Opinion
CASE NO.: 98-CV-72915-DT.
February 11, 2000.
OPINION
On November 12, 1993, petitioner Christopher Michael Hack was convicted by a jury of four counts of criminal sexual conduct in the first degree, and two counts of child sexually abusive activity or material, stemming from an incident in which petitioner and his friends forced a three-year-old girl and her one-year-old male cousin to engage in acts of oral sex while petitioner and his friends videotaped the event. On July 8, 1998, petitioner filed a petition for a writ of habeas corpus in this Court pursuant to 28 U.S.C. § 2254 challenging his state court convictions.
The Court referred the matter to Magistrate Judge Wallace Capel, Jr., who issued a report and recommendation ("RR") on August 9, 1999, recommending that this Court deny the petition. (RR at 12). Petitioner filed timely objections to the RR. Accordingly, this Court reviews de novo those portions of the RR that plaintiff finds objectionable. See 28 U.S.C. § 636 (b)(1)(C); Smith v. Detroit Fed'n of Teachers, Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987).
Procedural History
On November 12, 1993, petitioner was convicted by a jury in the Calhoun County Circuit Court of four counts of first-degree criminal sexual conduct in violation of MICH. COMP. LAWS § 750.520b(1)(a), and two counts of sexually abusive activity or material in violation of MICH. COMP. LAWS § 750.145c(2). Petitioner was sentenced to eighteen to thirty years imprisonment on each of the criminal sexual conduct counts and seven to twenty years imprisonment on each of the sexually abusive activity or material counts.
Petitioner appealed his convictions to the Michigan Court of Appeals asserting, among other things, that his double jeopardy rights were violated when he was convicted of two counts of child sexually abusive activity when only one videotape was made. See People v. Hack, 219 Mich. App. 299, 306-08 (1996). Petitioner also argued that the trial court erred in denying his request for a change of venue due to prejudicial pretrial publicity. Id. at 311-12. The court of appeals, however, affirmed petitioner's convictions and on November 7, 1997, the Michigan Supreme Court denied leave to appeal. See People v. Hack, 456 Mich. 884 (1996).
Discussion
The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), govern this controversy because petitioner filed his habeas petition after the effective date of the AEDPA. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997). Under the AEDPA,:
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).
In determining what constitutes clearly established federal law, the Court is restricted to pertinent United States Supreme Court precedent. § 2254(d)(1); see also Herbert v. Billy, 160 F.3d 1131, 1135 (6th Cir. 1998) ("A district court or court of appeals no longer can look to lower federal court decisions in deciding whether the state decision is contrary to, or an unreasonable application of, clearly established federal law."). To evaluate the reasonableness of a state court's decision, this Court must apply a "reasonable jurist" standard, under which habeas relief will be granted only if "a state court decision is so clearly incorrect that it would not be debatable among reasonable jurists." Nevers v. Killinger, 169 F.3d 352, 361 (6th Cir.) (quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir. 1996)), cert. denied, ___ U.S. ___, 119 S.Ct. 2340, 144 L.Ed.2d 237 (1999). Under this standard, a state court decision will be upheld unless "it is `so offensive to existing precedent, so devoid of record support, or so arbitrary, as to indicate that it is outside the universe of plausible, credible outcomes.'" Id. at 362 (quoting O'Brien v. Dubois, 145 F.3d 16, 25 (1st Cir. 1998)); see also Tucker v. Prelesnik, 181 F.3d 747 (6th Cir. 1999). Furthermore, when evaluating a state court decision under § 2254, "a determination of a factual issue made by a State court shall be presumed to be correct" and the petitioner has "the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254 (e)(1).
In his § 2254 petition, petitioner asserts that (1) he was denied his right to due process because his convictions rested upon two different and changing theories of guilt, one of which was not charged in the criminal information, (2) his four convictions for criminal sexual conduct in the first degree subjected him to double jeopardy because there were only two acts of sexual activity, (3) his two convictions for producing sexually abusive material subjected him to double jeopardy because they resulted from one act of videotaping, and (4) his due process rights to a fair and impartial trial were violated because the state court improperly denied a change of venue in petitioner's highly publicized case. (Pet. at 8, ¶ 21).
1. Petitioner's Convictions Did Not Violate Right To Due Process
Petitioner argues that his convictions violated due process because neither the statute, nor prior case law interpreting the statute, addressed conduct similar to the conduct of petitioner and, therefore, he was not on notice that such conduct was illegal under the statute. (Pet'r Obj. at 13). According to petitioner, "the only precedent that existed was precedent that a one-year-old and a three-year-old cannot commit a crime," therefore petitioner was not on notice that he could be found guilty as an aider or abettor. ( Id.). Furthermore, "[t]here [was] no precedent that a child [could] be used as an object to penetrate," therefore, petitioner was not on notice that he could be found guilty as a principal. ( Id.).
As an initial matter, the Court notes that petitioner has failed to exhaust his state court remedies with regard to this claim because he failed to raise it upon direct review. See 28 U.S.C. § 2254 (b)(1)(A). However, because the Court finds petitioner's claim to be meritless, it will address his claim despite this defect. Id. § 2254(b)(2).
Petitioner argues that "[t]he magistrate's report and recommendation did not address this Fourteenth Amendment issue." (Pet'r Obj. at 3). It is not clear to the Court, however, that this issue was specifically raised in any pleading prior to petitioner's objections to the R R.
Petitioner contends that the fact that the three judge panel that addressed his direct appeal could not reach a majority regarding the theory upon which petitioner could be found guilty under the statute provides evidence that petitioner was not on notice that his conduct was illegal under the statute. (Pet'r Obj. at 11-13). Petitioner's reading of the court of appeals' decision, however, is strained. On direct appeal, Judge Sawyer did not address whether petitioner could be found guilty as an aider or abettor because he specifically found that petitioner was guilty as a principal for using one child as the instrumentality to perform a sexual penetration with the other. See People v. Hack, 219 Mich. App. 299, 304 (1996). In a concurring opinion, Judge Gotham "agree[d] with Judge Sawyer's analysis in the lead opinion," but also believed that petitioner could be found guilty as an aider or abettor. Id. at 314-15. Judge Neff, however, concurring in part and dissenting in part, stated that petitioner could not be found guilty as an aider or abettor. Judge Neff did not address whether petitioner could be found guilty as a principal. Therefore, it is clear that a two judge majority, Judges Sawyer and Gotham, found that petitioner was guilty as a principal.
"`It is established that a law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits.'" City of Chicago v. Morales, 527 U.S. 41, ___ 199 S.Ct. 1849, 1859, 144 L.Ed.2d 67 (1999) (quoting Giaccio v. Pennsylvania, 382 U.S. 399, 402-03, 86 S.Ct. 518, 520-21, 15 L.Ed.2d 447 (1966)). The fair warning, or notice, requirement "bars enforcement of `a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.'" United States v. Lanier, 520 U.S. 259, ___, 117 S.Ct. 1219, 1225, 137 L.Ed.2d 432 (1997) (quoting Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926)). "The touchstone is whether the statute, either standing alone or as construed, made it reasonably clear at the relevant time that the defendant's conduct was criminal." Id. The fact that no court has previously held the very conduct in question unlawful under the criminal statute does not automatically render the statute vague.
Michigan Compiled Laws § 750.520b(1)(a) states that "[a] person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual penetration with another person and if . . . [t]hat other person is under 13 years of age." Furthermore, "sexual penetration" is defined as "sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal openings of another person's body." Id. § 750.520a(1). Therefore, the statute clearly provides notice that the performance of any act of fellatio with a person under the age of thirteen constitutes first-degree sexual conduct. Also, by defining sexual penetration as the intrusion of any object into the genital or anal openings of another person's body, the statute provides notice that sexual penetration may be accomplished by using objects other than one's own body.
This Court does not find that "men of common intelligence" would necessarily have to guess at the meaning of the statute; nor does the Court find that "men of common intelligence" would differ as to its application. At the time of petitioner's convictions, it was reasonably clear from the face of the statute that any sexual penetration of a person under the age of thirteen, whether accomplished by using one's own body or another object, constituted first-degree sexual conduct. Therefore, the statute made it "reasonably clear" that in using the children to commit acts of fellatio, petitioner was engaging in criminal conduct.
Petitioner, however, contends that "it is not so much the language of the statute itself, that is vague, it is the judicial expansion of the statute to cover the behavior of defendant that is not criminalized by the statute that clearly violates the due process rights of the defendant." (Pet'r Obj. at 5). According to petitioner, the state court engaged in an "`unforeseeable and retroactive judicial expansion'" of the clear terms of the statute, thereby convicting defendant without providing notice that such behavior was criminalized. (Id at 5-6). In support of his argument, petitioner relies upon the Supreme Court's decision in Bouie v. City of Columbia, 378 U.S. 347, 350-57, 84 S.Ct. 1697, 1700-04, 12 L.Ed.2d 894 (1964).
Central to the Supreme Court's decision in Bouie, however, was the fact that the defendants "had not violated the statute as it was written." Id. at 1703. "So far as the words of the statute were concerned, [defendants] were given not only no `fair warning,' but no warning whatever, and [sic] their conduct in Eckerd's Drug Store would violate the statute." Id. Furthermore, the Court found that the interpretation given the statute by the South Carolina Supreme Court, which was "so clearly in variance with the statutory language, ha[d] not the slightest support in prior South Carolina decisions." Id. at 1704. Contrary to the Supreme Court's decision in Bouie, however, this Court has already found that petitioner's conduct did violate Michigan's first-degree criminal sexual conduct statute as it was written.
Furthermore, the Michigan Court of Appeals found that in forcing the children to engage in acts of fellatio, petitioner was using the children to commit an act prohibited by the statute, i.e. fellatio with a child under the age of thirteen. As stated by the court of appeals:
Under MCL 750.520b(1)(a); MSA 28.788(2)(1)(a), a person is guilty of first-degree criminal sexual conduct if the person engages in sexual penetration with another person and the victim is under the age of thirteen. Defendant did so here, namely, by causing the three-year-old girl to perform fellatio on the one-year-old boy.Hack, 219 Mich. App. at 303. This conclusion by the Michigan Court of Appeals was not an unforeseeable or retroactive expansion of the conduct prohibited by the statute. Contrary to the trespass statute addressed by the Supreme Court in Bouie, the wording of Michigan's statute did not "lull : [petitioner] into a false sense of security" that his conduct was not criminal under the statute. Id. at 1702. The statute clearly provided notice that the act of fellatio with a person under the age of thirteen, by whatever means employed, constituted first-degree criminal sexual conduct Accordingly, petitioner's argument is rejected.
2. Petitioner's Four Convictions For Criminal Sexual Misconduct Do No Violate The Double Jeopardy Clause
Petitioner also argues that although the Michigan Court of Appeals has held that a person who aided and abetted criminal sexual conduct between two minors can be convicted of two counts for each penetration, "there is no decision holding that a principal [can] be convicted of more than one count for each alleged penetration, where his conviction is based upon utilizing a child as an object to accomplish a penetration." (Pet'r Obj. at 14). According to petitioner, "in order to sustain four counts of criminal sexual conduct in the first degree where there were two penetrations, each involving a child, the defendant must have been convicted as an aider or abettor, aiding and abetting the crime committed by both children, one on the other, and not as a principal." ( Id.). This Court disagrees.
Petitioner also failed to raise this issue during direct review in the state courts. However, as stated supra note 1, the Court shall address petitioner's claim despite this defect.
It is undisputed that both children were forced to engage in two separate acts of fellatio. ( Id.). Each time petitioner forced the two children to engage in fellatio, petitioner used one child as the instrument to engage in fellatio with the other child, i.e. petitioner used the boy to engage in fellatio with the girl, and the girl to engage in fellatio with the boy. Consequently, during each of the two separate acts of fellatio, there were two victims, the boy and the girl, who were both under the age of thirteen. Therefore, the Court is satisfied that petitioner was not improperly charged with and convicted of four counts of first-degree sexual conduct, two counts for the boy, and two counts for the girl. Accordingly, petitioner's objection is rejected.
3. Petitioner's Two Convictions For Producing Sexually Abusive Material Do Not Violate The Double Jeopardy Clause
Petitioner also argues that his Fifth Amendment rights against double jeopardy were violated by his two convictions for sexually abusive activity or material because "[t]here is no precedent upon which the Michigan Court of Appeals based its decision that the Legislature intended to criminalize producing sexually abusive material based on the number of children portrayed, rather than on the number of tapes filmed." (Pet'r Obj. at 14-15).
Michigan Compiled Laws § 750.145c(2) states that "[a] person who persuades, induces, entices, coerces, causes, or knowingly allows a child to engage in sexually abusive activity for the purpose of producing any child sexually abusive material . . . is guilty of a felony." The Michigan Court of Appeals found this language "to clearly provide that a felony has been committed when a person induces one child to perform prohibited acts." Hack, 219 Mich. App. at 306. The facts revealed that petitioner induced two children to engage in sexually abusive activity for the purpose of producing child sexually abusive material. Therefore, the court of appeals concluded that petitioner was "properly charged and convicted of two counts of this crime" because it was "undisputed that two children were involved." Id.
A state court's construction of its own state's statutes is entitled to considerable deference. See Banner v. Davis, 886 F.2d 777, 780 (6th Cir. 1989). Furthermore, although some may disagree with the court of appeals' interpretation, this Court does not find that the court of appeals' interpretation "is so clearly incorrect that it would not be debatable among reasonable jurists." Therefore, this Court does not find that the court of appeals' interpretation was an unreasonable application of clearly established federal law. Accordingly, petitioner's objection is rejected.
4. Trial Court's Denial of Change of Venue Did Not Violate Petitioner's Due Process Rights
Lastly, petitioner objects to Magistrate Judge Capel's findings regarding pretrial publicity.
According to petitioner:
The Magistrate's reliance on Nevers v. Killinger, 169 F.3d 352 (6th Cir. 1998), is misplaced since the facts of this case reveal far more pervasive and damaging juror prejudice against the defendant than was revealed in the Nevers case, therefore making this case closer to Ir[v]in v. Dowd, 366 U.S. 717, 722 (1961), than was the Nevers case. It is the presumption of partiality rule of the United States Supreme Court that should have been applied here by the state court to reverse the denial of venue at the trial court level.
(Pet'r Obj. at 17).
The Supreme Court has established two standards to guide courts in determining whether a change of venue due to pretrial publicity is warranted, presumptive prejudice and actual prejudice. See Nevers, 169 F.3d at 362. The presumed prejudice standard is employed when "`the setting of the trial [is] inherently prejudicial.'" Id. at 364 (quoting Murphy v. Florida, 421 U.S. 794, 803, 95 S.Ct. 2031, 2038, 44 L.Ed.2d 589 (1975)). On the other hand, the actual prejudice standard is employed when "review of both the jury voir dire testimony and the extent and nature of the media coverage indicates `a fair trial [was] impossible.'" Id. (quoting Murphy, 421 U.S. at 798, 95 S.Ct. at 2035).
In addressing this issue, the Michigan Court of Appeals specifically found that defendant had not sustained his burden of proving either "(1) strong community feelings against him and that the publicity [was] so extensive that jurors could not remain impartial when exposed to it or (2) that the jury was actually prejudiced or the atmosphere surrounding the trial was such as would create a probability of prejudice." Hack, 219 Mich. App. at 311. According to the Michigan Court of Appeals, "all the jurors who stated that they had seen some of the pretrial publicity also stated that they could hear the case impartially on the basis of the facts presented." Id. Furthermore, petitioner "had failed to carry his burden that the pretrial publicity was so extensive or biased against him that the jurors could not remain impartial." Id.
The court found support for its argument from the fact that petitioner's trial counsel indicated satisfaction with the jury pane] at the close of jury selection. Hack, 219 Mich. App. at 311-12.
In his objections, petitioner contends that ibis case was similar to Irvin v. Dowd, 366 U.S. 728, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), and therefore, the Michigan Court of Appeals should have presumed that the jury could not remain impartial, regardless of what the jurors stated during voir dire. Unlike the jury in Irvin, however, petitioner has presented no evidence that any of the jurors actually seated had previously formed an opinion regarding petitioner's guilt. In fact, the voir dire transcript indicates that the trial judge excused all potential jurors who admitted that they had already formed an opinion regarding petitioner's guilt. Moreover, the Michigan Court of Appeals specifically found that the jurors' assertions regarding their impartiality were credible. Under the AEDPA, the court of appeals' determination is "presumed correct" and petitioner shouldered the burden of rebutting this presumption by clear and convincing evidence. See 28 U.S.C. § 2254 (e)(1). Petitioner has failed to meet this burden. Therefore, petitioner's objection is rejected.
Conclusion
This Court does not find that the adjudication of petitioner's claims resulted in a decision that was "contrary to, or involved an unreasonable application of, clearly established [f]ederal law," or was based upon "an unreasonable determination of the facts in light of the evidence presented in the [s]tate court proceedings." 28 U.S.C. § 2254 (d). Therefore, for the reasons stated in this Opinion and the RR, petitioner's application for a writ of habeas corpus shall be denied.
An Order consistent with this Opinion shall issue forthwith.
PATRICK J. DUGGAN UNITED STATES DISTRICT JUDGE
Copies to:
Frank D. Eaman, Esq. Becky M. Lamiman, A.A.G.