Turner v. Winn

• Decision Date: 07 July 2020
• Docket Number: No. 2:17-cv-14119,2:17-cv-14119
• Parties: ROBERT JASON TURNER, Petitioner, v. THOMAS WINN, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

ROBERT JASON TURNER, Petitioner, v. THOMAS WINN, Respondent.

No. 2:17-cv-14119

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

July 7, 2020

Paul D. Borman United States District Judge

OPINION AND ORDER (1) DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS, (2) DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND (3) DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

Robert Jason Turner, ("Petitioner"), confined at the Saginaw Correctional Facility in Freeland, Michigan, filed a petition for a writ of habeas corpus with this Court pursuant to 28 U.S.C. § 2254, challenging his convictions for two counts of first-degree criminal sexual conduct, Mich. Comp. Laws § 750.520b(1)(a) & (b), and one count of second-degree criminal sexual conduct, Mich. Comp. Laws § 750.520c(2)(b). For the reasons that follow, the petition for a writ of habeas corpus is DENIED WITH PREJUDICE.

I. BACKGROUND

Petitioner was convicted following a jury trial in the Delta County Circuit Court.

Petitioner provided a detailed statement of facts in his petition for a writ of habeas corpus. Respondent also provided a detailed factual summary of the case, which does not essentially conflict with Petitioner's statement of facts. The Court accepts 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 (6th Cir. 2008). Since the facts of this case have been repeated numerous times, they need not be repeated here in their entirety. Only a brief overview of the facts is required. See Nevers v. Killinger, 990 F. Supp. 844, 847 (E.D. Mich. 1997).

Petitioner's conviction arose from the repeated sexual assaults of his daughter, B.T., starting when she was five years old.¹ B.T. testified that Petitioner began sexually molesting her when she was five years old, with the acts progressing to various forms of sexual penetration as she got older. (ECF No. 6-7, Trial Transcript, PgID 363-78.)

Sara Kofsky, a Sexual Assault Nurse Examiner (SANE), interviewed B.T. after B.T. reported the ongoing sexual abuse. (Id. at PgID 455-56.) B.T. told Kofsky that Petitioner would come into her room when her mother was sleeping, and approach her from behind before raping her. (Id. at PgID 460-61.) Kofsky alsoperformed a physical examination of B.T. and found that her hymen did not cover her vagina. Kofsky testified that this was consistent with, but not necessarily conclusive proof of, sexual activity. (Id. at PgID 465-66.)

Michigan State Police Trooper Dale Hongisto interviewed Petitioner after speaking with B.T. and her mother. (Id. at PgID 440.) Trooper Hongisto went to Petitioner's work, introduced himself, and asked if they could talk at the state police post. (Id. at PgID 441.) Petitioner told Trooper Hongisto he would meet with him shortly. (Id.) Trooper Hongisto returned to the post and Petitioner arrived approximately half an hour later. (Id.) They then went into an interview room and discussed the allegations. (Id. at PgID 441-42.) Petitioner denied sexually assaulting the victim but told Hongisto that sometimes when he came home from work he would sleep with B.T. in her bed for a few hours before going to his own bed. (Id. at PgID 442-43.) He further told Hongisto that B.T. "kicks in her sleep quite often." (Id. at PgID 443.)

While incarcerated in jail awaiting trial, Petitioner called his wife several times. (ECF No. 6-9, Trial Transcript, PgID 623.) During one conversation, Petitioner told his wife, "I wish someone would beat the f[] out of her, knock her head off or something. Talk to her." (Id. at PgID 624.) Petitioner was under a no-contact order from B.T. at the time, which also prohibited Petitioner from asking other persons to contact B.T. (Id.) Petitioner told his wife, "Tell her to drop this stufffor me if she has any heart for me at all." (Id.) On one occasion, Petitioner told his wife to "[b]eat [B.]." (Id.) Petitioner told his wife several times, "Tell her I'm f[] sorry for whatever. Get me the f[] out of here." (Id. at PgID 625.) In another conversation, Turner said, "Tell her to forgive me. Get me the f[] . . . do something." (Id.)

Four other children also testified that Petitioner sexually abused them. (ECF No. 6-7, Trial Transcript, PgID 475-80, 484, 487-90; ECF No. 6-8, Trial Transcript, PgID 521-26, 534-38.)

Petitioner raised the following claims on his appeal of right:

I. Complainant was biased against Defendant and had an ulterior motive of covering up in making false allegations.

II. Improper other acts testimony required a new trial.

Petitioner's conviction was affirmed. People v. Turner, No. 317095, 2014 WL 5306092 (Mich. Ct. App. Oct. 16, 2014); lv. den. 497 Mich. 984 (2015).

Petitioner filed a post-conviction motion for relief from judgment, which was denied. People v. Turner, No. 12-8695-FC (Delta County Cir. Ct., Jan. 12, 2016) (ECF No. 6-12, PgID 811-15) reconsideration den. People v. Turner, No. 12-8695-FC (Delta County Cir. Ct., July 6, 2016) (ECF No. 6-14). The Michigan appellate courts denied Petitioner leave to appeal. People v. Turner, No. 333885 (Mich. Ct. App. Nov. 16, 2016) (ECF No. 6-17, PgID 979) lv. den. 501 Mich. 878 (2017).

Petitioner seeks a writ of habeas corpus on the following grounds:

I. The Petitioner Robert Turner was denied his constitutional due process and equal protection rights to the effective assistance of counsel under the U.S. VI and XIV Amendments and the Michigan Constitution 1963, Art, 1, subsection 17, 20.

II. The Petitioner Robert Turner was denied his constitutional due process and equal protection rights to a fair and impartial trial under the IV, V, VI and XIV Amendments and the Michigan Constitution 1963 Art 1, subsection 17 and 20 because of defense attorney's ineffective assistance.

III. The Petitioner Robert Turner was denied his constitutional due process and equal protection rights to the effective assistance of counsel under the U.S. XIV Amendment on his appeal as of right.

IV. Rebuttal to Michigan Court of Appeals' affirmation.

(ECF No. 1, Petition, PgID 8-9.)

II. STANDARD OF REVIEW

28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death Penalty 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 ofthe evidence presented in the State court proceeding.

A state court's decision 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 411. "[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." Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). To obtain habeas relief in federal court, a state prisoner is required to show that the state court's rejection of his claim "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington, 562 U.S. at 103.

Petitioner's claims were raised in his post-conviction motion for relief from judgment. In reviewing a claim under the AEDPA's deferential standard of review,this Court must review "the last state court to issue a reasoned opinion on the issue." Hoffner v. Bradshaw, 622 F.3d 487, 505 (6th Cir. 2010) (quoting Payne v. Bell, 418 F.3d 644, 660 (6th Cir. 2005)). The Michigan Court of Appeals and the Michigan Supreme Court both denied Petitioner's post-conviction application for leave to appeal in unexplained one-sentence orders. Accordingly, this Court must "look through" these decisions to the Delta County Circuit Court opinion denying the motion for relief from judgment, which was the last state court to issue a reasoned opinion. Then, the Court can decide whether that court's adjudication of Petitioner's claims was "contrary to," or "an unreasonable application of" clearly established federal law as determined by the United States Supreme Court. See Hamilton v. Jackson, 416 F. App'x 501, 505 (6th Cir. 2011).

III. DISCUSSION

The Court will discuss Petitioner's claims together because they all allege the ineffective assistance of trial or appellate counsel.

A defendant is required to satisfy a two prong test to establish the denial of the effective assistance of counsel. First, the defendant must show that counsel's performance was so deficient that the attorney was not functioning as the "counsel" guaranteed by the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 687 (1984). The defendant must overcome a strong presumption that counsel's behavior was within the wide range of reasonable professional assistance. Id. at 689. Thepresumption is that, under the circumstances,...