Major-Lang v. Skipper, Case No. 1:21-cv-191

• Decision Date: 05 March 2021
• Docket Number: Case No. 1:21-cv-191
• Parties: JERMAINE MAJOR-LANG, Petitioner, v. G. SKIPPER, Respondent.
• Court: U.S. District Court — Western District of Michigan

JERMAINE MAJOR-LANG, Petitioner, v. G. SKIPPER, Respondent.

Case No. 1:21-cv-191

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

March 5, 2021

Honorable Janet T. Neff

OPINION

This is a habeas corpus action brought by a state prisoner under 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.

Discussion

I. Factual allegations

Petitioner Jermaine Major-Lang is incarcerated with the Michigan Department of Corrections at the Michigan Reformatory (RMI) in Ionia, Ionia County, Michigan. On December 8, 2017, following a three-day jury trial in the Muskegon County Circuit Court, Petitioner was convicted of first-degree child abuse, in violation of Mich. Comp. Laws § 750.136b(2), assault with intent to commit murder (AWIM), in violation of Mich. Comp. Laws § 750.83, and use of a firearm during the commission of a felony (felony-firearm), in violation of Mich. Comp. Laws § 750.227b. On February 14, 2018, the court sentenced Petitioner as a third habitual offender, Mich. Comp. Laws § 769.11, to concurrent sentences of 21 to 43 years for first-degree child abuse and 26 to 45 years for AWIM. Those sentences were to be served consecutively to a sentence of 2 years for felony-firearm.

The Court received the petition on February 26, 2021. 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 placed his petition in the prison mailing system on February 8, 2021. (Pet., ECF No. 1, PageID.22.) The petition is timely.

The petition raises four grounds for relief, as follows:

I. Deprived of my right to a fair trial when court allowed [the admission of testimony regarding] un-related and un-reported instance of domestic [violence despite] the prosecution[']s failure to give proper notice in advance of trial.

II. Being deprived of my . . . state and federal right to effective assistance of counsel [because] my trial attorney . . . failed to investigate and have a[n]expert witness to dispute the prosecutor[']s medical examiner, being that was a vital part of my defense.

III. Abuse of discretion/denied a right to a fair trial by trial judge. When the prior bad acts were brought up[,] Judge Hicks really insinuated the MCL for the prosecutor, because the prosecutor was unsure of which way to approach the incident[,] he was still going [through] MCL during the course of the trial before Judge Hicks gave him the route to take.

IV. Procedural due process. In the child abuse charge in all documents including warrants, indictment, pre-sentence investigation report, complaint felony, it does not inform me on the nature of the crime, not telling me what I [am] suppose[d] to have done, only describing the MCL 750.136b(2)—"did knowingly or intentionally cause serious physical harm to a child."

(Pet., ECF No. 1, PageID.6, 10, 13-14.)

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

This case stems from allegations that defendant caused injuries to Nicole Taylor's daughter, LH, and subsequently shot Taylor in the leg in an attempt to kill Taylor.

Taylor was defendant's girlfriend. Defendant lived with Taylor at her apartment, along with the couple's three-month-old daughter and 18-month-old LH. Although defendant was not LH's father, Taylor indicated that defendant treated her like his daughter. Taylor testified that on November 3, 2016, she left the children in defendant's care for eight hours while she went to work. Nobody else was in the apartment when she left. While she was gone, Taylor communicated with defendant via cell phone. During these calls, defendant indicated that he "had whupped" LH because she spilled something. Defendant sounded calm, so Taylor assumed that it was a minor discipline incident. Defendant left when Taylor returned home. Taylor checked on LH and found her shaking and with blood in her diaper. Taylor texted defendant and told him that they needed to take LH to the hospital because of concerns regarding a urinary tract infection. However, Taylor also saw that LH was bruised in the stomach. When defendant returned to the apartment, he suggested waiting a few days because she had bruises and he thought that people at the hospital might find that suspicious.

Taylor texted her mother and requested that she call 911. The police arrived, and LH was transported to the hospital where she was examined. LH was subsequently transferred to DeVos Children's Hospital where she underwentfurther testing. Taylor testified that she was told that LH's hymen was torn but that there was no proof of penetration, that LH had two spinal fractures, and that LH's bruises were fresh. Although Taylor acknowledged that LH already had a "scratch" on her face from a fall at church one or two days previously, Taylor indicated that the other injuries were new. Taylor did not see this fall because LH had been taken to church by her relatives.

Taylor and LH returned home about 4:00 or 5:00 p.m. on November 4, 2016. At some point thereafter, defendant arrived at the apartment. Taylor testified that defendant pulled out his gun, shot the floor of the living room, pointed the gun at her, and told her to sit down. Taylor had her three-month old daughter in her arms. The gun jammed, and defendant fixed it. Defendant made a number of statements blaming Taylor for calling the police about LH. Taylor's mother arrived outside the apartment as this commotion was unfolding and called the police. Taylor testified that defendant told her that everyone in the house was going to die except for their three-month-old daughter. According to Taylor, defendant pointed the gun at LH and Taylor began to cry, scream, and plead with defendant. Then defendant shot Taylor in the leg while she was standing next to the door. Defendant subsequently tried to shoot himself in the forehead, but the gun was jammed. Defendant left. Taylor managed to crawl out of her apartment, by which time the paramedics had already arrived.

Dr. Yvonne Mallon, one of the medical doctors who examined and treated LH's injuries, testified at trial as an expert in child abuse and child sexual abuse. Mallon testified that LH had multiple bruises in various areas of her body, including both sides of her abdomen, and that LH had two compression fractures in the middle portion of her spine. Blood was also found in LH's vaginal exam. Mallon explained that LH's bruises "stood out" because they were in "soft areas," such as the abdomen, where it was unusual for a child to "get an accidental bruise." In her experience, children normally get bruises along boney surfaces such as their shins, knees, elbows, or forehead. Mallon opined that bruises in locations like the stomach or "a protected spot," such as the buttocks, caused "concern[] for non-accidental injuries." Mallon further testified that LH had bruises on the right side of her face, behind her left []ear, above her buttocks, on her arm, on her wrist, and on her finger. Mallon testified that it was also concerning to see bruising that was bilateral, or on two different planes of the child's body, since an accidental fall would usually involve falling on one side of the body. LH's bilateral bruising was also indicative of a non-accidental injury.

Regarding the spinal compression fractures, Mallon testified that a compression fracture usually occurs from a heavy fall involving something falling on the head or falling on the buttocks against something hard. According to Mallon, such a fall could occur from either a high distance or from a short distance with additional force. She opined that, assuming "normal bones," a fall from astandard chair to the ground would not cause compression fractures. Mallon testified that LH's bones appeared normal based on her x-rays and examination. Mallon also ruled out a fall from "Pack & Play" as the source of LH's injuries. In addition, Dr. Mallon testified that the damage to the minor child's hymen made her extremely suspicious that there was "non-accidental penetrating genital trauma" since a typical accidental straddle fall would instead result in injuries of a different nature.

Defendant testified that he did not know why LH had blood in her diaper or how she incurred her various serious injuries. He indicated that on November 2, 2016, LH had bruises or scratches on her face after returning from staying with relatives. Defendant testified that he had friends over to the apartment on November 3, 2016, and that LH was at defendant's mother's house earlier in the day. He also testified that he watched LH that day and that when he told Taylor that he "whup[ped]" LH, he meant that he "had popped her on her hand." Defendant denied physically disciplining LH in any other way. Defendant stated that LH was an active child and that she sometimes would get "caught up in" her "Pack & Play" while climbing in and out of it by herself. Defendant further testified that he typically slept all day while the children watched television. Regarding the

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