Vazquez v. Burt

• Decision Date: 30 January 2017
• Docket Number: Case No. 1:16-cv-1379
• Parties: ANGEL VAZQUEZ, Petitioner, v. S. L. BURT, Respondent.
• Court: U.S. District Court — Western District of Michigan

ANGEL VAZQUEZ, Petitioner, v. S. L. BURT, Respondent.

Case No. 1:16-cv-1379

UNITED STATES OF AMERICA UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

January 30, 2017

Honorable Robert J. Jonker

OPINION

This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C. § 2254. Promptly after the filing of a petition for habeas corpus, the Court must undertake a preliminary review of the petition to determine whether "it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court." Rule 4, RULES GOVERNING § 2254 CASES; see 28 U.S.C. § 2243. If so, the petition must be summarily dismissed. Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court has the duty to "screen out" petitions that lack merit on their face). A dismissal under Rule 4 includes those petitions which raise legally frivolous claims, as well as those containing factual allegations that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999). After undertaking the review required by Rule 4, the Court concludes that the petition must be dismissed because it fails to raise a meritorious federal claim.

Factual Allegations

Petitioner Angel Vazquez is presently incarcerated with the Michigan Department of Corrections (MDOC) at the Muskegon Correctional Facility in Muskegon Heights, Michigan. On August 30, 2013, an Ingham County Circuit Court jury convicted Petitioner of five counts of first-degree criminal sexual conduct (CSC), MICH. COMP. LAWS § 750.520b(1)(f), and one count of second-degree CSC, MICH. COMP. LAWS § 750.520c(1)(f). On September 26, 2013, the court sentenced Petitioner as a habitual offender-second offense, MICH. COMP. LAWS § 769.10, to concurrent terms of imprisonment of 18 years, 9 months to 30 years on two counts of first-degree CSC; 14 years to 30 years on three counts of first-degree CSC; and 5 years to 22 years, 6 months on the second-degree CSC count.

Petitioner appealed his convictions and sentence to the Michigan Court of Appeals raising four issues:

I. MR. VAZQUEZ' CONVICTIONS FOR FIRST AND SECOND DEGREE CRIMINAL SEXUAL CONDUCT MUST BE VACATED, AS THERE WAS NO PROOF THAT HE "CAUSED" PERSONAL INJURY TO THE COMPLAINANT.

II. MR. VAZQUEZ WAS DEPRIVED OF THE RIGHT TO HAVE A PROPERLY INSTRUCTED JURY DECIDE HIS FATE AND THE RIGHT TO PRESENT A DEFENSE; AND DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT.

III. MR. VAZQUEZ WAS SENTENCED ON THE BASIS OF FACTS NOT FOUND BY JURY, IN VIOLATION OF THE SIXTH AMENDMENT.

IV. THE JUDGMENT AND THE PRESENTENCE REPORT MUST BE CORRECTED, BECAUSE THEY INACCURATELY STATE THAT MR. VAZQUEZ WAS CONVICTED OF COMMITTING CRIMINAL SEXUAL CONDUCT AGAINST A PERSON UNDER AGE 13.

(Def.-Appellant's Br., ECF 1-2, PageID.29.) By per curiam opinion issued April 28, 2015, the court of appeals affirmed the convictions and sentences with respect to Petitioner's first three issues; however, the court remanded the matter for the ministerial task of correcting the inaccuracy raised in Petitioner's fourth issue.¹

Petitioner filed an application for leave to appeal in the Michigan Supreme Court, raising the first three of the four issues he had raised in the court of appeals. (Appl. for Leave to Appeal, ECF No. 1-3, PageID.90.) By order entered December 22, 2015, the Michigan Supreme Court denied leave to appeal. Although the supreme court denied the application, it noted that the court of appeals' resolution of Petitioner's issue III, regarding sentencing, was still appropriate even though the case the court of appeals had relied on, People v. Herron, 845 N.W.2d 533 (Mich. App. 2013), had been overruled in People v. Lockridge, 870 N.W.2d 502 (Mich. 2015). Petitioner did not file a petition for certiorari in the United States Supreme Court. (Pet., ECF No. 1, PageID.2.)

Petitioner placed his habeas petition in the prison mailing system on November 29, 2016.² (Id., PageID.9.) The petition raises the three issues that Petitioner raised in both state appellate courts. Accordingly, the petition is timely and the Petitioner has exhausted the remedies available in the state courts.

The Michigan Court of Appeals provided a concise statement of the testimony at trial:

The victim was 12 years old when she met defendant, a neighbor who was approximately 50 years old. She and her sister would clean his house, and he wouldpay them $20 for doing so. The victim testified that defendant would buy her gifts, such as food, underwear, clothes, and an iPod.

The sexual assaults began when the victim was approximately 13 years old. She testified that defendant touched her breasts, digitally penetrated her vagina, and penetrated her vagina with his penis. She knew what defendant was doing was wrong, she told him to stop, and that it hurt. However, the victim continued to visit defendant's house daily because she was afraid of him. She testified that defendant engaged in sexual conduct with her almost daily, including anal-penile penetration and oral penetration.

Eventually, when the victim approached the age of 16, she became less fearful of defendant. By the time she was 17 years old, she stopped engaging in sexual activity with defendant. She testified that the last sexual contact occurred when he touched her breast, she told him no, she ran to the bathroom, and called the police shortly thereafter.

The victim detailed the turmoil these sexual assaults created in her life. After the first assault, the victim attempted to commit suicide. The victim's mother tried to get her mental health help through hospitalization and medication. The victim's sister also explained how the victim underwent a drastic change in behavior when she was around 13 or 14 years old. Despite her family's efforts, the victim again attempted suicide when she was 16 years old.

The victim also explained that she failed eighth grade even though she previously had been a good student. The victim's mother verified that her plummeting grades and suicide attempts occurred when the victim was visiting defendant frequently. The victim also testified that defendant's conduct affected her because she did not think positively about herself. She explained that after the assaults, she "didn't want to feel."

Defendant confirmed that the victim would often visit his trailer, and he gave her a key so she could look after the trailer when he was out of town. He admitted that he had sexual intercourse with her when she was 17, but denied having sex with her when she was younger than 16 years old. A jury convicted defendant of five counts of first-degree criminal sexual conduct and one count of second-degree criminal sexual conduct.

People v. Vazquez, No. 320175, 2015 WL 1932069 at *1 (Mich. Ct. App. Apr. 28, 2015) (footnote omitted).

Discussion

I. Standard of review

This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996, PUB. L. 104-132, 110 STAT. 1214 (AEDPA). See Penry v. Johnson, 532 U.S. 782, 792 (2001). The AEDPA "prevents 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). The AEDPA has "drastically changed" the nature of habeas review. Bailey v. Mitchell, 271 F.3d 652, 655 (6th Cir. 2001). 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). This standard is "intentionally difficult to meet." Woods v. Donald, 575 U.S. ___, 135 S. Ct. 1372, 1376 (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). This Court may consider only the "clearly established" holdings, and not the dicta, of the Supreme Court. Williams v. Taylor, 529 U.S. 362, 412 (2000); Bailey, 271 F.3d at 655. In determining whether federal law is clearly established, the Court may not consider the decisions of lower federal courts. Lopez v. Smith, 135 S. Ct. 1, 3 (2014); Bailey, 271 F.3d at 655. Moreover, "clearly established Federal law" does not include decisions of the Supreme Court announced after the last adjudication of the merits in state court. Greene v. Fisher, 132 S. Ct. 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, 132 S. Ct. at 44).

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, 2015 WL 1400852, at *3 (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)). In other words, "[w]here the precise contours of the right remain unclear, state courts enjoy broad discretion in their adjudication of a...