Perez v. Rivard, CASE NO. 2:14-CV-12326

• Decision Date: 09 June 2015
• Docket Number: CASE NO. 2:14-CV-12326
• Parties: PETER PEREZ, Petitioner, v. STEVEN RIVARD, Respondent
• Court: U.S. District Court — Eastern District of Michigan

PETER PEREZ, Petitioner, v. STEVEN RIVARD, Respondent

CASE NO. 2:14-CV-12326

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

June 9, 2015

HONORABLE MARIANNE O. BATTANI UNITED STATES DISTRICT COURT

OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS, DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS

Peter Perez, ("Petitioner"), confined at the St. Louis Correctional Facility in St. Louis, Michigan, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he challenges his convictions for eight counts of third-degree criminal sexual conduct, M.C.L.A. 750.520d(1)(a), and being a fourth felony habitual offender, M.C.L.A. 769.12. For the reasons stated below, the petition for writ of habeas corpus is DENIED.

I. Background

Petitioner was convicted by a jury in the Saginaw County Circuit Court.

Petitioner has provided a detailed statement of facts in his brief in support of the petition for writ of habeas corpus. Respondent has likewise provided a detailed factual summary of the case, which does not essentially conflict withpetitioner's statement of facts. The Court will therefore accept the factual allegations contained within the habeas petition insofar as they are consistent with the record, because the respondent has not disputed them. See Cristini v. McKee, 526 F. 3d 888, 894, n. 1 (6^th Cir. 2008)("When a state's return to a habeas corpus petition fails to dispute the factual allegations contained within the habeas petition, it essentially admits these allegations"). Because the facts of this case have been repeated numerous times, they need not be repeated here in their entirety. Therefore, only a brief overview of the facts is required. See Nevers v. Killinger, 990 F. Supp. 844, 847 (E.D. Mich. 1997).

The victim was born on September 6, 1991 and met petitioner at a trailer park where they both lived. The victim and other young persons would hang out at petitioner's trailer. As the victim grew up, petitioner paid more attention to her. Petitioner moved from lot twelve to lot fourteen in the trailer park on May 1, 2006, when the victim was fifteen years old. The victim testified that shortly after the move to lot fourteen, she was visiting petitioner at his trailer. The victim testified that petitioner pulled her pants down, performed oral sex on her, before inserting his finger into her vagina. Two or three days later, petitioner again did the same thing to the victim. Petitioner performed oral sex on the victim and digitally penetrated her two more times. All four incidents took place within a month of each other. The victim testified no less than five times that these crimes took place before she turned sixteen years old. The victim remembered her agebecause she had yet to begin driver's education or receive her driver's license, nor had she begun ninth grade. There was testimony that the victim continued to have a consensual sexual relationship with petitioner after she turned sixteen.

Testimony was presented that petitioner attempted to commit similar crimes against two other female children.

Petitioner presented an alibi defense at trial. Petitioner's girlfriend testified that petitioner lived in an apartment on West Michigan Avenue between February and November of 2007 and that she and petitioner stayed at both the apartment and the trailer. The owner of this address testified that he rented an apartment to petitioner from August 8, 2006 until January 8, 2007 and from either February or June of 2007 until October 16, 2007. Petitioner also presented evidence that he had been incarcerated from October 30, 2005 until July 14, 2006.

Petitioner's conviction was affirmed on appeal. People v. Perez, No. 305006, 2012 WL 5853722 (Mich. Ct. App. Oct. 30, 2012); lv. den. 493 Mich. 953, 828 N.W. 2d 53 (2013).

Petitioner seeks habeas relief on the following grounds:

I. The Michigan Appellate Courts unreasonably apply Supreme Court precedents in denying that the defendant's convictions should be overturned because there was insufficient credible evidence at trial to prove the defendant guilty of the crime.

II. The Michigan Appellate Courts unreasonably apply Supreme Court precedents in denying that, the trial court denied the defendant a fair trial and his due process rights by: making errors in ruling on motion and evidentiary rulings, which would include failing to grant a new panelof jurors, allowing 404(b) or 768.27a testimony, failure to strike testimony, improper restriction on cross-examination, not allowing the defendant to present a defense and other evidentiary errors.

III. The Michigan Appellate Courts unreasonably apply Supreme Court precedents in denying that, the defendant's sentences were invalid because they were based on inaccurate information, I,E. [sic] [i]mproper scoring of the legislatively imposed sentencing guidelines, use of an incorrect burden of proof, and insufficient facts; therefore, [v]iolating his due process rights.

IV. The Michigan Appellate Courts unreasonably apply Supreme Court precedents in denying that, whether correctly scoring the guidelines would require resentencing.

V. The Michigan Appellate Courts unreasonably apply Supreme Court precedents in denying that, the prosecutor's actions denied the defendant a fair trial and his due process rights under the Michigan and federal constitutions.

VI. The Michigan Appellate Courts unreasonably apply Supreme Court precedents in denying that, the Tittabawassee Township Police Report shows the crime was not committed and similar acts should not have been allowed.

VII. The Michigan Appellate Courts unreasonably apply Supreme Court precedents in denying that, whether the court granted a motion for directed verdict concerning count 5 and count 10.

VIII. The Michigan Appellate Courts unreasonably apply Supreme Court precedents in denying that, whether a bill of particulars should have been granted.

IX. The Michigan Appellate Courts unreasonably apply Supreme Court precedents in denying that, whether an evidentiary hearing should have been held.

II. Standard of Review

28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective DeathPenalty Act of 1996 (AEDPA), imposes the following standard of review for habeas cases:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-

(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 on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

A decision of a state court is "contrary to" clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An "unreasonable application" occurs when "a state court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case." Id. at 409. A federal habeas court may not "issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 410-11.

"[A] state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness ofthe state court's decision." Harrington v. Richter, 562 U.S. 86, 101 (2011)(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court emphasized "that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. at 102(citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). Furthermore, pursuant to § 2254(d), "a habeas court must determine what arguments or theories supported or...could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision" of the Supreme Court. Id. To obtain habeas relief in federal court, a state prisoner is required to show that the state court's rejection of his or her claim "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 103.

Finally, the Court notes that petitioner raises nine claims, some containing numerous subclaims, in his habeas petition. The Sixth Circuit observed: "When a party comes to us with nine grounds for reversing the district court, that usually means there are none." Fifth Third Mortgage v. Chicago Title Ins., 692 F.3d 507, 509 (6^th Cir. 2012).

III. Discussion

A. Claim # 1. The sufficiency of evidence claim.

Petitioner first contends that there was insufficient evidence to convict himof third-degree criminal sexual conduct.

It is beyond question that "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In Re Winship, 397 U.S. 358, 364 (1970). But the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction is, "whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318 (1979). This inquiry, however, does not require a court to "ask itself whether it believes that the evidence at the trial established guilt beyond a...