Slusher v. Mackie, 4:16-cv-14029

CourtUnited States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
Writing for the CourtHON. TERRENCE G. BERG
PartiesLARRY WADE SLUSHER, Petitioner, v. THOMAS MACKIE, Respondent.
Docket Number4:16-cv-14029
Decision Date11 May 2020

THOMAS MACKIE, Respondent.



May 11, 2020



This is a 28 U.S.C. § 2254 habeas action brought by Larry Wade Slusher, a Michigan state prisoner currently serving a sentence of 15 to 25 years. Petitioner challenges his Wayne County Circuit Court conviction for first-degree criminal sexual conduct in violation of Mich. Comp. Law § 750.520b(1)(a). As bases for relief, Petitioner raises the trial court's jury instructions, prosecutorial misconduct, irrelevant witness testimony, ineffective assistance of counsel, and improper judicial factfinding at sentencing. For the reasons discussed below, the Court will deny the habeas petition. The Court will also deny a certificate of appealability.


Petitioner was convicted of one count of first-degree criminal sexual conduct following a jury trial in Wayne County Circuit. The events leading to Petitioner's conviction occurred in 1997 or 1998. People v. Slusher, No. 318672, 2015 WL 1446595, at *1 (Mich. Ct. App. Mar. 31,

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2015). Because of problems at home, RH, the nine-year-old victim, and his mother were staying at Petitioner's home, where Petitioner lived with his wife and children. Id. RH came home from school one afternoon to find Petitioner home alone. Petitioner pulled down RH's pants and performed oral sex on RH. Id. RH asked Petitioner to stop; Petitioner threatened to kill him if he told anyone what had occurred. Id. The abuse ended when a deliveryman came to the front door. Id.

RH did not tell anyone about the incident until 1999, when he disclosed to the police that Petitioner had sexually assaulted him. After RH spoke with law enforcement, the district attorney filed criminal charges against Petitioner. Id. Petitioner later failed to appear for a final conference scheduled for January 5, 2001, apparently having fled the state. Id. He was extradited to Michigan sometime in late 2012 and convicted of first-degree criminal sexual. Id.

On direct appeal to the Michigan Court of Appeals, Petitioner took issue with trial testimony stating that he had also sexually abused two other children. Id. His ex-wife testified that, in 2000, she had filed a police report concerning an interaction between Petitioner and MS, the couple's son. Id. Petitioner's mother corroborated that testimony, confirming that MS had "made allegations" against Petitioner when he was a child. Id. Neither Petitioner's ex-wife nor his mother testified to the specific nature of the allegations involving MS. Id. The prosecutor also called MS, now an adult, as a witness. Id. On the stand, MS denied

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any memory of reporting sexual abuse by Petitioner to the police in 2000. Id. When asked whether MS had spoken with an investigator in 2012, MS initially denied having done so. Id. He later acknowledged he had spoken with the investigator but said he could not recall the substance of their conversation. Id. MS specifically denied telling the investigator that Petitioner had sexually abused him as a child, or that Petitioner had sexually abused another boy who was MS's childhood friend and neighbor. When asked about visiting a doctor a few months before Petitioner's trial, MS confirmed the visit, stating that with the help of this doctor he had "fixed all [of his] memories [him]self." Id. Petitioner's mother testified that she had taken MS "to a doctor so he could talk to him and settle it in his own mind what the truth was." Id.

The state appellate court denied Petitioner relief on all issues raised: (1) improper admission of "other acts" testimony; (2) jury instruction error; (3) prosecutorial misconduct; (4) irrelevant witness testimony; and (5) judicial fact-finding at sentencing in violation of Alleyne v. United States, 570 U.S. 99 (2013). The Michigan Supreme Court denied leave to appeal because it was "not persuaded that the questions presented should be reviewed by this Court." People v. Slusher, 499 Mich. 869 (2016). Slusher timely filed this § 2254 petition on November 14, 2016.

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Section 2254(d) of Title 28 of the United States Code, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, places strict limits on federal courts' authority to grant applications for a writ of habeas corpus by state prisoners. Moore v. Mitchell, 708 F.3d 760, 781 (6th Cir. 2013). Section 2254(d) instructs that federal courts "shall not" grant a habeas petition filed by a state prisoner with respect to any claim adjudicated on the merits by a state court, absent applicability of either of two specific exceptions. The first exception occurs if the state-court judgment "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court." 28 U.S.C. § 2254(d)(1). "[A]n 'unreasonable application of' those holdings must be objectively unreasonable, not merely wrong; even clear error will not suffice." Woods v. Donald, 135 S. Ct. 1372, 1376 (2015). The second exception applies if the state court judgment "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." 28 U.S.C. § 2254(d)(2).

Additionally, a state court's factual determinations are presumed correct on federal habeas review. See 28 U.S.C. § 2254(e)(1). Habeas review is thus "limited to the record that was before the state court." Cullen v. Pinholster, 563 U.S. 170, 181 (2011). A habeas petitioner may

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rebut this presumption only with clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998).


Petitioner claims he was denied a fair trial due to jury-instruction error, prosecutorial misconduct, and irrelevant witness testimony; that he received ineffective assistance of counsel when trial counsel failed to object to those errors; and that his sentence was informed by impermissible judicial factfinding. The government asserts that Petitioner waived several of these claims, or that they are procedurally defaulted. Because a habeas petitioner who seeks to obtain relief on procedurally defaulted claims must establish, among other things, that the claims are meritorious, the Court will cut to the merits analysis. Babick v. Berghuis, 620 F.3d 571, 576 (6th Cir. 2010). See Hudson v. Jones, 351 F.3d 212, 215 (6th Cir. 2003) ("[F]ederal courts are not required to address a procedural-default issue before deciding against the petitioner on the merits.").

On the merits, the government contends that Petitioner's rights were adequately protected by the jury instructions, that the prosecutor's remarks were not misconduct or error, and that Petitioner's challenge to witness testimony raises only questions of state law. Respondent also asserts that counsel was not ineffective for failing to raise futile objections and that Alleyne's holding on judicial factfinding does not apply to the advisory sentencing system applied in Petitioner's case.

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A. Erroneous jury instructions

Petitioner argues, first, that the trial court erred by instructing the jury that it "ha[d] heard evidence" of other acts he might have committed because no substantive evidence was offered on that issue. The Michigan Court of Appeals agreed this instruction was incorrect. Slusher, 2015 WL 1446595, at *3. The appellate court acknowledged, at least three times, that no such evidence was offered. See id. at *2 ("no evidence of other acts of sexual misconduct was ever admitted."), *3, *5. Nonetheless, the court held that "the instructions as a whole adequately protected defendant's rights" because the trial court also instructed the jury "not to convict defendant 'because you think he is guilty of other bad conduct[.]'" Id.

In general, a jury instruction that is incorrect under state law cannot serve as a basis for federal habeas relief. Ambrose v. Romanowski, 621 F. App'x 808, 813 (6th Cir. 2015) (citing Estelle v. McGuire, 502 U.S. 62, 71-72 (1991) and Byrd v. Collins, 209 F.3d 486, 527 (6th Cir. 2000)). Rather, the question on habeas review is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Ambrose, 621 F. App'x at 813. (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973) and Estelle, 502 U.S. at 72). This requires a federal court on habeas review to consider an erroneous jury instruction in the context of the other instructions and the trial record as a whole. Cupp, 414 U.S. at 147.

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Here, despite the appellate court's determination that no other-acts evidence was introduced, and that the jury instructions as a whole protected Petitioner's rights, the court acknowledged that the prosecutor's examination of MS likely influenced the jury:

While the jury was not presented with evidence of other acts of sexual abuse, it did hear MS deny reporting a number of specific descriptions of sexual abuse. MS also testified that his memory had been "fixed" with the help of a doctor. From this testimony, a juror could have easily felt that MS's testimony was not credible, and believed that defendant had molested MS or his friend, despite the absence of any actual evidence of this abuse.

Slusher, 2015 WL 1446595, at *3.

Under AEDPA's highly deferential standard, however, "fairminded jurists could not disagree" as to whether the trial court's instructions adequately protected Petitioner's rights. Harrington, 562 U.S. at 101. The trial court instructed the jury not to convict Petitioner on the basis of other bad conduct. Slusher, 2015 WL 1446595, at *4. That was immediately followed by an instruction that the jury must convict only if it found beyond a reasonable doubt that Petitioner had committed the crime with which he had been...

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