Maarten Vermaat United States Magistrate Judge
This is
a habeas corpus action brought by a state prisoner under 28
U.S.C. § 2254. Petitioner Stephen 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 Court
Petitioner 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.
See Brand 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) (citing Goins 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.
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.
1 Defendant 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...
