McCray v. Horton, 2:18-cv-84

CourtUnited States District Courts. 6th Circuit. United States District Court (Western District Michigan)
PartiesVickery J. McCray, Petitioner, v. Connie Horton, Respondent.
Docket Number2:18-cv-84
Decision Date24 August 2021

Vickery J. McCray, Petitioner,

Connie Horton, Respondent.

No. 2:18-cv-84

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

August 24, 2021

Honorable Gordon J. Quist Judge.



This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. Petitioner Vickery J. McCray is incarcerated with the Michigan Department of Corrections at the Chippewa Correctional Facility (URF) in Kincheloe, Chippewa County, Michigan. Following a two-day jury trial in the Ingham County Circuit Court, Petitioner was convicted of criminal sexual assault in the first degree and unlawful imprisonment. On November 19, 2014, the court sentenced Petitioner as a fourth habitual offender to concurrent respective prison terms of 25 to 50 years and nine years, 6 months to 25 years.

On June 14, 2018, Petitioner filed his habeas corpus petition. 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).

The petition raises 11 grounds for relief, as follows:

I. Petitioner's Sixth Amendment right to effective assistance of trial counsel and appellate counsel was violated when his trial and
appellate counsel failed to investigate and raise the issue of competency to stand trial and the defense of insanity
II. Mr. McCray is entitled to a new trial because trial counsel provided constitutionally ineffective assistance in violation of the United States and Michigan Constitutions
III. The Double Jeopardy Clauses of the state and federal Constitutions preclude the prosecutor from “successive prosecutions” of the same offense after an acquittal of that offense. Alternatively, ineffective representation by trial counsel by not moving for a directed verdict of acquittal or a relief from judgement after the verdict
IV. Trial court abused its discretion in admitting an uncorroborated 911 tape into evidence. Alternatively, prosecutor knowingly used the 911 tape in his closing argument, which was improper and unduly prejudicial. Also, ineffective representation of counsel counselor rendered waiver of pre-trial challenges to the 911 tape usage invalid.
V. Trial court abused its discretion in admitting a 911 tape transcript read-along, contrary to mandated Michigan case law. Alternatively, prosecutor knowingly used the transcript in his closing argument, which was improper and unduly prejudicial. Also, trial counsel knowingly violated Defendant's Sixth Amendment right to confront a witness against him.
VI. The Sexual Assault Nurse Examiner's testimony was inadmissible hearsay testimony, which resulted in manifest injustice.
VII. Trial court abuse its discretion in breaching the mantle of impartiality throughout the trial. Alternatively, trial counsel was ineffective for aiding in this injustice.
VIII. Constitutional deprivation of Defendant's liberty without due process of law resulting from prosecutorial misconduct and the trial Judge's instruction to the jury. Alternatively, trial counsel's failure to object, thus showing the counsel was an aid to this conspiracy to convict.
IX. Defendant was denied the constitutional protection of due process of law during sentencing due to the abuse of discretion by the trial court, prosecutorial misconduct, and ineffective assistance of counsel.
X. Suppression of evidence by the actions of the investigating police officers violated the Defendant's constitutional right to a fair trial. Alternatively, trial counsel's failure to confront suppression denied Defendant Sixth Amendment right to present a defense.
XI. Defendant was denied his constitutional right to a jury of fair racial cross-section of the community.

(Pet., ECF No. 1, PageID.11-17, 22-30.) In a supplement to his habeas petition, Petitioner also raises an additional claim:

XII. Petitioner is arguing that the specific evidence introduced at trial was insufficient to satisfy the elements of assault by strangulation or suffocation.

(ECF No. 11, PageID.387.)

Respondent has filed an answer to the petition (ECF No. 15) stating that the grounds should be denied because they are non-cognizable or 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 respectfully recommend that the Court deny the petition.


I. Facts

McCray and his victim were neighbors in Lansing, Michigan. (ECF No. 16-7, PageID.643.) On past occasions they had smoked crack cocaine together and had engaged in sex. (Id., PageID.643, 648.) The victim stated that McCray was her father's friend and that she was never in a romantic or sexual relationship with McCray. (Id., PageID.631, 634.) On October 25, 2013, the victim went to McCray's house to share a rock of cocaine. (Id., PageID.648.) She left and returned later that evening when McCray asked her to bring him money. (Id., PageID.642-643.) The


victim had been drinking alcohol and drank more while at McCray's home. (Id., PageID.631.) McCray smoked crack cocaine. (Id., PageID.643.)

At some point, when the victim tried to leave, McCray forcefully stopped her. (Id., PageID.644.) McCray pushed her to the floor and sexually assaulted her. (Id., PageID.644-645.) The victim was able to call 911 and the events during the assault were recorded. (Id., PageID.628, 635-636, 645.) After the police arrived, McCray was taken into custody. (Id., PageID.629, 636, 640.) The victim was taken to the hospital. (Id., PageID.645.)

The jurors deliberated for about five hours before finding Petitioner guilty of criminal sexual conduct in the first-degree and unlawful imprisonment. (ECF No. 16-8, PaigeID.687-690.)

Petitioner, with the assistance of counsel, appealed his conviction raising the issue identified as habeas issue II. (ECF No. 16-10, PageID.739.) Thereafter, McCray filed his own pro per supplemental brief, known in Michigan as a Standard 4 brief, in which he raised, for the first time, the issues identified as habeas issues III, IV, V, VI, VII, VIII, IX, X, and XI. (Id., PageID.770-773.) Thereafter, by unpublished opinion issued July 26, 2016, the court of appeals denied relief, affirming the trial court with respect to all issues Petitioner raised. (Id., PageID.702.)

Petitioner then filed a pro per application for leave to appeal in the Michigan Supreme Court raising the same issues he had raised in the court of appeals. (ECF No. 16-11, PageID.916-965.) By order entered June 27, 2017, the supreme court


denied leave to appeal because the court was “not persuaded that the questions presented should be reviewed.” (Id., PageID.915.)

Petitioner did not file a petition for certiorari in the United States Supreme Court. Instead, he timely filed his habeas petition.

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 the state court's decision.” Stermer v. Warren, 959 F.3d 704, 721 (6th Cir. 2020) (quoting Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)) (internal quotation marks omitted)). This standard is “intentionally difficult to meet.” Woods v. Donald, 575 U.S. 312, 316 (2015) (internal quotation omitted).

The AEDPA limits the source of law to cases decided by the United States Supreme Court. 28 U.S.C. § 2254(d). In determining whether federal law is clearly


established, the Court may not consider the decisions of lower federal courts. Williams v. Taylor, 529 U.S. 362, 381-82 (2000); Miller v. Straub, 299 F.3d 570, 578- 79 (6th Cir. 2002). Moreover, “clearly established Federal law” does not include decisions of the Supreme Court announced after the last adjudication of the merits in state court. Greene v. Fisher, 565 U.S. 34, 37-38 (2011). Thus, the inquiry is limited to an examination of the legal landscape as it would have appeared to the Michigan state courts in light of Supreme Court precedent at the time of the state-court adjudication on the merits. Miller v. Stovall, 742 F.3d 642, 644 (6th Cir. 2014) (citing Greene, 565 U.S. at 38).

A federal habeas court may issue the writ under the “contrary to” clause if the state court applies a rule different from the governing law set forth in the Supreme Court's cases, or if it decides a case differently than the Supreme Court has done on a set of materially indistinguishable facts. Bell, 535 U.S. at 694 (citing Williams, 529 U.S. at 405-06). “To satisfy this high bar, a habeas petitioner is required to ‘show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.'” Woods, 575 U.S. at 316 (quoting Harrington, 562 U.S. at 103).

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