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Bales v. Bell

United States Court of Appeals, Sixth Circuit

June 10, 2015

JERRY LYNN BALES, Petitioner-Appellant,
v.
THOMAS BELL, Warden, Respondent-Appellee

Argued December 3, 2014

Page 569

[Copyrighted Material Omitted]

Page 570

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:10-cv-13480--Denise Page Hood, District Judge.

AFFIRMED.

ARGUED:

Frank D. Eaman, FRANK D. EAMAN, PLLC, Detroit, Michigan, for Appellant.

Andrea M. Christensen, OFFICE OF THE ATTORNEY GENERAL OF MICHIGAN, Lansing, Michigan, for Appellee.

ON BRIEF:

Frank D. Eaman, FRANK D. EAMAN, PLLC, Detroit, Michigan, for Appellant.

Andrea M. Christensen, OFFICE OF THE ATTORNEY GENERAL OF MICHIGAN, Lansing, Michigan, for Appellee.

Before: SILER, SUTTON, and STRANCH, Circuit Judges.

OPINION

Page 571

SILER, Circuit Judge.

Petitioner Jerry Bales appeals the district court's denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. For the following reasons, we AFFIRM.

FACTUAL AND PROCEDURAL BACKGROUND

Jerry and his wife Linda were godparents to their niece Whitney G., the victim in the underlying state criminal case. Whitney often stayed overnight with Jerry and Linda on weekends and accompanied the couple on camping trips. When Whitney was around twelve years old, Linda and Jerry began divorce proceedings. During that time, Linda told Whitney's parents that Linda's adult daughter-in-law, Jennifer S., had accused Jerry of making sexual advances toward her. Notably, Jennifer did not testify at Jerry's trial. Linda told Whitney's mother, Tamra G., that Linda was concerned about Whitney.

Tamra, Tamra's husband, and Linda discussed Linda's concern for Whitney. Tamra later asked Whitney if Jerry had ever touched her " in a way that an uncle shouldn't have." Whitney started crying and said that Jerry had done something to her, but she made no specific allegations. Thereafter, Whitney told her mother what had happened between her and Jerry. The state charged Jerry with two counts of second-degree criminal sexual conduct and one count of assault with intent to commit second-degree criminal sexual conduct.

Jerry was tried in 2005, but the jury was unable to reach a verdict. At the retrial, Whitney testified that Jerry touched her inner thighs and genital area while they were alone at Jerry and Linda's home. Jerry told Whitney not to tell anyone. Although Whitney had difficulties remembering some details, she eventually testified that Jerry also grabbed her wrist and moved her hand toward his penis. She testified further that Jerry told inappropriate jokes and used to tell her she had a nice body. Whitney remembered that Jerry exposed himself in front of her on one occasion. Although this was a new allegation since the previous trial, she explained that her memory had improved.

Tamra also testified at trial and confirmed the close relationship between Jerry and Whitney. Linda also corroborated the relationship between Jerry and Whitney and testified that Jerry particularly favored Whitney. She explained that her son's wife, Jennifer, had told her some disturbing things about Jerry, which prompted Linda to contact Whitney's parents out of concern for Whitney. Linda further testified about Andrea S. After Jerry was charged with crimes against Whitney, Linda contacted Andrea's father, which prompted Andrea to speak out for the first time. Linda admitted she had never seen Jerry act inappropriately toward Whitney or Andrea.

Andrea, who was twenty-six years old at the time of trial, testified as an other acts witness. She testified that Jerry often commented on her body when she was a young girl. When Andrea was about twelve years old, she went with Linda and Jerry on a road trip to Georgia to watch Jerry's son graduate from military school and to New Orleans for Mardi Gras. The night before they departed for the road trip, Andrea spent the night at Jerry's home. She testified that Jerry came into her room several times throughout the night; when he did, he exposed his penis

Page 572

and touched her body. At one point, Jerry was on top of Andrea, and she testified that something was inserted into her vagina. While the trio was on the road trip, Jerry sometimes touched Andrea and made lewd comments. Andrea testified that while staying in New Orleans, Jerry did " the same things [to Andrea] . . . that happened" the night before the group left for the road trip. After the road trip, Jerry continued to visit Andrea and gave her jewelry and gifts. Sometimes Jerry would wait for Andrea at her home or pick her up from school. The last time Jerry attempted to see Andrea, he broke into her home, and Andrea ran off into the woods. Andrea testified that Jerry and Linda then visited less frequently and stopped visiting in 1994 or 1995. On cross-examination, Andrea acknowledged inconsistencies in her testimony between the two trials but explained that she had tried to forget about the experience over the years.

At trial, Jerry denied all of Whitney's accusations. He testified that on Whitney's last visit to his home, he yelled at her because she had disobeyed him by going swimming in the pool and had tracked water onto the carpet. Jerry acknowledged that he and Whitney spent a lot of time alone together. He also denied Andrea's accusations and testified that it was Linda's idea to bring Andrea on the road trip to see their son's military graduation. He did not recall spending time alone with Andrea or going to Andrea's home. Jerry's theory of the case was that Linda and others had conspired to get him charged with a crime so that Linda could benefit during the divorce proceedings.

During the trial, the prosecutor and defense counsel fought openly, often making side comments or tagging inappropriate remarks onto questions while examining witnesses. When the prosecution rested its case, defense counsel moved for a mistrial, citing prosecutorial misconduct. After the court denied his initial motion, defense counsel again moved for a mistrial after closing arguments. The court again denied the motion and repeatedly instructed the jury during trial that the attorneys' comments were not evidence.

The jury found Jerry guilty of two counts of second-degree criminal sexual conduct but not guilty of assault with intent to commit second-degree criminal sexual conduct. The trial court sentenced Jerry to four to fifteen years imprisonment. The Michigan Court of Appeals affirmed his convictions and sentence. The Michigan Supreme Court denied his application for leave to appeal.

Next, Jerry began a collateral attack on his conviction and moved the trial court for relief from judgment, arguing that the prosecutor had failed to disclose certain exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The trial court denied his motion. The Michigan Court of Appeals and the Michigan Supreme Court both denied his application for leave to appeal. People v. Bales, 486 Mich. 1039, 783 N.W.2d 121, 121 (Mich. 2010).

Thereafter, Jerry filed this habeas petition pursuant to 28 U.S.C. § 2254. The district court denied his petition but granted a certificate of appealability as to two of Jerry's claims: whether the prosecutor failed to turn over certain evidence under Brady that would show that key prosecution witnesses were lying at trial and whether he was denied due process due to prosecutorial ...


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