2. REPLY to RESPONDENT's ANSWER to PETITION for WRIT of HABEAS CORPUS (6-13-13)

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MICHIGAN

JOEL NATHAN DUFRESNE,

Petitioner,

-v.- Civil Action No. 1:12-cv-1210

HON. ROBERT HOLMES BELL

CARMEN PALMER, Warden, MAG. JOSEPH G. SCOVILLE

Respondent.

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F. MARTIN TIEBER (P25485)

Attorney for Petitioner

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REPLY TO RESPONDENT’S ANSWER TO PETITION FOR WRIT OF

HABEAS CORPUS

Petitioner Joel Nathan Dufresne now replies to the Respondent’s Answer to

his Petition for Writ of Habeas Corpus, filed on May 13, 2013.

Throughout its answer the Respondent, primarily through boilerplate,

attempts to convince this Court that it no longer has power to provide habeas relief

for state court petitioners no matter how egregious the federal constitutional

violations, and that it cannot consider additional matters at an evidentiary hearing.

The Respondent is clearly wrong on both counts.

Respondent also attempts to color this Court’s attitude with irrelevant

character assassination, painting a vivid, if misleading, portrait of Petitioner and

his positions in this litigation.

The issue in this case was not whether Petitioner assaulted the Complainant

during an incident in Cadillac, Michigan, acts which Petitioner never denied and

which were never charged, but whether Petitioner forced sexual acts against

Complainant’s will. Petitioner has consistently maintained that the Complainant

engaged willingly in sexual acts which some might consider abnormal, or that the

acts she complained of never occurred. On this, the only critical point in this

litigation, there was no evidence other than the statements of the Complainant and

Petitioner, a classic “he said, she said” case.1 And due to the actions of the state

trial judge and the inaction of trial defense counsel, Petitioner was stripped of his

ability to test the Complainant’s version of events at trial in violation of clear

pronouncements of the United States Supreme Court regarding rights of criminal

defendants under the federal constitution.

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1 The Respondent, at pp. 10 and 11 of its Answer, lays out “facts” as depicted by

the Michigan trial and appellate courts. These statements simply recount the

largely untested claims of the Complainant in this case.

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The failure to impeach the Complainant with substantial and multiple

inconsistencies between her statements to police, her testimony at preliminary

examination, and her trial testimony on critical points alone establishes ineffective

assistance of counsel under the Strickland standard, and any contrary determination

by the state courts on this point satisfies the AEDPA standard, warranting habeas

relief. This area is covered in detail at pp. 25-34 of Petitioner’s original briefing in

this Court.

The Respondent claims, as to this egregious constitutional violation, that the

argument is procedurally defaulted. However, as Petitioner has already shown,

any default with respect to failure to raise this matter on direct appeal has been

extinguished by cause (ineffective assistance of direct appeal counsel,

independently raised on state postconviction review) and prejudice. Respondent,

at p. 27 of its answer, claims there is no cause here for reasons stated in Issue III,

but then in Issue III refers back to Issue I. In other words Respondent’s reasoning

on this claim is circular. The suggestion, at pp. 33-35 of Respondent’s Answer,

that maybe trial defense counsel actually reviewed the Complainant’s prior

statements and decided to test her claims in other ways is simply nonsense because

impeachment with critical, multiple inconsistencies is undoubtedly a level above

attempts to impugn a witness’s motivation. This is because factual inconsistencies

can be clearly demonstrated in a way that suggestions of improper motivation

cannot. See the cases cited by Petitioner on this point at pp. 29-31 of his original

briefing in this Court.

So while trial defense counsel was able to make suggestions to the jury

about why the Complainant was making false claims of forced sexual activity in

this case, his critical neglect prevented him from showing the jury the actual

mechanics of a false story: repeated substantial inconsistencies in the several

renditions of claimed events. Respondent should surely understand the importance

of such an attack, as it is often they key weapon used to convict criminal

defendants. It was clearly understood by the Michigan Supreme Court in the

Brown case, cited in Petitioner’s original brief at p. 30. And, importantly, blunting

Respondent’s theory that this major neglect was perfectly okay because defense

counsel strategically went after the Complainant in other ways, there was

absolutely no downside to adding an attack on the major inconsistencies present

here, as noted in the Harris case also cited by Petitioner at p. 30 of his original

brief.

Contrary to Respondent’s claims, the neglect by trial defense counsel on this

score was substantial and clearly met the first prong test of Strickland. And

prejudice was simply overwhelming considering the “he said, she said” posture of

this case on the relevant contested point – whether Petitioner forced Complainant

to engage in unusual sexual activity against her will. Petitioner clearly meets the

AEDPA standard allowing the grant of the writ as the state courts’ implied

determination that there was no ineffective assistance on this point was an

unreasonable application of the decision of the United States Supreme Court in

Strickland.(2)

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(2)It should be noted that Respondent, at pp. 28-30, relies on a lengthy quotation

from the state trial court’s opinion on this point, but this opinion contains only one

fleeting reference to “prior inconsistent statements,” and the claim that it was

strategic not to use these must fail for the reasons stated above.

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Again, the failure to uncover the multiple, critical inconsistencies in

Complainant’s rendition of claimed events here is sufficient in and of itself to meet

the Strickland test, and clearly renders Petitioner’s trial fundamentally unfair under

the federal constitution. But trial defense counsel’s neglect did not stop there. He

failed to bring in a series of critical witnesses who would have been able to show

the jury that Complainant’s claims that she abhorred unusual sexual activity ring

hollow.

Respondent counters this claim of investigatory failure by suggesting that

the testimony of the witnesses would not have been relevant and/or would have

been barred by the rape shield statute or state evidence rules. Respondent is clearly

wrong. As illustrated by the discussion of applicable case law in Petitioner’s

original briefing, at pp. 44-46, given the factual construct of this case and

Complainant’s claims that unusual or experimental sex was repugnant to her and

thus would never have been consensual, Petitioner had a confrontation right that

eclipsed state evidence rules, including the rape shield statute, to show that there

was substantial evidence that the Complainant engaged a sex life that was unusual

and experimental, and enjoyed it. Respondent makes no effort to counter this

argument beyond conclusory claims that state evidence rules would bar all of this

evidence. The relevance of this evidence is obvious given Complainant’s claims at

trial.

Respondent also engages the same tactic utilized at trial - portraying

Petitioner as an abhorrent, assaultive individual who deserves to be convicted

whether or not his trial was constitutionally infirm. In doing so the Respondent, at

p. 59 of its Answer, critically misstated evidence of the uncharged Cadillac area

assault by claiming that “police officers were dispatched to the couple’s house”

and when they arrived they found Petitioner standing over Complainant who had

“a severe cut on her head and quite a bit of blood on her face and head.” By

making it appear as if this activity occurred at Petitioner and Complainant’s home,

Respondent obviously seeks to tie this assaultive activity to the sexual misconduct

charges actually filed here when, in reality, a quick check of the August 16, 2006

trial transcript at pages 160-162, reveals that this activity relates to the uncharged

assaultive conduct in the Cadillac area which Petitioner never denied.

Respondent also misleads when stating, at p. 69 of its answer, that Petitioner

“admitted to the acts charged.” This is actually beyond misleading and is blatantly

false. While Petitioner at times agreed that he responded to Complainant’s

violence with physical conduct of his own, and never denied that he assaulted the

Complainant in the uncharged Cadillac area incident, he consistently denied that he

ever forced Complainant to engage in sexual activity, which was the root of all of

the charges in this case. Indeed, if trial defense counsel had done his job in

relation to obtaining and assessing Petitioner’s full statement to police at arrest (see

Petitioner’s original brief at p. 24) he could have let the jury know that Petitioner

continually professed his innocence of forcing non-consensual sex with

Complainant. And Petitioner continued to assert his innocence at trial.

Respondent has the temerity to suggest, at p. 68, that linking Petitioner with

a group that was involved in the murder of the family members of a federal judge

in Illinois was “relevant.” (3) Respondent fails to note the critical point here. The

group that Petitioner was involved in was shown, prior to trial, to have had

absolutely no involvement whatsoever in the Illinois murder of the family members

of a federal judge. The constitutional infirmity of a trial where Petitioner was

wrongfully painted as being involved with the murder of the family of a federal

judge in another state after the inaction of trial defense counsel deprived him of the

tools necessary to contest the actual specific charges against him, charges that were

based solely on the word of the Complainant who had clear motive to make false

claims, is obvious and the writ should be granted.

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(3)Respondent misstates the factual background on this point by suggesting that a

federal judge had been murdered. It was actually family members of the judge

who had been killed.

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Finally, on the issue of whether this Court is lacking in power to hold an

evidentiary hearing, a few points are in order. As noted in Petitioner’s previous

briefing, it was clearly an abuse of discretion on this record for the state trial court,

the Michigan Court of Appeals, and the Michigan Supreme Court to refuse an

evidentiary hearing on postconviction. Under Cullen v. Pinholster, 131 S.Ct.

1388; 179 L.Ed.2d 557 (2011), this Court should assess the reasonableness of the

state court determinations on federal constitutional issues in light of what the state

courts had in front of them when they made their rulings – including the material

that Petitioner put before them by way of affidavits, offers of proof, and other

material submitted in support of the request for an evidentiary hearing in state

court on postconviction. This material, presented to the state courts on

postconviction, is part of the state court record. See Hodges v. Colson, 711 F.3d

589, 612-613 (2011). This Court can accept the validity of this material in

assessing whether Petitioner has met his burden under the AEDPA and can then, in

its discretion, order a hearing to validate any facts essential to its ruling.

Conclusion

For the reasons stated here and in the previously filed petition and brief in

support, Petitioner Joel Nathan Dufresne urges this Court to grant the writ.

Respectfully submitted,

s/ F. Martin Tieber

Tieber Law Office

215 S. Washington Square, Suite C

Lansing, Michigan 48933

marty@tieberlaw.com

Date: June 13, 2013

I hereby certify that on June 13, 2013, I electronically filed the foregoing paper

with the Clerk of the Court using the ECF system which will send notification of

such filing to the following:

. Honorable Robert Holmes Bell

. Honorable Joseph G. Scoville

. Andrea M. Christensen, Attorney for Respondent

Christensena1@michigan.gov

s/ F. Martin Tieber

Tieber Law Off

215 S. Washington Square, Suite C

Lansing, MI 48933