Niemiec v. Burt

• Decision Date: 11 February 2016
• Docket Number: Case Number: 2:13-CV-10180
• Parties: JOHN DAVID NIEMIEC, Petitioner, v. SHERRY BURT, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

JOHN DAVID NIEMIEC, Petitioner, v. SHERRY BURT, Respondent.

Case Number: 2:13-CV-10180

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

February 11, 2016

HON. GEORGE CARAM STEEH

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY

Petitioner John David Niemiec seeks habeas corpus relief under 28 U.S.C. § 2254. Petitioner is a state prisoner in the custody of the Michigan Department of Corrections pursuant to convictions for three counts of first-degree criminal sexual conduct, and two counts of second-degree criminal sexual conduct. He raises twenty claims for habeas relief. Respondent argues that the claims are non-cognizable, procedurally defaulted and/or meritless. The Court denies the petition.

I. Facts

Petitioner's convictions arise from the sexual assaults of Petitioner's girlfriend's two daughters, A.W. and S.B. The assaults occurred in 1998 and 1999, but were not reported until 2005.

A.W. testified that, in 1998, she lived in Petitioner's home in the city of Warren with her mother, Roberta Lawes, her sister, S.B., and her brother Jacob. At the time, Petitioner was her mother's boyfriend. A.W. testified that she did not have a good relationship with Petitioner, he sometimes pushed her and often verbally abused her. One day in 1998, Petitioner began hollering at Jacob. A.W., who was then thirteen-years old, tried to place herself between Jacob and Petitioner. Petitioner, nevertheless, picked Jacob up and threw him in his room. He then shoved A.W. against a wall and said, "You want to act like a big woman? I'll show you what it's like to be a woman." ECF No. 23-12, Pg. ID 1222. Petitioner then grabbed A.W.'s breast and between her legs. He kept touching her through her clothes until he finally let her go and walked away. Shortly after this encounter, A.W. moved in with her aunt and uncle. She never saw Petitioner again. A.W. testified that she did not report the incident at the time because she did not believe anyone would do anything.

S.B. testified that in 1999, when she was seven-years old, she was playing with dolls in a large inoperable van that sat in the yard of Petitioner's home when Petitioner entered the van. Initially, she thought Petitioner was going to play with her. He then started rubbing her thigh and kissing her. He told her that they were going to play a game. He touched her chest and then reached his hand inside her underwear. He placed his fingers inside her vagina. She asked Petitioner to stop, but he did not. Approximately two weeks later, S.B. woke up in the middle of the night because she was having nightmares. She went into her mother's bed to sleep. She woke up in her mother's bed in the morning after her mother had left for work. Shortly after she awoke, Petitioner got into bed with her. He placed his fingers inside her vagina and also licked her private area. He told S.B. it would be over soon. When Petitioner finished tucking her in, he told S.B. that if she told anyone he would kill her, her mother, and her family. S.B. believed Petitioner's threats, so she did not tell anyone about the assaults. In 2005, S.B. was having many nightmares about the incidents. She eventually told herfather and step-mother what had happened and they contacted police.

Petitioner testified in his own defense. He denied assaulting S.B. and A.W.

II. Procedural History

Petitioner was convicted following a jury trial in Macomb County Circuit Court of three counts of first-degree criminal sexual conduct and two counts of second-degree criminal sexual conduct. On March 9, 2007, he was sentenced to 10 to 40 years' imprisonment for each first-degree criminal sexual conduct conviction and 3 to 15 years' imprisonment for each second-degree criminal sexual conduct conviction.

Petitioner filed an appeal of right in the Michigan Court of Appeals. He raised these claims: (i) verdict was against the great weight of the evidence; (ii) Mich. Comp. Laws § 768.27 violates the separation of powers, (iii) Mich. Comp. Laws § 768.27 violates the Ex Post Facto Clause; (iv) trial court improperly relied on Mich. Comp. Laws § 768.27 to govern the admission of evidence; (v) trial court improperly granted prosecution's motion to join two unrelated allegations of sexual assault; and (vi) trial court erred in denying motion for new trial. The Michigan Court of Appeals affirmed Petitioner's convictions. People v. Niemiec, Nos. 277212, 277237, 2008 WL 5382927 (Mich. Ct. App. Dec. 23, 2008). Petitioner filed an application for leave to appeal in the Michigan Supreme Court. He raised the same claims raised in the Michigan Court of Appeals. The Michigan Supreme Court denied leave to appeal. People v. Niemiec, 483 Mich. 1071 (Mich. June 10, 2009).

Petitioner then filed a motion for relief from judgment in the trial court. He raised fifteen claims for relief, many of which included numerous sub-claims. The trial court denied the motion. See 4/12/2010 Order, People v. Niemiec, Nos. 2006-3114-FH &2006-3117-FC (Macomb County Cir. Ct.), ECF No. 24-5, Pg. ID 1849-63. Petitioner filed an application for leave to appeal in the Michigan Court of Appeals. The Michigan Court of Appeals denied leave to appeal. People v. Niemiec, Nos. 298514 & 298689 (Mich. Ct. App. Dec 29, 2010). ECF No. 26-1, Pg. ID 2175. The Michigan Supreme Court also denied leave to appeal, People v. Niemiec, Nos. 142431 & 142432, 493 Mich. 890 (Mich. Nov. 20, 2012), and denied Petitioner's motion for reconsideration. People v. Niemiec, Nos. 142431 & 142432, 493 Mich. 971 (Mich. Apr. 29, 2013). Petitioner has filed four additional motions for relief from judgment. All have been denied.

In 2013, Petitioner filed the pending habeas petition. He raises twenty claims for relief, many with multiple sub-claims. Respondent synthesized and reorganized Petitioner's claims into ten claims and sub-claims. The Court finds Respondent's statement of the claims accurately and more clearly sets forth the substance of the claims raised in the petition and addresses the claims as reorganized by Respondent:

I. Mich. Comp. Law 768.27 violates separation of powers between state legislature and the judiciary.

II. Mich. Comp. Law 768.27 as applied in this case is an ex post facto law because it was passed in 2006 while the conduct in this case was in 1999.

III. [Niemiec's Issues III, XVII, and XVIII.] State evidentiary claims:

a. The trial court improperly relied on Mich. Comp. Law 768.27 for admission of evidence when F.R.E. 403 and 404(b) govern matters of procedure.

b. The state court erred when it failed to address the issue of whether the combined testimony of both complainants was more prejudicial than probative.

c. The state court erred when it allowed in hearsay testimony. Thecumulative effect of errors requires reversal.

IV. The trial court erred when it granted the prosecution's motion to join two unrelated and dissimilar allegations of sexual assault.

V. [V(a), XVI.] The trial court abused its discretion when it denied Niemiec's motion for a new trial.

VI. [VII, IX, XV(a).] Jury Instructions claims.

a. The trial court curative instruction to defense regarding "credibility of witnesses" allowed the prosecution to question defense witnesses regarding their credibility.

b. The trial court improperly gave a jury instruction regarding Niemiec's out of court statements allowing uncorroborated hearsay to be admitted.

c. The trial court failed to give a curative instruction to the jury after the lead detective vouched for the complainant.

VII. [XIV(a)-(e), XIII(d), XV(c).] The prosecutor committed misconduct by:

a. During closing arguments mentioning a nonconvicted felony.

b. Improperly vouching for the credibility of the complainant.

c. Improperly referring to Niemiec as a liar during closing.

d. Improperly defining the law in opening and closing arguments.

e. Improperly defining "reasonable doubt" to the jury.

f. The prosecutor failed to correct perjured testimony by victim and her mother.

g. The prosecutor improperly failed to disclose the lead detective's perjury.

VIII. [XIX.] There was insufficient evidence to support bind over of 2 of 5 charges at the preliminary examination.

IX. [XX.] There was insufficient evidence to support the convictions.

X. [V(b)-(f), VI, VIII, X(a)-(c), XI(a)-(c), XII(a)-(c), XIII(a)-(c),(e), XV(b).]

Niemiec's trial counsel was ineffective for twenty-one reasons:

a. Trial counsel was ineffective for failing to object to prosecution's questioning of Niemiec and his girlfriend.

b. Counsel failed to impeach the complainant.

c. Counsel failed to object to hearsay testimony of the lead investigator in the case.

d. Counsel failed to object to the lack of foundation regarding witness testimony (for origin of bruises).

e. Counsel failed to object to Niemiec's drinking, prior arrests, and convictions being admitted at trial.

f. Defense counsel was ineffective when counsel failed to acknowledge Niemiec's right to exercise a peremptory challenge, and the trial court's failure to acknowledge Niemiec had not been given the opportunity to exercise a peremptory challenge violated his constitutional right to be tried by a fair and impartial jury.

g. Trial counsel's failure to recognize and present the defense of "statute of limitations" amounts to ineffective trial counsel.

h. Failure to introduce corroborating exculpatory evidence to the jury.

i. Failure to properly investigate Niemiec's criminal background prior to trial.

j. Failure to object to prosecutor's misconduct.

k. Failure to utilize a private investigator to find Theresa Hicks to testify.

l. Failing to ask the prosecutor for assistance in locating a key witness.

m. Failing to produce a psychological expert approved by the court.

n. Failing to call defense witnesses (who were not victims of abuse).

o. Failing to interview a witness.

p. Failing to call lead detectives for impeachment regarding originalcomplaint.

q. Failing to move for a mistrial for a violation of the sequestration

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