Opinion
Case No. 01-10045-BC
April 1, 2003
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
The petitioner, Thomas Groke, a state inmate at the Pine River Correctional Facility in St. Louis, Michigan, has filed this pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging his conviction for second-degree criminal sexual conduct, contrary to Michigan Compiled Laws § 750.520c(1)(b). The petitioner asserts that the court in which his trial occurred had no jurisdiction over the case, his convictions are tainted by evidentiary error, and his conviction was not supported by evidence from which a reasonable fact finder could have found guilt beyond a reasonable doubt. The Court disagrees, and will deny the petition.
I.
The petitioner was originally charged with one count of first-degree criminal sexual conduct and one count of second-degree criminal sexual conduct, based on incidents which alleged to have occurred in Redford Township, Michigan between February and March 14, 1994. Following a bench trial in the Detroit Recorder's Court, the petitioner was found guilty of one count of second-degree criminal sexual conduct and one count of indecent exposure.
Kristi Bernwanger, the complainant in this case, testified that in February and March of 1994, she was fourteen years old and living with her mother, brother, and the petitioner at her mother's house. The petitioner had been living at the house for about one and a half months. Bernwanger testified that in February 1994, the petitioner performed oral sex on her. Berwanger indicated that she was sleeping on a couch in the basement when she was awoken by some sensations. Bernwanger looked down and observed the petitioner on the couch down by the area of her vagina. Bernwanger claimed that when she went to sleep, she was wearing a pair of shorts and a tee-shirt and when she woke up, her shorts were placed over the couch. Bernwanger admitted that she was not sure whether any of the petitioner's body parts went inside of her body. Bernwanger told the petitioner to stop and to get off of her.
On cross-examination, Bernwanger admitted that she did not know what was occurring at first because she was sleeping, and that she could only speculate as to what happened to her while she was asleep. Bernwanger admitted that her written statement to the police contained no reference to the petitioner placing his mouth in her vaginal area. Bernwanger further acknowledged that she was not certain whether she told the police about this incident when they were called to the Bernwanger home on March 14, 1994.
Bernwanger also testified that in March of 1994, she was in a trailer owned by Linda Conroy with the petitioner and several other persons. At some point, she and another girl went into the bathroom to talk, when the petitioner knocked on the door. When Bernwanger opened the door, the petitioner came into the bathroom, locked the door, and unzipped his pants. The petitioner told the girls to look at his penis and asked for oral sex. The petitioner did not, however, ask anyone to touch his penis and no sexual activity took place.
Later in her testimony, Kristi Bernwanger insisted that the basement incident, where the petitioner performed oral sex on her, took place in March of 1994 and the trailer incident took place in February of 1994. Over defense objection, Bernwanger testified about other sexual incidents involving the petitioner that occurred during February through the beginning of March of 1994.
She stated that the petitioner touching her and told her that he wanted to have sex with her, and that the petitioner would give her massages on her shoulders and would touch her breasts. On cross-examination, Bernwanger admitted that she could not remember if she told the police about these other incidents.
Officer Kraig Brueck of the Redford Township Police was dispatched to the Bernwanger home on March 14, 1994 because of domestic family trouble. Upon arrival, he found the victim in a bedroom closet. Neither the victim's mother nor the petitioner would speak with Brueck. Officer Brueck did speak with the victim. The victim did not tell him that the petitioner had performed oral sex on her or that he had exposed his penis, but did state that he had touched her breasts and buttocks. The petitioner was arrested that night on unrelated criminal charges.
In her findings of fact, the trial judge indicated that she "had problems" with the testimony of the victim as "it relates to this particular charge" of charge of first-degree criminal sexual conduct. Specifically, the trial court found it "incredulous" that one would be unaware of someone removing their shorts while they were sleeping. The trial court noted that the victim had testified that she woke up when the petitioner had her mouth on her vaginal parts and she felt a sensation. The trial court was not convinced that cunnilingus had occurred, which would support a finding of guilt for the original charge of first-degree criminal sexual conduct. However, the trial judge did indicate that she believed the lesser included offense of second-degree criminal sexual conduct had been proven. After reciting the elements for the offense of second-degree criminal sexual conduct, the trial judge indicated that she was convinced, based on the evidence that she had received, that the petitioner "took advantage of a situation," that he was placed in the home by the victim's mother, and that he touched the victim improperly on her buttocks and breast. The trial court then reduced the charge of second-degree criminal sexual conduct to indecent exposure. Trial Tr. at 146-151.
The petitioner's second-degree criminal sexual conduct conviction was affirmed on appeal, but the indecent exposure conviction was reversed. People v. Groke, No. 196694 (Mich.Ct.App. July 1, 1997). The Michigan Court of Appeals denied rehearing on August 26, 1997, and the Michigan Supreme Court denied leave to appeal. See People v. Groke, 457 Mich. 882, 586 N.W.2d 924 (1998). The petitioner thereafter filed a post-conviction motion for relief from judgment pursuant to Michigan Court Rule 6.502, which was denied. People v. Groke, No. 94-3791 (Wayne County Circuit Court, Criminal Division, October 18, 1999). The Michigan appellate courts denied the petitioner leave to appeal, see Mich. Ct. R. 6.508(D). People v. Groke, No. 223094 (Mich.Ct.App. July 11, 2000), lv. denied, 463 Mich. 945, 620 N.W.2d 855 (2000).
The petitioner now seeks the issuance of a writ of habeas corpus raising the following issues:
I. Did the trial judge have subject matter jurisdiction to hear this case in the Recorder's Court?
II. Was Defendant-Appellant denied his right to a fair and impartial trial because of the admission of testimony concerning similar wrongful acts?
III. Was there insufficient evidence to convict Defendant-Appellant of second degree criminal sexual conduct?
II.
As amended, 28 U.S.C. § 2254(d) 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 of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d). Thus, federal courts may not upset a state court's adjudication of a petitioner's claims unless the state court's decision was contrary to or involved an unreasonable application of clearly established federal law. Franklin v. Francis, 144 F.3d 429, 433 (6th Cir. 1998). Additionally, this Court must presume the correctness of state court factual determinations. 28 U.S.C. § 2254(e)(1) ("In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct."); see also Cremeans v. Chapleau, 62 F.3d 167, 169 (6th Cir. 1995) ("We give complete deference to state court findings unless they are clearly erroneous.").
The United States Supreme Court has explained the proper application of the "contrary to" clause as follows:
A state-court decision will certainly be contrary to [the Supreme Court's] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases. . . .
A state-court decision will also be contrary to this Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from [the Court's] precedent.Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
The Supreme Court held that a federal court should analyze a claim for habeas corpus relief under the "unreasonable application" clause of § 2254(d)(1) "when a state-court decision unreasonably applies the law of this Court to the facts of a prisoner's case." Id. at 409. The Court defined "unreasonable application" as follows:
[A] federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable. . . .
[A]n unreasonable application of federal law is different from an incorrect application of federal law. . . . Under § 2254(d)(1)'s "unreasonable application" clause, then, 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. Rather, that application must also be unreasonable.Id. at 409, 410-11. See also Lewis v. Wilkinson, 307 F.3d 413, 418 (6th Cir. 2002).
A.
The petitioner first contends that his conviction is invalid because the Detroit Recorder's Count lacked jurisdiction to try him for the crime because the alleged crime occurred outside the geographical boundaries of the City of Detroit. He argues that he should have been tried by a Wayne County Circuit Court judge.
At the time of the petitioner's conviction, Wayne County had two separate courts with jurisdiction over criminal cases. The Detroit Recorder's Court had jurisdiction over all crimes that were committed in the City of Detroit and the Wayne County Circuit Court had jurisdiction over felonies committed in all other parts of the county. See Anthony v. Michigan, 35 F. Supp.2d 989, 992-993 (E.D.Mich. 1999). In 1996, the Michigan Legislature abolished the Detroit Recorder's Court and merged its functions with the Wayne County Circuit Court. Id. at 996-997. However, ten years before the merger, the Wayne County Circuit and the Detroit Recorder's Courts consolidated their criminal dockets by local rule and under a joint local administrative order. The Michigan Supreme Court thereafter entered an administrative order to "temporarily assign" all judges of the Wayne County Circuit Court as visiting judges of the Recorder's Court and all Recorder's Court judges as visiting judges of the Wayne County Circuit. Administrative Order 1986-1, 426 Mich. lxviii (1986). A local court rule, however, provided that either a prosecutor or defendant could request that the case be assigned only to a judge appointed or elected to the case's court of origin. See Local Court Rule 6.102(E). Thus, a contemporaneous request was all that was needed to undo the effect of the docket consolidation with respect to an individual case. There is no evidence that the petitioner made such a request.
The respondent contends that the jurisdictional claim is procedurally defaulted because the petitioner failed to raise the claim on his appeal of right and failed to establish on state collateral review cause or prejudice for his failure to do so, as required by Mich. Ct. R. 6.508(D)(3). However, the state does not require demonstration of "good cause" or "actual prejudice" where a defendant properly alleges a jurisdictional defect in a prior proceeding which resulted in a conviction and sentence. See People v. Carpentier, 446 Mich. 19, 27, 521 N.W.2d 195, 200 (1994). Thus, the alleged procedural default is not an adequate and independent state law ground which would preclude habeas review of this issue. See Simpson v. Sparkman, 94 F.3d 199, 202 (6th Cir. 1996) ("When a state court judgment appears to have rested primarily on federal law or was interwoven with federal law, a state procedural rule is an independent and adequate state ground only if the state court rendering judgment in the case clearly and expressly stated that its judgment rested on a procedural bar.").
Nonetheless, the question of which state court had the power to try this case under state's geographical division of court boundaries is not a claim that arises under the United States Constitution or statutes. This Court may not issue a writ of habeas corpus in favor of a state prisoner under 28 U.S.C. § 2254 unless the prisoner "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). It is thus well established that habeas review does not extend to questions of state law. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). The determination of whether a state court is vested with jurisdiction under state law over a criminal case is a function of the state courts, not the federal courts. Wills v. Egeler, 532 F.2d 1058, 1059 (6th Cir. 1976).
The petitioner has also filed a motion for an evidentiary hearing on this issue, which will be denied since the claim does not amount to sufficient grounds for release under Section 2254. An evidentiary hearing may be held only when the petition "alleges sufficient grounds for release, relevant facts are in dispute, and the state courts did not hold a full and fair evidentiary hearing." Sawyer v. Hofbauer, 299 F.3d 605, 610 (6th Cir. 2002).
The petitioner is not entitled to relief on this claim.
B.
The petitioner next claims that he was deprived of a fair trial by the admission Kristi Bernwanger's testimony that throughout February and into the beginning of March 1994, the petitioner had touched her in various areas. The petitioner insists that this evidence was improperly received under Mich. R. Evid. 404(b). The Michigan Court of Appeals rejected this claim on direct appeal, finding that the testimony did not constitute other uncharged conduct since it described the charged misconduct within the time frame set forth in the criminal information. People v. Groke, No. 196694, at *4.
This claim is nothing more than a reprise of the petitioner's state law evidentiary issue which he advanced without success on his direct appeal. However, "[h]abeas review does not encompass state court rulings on the admission of evidence unless there is a constitutional violation." Clemmons v. Sowders, 34 F.3d 352, 357 (6th Cir. 1994). The Sixth Circuit Court of Appeals has explained that "[e]rrors in the application of state law, especially rulings regarding the admission or exclusion of evidence, are usually not to be questioned in a federal habeas corpus proceeding." Cooper v. Sowders, 837 F.2d 284, 286 (6th Cir. 1988). Generally, state-court evidentiary rulings cannot rise to the level of due process violations unless they "offend some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Montana v. Egelhoff, 518 U.S. 37, 43 (1996) (quoting Patterson v. New York, 432 U.S. 197, 202 (1977)); see also Spencer v. Texas, 385 U.S. 554, 563-64 (1967). Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000), cert. denied, 532 U.S. 989 (2001) (second alteration in original). The Supreme Court has declined to hold that similar "other acts" evidence is so extremely unfair that its admission violates fundamental conceptions of justice. See Dowling v. United States, 493 U.S. 342, 352-53 (1990). Such matters are more appropriately addressed in codes of evidence and civil procedure than under the Due Process Clause. Id. at 352. Thus, even if some rule of evidence was violated, relief on collateral review will be provided "only when a trial error `had substantial and injurious effect or influence in determining the jury's verdict.'" Ford v. Curtis, 277 F.3d 806, 809 (6th Cir. 2002) (citing Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)).
The state court of appeals determined that no evidence rule was violated by the admission of the testimony that during the time period charged in the information, the defendant touched the breasts and buttocks of the victim. Given that the second count of the criminal information charged exactly that misconduct, this Court would not conclude that the state court's finding of no error was contrary to or an unreasonable application of federal law as determined by the Supreme Court. Testimony that is "inextricably intertwined" with the evidence underlying the conviction is not "other acts" evidence. United States v. Barnes, 49 F.3d 1144, 1149 (6th Cir. 1995). Moreover, even improperly admitted evidence will not render a trial fundamentally unfair if it is probative of an essential element of the charged crime. See Carter v. Jago, 637 F.2d 449, 457 (6th Cir. 1980) (finding no basis for habeas relief where the challenged evidence was "rationally connected" to the crime charged).
Admitting this testimony did not contravene the petitioner's federal rights; no relief is available on this claim.
C.
Finally, the petitioner claims that there was insufficient evidence presented at trial to establish the elements of second-degree criminal sexual conduct. The petitioner raised a sufficiency of evidence claim on his direct appeal, but it was limited to the question of whether there was sufficient evidence to establish that he was a member of the victim's household. The petitioner does not raise this claim in his habeas petition. The respondent claims, therefore, that this new sufficiency of evidence issue is procedurally defaulted because the petitioner failed to raise the issue on direct appeal and failed to establish cause and prejudice for his failure to do so in his post-conviction motion, as required under Michigan Court Rule 6.508(D)(3).
The petitioner presented the new theory to the trial court, which did not invoke the procedural bar of Mich. Ct. R. 6.508(D)(3), presumably on the mistaken belief that the petitioner had already raised this sufficiency of evidence claim on his appeal of right.
Once again, the state court's failure to rely on a defaulted procedural requirement precludes a finding of an adequate and independent state law ground for denying relief. See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991); Lorraine v. Coyle, 291 F.3d 416, 426-27 (6th Cir. 2002) (declining to enforce procedural default not invoked by the state court of appeals). Thus, the petitioner's claim is not procedurally defaulted.
Turning to the merits, the petitioner claims that the trial court used uncharged acts to find him guilty of second-degree criminal sexual conduct, as a lesser included offense of the charge in count one of the criminal information, because there was no evidence presented that the petitioner ever touched the victim's breasts or buttocks during the incident where the victim claims that the petitioner performed oral sex on her. There is no question that "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). But the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction is "whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318 (1979).
[T]his inquiry does not require a court to "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Instead, the relevant question is 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. Id. at 318-19 (internal citation and footnote omitted). This "standard must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law." Id. at 324 n. 16. Normally, pursuant to 28 U.S.C. § 2254(d)(1), this Court must determine whether the state court's application of the Jackson standard was contrary to or an unreasonable application of Supreme Court precedent. However, "[w]here a state court, although deciding a claim, does not offer some explanation of its decision, a federal court must conduct an independent review of the state court's decision. This independent review requires the federal court to `review the record and applicable law to determine whether the state court decision is contrary to federal law, unreasonably applies clearly established law, or is based on an unreasonable determination of the facts in light of the evidence presented.'" Morse v. Trippett, 102 F. Supp.2d 392, 402 (E.D.Mich. 2000) (quoting Harris v. Stovall, 212 F.3d 940, 943 (6th Cir. 2000)).
A conviction for second-degree criminal sexual conduct will be sustained if the prosecution proves beyond a reasonable doubt that the defendant has intentionally engaged in sexual contact with a minor residing in the same household. See Mich. Comp. Laws § 750.520c(1)(b)(i). The petitioner's main contention is that the trial court considered uncharged conduct in finding the petitioner guilty of the lesser offense of second-degree criminal sexual conduct, because the trial court made a finding that the petitioner had touched the victim's breasts and buttocks. Focusing on the charge as stated in count one of the criminal information, the petitioner notes that the trial court did not believe that cunnilingus had been performed on the victim by the petitioner, nor did the trial court believe that the victim had been able to feel the petitioner removing her shorts while she was sleeping.
The petitioner appears to argue that the trial court's comments indicate that the trial court did not believe that anything took place between the petitioner and the victim on the night in question, and that the trial court therefore must have used an uncharged act to find that he had touched the victim's breasts and buttocks.
The record supports the petitioner's argument that the trial court rejected the victim's testimony that the petitioner had performed oral sex on her and had removed her shorts while she was sleeping.
However, the victim also testified that during the time period charged in the criminal information, the petitioner touched the victim's breasts and buttocks. Furthermore, Officer Brueck testified during cross-examination that the victim did not tell him that the petitioner had performed oral sex on her or that he had exposed his penis, only that he had touched her breasts and buttocks. The trial court could reasonably infer from this testimony that although the petitioner did not perform oral sex on the victim, he did touch her breasts and buttocks. The unsupported testimony of a single witness is generally sufficient to support a conviction beyond a reasonable doubt. Brown v. Davis, 752 F.2d 1142, 1144 (6th Cir. 1985). One main difference between the charged offense of first-degree criminal sexual conduct and second-degree criminal conduct is that the former requires proof of sexual penetration, whereas the latter merely requires sexual contact. See Mich. Comp. Laws §§ 750.520(b)(1), 750.520(c)(1); People v. Lemons, 454 Mich. 234, 253-54 254 n. 29, 562 N.W.2d 447, 456 n. 29 (1997). Under the state's lesser offense rules in effect at the time of the petitioner's trial, because there was a dispute in the evidence that would support either charge, the trial judge was permitted to consider the lesser charge. See Lemons, 454 Mich. at 254, 562 N.W.2d at 456. Cf. People v. Cornell, 466 Mich. 335, 646 N.W.2d 127 (2002) (instruction on lesser offense allowed only for "necessarily included lesser offenses," not "cognate" offenses).
Here, the lesser offense of second-degree criminal sexual conduct could be inferred from a reconstruction that accepted some, but not all, of the victim's testimony. There was sufficient evidence to convince a rational fact finder of the petitioner's guilt beyond a reasonable doubt of all the elements of second-degree criminal sexual conduct under Michigan law. The petitioner's conviction, therefore, was not contrary to, nor an unreasonable application of, federal law as established by the Supreme Court.
III.
The petitioner's conviction was not tainted by constitutional error; he is not in custody in violation of the Constitution, laws, or treaties of the United States.
Accordingly, it is ORDERED that the petition for writ of habeas corpus is DENIED.
It is further ORDERED that the petitioner's Motion for Evidentiary Hearing [dkt #22] is DENIED AS MOOT.