McLean v. Rewerts

• Decision Date: 05 May 2021
• Docket Number: Case No. 1:19-cv-799
• Parties: GALEN MCLEAN, Petitioner, v. RANDEE REWERTS, Respondent.
• Court: U.S. District Court — Western District of Michigan

GALEN MCLEAN, Petitioner, v. RANDEE REWERTS, Respondent.

Case No. 1:19-cv-799

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

May 5, 2021

Honorable Paul L. Maloney

REPORT AND RECOMMENDATION

This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. Petitioner Galen McLean is incarcerated with the Michigan Department of Corrections at the Carson City Correctional Facility (DRF) in Carson City, Montcalm County, Michigan. Following a two-day jury trial in the Cass County Circuit Court, Petitioner was convicted of three counts of first-degree criminal sexual conduct (CSC-I), in violation of Mich. Comp. Laws § 750.520b; one count of conspiracy to commit CSC-I, and one count of failure to register as a sex offender, in violation of Mich. Comp. Laws § 28.729. On July 15, 2016, the court sentenced Petitioner, as a fourth habitual offender, Mich. Comp. Laws § 769.12, to a prison term of 4 to 15 years for failure to register to be served concurrently with four life sentences for the CSC-I violations.

On September 27, 2019, Petitioner timely filed his habeas corpus petition raising the same sixteen grounds for relief he had raised in the Michigan appellate courts:

I. Petitioner must be resentenced where his sentence was improperly enhanced by the use of a misdemeanor conviction from Missouri, and trial counsel was ineffective for failing to challenge the mistake.

II. The trial court denied Petitioner his state and federal constitutional rights to a fair trial by allowing the prosecuting attorney to elicit through leading questions the complainant's testimony of abuse.

III. The trial court erred, abused its discretion, and denied Petitioner his right to a fair trial when it allowed the SANE nurse to testify as to the complainant's hearsay statements.

IV. Petitioner must be resentenced where the trial court abused its discretion when it scored 15 points for offense variable 10 where the record did not support the assertion that predatory conduct was involved.

V. Petitioner must be resentenced where the trial court abused its discretion when it scored 50 points rather than 0 points for OV-11 where no criminal sexual penetration "arising out of the sentencing offense" occurred, and trial counsel was ineffective for failing to object to the scoring.

VI. Petitioner must be resentenced where the trial court abused its discretion when it scored 10 points rather than 0 points for offense variable 14 where the record did not support the allegation that Petitioner was a leader in a multiple offender situation.

VII. Petitioner must be resentenced where the trial court abused its discretion when it scored 25 points rather than 0 points for offense variable 19 where resisting and obstructing charge is not part of this offense.

VIII. Due process requires resentencing where a number of Petitioner's prior convictions that resulted in incarceration may have been obtained without counsel or a valid waiver; and defense trial counsel was constitutionally ineffective in failing to object at sentencing to consideration of those convictions to either score sentencing guidelines prior record variables or determine Petitioner's sentence.

IX. The mid-trial amendment of the felony information to comport with the proofs denied Petitioner his constitutional right to notice of the charges against him and the trial court erred and abused its discretion and denied Petitioner a fair trial when it granted the prosecution's motion.

X. Trial counsel was ineffective for failing to investigate and present a substantial defense witness that Petitioner had informed the Michigan State Police that he was moving to Missouri.

XI. The trial court erred, abused its discretion, and denied Petitioner his state and federal constitutional rights to a fair trial by allowing the prosecuting attorney to violate MCR 6.201 Discovery.

XII. Trial counsel was ineffective for failing to investigate and present substantial witnesses from the Petitioner's witness list of over 50 witnesses, and to secure an expert witness for defense.

XIII. Trial counsel was ineffective where he failed to raise objection to picture and reports that the prosecution withheld till days before trial, or day of trial, by not allowing defense adequate time to prepare defense.

XIV. Prosecution deliberately withheld evidence, in violation of MCR 6.201, and violated Petitioner's rights to due process, thus creating clear case of a Brady violation.

XV. Trial court erred, abused its discretion and denied Petitioner his right to a fair trial, when the prosecution purposefully elicited from witness Victoria Howard testimony of hearsay statement supposedly made by the Petitioner of his requirement to register as [a] sex offender.

XVI. Trial counsel was ineffective for failure to object to the prosecution interjecting without proof, in violation of order filed and granted by trial court, violation of motion to object to evidence of Petitioner's past criminal sexual conduct under MCL 768.227a, filed on May 11, 2016.

(Pet., ECF No. 1, PageID.34-36.) Respondent has filed an answer to the petition (ECF No. 13) stating that the grounds should be denied because they are not cognizable, procedurally defaulted and/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 find that the grounds are not cognizable or without merit. Accordingly, I recommend that the petition be denied.

Discussion

I. Factual allegations

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

This case arises out of the sexual abuse of a friend's six year-old daughter, MH. Defendant, a registered sex offender, and his wife took MH into their home in October 2014 after her mother's housing condition had become unstable. MH slept in a child's bed in the bedroom shared by defendant and his wife.

MH testified at trial that defendant used his penis to penetrate her mouth three times and her vagina at least once; she additionally testified that defendant and his wife used a vibrator (which she called a "pink buzzer") to penetrate hervagina, although she did not specify which of them had physically inserted it. MH testified that defendant's wife was present during all of these assaults.

MH was returned to her mother's care in December 2014. In April 2015, defendant moved to Missouri. MH disclosed the abuse to her mother in May 2015, and she subsequently informed the Cass County Sheriff's Department. In June 2015, a sexual assault nurse examiner examined MH at the Sheriff's Department's request. MH told the nurse examiner that defendant and his wife had used their tongues on her vagina. She also told the nurse examiner that defendant had forced her to touch his penis and had penetrated her mouth and vagina with his penis. MH also stated that defendant and his wife had inserted "a pink toy that made a buzzing noise" into her vagina at least 10 times, hurting her. The nurse examiner testified to all of this. The nurse examiner also testified that MH's examination revealed no physical evidence that she had been sexually assaulted, but because the assaults had occurred months earlier and genitals heal rapidly, this fact was not surprising.

Cass County Sheriff's Detective Kristin Daly testified that defendant's sex offender registration listed his address as being in Dowagiac, Michigan until July 8, 2015. However, Daly was informed in June 2015 by MH's mother and another party that defendant and his wife had left the state. Defendant was arrested in Missouri in late July or early August 2015.

At the beginning of the second day of trial, the prosecution moved to amend the felony information relative to one of the CSC I counts. The prosecution made the motion in response to MH's testimony describing penetration with a vibrator but not with a finger. The motion therefore sought to amend that count to allege that defendant had penetrated MH's vagina with an object, rather than digitally, as the information had initially alleged. The trial court granted the motion.

(Mich. Ct. App. Op., ECF No. 14-6, PageID.714-715) (footnotes omitted). The jury heard testimony for about four hours over a two-day period. The prosecutor called to the stand the police officer who received the initial complaint from the victim's mother, the owner of the home where the CSC-I offenses occurred, the person who conducted the forensic interview of the victim, the victim's mother, the person with whom the victim was living when the sexual assaults were first disclosed, a sexual assault nurse examiner (SANE), and the investigating detective. Petitioner did not call any witnesses and he did not testify. The jury deliberated for about thirty minutes before finding Petitioner guilty of all charged crimes. (Trial Tr. II, ECF No. 14-4, PageID.675.)

Petitioner, with the assistance of counsel, directly appealed his convictions and sentences. Petitioner's counsel-assisted appeal brief included 10 issues (habeas issues I-X, below). Petitioner also filed a pro per supplemental brief that added 6 additional issues (habeas issues XI-XVI, below). On January 11, 2018, the Michigan Court of Appeals issued an unpublished opinion rejecting Petitioner's claims and affirming the trial court. The appellate court squarely addressed the issues raised in counsel's brief; however, the court gave short shrift to the issues raised in the pro per brief: "We have reviewed all of these additional issues with reference to the lower court record, and have concluded, for the reasons contained in the prosecution's supplemental brief, that none of them have merit." (Mich. Ct. App. Op., ECF No. 14-6, PageID.723.)

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. By order entered October 2, 2018, the supreme court denied leave because the court was ...