Opinion
No. 01-CV-73639-DT.
May 23, 2002.
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
I. Introduction
This is a habeas case under 28 U.S.C. § 2254. Petitioner Alan L. Davis, Sr. (Petitioner) is a state inmate at the Pamall Correctional Facility in Jackson, Michigan, where he is serving a sentence of two to fifteen years in prison for the crime of second-degree criminal sexual conduct, Mich. Comp. Laws § 750.520c(1)(a). Petitioner has filed a pro se petition for writ of habeas corpus claiming that he is incarcerated in violation of his constitutional rights. Respondent, through the Attorney General's Office, filed a response, arguing that petitioner's claims are either procedurally defaulted or lack merit. For the reasons which follow, the petition will be denied.
II. Procedural History
Petitioner was convicted of one count of second-degree criminal sexual conduct on August 27, 1998, following a jury trial in the Oakland County Circuit Court. On September 30, 1998, petitioner was sentenced to two to fifteen years in prison.
Petitioner filed an appeal of right to the Michigan Court of Appeals, presenting the following claims:
I. Prosecutorial misconduct of interjecting Defendant's religious beliefs and training into trial on direct examination and closing argument denied Defendant a fair trial, where the jury was mislead and prejudiced by the improper questioning and argument equating Defendant's religious beliefs and training to intimidation, requiring reversal.
II. Whether there was sufficient evidence established at trial to prove beyond a reasonable doubt Defendant committed the crime of criminal sexual conduct-second.
III. Defendant's sentence is based on materially false information unsupported by the record and is disproportionate to the background and character of Defendant and the actual circumstances of the alleged offense and resentencing is required.
IV. The trial court erred in relying on challenged incident information in the pre-sentence report and in concluding without sufficient evidence that information was correct and resentencing is required.
The Michigan Court of Appeals affirmed petitioner's conviction and sentence. People v. Davis, 215278 (Mich.Ct.App. December 26, 2000).
Petitioner then filed a delayed application for leave to appeal with the Michigan Supreme Court, in which he raised the prosecutorial misconduct and sufficiency of evidence claims that he raised with the Michigan Court of Appeals. Petitioner also raised a new issue:
The issue of religion was raised on numerous occasions during trial and sentencing, even though defense counsel did not object through (sic) most, the fact that religion was raised and is violation of U.S. Constitution of Separation of Church and State as well as Michigan law M.C.L. 600.1436.
The Michigan Supreme Court denied leave to appeal. People v. Davis, 465 Mich. 856 (2001). Petitioner has now filed an application for writ of habeas corpus, in which he seeks relief on the following grounds:
I. Prosecutorial Misconduct.
II. Sufficient evidence raised.
III. Raising Issues of Religion.
III. Facts
The material facts leading to petitioner's conviction as gleaned from the record follow:
Petitioner was charged with sexually molesting his daughter Bobbie Sue Davis in September of 1996, while the victim was having an overnight visit with the petitioner. (Petitioner and the victim's mother were divorced). The victim testified that she went into petitioner's bedroom during this visit to give him a goodnight hug. Petitioner put his hands under her shirt and touched her breasts and slowly moved his hands from side to side. Petitioner also touched the victim's underwear over her vagina.
The victim did not tell anyone about the incident right away, because she was afraid that nobody would believe her or that she would get petitioner into trouble. In April of 1997, petitioner's mother, Cynthia Mae Davis, noticed that the victim did not seem to want to visit petitioner. When her mother asked her why she didn't want to visit petitioner, the victim told her mother that petitioner had tickled her in her private areas and wouldn't leave her alone. The incident was not reported to the police, however, until September of 1997. In October of 1997, petitioner spoke with the police and denied any inappropriate sexual touching of the victim, although he acknowledged that he might have accidentally touched her breasts.
Petitioner wrote a letter to the victim in January of 1998, shortly after he found out that he was going to be arrested. The return envelope bore the name "Pastor and Mrs. Alan Davis, Sr." In the letter, petitioner told the victim that he was praying for her, reminded her of a Bible story which had frightened her, and stated that he prayed for God's protection on her and her family. The victim and her mother testified that when petitioner was still married to the victim's mother, he would read Bible stories that would frighten the victim and her siblings, mainly from the Book of Revelations of the New Testament, and would tell the victim that if she was bad or did anything wrong, she was going to Hell. The victim's mother testified that petitioner told the victim and her siblings this to scare them. There was also testimony presented that petitioner occasionally used a belt to punish the victim and her siblings. The victim also testified that petitioner had given her "dirty looks" during the preliminary examination which scared her and made her cry. In closing argument, the prosecutor argued that petitioner's religious beliefs in Hell created a background of menace and intimidation.
IV. Analysis A. Standard of Review
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 of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d); Harpster v. State of Ohio, 128 F.3d 322, 326 (6th Cir. 1997).
A decision of a state court 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. An "unreasonable application" occurs when the state court identifies the correct legal principle from a Supreme Court's decision but unreasonably applies that principle to the facts of the prisoner's case. Williams v. Taylor, 529 U.S. 362, 412-413 (2000). A federal habeas court may not find a state adjudication to be "unreasonable" "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.
B. Procedural Default .
Respondent asserts that petitioner's first and third interrelated claims are procedurally defaulted.
When the state courts clearly and expressly rely on a valid state procedural bar, federal habeas review is also barred unless petitioner can demonstrate "cause" for the default and actual prejudice as a result of the alleged constitutional violation, or can demonstrate that failure to consider the claim will result in a "fundamental miscarriage of justice". Coleman v. Thompson, 501 U.S. 722, 750-751 (1991). If petitioner fails to show cause for his procedural default, it is unnecessary for the court to reach the prejudice issue. Smith v. Murray, 477 U.S. 527, 533 (1986). However, in an extraordinary case, where a constitutional error has probably resulted in the conviction of one who is actually innocent, a federal court may consider the constitutional claims presented even in the absence of a showing of cause for procedural default. Murray v. Carrier, 477 U.S. 478, 479-480 (1986). However, to be credible, such a claim of innocence requires a petitioner to support the allegations of constitutional error with new reliable evidence that was not presented at trial. Schlup v. Delo, 513 U.S. 298, 324 (1995). Moreover, actual innocence, which would permit collateral review of a procedurally defaulted claim, means factual innocence, not mere legal insufficiency of the evidence. Bousley v. United States, 523 U.S. 614, 623 (1998).
This court must therefore determine whether petitioner's first and third claims are procedurally defaulted. In rejecting the claim that the prosecutor had improperly injected the issue of religion into the trial, the Michigan Court of Appeals noted that because petitioner did not object to the challenged remarks concerning the issue of religion at trial, appellate relief was precluded absent a showing of plain error which affected petitioner's substantial rights. People v. Davis, Slip. Op. at *1. In this case, the Michigan Court of Appeals clearly indicated that by failing to object at trial, petitioner had not preserved his prosecutorial misconduct claim involving the injection of the issue of religion at trial. The fact that the Michigan Court of Appeals engaged in plain error review of petitioner's claim does not constitute a waiver of the state procedural default. Seymour v. Walker, 224 F.3d 542, 557 (6th Cir. 2000). Instead, this court should view the Michigan Court of Appeals' review of petitioner's claim for plain error as enforcement of the procedural default. Hinkle v. Randle, 271 F.3d 239, 244 (6th Cir. 2001). Petitioner's first and third claims are therefore procedurally defaulted.
In the present case, petitioner has not offered any reasons to excuse the procedural default. Petitioner has therefore failed to establish cause to excuse his default. Moreover, even assuming that petitioner has established cause for his default, he is unable to satisfy the prejudice prong of the exception to the procedural default rule because these two claims are without merit. The cause and prejudice exception is conjunctive, requiring proof of both cause and prejudice. Cosme v. Elo, 2000 WL 246592, *3 (E.D. Mich. 2000) (citing to Klein v. Neal, 45 F.3d 1395, 1400 (10th Cir. 1995)). Because petitioner's first and third claims are without merit, he has failed to establish the prejudice prong to excuse his default. Id. Additionally, petitioner has not presented any new reliable evidence to support any assertion of innocence which would allow the court to consider his first and third claims as grounds for a writ of habeas corpus in spite of the procedural default. Petitioner's first and third claims are procedurally defaulted. A brief review of the claims shows that petitioner is not entitled to habeas relief on these two claims.
A criminal defendant's religious beliefs, superstitions, or affiliations with a religious group are properly admissible where they are probative of an issue in a criminal prosecution. United States v. Beasley, 72 F.3d 1518, 1527 (11th Cir. 1996) (internal citations omitted); See also United States v. Shalom, 113 F.3d 1236; 1997 WL 225514, *4 (6th Cir. May 1, 1997). The First Amendment's protections of beliefs and associations does not preclude the admission of evidence of a defendant's religious beliefs where they are relevant to a trial issue. United States v. Beasley, 72 F.3d at 1527.
In the present case, the prosecutor introduced evidence of petitioner's religious beliefs and practices to show that he frightened and intimidated his children. The prosecution brought this evidence of petitioner's intimidation up to explain why the victim had difficulty testifying against petitioner. In particular, the prosecutor argued that petitioner sent the letter which contained religious references to the victim to scare her and to suggest that she not testify against him. These comments were not an unfair injection of petitioner's religious beliefs or practices at his trial, but were instead offered to show why the victim was reluctant to report petitioner to the police or to testify against him. As such, petitioner has failed to show that he was deprived of a fair trial by the injection of his religious beliefs and practices at his trial. Because petitioner's first and third claims are without merit, he has failed to establish the prejudice prong of the cause and prejudice test of the procedural default rule. Petitioner's first and third claims are therefore procedurally defaulted.
C. Sufficiency of Evidence .
In his second claim, petitioner argues that there was insufficient evidence presented to show that the touching of the victim was done with sexual intent or desire. Petitioner also claims that the victim's testimony was not credible or substantiated by other evidence.
A habeas court reviews claims that the evidence at trial was insufficient for a conviction by asking whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Scott v. Mitchell, 209 F.3d 854, 885 (6th Cir. 2000) (citing to Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Because a claim of insufficiency of the evidence presents a mixed question of law and fact, this Court must determine whether the state court's application of the Jackson standard was reasonable. Matthews v. Abramajtys, 92 F. Supp.2d 615, 632 (E.D. Mich. 2000).
A conviction for second-degree criminal sexual conduct requires proof of an intentional touching of the victim's or the defendant's intimate parts or the intentional touching of the clothing covering the immediate area of the victim's or defendant's intimate parts, if that intentional touching can be construed as being for the purpose of sexual arousal or gratification. People v. Piper, 223 Mich. App. 642, 645; 567 N.W.2d 483 (1997).
In the present case, the victim testified that petitioner put both of his hands under her shirt and touched her breasts slowly, moving his hands from one side to the other. The victim also testified that petitioner touched her underwear above her vagina the same night. Viewed in a light most favorable to the prosecution, a rational trier of fact could conclude that the elements of second degree criminal sexual conduct had been proven beyond a reasonable doubt.
Petitioner's related claim that the evidence was insufficient because the victim was not a credible witness and her testimony was unsubstantiated by other evidence does not entitle him to habeas relief. Attacks on witness credibility are simply challenges to the quality of the prosecution's evidence, and not to the sufficiency of the evidence. Martin v. Mitchell, 280 F.3d 594, 618 (6th Cir. 2002) (internal citation omitted). An assessment of the credibility of witnesses is therefore generally beyond the scope of federal habeas review of sufficiency of evidence claims. Gall v. Parker, 231 F.3d 265, 286 (6th Cir. 2000). The mere existence of sufficient evidence to convict therefore defeats a petitioner's claim. Id. In addition, the fact that the victim was the only witness to testify against petitioner regarding the incident which lead to his conviction does not render the evidence insufficient to convict. The testimony of a single, uncorroborated prosecuting witness or other eyewitness is generally sufficient to support a conviction, so long as the prosecution presents evidence which establishes the elements of the offense beyond a reasonable doubt. Brown v. Davis, 752 F.2d 1142, 1144-1145 (6th Cir. 1985) (internal citations omitted). Because the evidence presented at trial was legally sufficient from which a rational trier of fact could find the elements of second-degree criminal sexual conduct beyond a reasonable doubt, petitioner is not entitled to habeas relief on his second claim.
V. Conclusion
For the reasons stated above, the petition for writ of habeas corpus is DENIED and the matter is DISMISSED.