Hogan v. Horton

• Decision Date: 15 March 2022
• Docket Number: 2:19-CV-11682
• Court: U.S. District Court — Eastern District of Michigan
• Parties: JEFFREY HOGAN, #209327, Petitioner, v. CONNIE HORTON, Respondent.

JEFFREY HOGAN, #209327, Petitioner,
v.
CONNIE HORTON, Respondent.

No. 2:19-CV-11682

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

March 15, 2022

OPINION & ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, & DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

GEORGE CARAM STEEH UNITED STATES DISTRICT JUDGE

I. Introduction

Michigan prisoner Jeffrey Hogan (“petitioner”) has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 asserting that he is being held in violation of his constitutional rights. The petitioner was convicted of two counts of first-degree criminal sexual conduct, Mich. Comp. Laws § 750.520b(1)(c)(sexual penetration during the commission of another felony), following a jury trial in the Wayne County Circuit Court and was sentenced, as a fourth habitual offender, Mich. Comp. Laws § 769.12, to concurrent terms of 75 to 120 years imprisonment. In his pleadings, he

1

raises claims concerning the sufficiency of the evidence, the effectiveness of trial counsel, the admission of DNA evidence, and the validity of his sentence. For the reasons stated herein, the Court denies the petition for a writ of habeas corpus. The Court also denies a certificate of appealability and denies leave to proceed in forma pauperis on appeal.

II. Facts and Procedural History

The petitioner's convictions arise from his sexual assault of a woman in an alley in Detroit, Michigan in 2001. The Michigan Court of Appeals described the underlying facts, which are presumed correct on habeas review, see 28 U.S.C. § 2254(e)(1); Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009), as follows:

Defendant was convicted of sexually assaulting the female victim in an alley on the west side of Detroit on the night of June 11, 2001. As the victim was walking down a neighborhood street, defendant walked past her. Shortly thereafter, defendant approached the victim from behind grabbed her by the neck, and forced her into an alley Defendant told the victim not to scream, removed the victim's clothes, and ultimately forced his penis into her vagina and then her mouth. Defendant threatened to kill the victim before fleeing. The victim remained in the alley for some time before feeling safe to leave. Eventually, the victim reported the incident to the police, who transported her to a hospital where a sexual assault examination was performed. In 2015, defendant was identified as a suspect through the Combined Offender DNA Index System (“CODIS”). Forensic testing revealed that defendant was the major donor of DNA recovered from the victim's

2

vagina. The victim subsequently identified defendant in a photographic lineup and at trial.

In addition to the charged offenses, the prosecution presented evidence of two other incidents that occurred in 1996 and 1997, in which defendant assaulted two other women, VB and EM. VB testified at trial that, during the early morning hours on August 21, 1997, she was walking on a main street on the west side of Detroit when she met defendant. The two talked and walked together and eventually “cut through” an unfenced backyard. In that yard, defendant grabbed VB around the neck from behind and threw her to the ground. Defendant forced his penis into VB's vagina and instructed her to shut up. Before leaving, defendant told VB not to look at him. Forensic evidence introduced at trial indicated that defendant's DNA matched DNA found on VB after the assault.

EM informed the prosecutor that she would testify at trial. The prosecution noticed defendant that EM would testify that, on December 23, 1996, while she was on the west side of Detroit, defendant approached her from behind, grabbed her around her neck, and dragged her into a vacant house. There he made her put her hands against the wall, told her he would kill her if she moved, and forced her to undress. He then forced his penis into her anus and then her vagina. In its opening statement, the prosecution explained that EM would testify. The prosecution presented evidence that defendant's DNA matched DNA found on EM after she was sexually assaulted in 1996. When EM subsequently did not show for trial, defendant moved to instruct the jury, in accordance with M Crim JI 5.12, that it may infer that EM's testimony would have been unfavorable to the prosecution's case. According to defense counsel, this instruction was the “only way” to ensure defendant received a fair trial.

The trial court agreed and instructed the jury in accordance with M Crim JI 5.12. Nevertheless, the jury found defendant guilty of the charged offenses.

3

People v. Hogan, No. 332966, 2017 WL 4655215, *1-2 (Mich. Ct. App. Oct. 17, 2017) (unpublished, per curiam).

Following his convictions and sentencing, the petitioner filed an appeal of right with the Michigan Court of Appeals raising the same claims presented on habeas review. The court denied relief on those claims and affirmed his convictions and sentences. Id. at *2-5. The petitioner then filed an application for leave to appeal with the Michigan Supreme Court, which was denied. People v. Hogan, 503 Mich. 872, 917 N.W.2d 646 (2018).

The petitioner thereafter filed his federal habeas petition. He raises the following claims:

I. The prosecution failed to prove all the elements of kidnapping beyond a reasonable doubt and the elements of count two, which is entry into the victim's mouth (fellatio), never proven [be]cause the lab results are negative.

II. Trial counsel's performance fell below an objective standard of reasonableness [and was] ineffective. He introduced evidence on an element of the crime that the prosecutor had not introduced, therefore the prosecutor never proved the asportation element for the commission of kidnapping. In this case, it must be proven that [asportation] was for the purpose of a kidnapping and was not part of the crime of criminal sexual conduct. [It was] never proven.

4

III. Violation of the Confrontation Clause. DNA was admitted to the jury [but the] witness did not come to court.

IV. [He] is entitled to re-sentencing. They scored where no facts were admitted [and] offense variables went outside the guidelines.

The respondent has filed an answer to the petition contending that it should be denied.

III. Standard of Review

Federal law imposes the following standard of review for habeas cases:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -

(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 on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.

28 U.S.C. § 2254(d).

“A state court's decision is ‘contrary to' . . . clearly established law if it ‘applies a rule that contradicts the governing law set forth in [Supreme

5

Court cases]' or if it ‘confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [that] precedent.'” Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)); see also Bell v. Cone, 535 U.S. 685, 694 (2002).

“[T]he ‘unreasonable application' prong of § 2254(d)(1) permits a federal habeas court to ‘grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court but unreasonably applies that principle to the facts of petitioner's case.” Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at 413); see also Bell, 535 U.S. at 694. However, “[i]n order for a federal court find a state court's application of [Supreme Court] precedent ‘unreasonable,' the state court's decision must have been more than incorrect or erroneous. The state court's application must have been ‘objectively unreasonable.'” Wiggins, 539 U.S. at 520-21 (citations omitted); see also Williams, 529 U.S. at 409. “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)

6

(quoting Lindh, 521 U.S. at 333, n. 7; Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)).

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) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has emphasized “that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). Pursuant to § 2254(d), “a habeas court must determine what arguments or theories supported or ... could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision" of the Supreme Court. Id. Thus, in order to obtain habeas relief in federal court, a state prisoner must show that the state court's rejection of his claim “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id; see also White v. Woodall, 572 U.S. 415, 419-20 (2014). Federal judges “are...