Skinner v. McMlemore

Decision Date07 March 2008
Docket NumberNo. 06-12350.,06-12350.
Citation551 F.Supp.2d 627
PartiesGermain SKINNER, Petitioner, v. Barry McLEMORE, Respondent.
CourtU.S. District Court — Eastern District of Michigan

Germain Skinner, Baraga, MI, pro se.

Brad H. Beaver, B. Eric Restuccia, Michigan Department of Attorney General, Lansing, MI, for Respondent

ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION; GRANTING MOTION TO EXPAND THE RECORD

ARTHUR J. TARNOW, District Judge.

Before the Court is Magistrate Judge Komives' Report and Recommendation [Docket #58] filed August 13, 2007. The Court deny petitioner's application field objections on August 30, 2007 and amended on October 10, 2007.

Having reviewed the file, the report and Recommendation and the objections the Court ADOPTS the Report and Recommendation as the findings and conclusions of the Court. Accordingly, petitioner's application for the writ of habeas corpus is DENIED.

IT IS FURTHER ORDERED that the petitioner's motion for expansion [Docket #64] of the record is GRANTED.

REPORT AND RECOMMENDATION

PAUL J. KOMIBES, United states Magistrate Judge.

                                       Table of Contents
                  I.  RECOMMENDATION...................................................630
                 II.  REPORT...........................................................630
                      A   Procedural History...........................................630
                      B. Factual Background Underlying Petitioner's Conviction.........631
                      C. Procedural Default............................................638
                      D. Standard of Review............................................641
                
                      E. Prosecutorial Misconduct (Claims I & II)..................642
                         1. Clearly Established Law....................................642
                         2. Analysis...................................................643
                            a.  Argument Regarding DNA Testing ........................643
                            b.  Comment on Invocation of Right to Remain Silent........646
                            c.  Personal Opinion of Witness Credibility................648
                      F. Amendment of Charges .........................................650
                         1. Clearly Established Law....................................650
                         2. Analysis...................................................651
                      G. Conclusion....................................................651
                III.  NOTICE TO PARTIES REGARDING OBJECTIONS..........................651
                

* * * * *

I. RECOMMENDATION: The Court should deny petitioner's application for the writ of habeas corpus.

II. REPORT:

A. Procedural History

1. Petitioner Germain Skinner is a state prisoner, currently confined at the Baraga Maximum Correctional Facility in Baraga, Michigan.

2. On July 26, 2001, petitioner was convicted of first degree criminal sexual conduct (CSC-I), MICH. COMP. LAWS § 750.520b; second degree criminal sexual conduct, MICH. COMP. LAWS § 750.520c (CSC-II); and first degree home invasion, MICH. COMP. LAWS § 750.110a, following a jury trial in the Genesee County Circuit Court, On August 27, 2001, he was sentenced as an habitual offender, third offense to a term of 40-60 years' imprisonment on the CSC-I conviction, a concurrent term of 15-30 years' imprisonment on the CSC-II conviction, and a concurrent term of 20-40 years' imprisonment on the home invasion conviction.

3. Petitioner appealed as of right to the Michigan Court of Appeals raising, through counsel, the following claims:

I. DEFENDANT CONTENDS THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL ATTORNEY FAILED TO MOVE FOR MISTRIAL AFTER THE OFFICER-IN-CHARGE TESTIFIED ON DIRECT EXAMINATION THAT HE HAD NOT SUPPLIED THE DEFENSE WITH EXCULPATORY DISCOVERY MATERIALS BECAUSE "THERE WAS NO EVIDENCE TO SUPPORT [THE CLAIM] THAT MR. SKINNER IS NOT THE PERSON RESPONSIBLE FOR THIS CRIME."

II. DEFENDANT. CONTENDS THAT HE WAS DENIED A FAIR TRIAL WHEN THE ASSISTANT PROSECUTOR FAILED TO DISQUALIFY HIMSELF FROM THE PROSECUTION OF THIS MATTER. DEFENDANT ARGUES THAT THE ASSISTANT PROSECUTOR WAS DISQUALIFIED BECAUSE HE WAS ENDORSED AS A WITNESS.

III. DEFENDANT CONTENDS THAT HE WAS DENIED A FAIR TRIAL WHEN THE ASSISTANT PROSECUTOR DENIGRATED DEFENSE COUNSEL IN ARGUMENTS BEFORE THE JURY.

The court of appeals found no merit to petitioner's claims, and affirmed his conviction and sentence. See People v. Skinner, No. 236876, 2003 WL 22715778 (Mich.Ct. App. Nov.18, 2003) (per curiam).

4. Petitioner, proceeding pro se, sought leave to appeal these three issues to the Michigan Supreme Court. Petitioner also raised two additional issues: (1) denial of petitioner's Fifth Amendment privilege by the prosecutor's comments on petitioner's failure to explain where he was at the time of the crime and (2) denial of a fair trial by the prosecutor's invasion of attorney-work product and false comment on that workproduct. The Supreme Court denied petitioner's application for leave to appeal in a standard order. See People v. Skinner, 470 Mich. 884, 682 N.W.2d 95 (2004).

5. On November 8, 2004, petitioner filed a motion for relief from judgment in the trial court pursuant to MICH. CT. R. 6.500-.508, raising the following claims:

I. THE PROSECUTOR DENIED DEFENDANT-APPELLANT A FAIR TRIAL DURING CLOSING AND REBUTTAL ARGUMENT [A.] BY HIS DRASTIC INFRINGEMENT UPON THE STATUTES UNIFORM ACT TO SECURE WITNESS-PRIVILEGE.

B. AND INTRODUCING REPEATEDLY COMMENTS UPON THE DEFENDANT'S FIFTH AMENDMENT RIGHT TO REMAIN SILENT.

C. AND INTRODUCING FALSE EVIDENCE TO THE JURY DURING HIS CLOSING AND REBUTTAL ARGUMENT.

D. AND BY EXPRESSING HIS PERSONAL OPINION ON CREDIBILITY OF WITNESS IN CLOSING AND REBUTTAL ARGUMENT.

II. THE TRIAL COURT DENIED DEFENDANT-APPELLANT A FAIR AND IMPARTIAL TRIAL BY ALLOWING THE PROSECUTOR TO EXCEED PROPER BOUNDS OF ARGUMENT WITHOUT INTERRUPTING TO CORRECT PROSECUTOR.

III. WHETHER THE TRIAL COURT ABUSE[D] ITS DISCRETION AND VIOLATED STATE AND FEDERAL DUE PROCESS BECAUSE THE COURT ADMITTED UNRELATED COUNT TO THE FOMAL CHARGING DOCUMENT.

On February 9, 2005, the trial court denied petitioner's motion for relief from judgment based on the court's conclusion that the claims had been raised in petitioner's direct appeal, and thus were barred by MICH. CT. R. 6.508(D)(2). See People v. Skinner, No. 98-3756-FC (Genesee County, Mich., Cir. Ct. Feb. 9, 2005). The Michigan Court of Appeals and Michigan Supreme Court denied petitioner's applications for leave to appeal in standard orders, based on petitioner's "failure to meet the burden of establishing entitlement to relief under MCR 6.508(D)." People v. Skinner, 474 Mich. 1093, 711 N.W.2d 57 (2006); People v. Skinner, No. 262165 (Mich.Ct.App. Oct. 21, 2005).

6. Petitioner, proceeding pro se, filed the instant application for a writ of habeas corpus on May 25, 2006. As grounds for the writ of habeas corpus, he raises the three claims that he raised in his motion for relief from judgment.

7. Respondent filed his answer on October 31, 2006. He contends that petitioner's claims are barred by petitioner's procedural default in the state courts.

B. Factual Background Underlying Petitioner's Conviction

Petitioner's convictions arise from his breaking into a home during the night and sexually assaulting an 11-year-old girl. The evidence adduced at trial was accurately summarized in petitioner's brief in the Michigan Court of Appeals on direct appeal:

The incident was alleged to have occurred in the early morning hours of August 6, 1998. At that time, defendant was staying with girlfriend Juanita Nelson at her apartment in Flint and kept some, but not all, of his clothing there (III 130, 136). On August 5, 1998, defendant left the apartment between 10:00 p.m. and 11:00 p.m. wearing a white tank top and the next time Nelson saw him was 6:00 a.m. the following morning, when they watched television and fell asleep for an unknown period of time (III 131-133, 141, 143). Sometime between 2:00 a.m. and 3:00 a.m., she received a telephone call from defendant, who was calling from his sister's house (III 132-133). Nelson testified that defendant did not own any silk shorts, but he did own blue nylon ones (III 134).

At the time of trial, complainant Laura Williams was 14 years old, but at the time of the alleged incident, she was 11 years old and lived with her parents and two brothers (II, 176, 177; III 105; V 14). She went to sleep between 10:30 p.m. and 11:00 p.m. after watching some television, and the next thing she knew, someone, standing over her about a foot away with his shorts pulled down around his knees, woke her up by shaking her arm (II, 178, 180, 196; III 29). She looked at her clock and noticed that it was 3:30 a.m. (II 214-215). Since Laura did not know who woke her up, she tried to run out of her room and scream, but the man stopped her by putting his hand over her mouth when she reached the end of her bed (II, 179,186-187). Laura could not breath while the man had his hand over her mouth (II 187-188). The man told her that if she screamed, he would kill her (II 188). She saw his face, because her room was lit by the television and a night light on her clock, and described it as long and narrow (II 185). The man had a gap in his two front teeth and really short hair and a small 2½-inch ponytail at the nape of his neck (II 185-186).

The man told Laura to pull up her shirt and take down her underwear, she did what she was told because she was scared that the man would kill her (II 190). The man next told her to spread her legs, but she could not do so because her underwear was around her ankles, so the man told her to take her underwear off (II 190). The man, who was wearing blue silky shorts and a white tank top, had pulled his shorts down and laid on top of her (II 190-19 1). Laura looked towards the wall because she did not want to look at him (II 191, 194). The man laid there "for a minute or two" and then started rubbing the outer part of her private area (II, 191, 194, 195). Laura was...

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