Robertson v. Abramajtys, 99-CV-71557-DT.

Decision Date05 April 2001
Docket NumberNo. 99-CV-71557-DT.,99-CV-71557-DT.
Citation144 F.Supp.2d 829
PartiesTerry D. ROBERTSON, Plaintiff, v. Joseph ABRAMAJTYS, Defendant.
CourtU.S. District Court — Eastern District of Michigan

Terry Robertson, Kincheloe, MI, pro se.

Janet Van Cleve, Michigan Department of Attorney General, Habeas Corpus Division, Lansing, MI, for Respondent.

MEMORANDUM OPINION AND ORDER

FRIEDMAN, District Judge.

This matter is before the Court on Magistrate Judge Steven D. Pepe's Report and Recommendation dated February 27, 2001. No objections have been filed.

This Court has had an opportunity to fully review this matter and believes that the Magistrate Judge has reached the correct conclusions for the proper reasons.

ACCORDINGLY:

IT IS HEREBY ORDERED that Magistrate Judge Steven D. Pepe's Report and Recommendation dated February 27, 2001, is hereby accepted and adopted.

IT IS FURTHER ORDERED that Petitioner's application for federal habeas relief is hereby denied.

REPORT AND RECOMMENDATION

PEPE, United States Magistrate Judge.

Petitioner Terry D. Robertson ("Petitioner") filed this pro se application for federal habeas relief under 28 U.S.C. § 2254, which was referred for report and recommendation under 28 U.S.C. § 636(b)(1)(B). Because Petitioner has procedurally defaulted two of his claims without showing prejudice or a miscarriage of justice, and because Petitioner's other claim is without merit, his application for habeas relief should be denied.

I. BACKGROUND
A. Facts

Petitioner was convicted of assault with intent to commit criminal sexual conduct. Mich. Comp. Laws § 750.520g(1). The conviction arises from the assault of Ms. Terry Laster in Ypsilanti, Michigan during the early morning hours of December 30, 1995. Petitioner was found not guilty of criminal sexual conduct in the first degree with respect to this event.

At trial, Ms. Laster testified that she consumed around twelve beers at two Ypsilanti bars the evening of the assault, and then left the second bar to walk home. At around 1:00 a.m. she was approached by a black male on Michigan Avenue whom she identified at trial as Petitioner. Trial Transcript II at 81. She stated that the man asked whether she would like to go for a drink, and later offered her crack cocaine. Id. at 82. After Ms. Laster refused to go with the man and continued walking towards her home, she felt an arm around her neck. The man then dragged her to the porch of an abandoned house while holding his hand over her mouth. Id. at 83. After beating her face with his fist and taking her pants partially off, the man penetrated her vagina with his penis while she was lying on the ground on her back.1 Id. at 87. When this was over the man took Ms. Laster's wallet in which there were items of identification, money, and a calling card belonging to her former boyfriend, Tom Hemlinger. Id. at 91-92.

Connie Koski, an Ypsilanti Police Department ("YPD") officer then serving a rotation in the detective bureau, testified for the prosecution. She testified that she found a wallet in Petitioner's property after his arrest that contained an Ameritech calling card bearing the name Tom Hemlinger. Trial Transcript IV at 37-38. On January 19, 1996, Detective Koski compiled a photographic array containing Petitioner's picture and presented it to Ms. Laster. Id. at 67. She did not identify Petitioner's photograph. Id. at 69-70. On February 2, 1996, Ms. Laster again failed to identify Petitioner's photograph in the second array Officer Koski presented her. Id. at 71-74. Koski stated that Ms. Laster's blood tested negative for cocaine and registered a .10 blood alcohol level. Id. at 46. Detective Troy Fulton of the YPD testified that he interviewed Petitioner after his arrest. Trial Transcript III at 71. Detective Fulton stated that Petitioner told him that after he met Ms. Laster as they were walking along Michigan Avenue together, they smoked some crack cocaine. After Ms. Laster tried to leave and Petitioner would not let her, she became violent with him. He punched her in the face, and drug her to the porch of the abandoned house. Id. at 88-89. Petitioner told Ms. Laster that she had to reimburse him for the drugs by having sexual relations with him. Id. at 89. Then she calmed down and stated that she would pay Petitioner for the cocaine with cash. Id. at 89, 91. When Petitioner would not agree with this suggestion, she agreed to have sexual relations with him. Id. at 91. After intercourse, Petitioner took Ms. Laster's wallet which had fallen on the ground before leaving her at the abandoned house. Id. at 93. Anthony Noland, a cousin of Petitioner, was stopped by the police shortly after the incident. Trial Transcript V at 7, 53. Noland testified that later that night he spoke with Petitioner about his earlier encounter with the police, and Petitioner admitted to raping the "girl" about which the police had questioned Noland. Trial Transcript V at 10.

Petitioner testified in his own defense. He testified that the statement he had made to Detective Fulton was a lie. Id. at 77. Petitioner contrived the statement because he was afraid that Detective Fulton was going to assault him if he did not confess. Id. at 77. Petitioner stated that Detective Fulton had pounded the desk in the interview room where they were alone, jumped up, and yelled in his face. Id. at 66-67. Defense counsel sought to admit evidence that Petitioner had suffered assaults at the hands of police officers on previous occasions, but the trial court sustained the prosecutor's objection to this evidence. Id. at 70-74. Petitioner testified that he was with Michael Sullivan and Raymond Akins before 1:00 a.m., and Ms. Christine Macksegian around 1:00 a.m. Id. at 87-92. Other pertinent evidence will be discussed as it pertains to the legal issues discussed.

B. Procedural Background

The Michigan Court of Appeals affirmed the conviction and sentences on October 2, 1998. People v. Robertson, No. 202986 (Mich.App.). On appeal, Petitioner raised the following claims: (1) during its case in chief the prosecution shifted the burden of proof by soliciting testimony on Petitioner's alibi notice; (2) the trial court infringed on Petitioner's right to compulsory process when it prevented him from testifying about alleged prior assaults on him by the police when his defense at trial was that his confession was coerced by the police; and (3) the trial court allowed in-court identification testimony by the complainant that was tainted by prior suggestive identification procedures depriving Petitioner of his right to due process and a fair trial.

Petitioner attempted to seek leave to appeal with the Michigan Supreme Court, but his pleadings were rejected as untimely because they were not filed within the 56-day period established by Michigan Court Rule ("MCR") 7.302(C)(3).2 See Petition at 2; Corbin R. Davis Affidavit dated May 24, 1999. Petitioner promptly filed a motion for reconsideration with the Michigan Supreme Court, which was rejected.

Petitioner thereafter filed a petition for a writ of habeas corpus with the United States District Court, Eastern District of Michigan on April 1, 1999, raising the same issues he raised before the Michigan Court of Appeals.3 The Respondent filed its response on October 1, 1999, after being granted extended time to respond. Both Petitioner's reply to the response and the government's notice of filing Rule 5 materials were filed on November 8, 1999. On September 6, 2000, the case was referred to the undersigned. Supplemental Rule 5 materials, including missing portions of the trial transcript, were filed on February 1, 2001, and February 26, 2001.

II. ANALYSIS
A. Standard of Review Under the AEDPA

Petitioner's application was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), and therefore the provisions of the AEDPA apply. To be entitled to habeas relief, petitioner must show that his sentence was imposed in violation of the federal constitution or other federal law. As modified by the AEDPA, 28 U.S.C. § 2254(d) mandates that where a claim has been adjudicated on the merits in state court proceedings, habeas relief shall not be granted 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.

The Supreme Court recently clarified how federal courts are to apply the separate provisions of § 2254(d)(1):

Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.

Williams v. Taylor, 529 U.S. 362, 412-413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (O'Connor, J., delivering opinion of the Court as to Part II). Under 28 U.S.C. § 2254(e)(1), a factual determination by a state court is presumed to be correct. Petitioner has the "burden of rebutting the presumption of correctness by clear and convincing evidence." See also Warren v. Smith, 161 F.3d 358, 361 (6th Cir.1998), cert denied, 527 U.S. 1040, 119 S.Ct. 2403, 144 L.Ed.2d 802 (1999).

Petitioner raises claims involving his right to federal due process and a fair trial, his due process right to a presumption of innocence, the right to compulsory process, and his...

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