Howell v. Parish

• Decision Date: 04 March 2021
• Docket Number: Case No. 1:19-cv-446
• Parties: JOHN ANDREW HOWELL, Petitioner, v. LES PARISH, Respondent.
• Court: U.S. District Court — Western District of Michigan

JOHN ANDREW HOWELL, Petitioner, v. LES PARISH, Respondent.

Case No. 1:19-cv-446

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

March 4, 2021

Honorable Robert J. Jonker

REPORT AND RECOMMENDATION

This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. When Petitioner John Andrew Howell filed his petition, he was incarcerated with the Michigan Department of Corrections at the Oaks Correctional Facility (ECF) in Manistee, Manistee County, Michigan. He has since been released on parole. See https://mdocweb.state.mi.us/otis2/otis2profile.aspx?mdocNumber=927313 (visited March 4, 2021). On March 3, 2014, following a four-day jury trial in the Chippewa County Circuit Court, Petitioner was convicted of first-degree criminal sexual conduct (CSC-I), in violation of Mich. Comp. Laws § 750.520b, and indecent exposure, in violation of Mich. Comp. Laws § 750.335a. On September 5, 2014, the court sentenced Petitioner to concurrent prison terms of 5 years, 10 months to 50 years for CSC-I and 365 days for indecent exposure.

On June 5, 2019, Petitioner timely filed his habeas corpus petition raising three grounds for relief, as follows:

I. The trial judge reversibly erred and violated Mr. Howell's due process rights by allowing Detective Harp to testify regarding "delayed disclosure." In the alternative, trial counsel was ineffective for failing to object to Detective Harp's testimony and for failing to call an expert to consult with and testify to rebut this erroneous testimony.

II. The prosecution violated Mr. Howell's right to due process and a fair trial when it failed to disclose exculpatory and impeachment evidence related to two key prosecution witnesses. Alternatively, trial counsel was ineffective for failing to investigate these witnesses.

III. The prosecutor violated Mr. Howell's due process rights during closing argument by making an improper civic duty argument, vouching for the complainant's credibility, and by improperly shifting the burden of proof. Alternatively trial counsel was constitutionally ineffective for failing to object to the prosecutor's improper argument.

(Pet'r's Br., ECF No. 2, PageID.26.) Respondent has filed an answer to the petition (ECF No. 6) stating that the grounds should be denied because they are non-cognizable, procedurally defaulted, meritless, or any error was harmless. Upon review and applying the standards of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (AEDPA), I find that the grounds are meritless. Accordingly, I recommend that the petition be denied.

Discussion

I. Factual allegations

The Michigan Court of Appeals described the facts underlying Petitioner's convictions as follows:

Defendant was accused of having sexual relations with complainant and attempting to have sexual relations with another adolescent, BH, a charge for which he was acquitted, while he was a middle school teacher at the school complainant and BH attended. Defendant was also accused of indecent exposure for having pulled down his pants in front of adolescents HC, MV and ML one New Year's Eve. There was testimony indicating that complainant, HC, MV and BH would spend time at defendant's home, as they were all friends with ML, the daughter of the woman with whom defendant had a relationship. (Hereinafter referred to as "the mother"). According to testimony at trial, defendant would provide the girls with alcohol and marijuana. Testimony also revealed that defendant drank alcohol and smoked marijuana with the girls on at least one occasion, and had four of the adolescents in his car on one occasion when he purchased and sold marijuana.

BH testified that on one occasion defendant inappropriately asked her if she "would suck his dick." She further stated that she drank alcohol that he provided, that she had seen him intoxicated and involved with marijuana, and that she had smoked marijuana in his car. She testified that on another occasion he drew "I want you" on her shoulder, and that on yet another occasion he "was really drunk and he took all his clothes off" in front of her and ML.

Complainant testified that defendant acted "[i]n a more sexual way" with her compared to how he treated the other girls. She testified she had an addiction to marijuana, that defendant gave her money to buy marijuana, and that she had purchased marijuana for him before. Complainant testified that on a date she could not recall, defendant had been drinking alcohol and kissed her on the lips, and that she and defendant had sex that night. She testified that prior to sex, defendant had given her alcohol and he then awakened her after she had gone to sleep in the living room with ML and MV, saying that he wanted to talk about "how cool I am and how he liked me." She testified that they went to the bedroom, that defendant and another man in the bedroom named "Key" asked her "to strip" and then all three did so, and that she was then bent over the bed and defendant "stuck his penis" in her vaginawhile Key put his penis in her mouth. She testified, "I let it go on for a few more minutes and then I told them to stop—that I wanted to go outside." Complainant did not tell anyone about the incident right away and stated that when it happened she "didn't care" because "I didn't have enough respect for myself."

Complainant met with Detective Tom Swanson on February 22, 2013 and told him that nothing inappropriate happened involving defendant and another male. However, Detective Darrell Harp interviewed complainant in June 2013 and she told him that she had sexual intercourse with defendant. While testifying, Harp referred to complainant's late reporting as "delayed disclosure," explaining that he had been trained regarding victims involved in sexual assaults "[a]nd the sensitivity of the acts themselves," and stated that "[i]t's hard for them to come out with that. The late reporting is common and I've experienced that with prior complaints." Harp testified that complainant presented as a case of "delayed exposure [sic]", consistent with what Harp had seen before.

At trial, defendant denied engaging in any inappropriate conduct with complainant and BH, and also denied that he had provided alcohol or marijuana for the girls. He explained that on New Year's Eve, he was drunk and "mooned" his girlfriend, directing the "mooning" at her specifically because she had made a funny or joking comment. He denied that the "mooning" was directed at the girls. Defendant admitted that "some of the kids" had seen him in an intoxicated state and that it was inappropriate. He denied taking any minor girls to hang out with him in his car.

(Mich. Ct. App. Op., ECF No. 7-20, PageID.1323-1324.) "The facts as recited by the Michigan Court of Appeals are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1)." Shimel v. Warren, 838 F.3d 685, 688 (6th Cir. 2016). Although Petitioner denies that the events described by the other witnesses occurred, his habeas challenges do not call into question the accuracy of the appellate court's description of the testimony.

Petitioner was initially charged with eleven crimes: one count of CSC-I, four counts of accosting a child for immoral purposes, four counts of furnishing alcohol to a minor, and two counts of indecent exposure. Only three counts—the CSC-I count, one count of accosting a child, and one count of indecent exposure—were put before the jury. The Chippewa County Circuit Court Register of Actions indicates that the other eight counts were "NOP," dismissed by an Order of Nolle Prosequi. (ECF No. 7-20, PageID.1342.) The trial court record does not reflect the circumstances that prompted the dismissal.

The jurors began deliberations on the morning of March 3, 2014. They returned their verdict that afternoon. The jury found Petitioner guilty of CSC-I and indecent exposure, and not guilty of accosting a child for immoral purposes.

After the verdict, but before sentencing, Petitioner filed a motion for new trial. (New Trial Mot. I Hr'g Tr., ECF No. 7-19.) After sentencing, Petitioner filed another new trial motion and, in connection with that motion, the court conducted a Ginther hearing.¹ (New Trial Mot. II Hr'g Tr., ECF No. 7-13; Ginther Hr'g Tr., ECF No. 7-14.) The court denied both motions.

Petitioner appealed his convictions to the Michigan Court of Appeals, raising the same issues he raises in his habeas petition. (Pet'r's Appeal Br., ECF No. 7-20, PageID.1446.) By opinion issued July 13, 2017, the Michigan Court of Appealsrejected Petitioner's challenges and affirmed the trial court. (Mich. Ct. App. Op., ECF No. 7-20, PageID.1323-1335.)

Petitioner filed an application for leave to appeal to the Michigan Supreme Court raising the same issues he raised in the court of appeals. (Appl. for Leave to Appeal, ECF No. 7-21, PageID.1551.) By order entered April 3, 2018, the Michigan Supreme Court denied leave to appeal. (Mich. Order, ECF No. 7-21, PageID.1549.)

II. AEDPA standard

The AEDPA "prevent[s] federal habeas 'retrials'" and ensures that state court convictions are given effect to the extent possible under the law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). An application for writ of habeas corpus on behalf of a person who is incarcerated pursuant to a state conviction cannot be granted with respect to any claim that was adjudicated on the merits in state court unless the adjudication: "(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 upon an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." 28 U.S.C. § 2254(d). "Under these rules, [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 th...