REPORT AND RECOMMENDATION
RAY KENT, Magistrate Judge.
This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C. § 2254. Petitioner Sean Lee Strandberg is presently incarcerated at the West Shoreline Correctional Facility in Muskegon Heights, Michigan. On June 10, 2011, a Muskegon County Circuit Court jury, after a three day trial, convicted Petitioner of first-degree criminal sexual conduct (CSC-I), MICH. COMP. LAWS § 750.521b(1)(b), and three counts of second-degree criminal sexual conduct (CSC-II), based on Petitioner's molestation of his fourteen-year-old daughter. On July 6, 2011, the court sentenced Petitioner to 12 to 30 years for the CSC-I conviction, concurrent to 4 to 15 years for each CSC-II convictions.
Petitioner appealed his convictions to the Michigan Court of Appeals. The court of appeals affirmed the trial court by unpublished opinion dated September 27, 2012. People v. Strandberg, No. 305381, 2012 WL 4465162 (Mich. Ct. App. Sep. 6, 2012). Petitioner applied for leave to appeal to the Michigan Supreme Court. On May 29, 2013, that court denied leave. People v. Strandberg, 830 N.W.2d 771 (Mich. 2013. Petitioner did not apply to the United States Supreme Court for a writ of certiorari.
Petitioner then returned to the Muskegon County Circuit Court, where he filed a motion for relief from judgment under MICH. CT. R. 6.500 et seq. claiming that Petitioner's appellate counsel was ineffective for not raising an issue as requested by Petitioner. The trial court denied the motion initially (Op. and Ord., ECF No. 12-12), and upon reconsideration (Op. and Ord., ECF No. 12-14). The Michigan Court of Appeals and Michigan Supreme Court denied Petitioner's applications for leave to appeal on December 9, 2014, (Ord., ECF No. 12-15, PageID.1242) and December 22, 2015, (Ord., ECF No. 12-16, PageID.1313), respectively.
Petitioner filed his habeas petition (ECF No. 1), on February 15, 2016, raising the following issues:
(Pet., ECF No. 1, PageID.6-9.) On August 16, 2016, Respondent filed an answer to the petition, (ECF No. 11.), along with the state-court record, pursuant to Rule 5, Rules Governing § 2254 Cases, (ECF No. 12).
Upon review and applying the standards required by the Antiterrorism and Effective Death Penalty Act of 1996, PUB. L. 104-132, 110 STAT. 1214 (AEDPA), I find that Petitioner's claims are without merit. Accordingly, I recommend that the petition and the motion to stay proceedings be denied.
Petitioner's fourteen-year-old daughter testified that, during the summer of 2010, Petitioner squeezed her breasts on several occasions (Trial Tr. I, ECF No. 12-4, PageID.502-505), inserted his penis between her labia majora while they were in a swimming pool (Id., PageID.505-513), inserted his penis between her butt cheeks while they were in a swimming pool (Id., PageID.513-517), and groped her vaginal area while they were riding a "quad" (Id., PageID.517-518).
On the last day of testimony, Child Protective Services Specialist Erin Matuz testified regarding her investigation of the allegations against Petitioner. (Trial Tr. III, ECF No. 12-6, PageID.720-750.) The investigation included the initial interview of Petitioner's daughter. (Id.) defense counsel's cross-examination of Ms. Matuz included the following exchange:
(Trial Tr. III, ECF No. 12-6, PageID.733-734.) When Ms. Matuz's testimony was complete, the jury was excused and the trial court immediately addressed the reference to the polygraph. (Id., PageID.750.) Petitioner's counsel requested a mistrial. (Id., PageID.750-751.) The trial court concluded the reference was not a willful violation of Michigan's evidentiary prohibition against the introduction of polygraph evidence. (Id., PageID.750-758.) Accordingly, the trial court denied the mistrial request and, instead, decided to read a curative instruction. (Id., PageID.758-764.) The court and Petitioner's counsel crafted this curative instruction:
This action is governed by the 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 statecourt 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 prisoner's claims." White v. Woodall, 572 U.S. ___, 134 S.Ct. 1697, 1705 (2014) (quotations marks omitted).
The AEDPA requires heightened respect for state factual findings. Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir. 1998). A determination of a factual issue made by a state court is presumed to be correct, and the petitioner has the burden of rebutting the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir. 2003); Bailey, 271 F.3d at 656. This presumption of correctness is accorded to findings of state appellate courts, as well as the trial court. See Sumner v. Mata, 449 U.S. 539, 546 (1981); Smith v. Jago, 888 F.2d 399, 407 n.4 (6th Cir. 1989).
Motion to stay
Petitioner has filed a motion to stay these proceedings and hold them in abeyance so that he might return to the state courts to exhaust new claims based on newly discovered evidence. The relief requested by Petitioner was authorized by the Supreme Court in Rhines v. Weber, 544 U.S. 269 (2005), but "only in limited circumstances." Id., at 277.
Petitioner proposes a return to the state courts based on "newly discovered evidence" that will demonstrate:
(Pet.'s Br., ECF No. 14, PageID.1406.) Petitioner indicates the first two "false" statements were made in letters to the trial court judge from the complainant and her mother, written in connection with Petitioner's sentencing. (ECF No. 14-1, PageID.1424-1425.) The third "false" statement was purportedly made in an exchange between the complainant and her cousin regarding the "false" statements the complainant's mother wrote in her letter to the judge. (ECF No. 14-1, PageID.1419-1421.) Petitioner "proves" the falsity of the statements by attaching his own handwritten statement, as well as handwritten statements from his relatives, that simply contend the earlier statements are false. (ECF No. 14-1, PageID.1413-1418, 1422-1423, 1426-1427.)
There is nothing in the handwritten statements of Petitioner or his family that constitutes proof of anything relevant to the jury's conviction of Petitioner on the CSC charges. Neither the letters, nor the allegedly false statements in them, nor the subject matter of those statements, were any part of the trial. They were not introduced as exhibits at Petitioner's trial; indeed, they could not have been introduced because they did not even exist yet. Nor is any of the evidence "new." The statements relate to facts that preceded the trial and sentencing. Petitioner's family members testified at trial. If the matters bore any relevance whatsoever to the determination of Petitioner's guilt, Petitioner could have simply solicited the information contained in the handwritten statements at that time.
The only conceivable benefit Petitioner's "newly discovered evidence" might afford him, would be if it demonstrated Petitioner were actually innocent. Even then, under the circumstances here, Petitioner could only use that showing to overcome a procedural bar to some other habeas claim. In Herrera v. Collins, 506 U.S. 390, 400 (1993), the Supreme Court stated: "Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding." But the Herrera Court did not close the door completely, stating in dicta: "in a capital case a truly persuasive demonstration of `actual innocence' made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim." Id. at 417. Thus, even without the occurrence of any independent constitutional violation during the state criminal proceeding, federal habeas relief might be warranted for "truly persuasive demonstration of actual innocence," provided: (1) the habeas petition seeks relief in a capital case, in which case such a demonstration of actual innocence "would render the execution of a defendant unconstitutional"; and (2) there is "no state avenue open to process such a claim." Id. The Supreme Court emphasized that "the threshold showing for such an assumed right would necessarily be extraordinarily high." Id.; see also House v. Bell, 547 U.S. 518, 555 (2006) ("In Herrera, however, the Court described the threshold for any hypothetical freestanding innocence claim as `extraordinarily high.'"); Cress v. Palmer, 484 F.3d 844, 854-55 (6th Cir. 2007).
Two years after Herrera, the Supreme Court held that a claim of actual innocence can be raised "to avoid a procedural bar to the consideration of the merits of [the petitioner's] constitutional claims." Schlup v. Delo, 513 U.S. 298, 326-27 (1995). "[I]n an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default." Murray v. Carrier, 477 U.S. 478, 496 (1986). In Schlup, the Supreme Court held that a credible showing of actual innocence was sufficient to enable a court to reach the merits of an otherwise procedurally barred habeas petition. Schlup, 513 U.S. at 317. The actual innocence claim in Schlup is "not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits." Id. at 315 (citing Herrera, 506 U.S. at 404). Thus, the Supreme Court distinguished between a procedural innocence claim, which can permit a petitioner to overcome procedural obstacles that would otherwise preclude review of underlying constitutional claims, and a substantive or "freestanding" claim of innocence discussed in Herrera.
This Court may grant habeas corpus relief only when the state court has violated or unreasonably applied a clearly established holding of the Supreme Court. See 28 U.S.C. § 2254(d); Williams, 529 U.S. at 412. The Sixth Circuit repeatedly has held that free-standing claims of actual innocence are not cognizable on habeas corpus review. See Cress, 484 F.3d at 854 (citing cases). Because the Supreme Court has never recognized a free-standing claim of actual innocence, Petitioner is not entitled to habeas relief on that ground. Moreover, even if Petitioner could invoke this exception and obtain habeas relief on his freestanding innocence claim, he would have to meet both of the requirements set forth above and then overcome the "extraordinarily high" threshold. Petitioner fails the first requirement. This is not a capital case, and thus, the concern about the unconstitutionality of executing a defendant who has shown persuasive evidence of actual innocence is not implicated. See Herrera, 506 U.S. at 417 ("We first point out the obvious — that this is not, in fact, a capital case."). Petitioner, therefore, cannot obtain habeas corpus relief on his freestanding claim of actual innocence.
Because the new claim Petitioner seeks to exhaust would not entitle him to habeas relief, he is not entitled to a stay during the pendency of his efforts to exhaust the claim in state court. Rhines, 544 U.S. at 277 (holding that granting stay and abeyance requires the presentation of a nonfrivolous claim).
The curative instruction for the "polygraph" reference
Turning to the Petitioner's habeas claims that are properly before the Court, Petitioner contends first that Ms. Matuz's reference to the polygraph rendered his trial fundamentally unfair. The Michigan Court of Appeals carefully reviewed Petitioner's claim that he was prejudiced by the witness' reference:
Strandberg, 2012 WL 4465612 at *1-2 (parallel citations omitted).
The Michigan Court of Appeals looked solely to state law to resolve the claim as Petitioner raised it on his direct appeal. The state court's conclusions that: (1) admission of the reference was error as a matter of state law and (2) the error did not warrant a mistrial as a matter of state law; are binding upon this Court. See Wainwright v. Goode, 464 U.S. 78, 84 (1983). The Sixth Circuit repeatedly has recognized "`that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus.'" Stumpf v. Robinson, 722 F.3d 739, 746 n.6 (6th Cir. 2013) (quoting Bradshaw v. Richey, 546 U.S. 74, 76 (2005)).
Because it is not the province of a federal habeas court to re-examine state-law determinations on state-law questions, Bradshaw, 546 U.S. at 76; Estelle, 502 U.S. at 68, this Court may only grant relief if Petitioner is able to show that the state court's evidentiary ruling was in conflict with a decision reached by the Supreme Court on a question of law or if the state court decided the evidentiary issue differently than the Supreme Court did on a set of materially indistinguishable facts. Sanders v. Freeman, 221 F.3d 846, 860 (6th Cir. 2000). Petitioner has not met this difficult standard. As the Sixth Circuit Court of Appeals explained in Maldonado v. Wilson, 416 F.3d 470 (6th Cir. 2005):
Maldonado, 416 F.3d at 477-478 (footnote omitted). Although a decade has passed since the Maldonado decision, it remains the case that the Supreme Court has never held that reference to a polygraph test renders a trial fundamentally unfair. Put simply, Petitioner has failed to demonstrate that the state court's decision is contrary to or an unreasonable application of clearly established federal law. He has similarly failed to show that the factual determinations upon which the state court's decision are based are unreasonable on this record. Accordingly, Petitioner is not entitled to habeas relief.
In order for a petitioner to be entitled to habeas relief on the basis of prosecutorial misconduct, the petitioner must demonstrate that the prosecutor's improper conduct "`so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). "[T]he touchstone of due process analysis . . . is the fairness of the trial, not the culpability of the prosecutor." Smith v. Phillips, 455 U.S. 209, 219 (1982)). In evaluating the impact of the prosecutor's misconduct, a court must consider the extent to which the claimed misconduct tended to mislead the jury or prejudice the petitioner, whether it was isolated or extensive, and whether the claimed misconduct was deliberate or accidental. See United States v. Young, 470 U.S. 1, 11-12 (1985). The court also must consider the strength of the overall proof establishing guilt, whether the conduct was objected to by counsel and whether a curative instruction was given by the court. See id. at 12-13; Darden, 477 U.S. at 181-82; Donnelly, 416 U.S. at 646-47; Berger v. United States, 295 U.S. 78, 84-85 (1935).
"Claims of prosecutorial misconduct are reviewed deferentially on habeas review." Millender v. Adams, 376 F.3d 520, 528 (6th Cir. 2004) (citing Bowling v. Parker, 344 F.3d 487, 512 (6th Cir. 2003)). Indeed, "[t]he Supreme Court has clearly indicated that the state courts have substantial breathing room when considering prosecutorial misconduct claims because `constitutional line drawing [in prosecutorial misconduct cases] is necessarily imprecise.'" Slagle v. Bagley, 457 F.3d 501, 516 (6th Cir. 2006) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 645 (1974)). Thus, in order to obtain habeas relief on a prosecutorial misconduct claim, a habeas petitioner must show that the state court's rejection of his prosecutorial misconduct claim "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Parker v. Matthews, 132 S.Ct. 2148, 2155 (2012) (internal quotation omitted).
Petitioner takes issue with two types of prosecutorial misconduct: (1) the prosecutor vouched for the victim's credibility; and (2) the prosecutor argued facts not in evidence. Each contention is addressed below.
The Sixth Circuit has generally recognized two types of objectionable vouching. See Johnson v. Bell, 525 F.3d 466, 482 (6th Cir. 2008); Brown v. McKee, 231 F. App'x 469, 478 (6th Cir. 2007) (citing United States v. Francis, 170 F.3d 546, 550 (6th Cir. 1999)); but see Wogenstahl v. Mitchell, 668 F.3d 307, 328-29 (6th Cir. 2012) (treating the two aspects of vouching as part of a single standard).
Petitioner complains that the prosecutor impermissibly vouched and/or bolstered when he argued that if the victim was telling a lie, she told "a giant, awful, whopper of a lie. . . ." (Trial Tr. IV, ECF No. 12-6, PageID.858.) The Michigan Court of Appeals concluded the argument was not misconduct:
Strandberg, 2012 WL 4465162 at *5. Close examination of the prosecutor's closing argument supports the Michigan Court of Appeals' determination. The prosecutor reviewed the victim's testimony and the circumstances surrounding her claims to support his argument that her testimony was worthy of belief. The state court's conclusion that such argument is not objectionable is in no way contrary to clearly established federal law. Petitioner has failed to establish entitlement to habeas relief on this claim.
Arguing facts not in evidence
Petitioner contends that the prosecutor made statements of fact in his arguments that were not supported by record evidence. Specifically, Petitioner claims: (1) the prosecutor told the jury that Petitioner confessed based on what Petitioner had said in a recorded interview with police, an interview that was played for the jury (Trial Tr. III, ECF No. 12-6, PageID.864-867, 888-891); and (2) the prosecutor improperly told the jury that the defense argument regarding the impossibility of first-degree criminal sexual conduct was unsupported by the evidence when it was supported.
"It is improper for a prosecutor, during closing arguments, to bring to the attention of the jury any `purported facts that are not in evidence and are prejudicial'" Byrd v. Collins, 209 F.3d 486, 535 (6th Cir. 2000) (citing United States v. Wiedyk, 71 F.3d 602, 610 (6th Cir. 1995)). Nonetheless, "prosecutors `must be given leeway to argue reasonable inferences from the evidence.'" Id. (citing United States v. Collins, 78 F.3d 10021, 1040 (6th Cir. 1996)).
The Michigan Court of Appeals resolved Petitioner's prosecutorial misconduct claims as follows:
Strandberg, 2012 WL 4465162 at *5.
The standard applied by the state court was entirely consistent with clearly established federal law. Moreover, the state court's factual determinations are entirely reasonable on this record. Petitioner's contention that the prosecutor treated the recorded interview like a confession finds no support in the record. The prosecutor did the opposite, stating "this is not . . . what we call a confession" and "[w]e didn't produce this statement as a confession" and "I'm not saying this is a confession." (Trial Tr. III, ECF No. 12-6, PageID.865.)
Ineffective assistance of trial counsel
Petitioner maintains that his trial counsel rendered ineffective assistance in violation of the Sixth Amendment when he failed to object to the instances of prosecutorial misconduct identified above. In Strickland v. Washington, 466 U.S. 668, 687-88 (1984), the Supreme Court established a two-prong test by which to evaluate claims of ineffective assistance of counsel. To establish a claim of ineffective assistance of counsel, the petitioner must prove: (1) that counsel's performance fell below an objective standard of reasonableness; and (2) that counsel's deficient performance prejudiced the defendant resulting in an unreliable or fundamentally unfair outcome. A court considering a claim of ineffective assistance must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. The defendant bears the burden of overcoming the presumption that the challenged action might be considered sound trial strategy. Id. (citing Michel v. Louisiana, 350 U.S. 91, 101 (1955)); see also Nagi v. United States, 90 F.3d 130, 135 (6th Cir. 1996) (holding that counsel's strategic decisions were hard to attack). The court must determine whether, in light of the circumstances as they existed at the time of counsel's actions, "the identified acts or omissions were outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690. Even if a court determines that counsel's performance was outside that range, the defendant is not entitled to relief if counsel's error had no effect on the judgment. Id. at 691.
Moreover, as the Supreme Court repeatedly has recognized, when a federal court reviews a state court's application of Strickland under § 2254(d), the deferential standard of Strickland is "doubly" deferential. Harrington v. Richter, 562 U.S. 86, 105 (2011) (citing Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)); see also Burt v. Titlow, 134 S.Ct. 10, 13 (2013); Cullen v. Pinholster, 131 S.Ct. 1388, 1403 (2011); Premo v. Moore, 562 U.S. 115, 122 (2011). In those circumstances, the question before the habeas court is "whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id.; Jackson v. Houk, 687 F.3d 723, 740-41 (6th Cir. 2012) (stating that the "Supreme Court has recently again underlined the difficulty of prevailing on a Strickland claim in the context of habeas and AEDPA. . . .") (citing Harrington, 562 U.S. at 102).
The Michigan Court of Appeals rejected Petitioner's ineffective assistance claim:
Strandberg, 2012 WL 4465162 at *7. The state court's determination is neither contrary to nor an unreasonable application of Strickland. As the Michigan Court of Appeals recognized, counsel's failure to raise a meritless issue does not constitute ineffective assistance of counsel. See Smith v. Bradshaw, 591 F.3d 517, 523 (6th Cir. 2010); O'Hara v. Brigano, 499 F.3d 492, 506 (6th Cir. 2007); Chegwidden v. Kapture, 92 F. App'x 309, 311 (6th Cir. 2004); Harris v. United States, 204 F.3d 681, 683 (6th Cir. 2000). "Omitting meritless arguments is neither professionally unreasonable nor prejudicial." Coley v. Bagley, 706 F.3d 741, 752 (6th Cir. 2013). Accordingly, Petitioner is not entitled to habeas relief.
Recomme nded Disposition
For the foregoing reasons, I respectfully recommend that Petitioner's motion to stay and abey these proceedings be denied and that the habeas corpus petition be denied. I further recommend that a certificate of appealability be denied. See Slack v. McDaniel, 529 U.S. 473 (2000).