described in detail. The state's allegations focused on activities that occurred in the petitioner's home. Darlene Fuller, the petitioner's wife, testified that the petitioner was the girls' primary care-giver, picking them up from school, feeding them, washing their clothes, buying them clothes when they did not have adequate clothing, taking them to church, and participating in other activities while their mother worked. She said there were occasions when SP lied to get Mrs. Fuller in trouble, but she left it to the petitioner to handle the situation. Both girls and their brother often spent the night or the weekend at their home. Mrs. Fuller testified that from 1999 to 2001, the girls and their parents lived with them.
Mrs. Fuller further testified that a nightstand on the petitioner's side of the bed contained a drawer that held some body oil, K–Y jelly, body syrup, papers, and an old telephone. She said that sometime in 2002, she caught SP with the K–Y jelly. Mrs. Fuller used the body oil on herself and the children when their skin was “ashy.” Mrs. Fuller testified that the only pornography in the house was a gag tape the couple received as a wedding gift that was kept in that same drawer. She also said that different types of body lotions were kept in the downstairs linen closet.
Mrs. Fuller testified about a time when SP complained about itching; she had a small rash on her inner upper thighs. She said she showed SP how to apply ointment to the rash. Although YH did not have a rash, Mrs. Fuller said she insisted that ointment be put on her legs, too. Mrs. Fuller said the petitioner never applied the ointment to the girls.
Mrs. Fuller also testified that the petitioner had old surgical scars on the outside of both upper thighs, which were not visible even if he wore shorts. The scars were the result of bilateral hip-replacement surgery. She said the petitioner had shown the scars to SP because she wanted to see them. The petitioner suffered pain from his hip surgery and at times walked with a cane and took medication to ease the pain. She testified that his surgery had a negative impact on their sex life.
Jannetta Hephzibah, the girls' mother and the petitioner's biological daughter, testified that she needed child-care assistance because she worked late nights at her job; her mother kept her children during the week and the petitioner kept them on weekends. She said sometimes her brother also would watch them. Hephzibah testified that she felt comfortable leaving her children with the petitioner, and neither child ever told her that they felt uncomfortable around him. Hephzibah confirmed that she, her husband, and the children lived with the petitioner and his wife for about four months.
YH, the younger child, testified that she did not know how many times she spent the night at the petitioner's house, but it was “a lot of times” when she was about five or six years old. She said both SP and her brother also spent the night.
YH testified that the petitioner and his wife did fun things with her, but she said that when she was six years old, the petitioner did something to her that he should not have done. YH described an incident in the TV room when the petitioner got on the couch with her, pulled her onto his lap, put the covers over her, and put his hands into her pants. She said she could feel the petitioner's hand moving around, touching her “private part,” which she defined as the “part” girls used to go to the bathroom. She said he did that to her more than three different times.
YH testified that besides putting his hand on her private part, the petitioner sometimes put cream on his finger and then put it on her private part. She also testified that sometimes the petitioner put oil on a cotton ball and rubbed it around on her private part. She said those incidents also occurred in the TV room. YH testified that her sister and brother were in the room when the petitioner did those things to her. She said sometimes it happened during the day and other times it happened at night.
YH also testified that the petitioner did the same thing to her “bottom” that he did to her “private.” She said he put his finger on her bottom and moved it around, but she was not sure which part of her bottom the petitioner's finger touched. She said he did not make her do anything to his body. She never saw his private part and did not know if he had any scars. She never saw him without any clothes. YH said she never witnessed the petitioner doing anything to her brother.
YH also said that after each incident, the petitioner told her that she could not tell anyone, and, if she did, then he would “whop” her. Even though she did not believe that he would “whop” her, she did not tell anyone. The first person she told was her twelve-year-old cousin. The cousin told her to tell her mother. She said she and SP then told their mother about what the petitioner has done. YH further testified that their mother did not believe them at first, but “when we told her the rest of the story, she believed us.” Trial Tr., Sept. 16, 2003, at 231.
The girls' mother then took them to their grandmother's house and the girls told the grandmother what happened. Their grandmother told their uncle. The petitioner then came over to the house and their mother told him what the girls said he did to them. When the petitioner heard the story, he denied it happened. YH said she also told the police, the doctor who examined her at the hospital, and to a lady at “Kid's Talk” what happened. YH testified that she did not tell anyone right away because she was scared that “my mama was going to whop us because my grandfather is my mom's father.” Trial Tr., Sept. 16, 2003, at 213–14.
SP, the older child, testified that the petitioner once showed her a scary vampire movie she had selected and a “black tape” he kept in his bedroom. She testified that on the “black tape” she saw naked people “doing nasty stuff,” such as taking off their clothes, kissing, and touching each other's bodies and “making love” using their “private parts.” Trial Tr., Sept. 17, 2003, at 40–42. SP said that once, after seeing the movie, she screamed and her sister came upstairs. She said the petitioner took the movie out of the video player. The “vampire movie” was a “regular movie” with “parts we weren't supposed to see” that was rated PG–13. Trial Tr., Sept. 17, 2003, at 44–45.
SP further testified that when she was ten years old, the petitioner told her to get a white bottle with cherries from a drawer in the bedroom. After she brought the bottle back to him, he put some of it on his “private part” and “made” her “suck” it off. Trial Tr., Sept. 17, 2003, at 55–56. She said the petitioner would make noises and breathe “like he's out of breath or something.” She testified that the petitioner's “private part” went into her mouth and sometimes white stuff that tasted sour and sweet came out of his “pee hole.” Trial Tr., Sept. 17, 2003, at 57–58. She said after it was over, the petitioner would tell her that he loved her and would put his private part back into his pants. SP testified that she went into the...
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