Kares v. Horton

• Decision Date: 23 April 2021
• Docket Number: 2:19-cv-7
• Citation: Kares v. Horton, 2:19-cv-7 (W.D. Mich. Apr 23, 2021)
• Parties: Stephen John Kares, Petitioner, v. Connie Horton, Respondent.
• Court: U.S. District Court — Western District of Michigan

Stephen John Kares, Petitioner, v. Connie Horton, Respondent.

No. 2:19-cv-7

United States District Court, W.D. Michigan, Northern Division

April 23, 2021

Honorable Hala Y. Jarbou Judge

REPORT AND RECOMMENDATION

Maarten Vermaat United States Magistrate Judge

This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254.PetitionerStephen John Kares is incarcerated with the Michigan Department of Corrections at the Lakeland Correctional Facility (LCF) in Coldwater, Branch County, Michigan.On August 30, 2012, following a three-day bench trial in the Shiawassee County Circuit CourtPetitioner was convicted of third-degree criminal sexual conduct (CSC-III), in violation of Mich. Comp. Laws § 750.520d.On September 29, 2012, the court sentenced Petitioner as a fourth habitual offender, Mich. Comp. Laws § 769.12, to a prison term of 25 years to 58 years, 4 months, to be served consecutively to a sentence for assault for which Petitioner was on parole when he committed the CSC-III offense.

Petitioner filed his habeas corpus petition in this Court on or around December 21, 2018.Under Sixth Circuit precedent, the application is deemed filed when handed to prison authorities for mailing to the federal court.Cook v. Stegall, 295 F.3d 517, 521(6th Cir.2002).Petitioner signed his application on December 21, 2018.(Pet., ECF No. 1, PageID.9.)The petition was received by the Court on January 9, 2019.For purposes of this Report and Recommendation, I have given Petitioner the benefit of the earliest possible filing date.SeeBrand v. Motley, 526 F.3d 921, 925(6th Cir.2008)(holding that the date the prisoner signs the document is deemed under Sixth Circuit law to be the date of handing to officials)(citingGoins v. Saunders, 206 Fed.Appx. 497, 498 n.1(6th Cir.2006)).

The petition raises eleven grounds for relief, as follows:

I.Petitioner was denied his due process right to a fair trial by the admission of hearsay evidence over a defense objection.

II.Trial court applied inaccurate information and engaged in judicial fact finding to increase Petitioner's sentence.

III.Petitioner was denied his due process rights by the trial court giving an improper lesser offense instruction.

IV.Petitioner was denied his constitutional right to due process and equal protection by the State of Michigan ruling“good cause” and “actual prejudice” were not demonstrated.

V.Petitioner was denied a fair trial by the prosecutor misrepresenting DNA evidence to the jury.

VI.Petitioner was denied his due process rights by the prosecutor suppressing exculpatory evidence in its possession.

VII.Petitioner was denied his due process right to a fair trial by the prosecution failing to produce endorsed res gestae witnesses at trial.

VIII.Petitioner was denied his due process right to adequate notice to seek a sentence enhancement.

IX.Trial counsel was ineffective for failing to conduct an adequate investigation and present a complete defense.

X.Appellate counsel was ineffective by failing to raise meritorious issues on direct appeal resulting in prejudice to Petitioner's appeal.

XI.Petitioner was deprived of his right to equal protection when he was denied testing of forensic evidence.

(Am. Pet., ECF No. 10, PageID.135-150.)^[1]Respondent has filed an answer to the petition (ECF No. 20) stating that the grounds should be denied because the petition is untimely most of the grounds are procedurally defaulted, several of the grounds are not cognizable on habeas review, and all of the grounds are meritless.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 conclude that the petition is untimely.Nonetheless, because that conclusion depends upon resolution of an issue of first impression in this district and circuit-whether or not a motion seeking DNA testing under Mich. Comp. Laws § 770.16 is a petition for collateral review that tolls the running of the period of limitation-and because that is a question upon which reasonable minds could certainly differ, I have also considered the merits of the grounds raised.I further conclude that Petitioner's habeas grounds are either procedurally defaulted or meritless or both.Accordingly, I recommend that the petition be denied.

Discussion

I.Factual allegations

The Michigan Court of Appeals summarized the testimony elicited at trial as follows:

Defendant knew the 16 year old victim because he dated her mother, and the victim had been over to his apartment on a number of occasions.On the day of the assault, defendant texted the victim and offered to pay her money if she would clean his horse saddle.Later that day, defendant texted the victim that he would be home soon, he bought her a pack of cigarettes (as he had done in the past), and he purchased a gift for her from Goodwill.

The victim asked a friend to drive her to defendant's apartment.When she arrived, defendant showed her the saddle, but said that she did not need to clean it right away.The victim and defendant were talking and smoking a cigarette in the living room when he offered to help her get emancipated, which is something they had talked about before.Defendant also gave her the gift from Goodwill, which was a pair of earrings.

The victim cleaned the saddle, and defendant eventually went into his bedroom.Defendant then asked the victim if a pair of pants in the bedroom were hers, which prompted the victim to walk toward the bedroom.Defendant then told the victim that they needed to talk, and closed the bedroom door.He then caressed her face, and the victim told him no.Because the victim began to whimper and shake, defendant said “stop, don't make me hurt you.”Defendant then kissed the victim and said “what do you think I'm doing this for?What do you think I'm doing all this for you for?”The victim knew that he was referring to the emancipation offer and the purchase of cigarettes.

Defendant told the victim to walk over by the bed and take her clothes off, which she did.He then grabbed a camera, took his pants off, and told the victim to lie down on the bed.When she complied, he opened her legs, spread open her vaginal area to take a picture, and told her that if she told anyone he would distribute the photographs everywhere.He then ordered her to sit up, and forced her to perform oral sex on him.He next ordered her to lie down on the bed, and he inserted his penis into her vagina.

Defendant eventually stood up and put his pants back on.The victim got dressed but did not run because she was afraid he would catch her.Defendant said that he thought she would be more into it, and asked if she had sex before.They eventually proceeded back into the living room, and the food defendant ordered earlier arrived.While the victim went back to cleaning the saddle, she felt threatened because defendant told her that he did not want the police showing up at his door.The victim's friend arrived to pick her up, and the victim told defendant not to worry that she would not tell.

However, after driving away, the victim told her friend, and eventually her mother, that defendant raped her.She had a rape kit examination performed, and a sexual-assault nurse testified that the victim relayed to her what happened.Thus, the nurse conducted a full body assessment of the victim, including a detailed genital assessment.She obtained a urine sample to check for infection or prior pregnancy, and provided the victim with medications to prevent pregnancy and infection.The nurse testified that near the victim's anus she observed a half-millimeter tear that could be consistent with forced or consensual sexual contact.She also collected various samples, including a sample of a white substance at the victim's cervix and a vaginal swab.An employee at the Michigan State Police Forensic Science Division testified that the anal and cervical swabs were tested and resulted in a match to defendant's DNA.¹

Defendant testified at trial, and while he admitted that the victim came over to his apartment to clean the saddle, he claimed that no sexual contact occurred, and he did not know why the victim accused him of such.He testified that he had sexual intercourse with a different woman three or four days before, and had disposed of a vaginal condom in the trash.

¹Defendant questioned the prosecution's witnesses regarding the nurse's report, which did not show a check mark that anal swabs or vaginal smears were collected.

(Mich. Ct. App. Op., ECF No. 21-12, PageID.1073-1074.)Petitioner does not challenge the court of appeals' recounting of the trial testimony.Indeed, Petitioner's statements of the facts in his state court briefs are more detailed, but generally consistent with the account provided by the appellate court.The undersigned will provide additional detail regarding the trial testimony where it is relevant to an analysis of the issues Petitioner has raised.

The prosecutor charged Petitioner with two counts of first-degree criminal sexual conduct (CSC-I), one count for Petitioner's penetration of the victim's vagina with his penis and one count for Petitioner's penetration of the victim's mouth with his penis.The CSC-I statute identifies several circumstances where sexual penetration rises to the level of a first-degree offense.The prosecutor relied on the following circumstance:

A person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual penetration with another person and . . . [t]he actor causes personal injury to the victim and force or coercion is used to accomplish sexual penetration.

Mich. Comp. Laws § 750.520b.^[2]

Petitioner's counsel requested that the jury also be instructed with...