Warren v. Curtin

• Decision Date: 20 August 2012
• Docket Number: Case No. 1:10-cv-330
• Parties: EARNEST LAMONT WARREN, Petitioner, v. CINDI S. CURTIN, Respondent.
• Court: U.S. District Court — Western District of Michigan

EARNEST LAMONT WARREN, Petitioner, v. CINDI S. CURTIN, Respondent.

Case No. 1:10-cv-330

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Dated: August 20, 2012

Hon. Robert J. Jonker

REPORT AND RECOMMENDATION

Petitioner, a prisoner in a Michigan correctional facility, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

I. Background

On March 6, 2007, following a bench trial, petitioner was convicted of first-degree criminal sexual conduct (CSC 1), MCL 750.250b(1)(c), and assault with intent to do great bodily harm less than murder, MCL 750.84. Petitioner was sentenced as a habitual offender, fourth offense, MCL 769.12, to 30 to 75 years' imprisonment for his CSC 1 conviction and to 20 to 75 years' imprisonment for his assault conviction. See People v. Warren, No. 276816, slip op. at 1 (Mich. App. Sept. 18, 2008) (docket no. 16); Sentencing Trans. (March 6, 2007) at 5-7 (docket no. 15).

On March 31, 2006, the victim, Desiree Rose, received her monthly social security check, and she obtained a fifth of rum, $35 worth of marijuana, and $100 worth of crack cocaine for a weekend of partying. The victim and a friend smoked all of the crack cocaine at a crack house in Muskegon, Michigan. The victim then walked to her sister's nearby residence, where she smoked some marijuana and shared her rum with her sister. Next, the victim went a short distance to anotherfriend's residence, where she was introduced to defendant. At some point in the late evening, the owner of that residence asked the victim and defendant to leave. The victim now needed somewhere to spend the night, and defendant invited her to a nearby abandoned house, where they could continue to party into the early morning hours. At trial, defendant testified that they made a sex-for-drugs agreement.

At the abandoned house, defendant led the victim to a second-floor bedroom without furniture, but with some bedding strewn across the floor. They shared a small quantity of crack cocaine and marijuana. Defendant then departed to obtain more intoxicants, while the victim fell asleep. Defendant returned with alcohol, which they both consumed. Defendant departed again, and he next returned with a quantity of crack cocaine. However, at this point, the victim indicated that she no longer wanted to have sexual relations with defendant, but she still wanted the crack cocaine. The victim, nevertheless, completely undressed in front of defendant, although she covered herself with a sheet. The relationship deteriorated after the victim smoked some of the crack cocaine without defendant's permission. A melee ensued in the bedroom, where defendant beat the victim severely, hitting her six or seven times in her face. The victim fought back, trying to push defendant out of a window, but she was ultimately rendered unconscious. When she regained consciousness, she was lying on her back, and defendant had his shirt off, his pants down, and his legs straddling one of her legs. While defendant's exposed penis was not inside of her body, the victim believed that a sexual penetration occurred because of the sensation she felt inside her vagina.

People v. Warren, No. 276816, slip op. at 1-2.

Petitioner, through counsel, presented four issues on appeal:

I. [Petitioner]'s conviction for first degree criminal sexual conduct must be vacated because there was insufficient evidence that any sexual penetration occurred.

II. [Petitioner]'s conviction for assault with intend to do great bodily harm less than murder must be reversed, because the trial court used a legally incorrect definition of "great bodily harm" thus depriving [petitioner] of due process where the prosecution failed to present sufficient evidence of a critical element of the crime.

III. The trial court abused its discretion and denied [petitioner] a fair trial by admitting irrelevant, improper and unduly prejudicial rebuttal evidence.

IV. [Petitioner] is entitled to resentencing because his sentencing guidelines were erroneously scored, and without those errors, hisguidelines are significantly reduced; and also because his sentence for assault with intent to do great bodily harm departs from his guidelines for that offense.

Brief on Appeal (docket no. 19).

The Michigan Court of Appeals affirmed the conviction. People v. Warren, No. 276816, slip op. Petitioner raised the same four issues in his application for leave to appeal to the Michigan Supreme Court, which was denied. People v. Warren, No. 137666 (Nov. 20, 2009). Petitioner raised the same four issues in this habeas petition.

II. Procedurally defaulted claim

Respondent contends that Issue III is barred from habeas review under the procedural default doctrine. The court agrees. Where "a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claim is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claim will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991). A procedural default "provides an independent and adequate state-law ground for the conviction and sentence, and thus prevents federal habeas corpus review of the defaulted claim, unless the petitioner can demonstrate cause and prejudice." Gray v. Netherland, 518 U.S. 152, 162 (1996). Not every state procedural rule will warrant application of the procedural default doctrine. Only a state procedural rule that was "'firmly established and regularly followed' by the time as of which it [was] to be applied," Ford v. Georgia, 498 U.S. 411, 424 (1991), will support application of the doctrine. "For a habeas claim to be procedurally defaulted on the basis of a state procedural rule, the petitionermust have violated a procedural rule, but the state court mus also have based its decision on the procedural default." Simpson v. Jones, 238 F.3d 399, 407 (6th Cir. 2000).

The Michigan Court of Appeals performed only a "plain error" review of Issue III because petitioner failed to properly preserve this issue for appellate review by not objecting to the testimony at trial:

Defendant next contends that the trial court abused its discretion by admitting irrelevant, improper, and unduly prejudicial rebuttal evidence. "Admission of rebuttal evidence is within the sound discretion of the trial judge and will not be disturbed on appeal absent a clear abuse of discretion." People v. Figgures, 451 Mich. 390, 398, 547 N.W.2d 673 (1996). Because defendant did not object at trial to the testimony, this Court's review is limited to whether the alleged, unpreserved error affected his substantial rights. People v. Rice, 235 Mich.App. 429, 442, 597 N.W.2d 843 (1999).

Generally, rebuttal evidence is properly admitted to explain, contradict, or otherwise refute an opponent's evidence. Figgures, supra at 399, 547 N.W.2d 673. A party may not introduce evidence during rebuttal unless it properly responds to evidence introduced or a theory developed by the opponent. Id. Rebuttal testimony on collateral issues is generally improper. People v. Richardson, 139 Mich.App. 622, 628, 362 N.W.2d 853 (1984). However, "a party may introduce rebuttal evidence to contradict the answers elicited from a witness on cross-examination regarding matters germane to the issue if the rebuttal evidence is narrowly focused on refuting the witness' statements." People v. Spanke, 254 Mich.App. 642, 644-645, 658 N.W.2d 504 (2003); see also People v. Vasher, 449 Mich. 494, 537 N.W.2d 168 (1995).

In the instant case, defendant argues that the trial court improperly admitted rebuttal testimony from a police detective, which amounted to an attack on defendant's credibility. The rebuttal evidence, however, followed defendant's case-in-chief, during which defendant testified. Throughout the cross-examination of defendant, the prosecution attacked defendant's credibility, focusing on defendant's statements to the police during an interview following the incident. At trial, defendant testified during cross-examination that he initially denied to the police that he knew anything about the incident in question. Defendant then testified that he later changed his story while talking to the police, and admitted that he was present at the residence of the victim's friend and that he left that residence with the victim. Defendant then told the police that another African-American male joined them as they left that residence, and the victim and that male went on their way withoutdefendant. Defendant finally testified that he eventually told the police everything, including that he and the victim went to the abandoned house.

The prosecution subsequently recalled a police detective, who interviewed defendant, as a rebuttal witness. Importantly, the detective contradicted defendant's trial testimony that he ultimately told the police that he took the victim to the abandoned house.

A witness's credibility is always significant. People v. Layher, 238 Mich.App. 573, 580, 607 N.W.2d 91 (1999). Again, the prosecution "may introduce rebuttal evidence to contradict the answers elicited from a witness on cross-examination regarding matters germane to the issue if the rebuttal evidence is narrowly focused on refuting the witness' statements." Spanke, supra at 644-645, 658 N.W.2d 504. In the instant case, that is exactly what the prosecution did by recalling the detective as a rebuttal witness, and that rebuttal testimony was limited to defendant's statement and to specifically refuting defendant's testimony that he told the police everything, i.e., that he went to the abandoned house with the victim and that she was injured from running into the walls. The issue was germane to the question of guilt or innocence because it related to defendant's being forthcoming or not forthcoming about

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