Bales v. Bell, CASE NO. 2:10-CV-13480

JERRY BALES, Petitioner, v. THOMAS BELL, Respondent.

CASE NO. 2:10-CV-13480

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Dated: October 8, 2013

HONORABLE DENISE PAGE HOOD

OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF

HABEAS CORPUS AND GRANTING IN PART A

CERTIFICATE OF APPEALABILITY

I. Introduction

Jerry Bales ("Petitioner"), through counsel, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his Wayne County Circuit Court convictions on two counts of second-degree criminal sexual conduct, MICH. COMP. LAWS § 750.520c(1)(a), for which he was sentenced to concurrent terms of 4 to 15 years imprisonment in 2005. In his pleadings, he raises claims concerning the non-disclosure of evidence, prosecutorial misconduct, the exclusion of proposed defense testimony, and the effectiveness of trial and appellate counsel. Respondent has filed an answer to the petition contending that it should be denied.For the reasons stated herein, the Court concludes that Petitioner's claims lack merit and that the habeas petition should be denied. The Court, however, also concludes that a certificate of appealability should be granted in part.

II. Facts and Procedural History

Petitioner's convictions arise from the sexual assault of his niece, Whitney G.¹ ("victim"), at his home in Southgate, Michigan when she was seven or eight years old. Petitioner and his wife, Linda Bales, were also the victim's godparents. The victim began visiting Petitioner's home alone when she was three or four years old, staying overnight on weekends and going on camping trips. Her siblings, a younger brother and two younger sisters, only accompanied her every few months. Over the years, Petitioner and Linda bought the victim many items, including school clothes, electronics, bicycles, and jewelry. The allegations of sexual abuse came to light in 2004 when the victim was 12 years old and Petitioner and Linda were ending their marriage. Until Petitioner and Linda began their divorce proceedings, there had never been any accusations of improper conduct. Linda admitted that she had never seen anything out of the ordinary between Petitioner and the victim.

After separating from Petitioner, Linda called the victim's parents and told them she was divorcing Petitioner. Linda asked to speak with the victim's parents, outside of the children's presence. She told them that her daughter-in-law, Jennifer Szczesniak, had made allegations of improper conduct against Petitioner and she was concerned about the victim. Jennifer did not testify at trial and no further inquiry was made into those allegations. Linda and the victim's parents went to a park to discuss the matter. The victim's mother, Tamra G., testified that she and her husband argue with Linda a little because they thought it was "apples and oranges" and there was no cause for concern. Eventually, they called the victim and had her come to the park.

When the victim arrived at the park, her mother asked her if Petitioner had ever touched her "in a way that an uncle shouldn't have." The victim started crying and said that Petitioner had done something to her, but made no specific allegations. Because the victim did not want to speak in front of her father, she and her mother took a walk. On the walk, the victim told her mother what had happened between her and Petitioner. The victim was eventually taken to the police and made specific allegations which formed the basis of the charges against Petitioner - two counts of second-degree criminal sexual conduct and one count of assault with intent to commit second-degree criminal sexual conduct.

At trial, the victim recalled visiting Petitioner's home when she was seven or eight years old and testified that Petitioner touched her inner thighs and vagina over her clothes when they were alone in the house. Petitioner did not say anything when he touched her, but afterward he told her not to tell anyone. She was usually quiet, but sometimes she would ask him to stop. On a few occasions, he grabbed her wrist and moved her hand toward his penis, but she pulled away because she was uncomfortable. Petitioner also told inappropriate jokes and told her that she had a good body. The victim felt nervous around Petitioner when she was alone with him. She also testified that Petitioner exposed himself to her on one occasion. She admitted that this was a new allegation, but explained that her memory was improving and that she recently remembered more things that had occurred. The victim also testified that shortly after she began menstruating, Petitioner told her that he was going to have one of the victim's younger sisters start coming over instead of her. The victim was mad that she would not be able to see her aunt anymore. The victim also recalled meeting with her parents at the park and telling her mom and the authorities about the sexual abuse.

Andrea S., who was 26 years old at the time of trial, testified as an other acts witness. She became involved in the case after Linda Bales contacted her father, Bob S., several months after Petitioner was charged in the case to talk to him about Andrea and Petitioner. Andrea's father then called her, told her that Petitioner hadbeen accused of child molestation, and asked if he had done anything to her. Andrea told her father that Petitioner had sexually abused her when she was a child. She subsequently spoke to the authorities. At trial, Andrea explained that when she was about 12 years old, Linda and Petitioner took her on a car trip to Georgia and New Orleans. Andrea stayed at their home in Southgate the night before the trip. That night, Petitioner entered Andrea's room and exposed his penis. Petitioner came back and forth to the room during the night several times, exposing his penis and touching Andrea's breasts and the rest of her body. At one point, Petitioner was on top of Andrea and penetrated her vagina. At certain times while they were on the trip, Petitioner touched her and made lewd comments to her. After the trip, Petitioner stalked her at school, picked her up from school, and visited her house when her parents were not home. Sometimes she let him in the house. When she did, he molested her. Other times, she would hide in the house, stay with a neighbor boy, or go to a friend's house. The last time that Petitioner came to her house, he forced open a door and she ran outside and hid in the woods. Andrea said her grandmother found Petitioner at the house alone with her a few times, but assumed he was there to see her mother. Andrea recalled that Petitioner and Linda visited less frequently and then stopped visiting altogether in 1994 or 1995. She knew that Linda's brother had adopted children but she never met the victim. On cross-examination, Andrea acknowledged inconsistencies in hertestimony and explained that the incidents had occurred long ago and she had tried to forget about them over the years.

Linda Bales testified about her relationship with Petitioner, the victim, and Andrea S. The sexual abuse came to light at the time she decided to divorce Petitioner. Linda explained that she and Petitioner had a fight one day and Petitioner chased her out of the house and threatened to kill her. She went to her son's house and told him that she was getting a divorce. His wife Jennifer told her "disturbing" information about Petitioner. Based upon that conversation, she contacted the victim's parents. They subsequently met, went to the park, spoke with the victim, and learned of her claims of sexual abuse. Linda testified that she loved the victim and that she and Petitioner spoiled her and wanted to make her happy. The victim spent weekends at their house and they took her camping. They had her siblings over occasionally, but mostly just the victim. Petitioner and the victim were often alone together on Fridays due to Linda's work schedule.

As to Andrea S., Linda testified that she and Andrea's mother were good friends for years before they lost contact. Andrea's mother also worked with Petitioner. Linda recalled taking Andrea to Georgia and New Orleans and said that Petitioner and Andrea were sometimes alone together. She and Petitioner also bought Andrea things and Petitioner bought her jewelry. After Petitioner was charged, Linda contacted Andrea's father to discuss the situation. Linda alsospoke to Andrea's mother who was upset about what Andrea reported. Linda admitted that she did not observe any improper conduct between Petitioner and the victim or Andrea.

Petitioner's sister, Jane Duvall, testified that the victim acted happy around Petitioner and was "all over him" when they did things together. She thought that the victim was a good kid who would not harm anyone. Jane learned that Andrea S. went with Petitioner and Linda down south to see his son and claimed that Petitioner was not happy about having to take Andrea S. with them. Jane also testified that she was present when Linda was removing some of her belongings from Petitioner's home during their break-up. During that visit, Linda told her that Petitioner was being investigated and was going to jail and she would get everything anyway. Linda denied making such a comment.

Petitioner testified in his own defense at trial. He denied touching the victim inappropriately. He was scared, upset, depressed, and angry when he learned of the allegations. Petitioner said that the victim used to "hang all over" him and enjoyed spending time with him. He acknowledged that they spent a fair amount of time alone together. He claimed that the victim was mad at him because he disciplined her the last time she visited his house. Petitioner explained that the victim went into the pool against his instructions and dropped her wet towels on his new carpeting. The victim and her mother admitted that the victim andPetitioner had a disagreement, but claimed it was about something else. Petitioner also denied...