Hansen v. Burton

• Decision Date: 27 September 2016
• Docket Number: Case No. 1:14-cv-124
• Parties: JEFFREY JOHN HANSEN, Petitioner, v. DeWAYNE BURTON, Respondent.
• Court: U.S. District Court — Western District of Michigan

JEFFREY JOHN HANSEN, Petitioner, v. DeWAYNE BURTON, Respondent.

Case No. 1:14-cv-124

UNITED STATES OF AMERICA UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

September 27, 2016

Honorable Paul L. Maloney

OPINION

This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C. § 2254. Promptly after the filing of a petition for habeas corpus, the Court must undertake a preliminary review of the petition to determine whether "it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court." Rule 4, RULES GOVERNING§2254 CASES; see 28 U.S.C. § 2243. If so, the petition must be summarily dismissed. Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court has the duty to "screen out" petitions that lack merit on their face). A dismissal under Rule 4 includes those petitions which raise legally frivolous claims, as well as those containing factual allegations that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999). After undertaking the review required by Rule 4, the Court concludes that the petition must be dismissed because it fails to raise a meritorious federal claim.

Factual Allegations

Petitioner Jeffery John Hansen presently is incarcerated at the Richard A. Handlon Correctional Facility in Ionia, Michigan. On March 26, 2010, a Kent County Circuit Court jury convicted Petitioner of several charges that had been consolidated for trial including possession of child sexually abusive material in violation of MICH. COMP. LAWS § 750.145(c)¹; using a computer to commit a crime in violation of MICH. COMP. LAWS § 752,797(3)(d); and two counts of first-degree criminal sexual conduct (victim under 13 years of age) in violation of MICH. COMP. LAWS § 750.520(1)(a).

The four charges did not all arise from one criminal incident. The two counts of first-degree criminal sexual conduct arose from an incident that occurred on or about June 19, 2009. The other two counts arose from the presence on Petitioner's computer and an external hard drive of child sexually abusive material. The presence of that material on Petitioner's computer and hard drive were not directly related to the criminal sexual conduct on June 19. The material was discovered, however, during the investigation of the June 19 crime.

The prosecutions of the criminal sexual conduct charges, on the one hand, and the child sexually abusive material charges, on the other hand, proceeded separately until February 12, 2010. On that date, the trial court granted the prosecution's motion to consolidate the two cases for trial.(Consolidation Hr'g Tr., PageID.120.)² The court found persuasive the prosecutor's argument that consolidation would cause no additional prejudice because MICH. COMP. LAWS § 768.27a³ would permit the introduction of evidence relating to the criminal sexual conduct charges in a separate trial on the child sexually abusive material charges, and vice-versa. (Id.) Petitioner's counsel recognized that separate trials would not avoid the jury hearing all the evidence anyway, so she posed no objection to the consolidation. (Id.)

The first witness at the consolidated trial was Petitioner's eight-year-old stepdaughter, Abigail. Abigail testified that one evening, while her mother was working, she and Petitioner were watching television. (Trial Tr. I, PageID.258, 261.) She testified that Petitioner "did sucks" to her by putting his penis and a purple toy in her butt. (Id., PageID.259.) Petitioner made her "pinky swear" not to tell anyone. (Id., PageID.258-59.) Nonetheless, Abigail told her grandmother, Petitioner's mother. (Id. PageID.260.) She later told her mother and her mother's friend Ashlee. (Id.)

Dr. Eugene Shatz, chief of adolescent medicine at Helen DeVos Children's Hospital, testified that he examined Abigail on July 1, 2009, at the Children's Assessment Center. (Id.,PageID.267.) Dr. Shatz was permitted to testify with regard to his personal observations, but also as an expert with regard to the physical and behavioral manifestations of child sexual abuse. (Id., PageID.266-67.) Dr. Shatz testified that given the medical history and his findings upon physical examination, Abigail's disclosure with regard to the events was consistent with the physical findings. (Id., PageID.269.) Petitioner's counsel also elicited from Dr. Shatz, however, that whether his physical examination found something or found nothing, it could confirm the child's story. (Id.) Dr. Shatz went so far as to say that the disclosure itself, if it is age-appropriate, is frequently the only part of the physical examination that confirms child sexual abuse. (Id.)

Abigail's mother, Petitioner's wife, Amanda Hansen testified that Abigail informed Amanda and Amanda's friend Ashlee what had happened between Abigail and the Petitioner. (Id., PageID.273.) The next day Amanda took Abigail to her pastor and then to Abigail's pediatrician's office. (Id., PageID.274-76.) She contacted Child Protective Services; a detective arrived at their home to investigate that same day. (Id., PageID.276-79.) The detective took several items from the home at that time. (Id.) He also later obtained Petitioner's computer and Blackberry from Amanda. (Id.)

Ashlee Norton, Amanda's friend, testified that she was present when Abigail disclosed the sexual abuse. (Id., PageID.286-87.)

Physician's assistant Jamie Noorman testified that she examined Abigail when Amanda brought her in to the pediatrician's office. (Trial Tr. III, PageID.330.) PA Noorman told Amanda "based on what Abigail had told [PA Noorman], [PA Noorman] felt that-very compelled that something had happened to her and that this needed to be reported to the police immediately." (Id., PageID.332.) PANoorman also testified that she was concerned for the safety of Abigail and Amanda if they were to return home and Petitioner were there. (Id.)

Michigan State Police Detective Sergeant Rebecca Macarthur conducted the forensic examination of Petitioner's laptop computer and external hard drive. (Trial Tr. III, PageID.309-10.) She testified that there were 11 images or movies on Petitioner's laptop that were child pornography. (Id., PageID.310.) She found 16 child-pornography movies on Petitioner's external hard drive. (Id., PageID.317.) Nine of the movies on the external hard drive were identical to movies on the laptop. (Id.) Detective Sergeant Macarthur's testimony made clear that the files were not in the computer or hard drive by accident; it took very purposeful action for them to exist in the locations they existed on the devices.

After the prosecution rested, and the court denied Petitioner's directed verdict motions, the trial court asked Petitioner if he wanted to testify or remain silent:

Court: All right, Mr. Hansen, we've arrived at the point in the trial where it's your turn to make your decision. Have you talked with Ms. Bryant about whether you want to testify in the case?

Def. Yes.

Court: You have an absolute right to take the witness stand and testify in your own defense if you want. Do you understand that?

Def.: Yes, I do.

Court: You also have an absolute right not to take the witness stand, and I will forcefully instruct the jury that they cannot consider your silence against you. Do you understand that?

Def.: Yes, I do.

Court: Which of those two choices would you like to make? Do you want to testify or remain silent?

Def.: Remain silent.

Court: Very well. Do you think you've had enough time to talk to Ms. Bryant about this decision?

Def.: Yes.

Court: And is this your decision that's being made here today? You're the one choosing to remain silent?

Def.: To be honest with you, I'm kind of flip-floppy about it. I wanted to make a statement, but, then again, I don't.

Court: Okay. Well, you obviously recognize that, if you chose to take the witness stand, you would be cross-examined, as well. You wouldn't be able to just simply stand up there and say whatever you want to say.

Def.: At this point in time, I do remain silent.

Court: Are you sure that's what you want to do?

Def.: Yes.

(Trial Tr. III, PageID.348.)

Between the last day of trial and the first date scheduled for sentencing, the Michigan Supreme Court decided Hill, 786 N.W.2d. at 601. In Hill, the Michigan Supreme Court considered whether downloading child sexually abusive material from the internet and copying it to a disc for personal use constituted the making or production of child sexually abusive material. The Hill court concluded it did not. Considering the entire statutory scheme, the court determined that "making" or "producing" child sexually abusive material meant originating such material. Id. at 608-09. The mere duplication that occurs when one downloads material from the internet and copies it to a disc for personal use, was properly charged as possession of child sexually abusive material. Id. at 603 ("Those who copy or duplicate existingprohibited images for personal use do not produce or make child sexually abusive material under MCL 750.145c(2); rather, they are only in possession of it.")

The parties knew this issue was before the Michigan Supreme Court at the time of Petitioner's trial. It was referenced several times. When the time came for preparation of final jury instructions, the trial court discussed the issue with the parties. (Trial Tr. III, PageID.347-48.) The court noted it was bound to follow the Court of Appeals decision in People v. Hill,715 N.W.2d 301 (Mich. Ct. App. 2006), which held that downloading child sexually abusive material from the internet and copying it to a disc constituted making or producing such material, even though it was possible that the Michigan Supreme Court's decision might alter the state of the law. (Id.) The trial court offered the parties the opportunity for an instruction on the lesser included offense of possession of child sexually abusive...