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Dufresne v. Palmer

United States Court of Appeals, Sixth Circuit

November 22, 2017

Joel Nathan Dufresne, Petitioner-Appellant,
v.
Carmen Denise Palmer, Warden, Respondent-Appellee.

         Appeal from the United States District Court for the Western District of Michigan at Grand Rapids. No. 1:12-cv-01210-Paul Lewis Maloney, District Judge.

          Before: ROGERS, SUTTON, and BUSH, Circuit Judges.

          ORDER

          PER CURIAM.

         Joel Nathan Dufresne, a Michigan prisoner proceeding pro se, appeals the district court's judgment denying his petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254. Dufresne has filed a notice of appeal, which this court construes as an application for a certificate of appealability. See Fed. R. App. P. 22(b)(2).

         In 2006, a jury convicted Dufresne of three counts of first-degree criminal sexual conduct ("CSC") and six counts of third-degree CSC. The convictions were based upon sexual acts that Dufresne committed against his then-girlfriend, Angela Wiertalla, with whom he shared a son. Wiertalla reported the acts to police after Dufresne left her and traveled to Florida with their son. Dufresne admittedly belonged to an organization known as the "Creativity Movement, " which was considered by law enforcement to be a white-supremacist group. At one time, the FBI investigated whether individuals associated with the Creativity Movement were involved in the murder of the mother and husband of Judge Joan Lefkow, a federal district judge in Chicago.

         The trial court sentenced Dufresne to 50 to 75 years of imprisonment on the first-degree CSC counts and 25 to 50 years of imprisonment on the third-degree CSC counts. Appellate counsel filed a motion to remand for an evidentiary hearing on the effectiveness of trial counsel's assistance pursuant to People v. Ginther, 212 N.W.2d 922 (Mich. 1973). The Michigan Court of Appeals remanded, and a Ginther hearing was held, after which the Emmet County Circuit Court concluded that Dufresne failed to show that trial counsel performed ineffectively. The Michigan Court of Appeals affirmed, and the Michigan Supreme Court denied leave to appeal. People v. Dufresne, No. 273407, 2008 WL 5055959, at *1 (Mich. Ct. App. Oct. 14, 2008) (per curiam), appeal denied, 764 N.W.2d 266 (Mich. 2009). In 2010, Dufresne filed a motion for relief from judgment, which the Emmet County Circuit Court denied. The Michigan Court of Appeals and Michigan Supreme Court denied leave to appeal. People v. Dufresne, No. 305490 (Mich. Ct. App. Dec. 27, 2011), appeal denied, 821 N.W.2d 672 (Mich. 2012).

         Proceeding through counsel, Dufresne then filed a federal habeas petition raising five grounds for relief: (1) trial counsel performed ineffectively; (2) the trial court erred by granting a motion in limine to exclude evidence and the prosecutor intimidated crucial witnesses; (3) appellate counsel failed to raise meritorious issues; (4) repeated references to his post-arrest, post-Miranda silence violated Doyle v. Ohio, 426 U.S. 610 (1976); and (5) repeated references to his ties to the Creativity Movement deprived him of a fair trial. The district court denied habeas relief, concluding that Dufresne procedurally defaulted grounds one and two and was not entitled to habeas relief on the merits of grounds three through five.

         A certificate of appealability may issue only if the petitioner makes "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). A petitioner may meet this standard by showing that reasonable jurists could debate whether the petition should have been determined in a different manner or that the issues presented were "adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). If the petition was denied on procedural grounds, the petitioner must show, "at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id.

         Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), if a state court previously adjudicated a petitioner's claims on the merits, a district court may not grant habeas relief unless the state court's adjudication of the claim 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 "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); see Harrington v. Richter, 562 U.S. 86, 100 (2011). Where AEDPA deference applies, this court must evaluate the district court's application of § 2254(d) to determine "whether that resolution was debatable amongst jurists of reason." Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).

         I. Procedural Default of Grounds One and Two

         The district court found that Dufresne procedurally defaulted his first two grounds for relief because the Emmet County Circuit Court declined to review these claims under Michigan Court Rule 6.508(D)(3). It also found that Dufresne failed to make an adequate showing of cause and prejudice or a miscarriage of justice to overcome the procedural default.

         A. Procedural Default - Ground One

         Ground one of Dufresne's habeas petition alleged that trial counsel performed ineffectively by failing to (a) review a videotape of a March 9, 2006 statement that Dufresne made to Michigan State Police Detective Gwyneth White-Erickson and use the videotape to impeach White-Erickson and show that Dufresne consistently denied engaging in the sexual conduct alleged by Wiertalla; (b) review White-Erickson's interview of Wiertalla of February 23, 2006, and use that interview to impeach Wiertalla's trial testimony; (c) investigate the murders of Judge Lefkow's relatives and present evidence showing that Dufresne was not involved; (d) interview and present witnesses whose testimony would have been helpful to the defense; (e) investigate and present evidence relating to Wiertalla's mental health, history of drug and alcohol abuse, and criminal history; and (f) object to the introduction of evidence regarding Dufresne's ties to the Creativity Movement.

         In ground one of his habeas petition, Dufresne appears to recite only those arguments raised in his motion for relief from judgment-issues (a) through (e). See R. 1 at 43-59. The district court understandably thought that Dufresne was not raising the "claims of ineffective assistance of [trial] counsel that were raised on direct appeal." R. 40 at 37. But elsewhere in his petition, Dufresne states that he is also raising the issues that he "r[a]n on direct appeal" like issue (f), trial counsel's failure to object to prejudicial evidence. R. 1 at 23. Dufresne's ultimate discussion of that issue in a single paragraph is cursory to say the least. But reasonable jurists could debate the district court's procedural conclusion that Dufresne did not assert this claim in his petition. See Slack, 529 U.S. at 484.

         We still can't disturb the district court's denial of a COA on this claim unless reasonable jurists could debate whether it "states a valid claim of the denial of a constitutional right." Id. Our court has never addressed the meaning of Slack's "valid claim" language in a published opinion. But it means at least this: To meet Slack's standard, it is not enough for a petitioner to allege claims that are arguably constitutional; those claims must also be arguably valid or meritorious.

         This approach best accords with AEDPA's text and Slack's interpretation of its meaning. First, under AEDPA we may issue a COA "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2) (emphasis added). The best reading of that language is that our inquiry goes to both the procedural component of the district court's decision and the merits lurking behind it. Second, the Slack Court framed its standard in terms of what "jurists of reason would find . . . debatable." 529 U.S. at 484. Although courts should not conduct a full merits inquiry at the COA stage, the key question remains "the ...


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