Sueing v. Noah Nagy

• Docket Number: 1:22-cv-199
• Decision Date: 25 August 2023
• Parties: JEROME SUEING, Petitioner, v. NOAH NAGY, Respondent.
• Court: U.S. District Court — Western District of Michigan

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JEROME SUEING, Petitioner,
v.
NOAH NAGY, Respondent.

No. 1:22-cv-199

United States District Court, W.D. Michigan, Southern Division

August 25, 2023

OPINION

Robert J. Jonker United States District Judge

This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. Petitioner Jerome Sueing is presently on parole under the supervision of the Michigan Department of Corrections. Petitioner was incarcerated with at the G. Robert Cotton Correctional Facility in Jackson, Michigan, when he initiated this action. (See ECF No. 1, PageID.1, 25.) On September 3, 2015, following a jury trial in the Kent County Circuit Court, Petitioner was convicted of aggravated indecent exposure, in violation of Mich. Comp. Laws § 750.335a(2)(b), and indecent exposure by a sexually delinquent person, in violation of Mich. Comp. Laws § 750.335a(2)(c), in each of two criminal prosecutions that were tried together before a single jury. Petitioner was sentenced as a fourth habitual offender, Mich. Comp. Laws § 769.12, initially on September 28, 2015. Petitioner was resentenced twice as a result of his appeals-first on May 22, 2017, and finally on August 30, 2021. The court ultimately sentenced Petitioner to concurrent prison terms of 2 to 15 years on the aggravated indecent exposure counts and 1 day to life on the indecent exposure by a sexually delinquent person counts.

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On March 7, 2022, Petitioner filed his habeas corpus petition raising four grounds for relief, as follows:

I. The trial court violated [Petitioner's] right to due process-denied him his right to a fair trial by joining the unrelated cases of aggravated indecent exposure which each carried a second count of indecent exposure by a sexually delinquent person, and the join[d]er resulted in unfair prejudice

II. The trial court abused it[]s discretion and denied [Petitioner] his due process right to a fair trial by admitting evidence of past acts that should not have been admissible pursuant to MCR 404(b)

III. [Petitioner] did not rec[ei]ve the adequate assistance of counsel in fulfillment of his constitutional rights

IV. [Petitioner] claims that, during opening statements, the prosecutor improperly referenced the testimony of a professor and a police officer regarding the 2003 incident at Kendall College. Specifically, [Petitioner] asserts that the prosecutor's comments violated his Sixth Amendment right to confrontation because neither the professor nor the police officer testified at trial. [Petitioner] also claims that defense counsel was ineffective for failing to move for a mistrial based on the prosecutor's opening statement. These comments were prejudicial to [Petitioner] and impaired his ability to have a fair trial. [Petitioner] further claims that defense counsel was ineffective for failing to request a “cautionary instruction” or a “missing witness instruction.”

(Pet., ECF No. 1, PageID.10-12, 15, 17, 20.) Respondent asserts that Petitioner's grounds for relief are meritless.^[1] (ECF No. 7.) For the following reasons, the Court concludes that Petitioner has

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failed to set forth a meritorious federal ground for habeas relief and will, therefore, deny his petition for writ of habeas corpus.

Discussion

I. Factual Allegations

The Michigan Court of Appeals described the facts underlying Petitioner's convictions as follows:

In lower court no. 15-000819-FH, [Petitioner] was charged with aggravated indecent exposure, MCL 750.335a(2)(b), and indecent exposure by a sexually delinquent person, MCL 750.335a(2)(c) in connection with an incident in which [Petitioner] exposed his penis and began masturbating while sitting at a table near a woman at the Grand Rapids Downtown Market on January 9, 2015. In lower court no. 15-000820-FH, [Petitioner] was charged with aggravated indecent exposure and indecent exposure by a sexually delinquent person in connection with an incident in which [Petitioner] exposed and then began “stroking” his penis while sitting next to a woman in a lobby at Kendall College of Art and Design in Grand Rapids on January 12, 2015.

People v. Sueing, No. 329961, 2017 WL 1034423, at *1 (Mich. Ct. App. Mar. 16, 2017), vacated in part by People v. Sueing, 923 N.W.2d 265 (Mich. 2019).

Jury selection for Petitioner's trial began on September 1, 2015. (Trial Tr. I, ECF No. 8-5.) Over the course of three days, the jury heard testimony from numerous witnesses, and the prosecution presented evidence of similar prior incidents. (Trial Tr. I, II, & III, ECF Nos. 8-5, 8-6, 8-7.) On September 3, 2015After only a little over an hour of deliberation, the jury reached a guilty verdict. (Trial Tr. III, ECF No. 8-7, PageID.353.) Petitioner appeared before the trial court for sentencing on September 28, 2015. (ECF No. 8-8.)

Petitioner, with the assistance of counsel, appealed his conviction and sentence to the Michigan Court of Appeals, raising the same four issues he raises in his habeas petition. The court

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of appeals “vacate[d] [Petitioner's] convictions and sentences for aggravated indecent exposure, affirm[ed] his convictions for indecent exposure by a sexually delinquent person, but vacate[d] his sentences associated with these two convictions and remand[ed] so the trial court [could] resentence [Petitioner] consistent with MCL 750.335a(2)(c) to one day to life in prison.” Sueing, 2017 WL 1034423, at *1. Petitioner was then resentenced by the trial court on May 22, 2017. (ECF No. 8-9.)

Subsequently, however, the Michigan Supreme Court vacated the part of the court of appeals' judgment that vacated Petitioner's sentences for indecent exposure by a sexually delinquent person. See People v. Sueing, 923 N.W.2d 265, 265 (Mich. 2019). The supreme court remanded the matter to the court of appeals to hold in abeyance “pending its decision in People v. Arnold (On Remand).”^[2] Id. The supreme court directed the court of appeals to reconsider Petitioner's case in light of Arnold once Arnold was decided. Id. The supreme court further directed the court of appeals “to consider the challenge to the assessment of points under Offense Variable 13, MCL 777.43, which was raised by [Petitioner] but not addressed by that court during its initial review of this case.” Id.

On remand, the court of appeals vacated Petitioner's sentences for indecent exposure by a sexually delinquent person and remanded the matter to the trial court for a second resentencing.

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People v. Sueing, No. 329961, 2019 WL 6045563, at *1 (Mich. Ct. App. Nov. 14, 2019). Petitioner was ultimately resentenced on August 30, 2021. (ECF No. 8-10.) Petitioner's subsequent appeals to the court of appeals were dismissed pursuant to stipulations. (ECF Nos. 8-12, PageID.578; ECF No. 8-13, PageID.603; ECF No. 8-14, PageID.628.) This § 2254 petition followed.

II. AEDPA Standard

The AEDPA “prevent[s] federal habeas ‘retrials'” and ensures that state court convictions are given effect to the extent possible under the law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). An application for writ of habeas corpus on behalf of a person who is incarcerated pursuant to a state conviction cannot be granted with respect to any claim that was adjudicated on the merits in state court unless the adjudication: “(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 upon an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” 28 U.S.C. § 2254(d). “Under these rules, [a] state court's determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree on the correctness of the state court's decision.” Stermer v. Warren, 959 F.3d 704, 721 (6th Cir. 2020) (internal quotation marks omitted) (quoting Harrington v. Richter, 562 U.S. 86, 101 (2011)). This standard is “intentionally difficult to meet.” Woods v. Donald, 575 U.S. 312, 316 (2015) (internal quotation marks omitted).

The AEDPA limits the source of law to cases decided by the United States Supreme Court. 28 U.S.C. § 2254(d). In determining whether federal law is clearly established, the Court may not consider the decisions of lower federal courts. Williams v. Taylor, 529 U.S. 362, 381-82 (2000); Miller v. Straub, 299 F.3d 570, 578-79 (6th Cir. 2002). Moreover, “clearly established Federal law” does not include decisions of the Supreme Court announced after the last adjudication of the

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merits in state court. Greene v. Fisher, 565 U.S. 34, 37-38 (2011). Thus, the inquiry is limited to an examination of the legal landscape as it would have appeared to the Michigan state courts in light of Supreme Court precedent at the time of the state-court adjudication on the merits. Miller v. Stovall, 742 F.3d 642, 644 (6th Cir. 2014) (citing Greene, 565 U.S. at 38).

A federal habeas court may issue the writ under the “contrary to” clause if the state court applies a rule different from the governing law set forth in the Supreme Court's cases, or if it decides a case differently than the Supreme Court has done on a set of materially indistinguishable facts. Bell, 535 U.S. at 694 (citing Williams, 529 U.S. at 405-06). “To satisfy this high bar, a habeas petitioner is required to ‘show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.'” Woods, 575 U.S. at 316 (quoting Harrington, 562 U.S. at 103).

Determining whether a rule application was unreasonable depends on the rule's specificity. Stermer, 959 F.3d at 721. “The more general the rule, the more leeway courts have in reaching outcomes in case-by-case...