Petition for Writ of Certiorari — Jake Paul Heiney, Petitioner v. Heidi E. Washington

Supreme Court briefJun 17, 2024

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APPENDIX A

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UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Feb 9, 2024

KELLY L. STEPHENS, Clerk

JAKE PAUL HEINEY,

Petitioner-Appellant,

HEIDI E. WASHINGTON,

Respondent-Appellee.

)

ORDER

Before: MURPHY, Circuit Judge.

Jake Paul Heiney, a former Michigan prisoner1 proceeding pro se, appeals a district court

judgment denying his petition for a writ of habeas corpus filed under 28 U.S.C. § 2254 and moves

this court for a certificate of appealability (COA). As discussed below, the court denies Heiney a

COA and denies his motions for the appointment of counsel and for leave to file an amended

motion for a COA through appointed counsel.

In 2016, following a bench trial, the trial court found Heiney guilty of two counts of fourthdegree criminal sexual conduct (CSC), in violation of Michigan Compiled Laws § 750.520e(l)(b).

The conviction arose after Christy Gray, Shawna Earnest, and two other women revealed that

Heiney, a physician, inappropriately touched their breasts during orthopedic examinations; the trial

court found Heiney guilty with respect to his conduct with Gray but granted Heiney a directed

verdict of acquittal as to his conduct with Earnest. The trial court sentenced Heiney to 90 days in

jail and five years of probation. The Michigan Court of Appeals affirmed, People v. Heiney, No.

Heiney’s probationary status at the time he filed his habeas petition satisfied the “in custody”

requirement of 28 U.S.C. § 2254, see Miskel v. Karnes, 397 F.3d 446, 450 (6th Cir. 2005), and

although he has since completed his term of probation, that fact does not render his petition moot

under our caselaw, see DePompei v. Ohio Adult Parole Auth., 999 F.2d 138, 139-40 (6th Cir.

1993).

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-2333363, 2017 WL 6624110 (Mich. Ct. App. Dec. 28, 2017) (per curiam), and the Michigan

Supreme Court denied leave to appeal, People v. Heiney, 911 N.W. 2d 708 (Mich. 2018) (mem.).

Heiney then filed a § 2254 petition. Upon Heiney’s motion, the district court held

petition in abeyance so that he could exhaust his claims in the state courts. Accordingly, Heiney

filed a state-court motion for relief from judgment. The trial court denied the motion for lack of

merit and for failure to show entitlement to relief under Michigan Court Rule 6.508(D)(3, and the

Michigan Court of Appeals and the Michigan Supreme Court denied leave to appeal.

Heiney then filed a second motion for relief from judgment, which the trial court denied as

successive under Michigan Court Rule 6.502(G)(2). The Michigan Court of Appeals and the

Michigan Supreme Court denied leave to appeal.

The district court then lifted the stay and allowed Heiney to file an amended petition and

then a second amended petition. Heiney raised seven claims: (1) the evidence was insufficient to

support his conviction; (2) he was deprived of his Confrontation Clause rights; (3) trial counsel

was ineffective for failing to call an expert witness; (4) appellate counsel was ineffective for failing

to raise ground three on appeal; (5) the State violated its disclosure obligations under Brady v.

Maryland, 373 U.S. 83 (1963), and committed misconduct, his conviction is based on insufficient

evidence, counsel was ineffective, and the trial court committed various errors; (6) he would not.

have been found guilty but for his sex and thus his conviction must be vacated based on Bostock

v. Clayton County, 140 S. Ct. 1731 (2020); and (7) he was deprived of his First Amendment free

exercise rights.

The district court denied the petition and declined to issue a COA, reasoning that Heiney’s

claims were reasonably adjudicated on the merits by the state court or procedurally defaulted.

Thereafter, the district court denied Heiney’s motion to alter or amend the judgment.

A COA may be granted “only if the applicant has made a substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)(2); see Miller-El v. Cockrell, 537 U.S. 322, 327,

336 (2003). Under the Antiterrorism and Effective Death Penalty Act (AEDPA), when a state

court adjudicates the petitioner’s claims on the merits, the district court may not grant habeas relief

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-3unless the state court’s adjudication 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). When AEDPA deference applies, a reviewing

court, in the COA context, must evaluate the district court’s application of § 2254(d) and determine

“whether that resolution was debatable amongst jurists of reason.” Miller-El, 537 U.S. at 336.

When the district court’s denial is based on a procedural ruling, the movant must demonstrate 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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Claim One - Sufficiency of the Evidence

Heiney first claims that the evidence was insufficient to support his conviction.

In reviewing the sufficiency of the evidence, “the relevant question is whether, after

viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,

443 U.S. 307, 319 (1979). A reviewing court considers this question “with explicit reference to

the substantive elements of the criminal offense as defined by state law.” Id. at 324 n.16. In a

federal habeas proceeding, review of a sufficiency claim is doubly deferential: “First, deference

should be given to the trier-of-fact’s verdict, as contemplated by Jackson', second, deference should

be given to the Michigan Court of Appeals’ consideration of the trier-of-fact’s verdict, as dictated

by AEDPA.” Tucker v. Palmer, 541 F.3d 652, 656 (6th Cir. 2008).

For the trial court to find Heiney guilty of fourth-degree CSC, the prosecution had to prove

beyond a reasonable doubt that he engaged in sexual contact with another through “[fjorce or

coercion,” which includes “engaging] in medical treatment or examination of the victim in a

manner or for purposes which are medically recognized as unethical or unacceptable.” Mich.

Comp. Laws § 750.520e(l)(b).

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-4On direct appeal, the Michigan Court of Appeals first rejected Heiney’s argument that

expert medical testimony is required to show that his examination of Gray—during which he

“squeezed” her breast—was medically unethical, or unacceptable, reasoning that the Michigan

-Mt*1:, .-rWfckfrW*- ■

Supreme Court does not require such expert testimony in CSC cases and that other evidence—lay

witness testimony—allowed the'trial court to reach that conclusion. Heiney, 2017 WL 6624110,

at *2. In particular: (1) Gray testified that it seemed unusual for Heiney to have touched her

breasts during the examination and that the examination confused her because she had not

complained of any chest pain; (2) Earnest and two other women testified that Heiney had touched

their bare breasts while examining them for non-chest-related pain and that Heiney’s breast

examinations were different from other physicians’ because he did not have them lie down, palpate

their breasts, explain what he was doing, or examine both breasts consistently or at all; and

(3) Detective Laura Bliss testified that Heiney himself told her that a breast examination is not a

routine part of his assessment and that he would examine breasts only if the patient complained of

shoulder pain or pain or discharge from the breast, at which point he would palpate the muscle

tissue of both breasts for comparison. Id. But here, Gray testified that she did not tell Heiney that

she had any chest pain or breast discharge and—through a demonstration—explained that Heiney

repeatedly squeezed her breasts. Id.

While this evidence is not overwhelming, the Michigan Court of Appeals determined that,

when viewing it most favorably to the prosecution, see Jackson, 443 U.S. at 319, a rational trier

of fact could have found that Heiney’s touching of Gray’s breasts “was a medical examination

done in a manner that was medically recognized as unethical or unacceptable.” Heiney, 2017 WL

6624110, at *2. Although Heiney maintains that he could not be convicted without expert

testimony, the Michigan Supreme Court—as the state appellate court aptly explained—has held

that expert testimony is not required in all CSC prosecutions and that a CSC conviction can be

based on “common knowledge” that the defendant’s conduct “constitutes an unethical and

unacceptable method of ‘medical treatment.’” People v. Baisden, 756 N.W. 2d 73, 73 (Mich.

2008). In this case, the Michigan Court of Appeals determined that the trial court could have

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-5inferred, as a matter of common knowledge, that squeezing breasts during an orthopedic

examination in which the patient does not complain of chest pain is not an ethical or acceptable

method of medical treatment. See Heiney, 2017 WL 6624110, at *2. In any event, the appellate

___

court observed that, by Heiney’s own standards—as relayed to Detective Bliss—the breast

touching described by Gray would not be medically appropriate. Id. This federal habeas court is

bound by the state courts’ interpretation of its own laws. See Bradshaw v. Richey, 546 U.S. 74,

16 (2005) (per curiam). And although Heiney maintains that the evidence, including Gray’s

demonstrative testimony and Detective Bliss’s testimony, was insufficient to convict him, a federal

habeas court cannot “reweigh the evidence, re-evaluate the credibility of witnesses, or substitute

[its] judgment for that of the [trier of fact].” Smith v. Nagy, 962 F.3d 192, 205 (6th Cir. 2020)

(quoting Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009)).2 No reasonable jurist therefore

could debate the district court’s conclusion that the Michigan Court of Appeals did not

unreasonably apply Jackson in rejecting Heiney’s insufficiency-of-the-evidence claim.

Claim Two - Confrontation Clause

Heiney claims that the trial court violated his Confrontation Clause rights by limiting his ■

ability to cross-examine Earnest about her financial difficulties, which would have highlighted her

motives and undermined her credibility.

The Michigan Court of Appeals rejected this claim on direct appeal, reasoning that Heiney

was able to elicit testimony on cross-examination that Earnest was not planning to file a civil

lawsuit; thus, “there would be no financial motivation to testify in a criminal trial against” Heiney

and any additional questions about Earnest’s financial difficulties were not relevant. Heiney, 2017

WL 6624110, at *3. Any error was harmless, the Michigan Court of Appeals added, because the

2 Heiney specifically challenges the trial court’s finding that his touching of Gray’s breasts “was

done for [a] sexual purpose or could be reasonably construed as having been done for a sexual

purpose.” See Mich. Comp. Laws § 750.520a(q). But the trial court made this finding after hearing

Gray’s “definitive” testimony about her examinations with Heiney and seeing her demonstrate

how Heiney “grabbed” and “squeezed” her breasts. Heiney’s argument that there was “no

evidence” that his touching of Gray’s breasts was done for a sexual purpose therefore is defied by

the record. And this court is bound by the trial court’s weighing of that evidence. See Smith, 962

F.3d at 205.

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-6trial court granted Heiney’s motion for a directed verdict of acquittal regarding his conduct with

Earnest. Id.

When a state court determines that a constitutional error at trial is harmless beyond a

reasonable doubt, a federal court cannot grant habeas relief without applying both the test outlined

in Brecht v. Abrahamson, 507 U.S. 619 (1993), and the deferential review required by AEDPA.

Brown v. Davenport, 142 S. Ct. 1510, 1517 (2022). Brecht requires a state prisoner seeking to

challenge his conviction in collateral federal proceedings to show that the error had a “substantial

and injurious effect or influence” on the outcome of his trial. 507 U.S. at 637 (quoting Kotteakos

v. United States, 328 U.S. 750, 776 (1946)). A “substantial or injurious effect or influence” means

“actual prejudice.” See id. at 637-38. In short, a “federal court must deny relief to a state habeas

petitioner who fails to satisfy either [Brecht] or AEDPA. But to grant relief, a court must find that

the petition has cleared both tests.” Brown, 142 S. Ct. at 1524.

The district court concluded that Heiney failed to show that any error in limiting his crossexamination of Earnest had a substantial and injurious influence on the outcome of his case

because, as the state appellate court noted, the trial court directed a verdict in his favor with respect

to Earnest’s allegations, which did not bear on the charges that arose from Gray’s allegations

against him (i.e., the charges of which he was convicted). Although Earnest’s allegation that

Heiney touched her breast in “various ways” despite having not complained about breast pain was

relevant to show that squeezing a breast is not part of a standard examination for non-breast pain,

Heiney, 2017 WL 6624110, at *2, Heiney has neither argued nor shown that he was limited in

cross-examining Earnest about this allegation.

No reasonable jurist therefore could debate the

district court’s rejection of Heiney’s Confrontation Clause claim.

Claims Three and Four - Ineffective Assistance of Counsel

In this third claim, Heiney argues that trial counsel was ineffective for failing to present an

expert witness to opine about the appropriateness of his medical examinations. Heiney points to

an affidavit from a potential expert, Dr. Robert C. Com, who averred that, had he been called as a

witness, he would have testified that “none of the treatment or examination described by Gray at

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-7trial in this case was medically recognized as unethical or unacceptable” and that it is “medically

acceptable and ethical to examine the breast and chest area during an orthopedic examination

without a complaint of pain or discharge in the area.”

i’.i »

"•

To establish ineffective assistance of counsel, a defendant must show deficient

performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). “The

standards created by Strickland and § 2254(d) are both ‘highly deferential’ and when the two apply

in tandem, review is ‘doubly’ so.” Richter, 562 U.S. at 105 (quoting Strickland, 466 U.S. at 689

and Knowles v. Mirzayance, 556 U.S. Ill, 123 (2009)). Thus, on habeas review, “[w]hen

§ 2254(d) applies, the question is not whether counsel’s actions were reasonable. The question is

whether there is any reasonable argument that counsel satisfied Strickland’s deferential standard.”

Id.

The state post-conviction court rejected this claim for failure to show prejudice. The

district court agreed that Heiney failed to show prejudice, finding it reasonable for the post

conviction court—which was also the trier of fact—to be unpersuaded that the proffered expert

testimony would have altered the outcome of Heiney’s trial. It explained that Dr. Corn’s proffered

opinion did not assert that it is medically acceptable to touch a patient’s breasts without explanation

(as Heiney had done with Gray), did not address the other women’s testimony about the way

Heiney touched their breasts, did not speak to Gray’s testimony that Heiney’s examination was

unusual and confusing, and—critically—was not based on Gray’s in-court demonstration of how

Heiney squeezed her breasts. To the district court, “[t]he fact that the trial court saw Gray testify

taken together with the fact that it served as the fact finder at trial put it in a unique position to

determine whether [Heiney] was prejudiced by counsel’s failure to present a defense expert.” See

Dunham v. Travis, 313 F.3d 724, 732 (2d Cir. 2002) (agreeing that the petitioner failed to show

prejudice where the same trial judge who convicted him at a bench trial found, on post-conviction

review, that additional evidence would not have changed the verdict). On this record and authority,

no reasonable jurist could debate the district court’s conclusion that the post-conviction court’s

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-8rejection of this ineffective-assistance-of-trial claim was not contrary to or an unreasonable

application of Strickland or based on an unreasonable determination of the facts.

In his fourth claim, Heiney argues that appellate counsel was ineffective for failing to raise

the foregoing claim in a motion for a new trial or motion to remand. Because reasonable jurists

could not debate the district court’s rejection of Heiney’s underlying ineffective-assistance-oftrial-counsel claim, it follows that reasonable jurists also could not debate the district court’s

conclusion that the post-conviction court’s rejection of this ineffective-assistance-of-appellate

claim was not contrary to or an unreasonable application of Strickland or based on an unreasonable

determination of the facts. See Kelly v. Lazaroff, 846 F.3d 819, 830-31 (6th Cir. 2017).

Claims Five, Six, and Seven

The district court determined that Heiney’s remaining claims were procedurally defaulted.

Indeed, Heiney did not raise these claims until his second motion for relief from judgment,3 which

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the trial court denied on the basis of Michigan’s general prohibition against successive motions set

forth in Rule 6.502(G)(2). That rule permits a Michigan defendant to file a successive motion for

relief only when it is based on either a retroactive change in law or new evidence that post-dates •

the first motion.4 See Mich. Ct. R. 6.502(G)(2). Because Rule 6.502(G)(2) is an independent and

adequate ground for precluding relief, see Ingram v. Prelesnik, 730 F. App’x 304, 311 (6th Cir.

2018), reasonable jurists would agree that Heiney procedurally defaulted these claims.

3 To the extent that Heiney’s fifth ground for relief raises claims of insufficiency of the evidence

and ineffective assistance of counsel that are duplicative of his first, third, and fourth grounds for

relief, those claims are discussed above.

4 Heiney maintains that his Brady claim in ground five is based on new evidence (e.g., deposition

testimony that post-dates the filing of his first motion for relief from judgment), but the trial court

rejected this argument because none of the evidence, even if new, likely would have changed the . ,

outcome of Heiney’s trial. In view of that ruling, which this court deems reasonable, Heiney

cannot make a substantial showing of the denial of a constitutional right with respect to his Brady

claim. 28 U.S.C. § 2253(c)(2); Miller-El, 537 U.S. at 336; Slack, 529 U.S. at 484. And although

Heiney’s sixth claim relies on Bostock, 140 S. Ct. at 1731, which post-dates his first motion for

relief from judgment, reasonable jurists would agree that Bostock is “an employment

discrimination case [that] has no application to [Heiney’s] criminal case” and thus can afford him

no habeas relief.

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-9A federal habeas court is barred from reviewing a procedurally defaulted claim unless the

petitioner can show either cause for the default and actual prejudice from the alleged constitutional

violation, or that failure to consider the claim would result in a “fundamental miscarriage of

justice,” Coleman v. Thompson, 501 U.S. 722, 750-51 (1991), which can be demonstrated only by

presenting new evidence showing one’s actual innocence, Hodges v. Colson, 727 F.3d 517, 530

(6th Cir. 2013).

Heiney argues that the ineffective assistance of appellate counsel serves as cause for his

procedural default. Reasonable jurists would agree that the argument fails. Ineffective assistance

of appellate counsel can serve as cause for a procedural default only if that claim is not itself

procedurally defaulted. See Edwards v. Carpenter, 529 U.S. 446, 453 (2000); Burroughs V.

Makowski, 411 F.3d 665, 667-68 (6th Cir. 2005) (per curiam). Heiney did not, at any point, raise

an independent claim that his appellate counsel was ineffective for failing to raise Claims Five,

Six, and Seven on direct appeal; therefore, he cannot rely on ineffective assistance of appellate

counsel to excuse the default of those claims.

Heiney also argues that, pursuant to Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v.

Thaler, 569 U.S. 413 (2013), ineffective assistance of his post-conviction counsel excuses the

default. Again, reasonable jurists would agree that the argument fails. Martinez and Trevino can

be invoked to excuse default of only ineffective-assistance-of-trial-counsel claims, see Davila v.

Davis, 582 U.S. 521, 526 (2017), so the alleged ineffectiveness of post-conviction counsel cannot

constitute cause to overcome the procedural default of Heiney’s remaining claims—except for his

ineffective-assistance-of-trial-counsel subclaims raised in ground five.

In order for post

conviction counsel’s failure to raise those trial-counsel subclaims to excuse their procedural

default, Heiney must show that the subclaims are “substantial.” Martinez, 566 U.S. at 14; Trevino,

569 U.S. at 423. A substantial claim of ineffective assistance is a claim that “has some merit.”

Martinez, 566 U.S. at 14.

None do. Heiney claims that trial counsel failed to properly advise him about the risks of

choosing a bench trial, challenge inadmissible • and prejudicial testimony, adequately cross-

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- 10examine witnesses, call other patients, move for sanctions after witnesses violated sequestration

orders, argue that the trial court erred in finding that he acted with a sexual purpose, raise an

“obvious defense,” or object to the charges, conviction, and sentence. Putting aside that Heiney’s

§ 2254 petition only cursorily raised these claims with minimal facts in support, he cannot show

that they are “substantial” enough for procedural-default purposes because he cannot show

prejudice. For example, there is no reasonable probability that Heiney would have been acquitted

of CSC with Gray if trial counsel had called as witnesses “other patients, including males, who

had orthopedic chest examinations like Gray’s” because those patients’ testimony about their

interactions with Heiney would not alter Gray’s testimony and demonstration about her

interactions with Heiney. Because this and all other ineffective-assistance-of-trial-counsel claims

are not substantial, the purported ineffective assistance of post-conviction counsel in failing to

raise them cannot overcome their procedural default.

Heiney also argues that his actual innocence excuses the procedural default. To excuse a

procedural default on this basis, the petitioner must show that “it is more likely than not that no

reasonable juror would have convicted him” in view of “new reliable evidence . . . that was not

presented at trial.” Schlup v. Delo, 513 U.S. 298, 324, 327 (1995).

In support of his actual-innocence argument, Heiney points to post-trial civil deposition

testimony, medical literature on breast examination techniques, and affidavits from two

physicians, all of which he claims supports his position that his examination of Gray was not

medically recognized as unethical or unacceptable. The district court determined that none of this

evidence or the fact that civil suits against Heiney did not result in a judgment against him

“speak[s] to Gray’s demonstration of how [Heiney] squeezed her breasts and how the trial court

distinguished her description from Earnest’s case in finding that it was done for purposes of sexual

gratification.” No reasonable jurist could disagree. Indeed, none of the proffered new evidence

would have made a difference: as set forth above, a CSC conviction can be based on “common

knowledge” that the conduct was not medically ethical or acceptable and, based on the non-expert

testimony here—including Gray’s testimony and demonstration—jurists of reason would agree

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- 11 that the trial court reasonably found that Heiney’s examination of Gray was not medically ethical

or acceptable. Although Heiney argues that Gray testified at a post-trial civil deposition that “the

examination was not sexual,” as the trial court had found, that is not her testimony. Rather, when „

asked if Heiney “did something inappropriate with you sexually,” Gray replied that, although “I

never used the word ‘sexually,’ ever, in any of my testimony[,] I was felt I was touched

inappropriately, yes.” (emphasis added.) In the ehd, Heiney’s argument, even if based on “new”

evidence, does not meet the actual-innocence standard. See Bousley v. United States, 523 U.S.

614, 624 (1998) (holding that “‘actual innocence’ means factual innocence, not mere legal

insufficiency”). Reasonable jurists therefore could not debate the district court’s conclusion that

Heiney’s procedural default of Claims Five, Six, and Seven is not excused by a credible showing

of actual innocence.

The court therefore DENIES the motion for a COA and DENIES as moot the motions for

the appointment of counsel and for leave to file an amended motion for a COA through appointed

counsel.

ENTERED BY ORDER OF THE COURT

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United States Court of Appeals for the Sixth Circuit

U.S. Mail Notice of Docket Activity

The following transaction was filed on 02/09/2024.

Case Name: Jake Heiney v. Heidi Washington

Case Number: 23-1772

Docket Text:

ORDER filed: The court therefore DENIES the motion for a COA [7077520-2] and DENIES as

moot the motions for the appointment of counsel [7077522-2] and for leave to file an amended

motion for a COA through appointed counsel [7077524-2]. Eric E. Murphy, Circuit Judge.

The following documents(s) are associated with this transaction:

Document Description: Order

Notice will be sent to:

Jake Paul Heiney

3374 Quail Hollow Drive

Lambertville, MI 48144

A copy of this notice will be issued to:

Ms. Kinikia D. Essix

Mr. John S. Pallas

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APPENDIX B

Case 2:19-cv-12474-SFC-SDD ECF No. 42, PagelD.11848 Filed 08/21/23 Page 1 of 32

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JAKE PAUL HEINEY,

Case No. 2:19-cv-12474

Hon. Sean F. Cox

Petitioner,

HEIDI E. WASHINGTON,

Respondent.

OPINION DENYING PETITION FOR WRIT OF HABEAS CORPUS AND

DENYING CERTIFICATE OF APPEALABILITY

Jake Paul Heiney filed this petition for writ of habeas corpus under 28 U.S.C.

§ 2254. Petitioner was convicted following a bench trial in the Monroe Circuit Court

of two counts of fourth-degree criminal sexual conduct. The trial court sentenced

Petitioner to ninety days in jail and five years of probation. Because none of

Petitioner’s claims merit habeas relief, the petition will be denied.

Petitioner, a physician, was charged in connection with physical examinations

he performed on two of his patients. The prosecution asserted that Petitioner fondled

the patients’ breasts for the purposes of sexual arousal or gratification and in a

manner that was medically recognized as unethical or unacceptable. See MICH.

Comp, laws § 750.520(q); 520e(l)(b)(iv).

Case 2:19-cv-12474-SFC-SDD ECF No. 42, PagelD.11849 Filed 08/21/23 Page 2 of 32

At trial, the first patient, Ms. Earnest, testified that during an April 2015

medical examination for shoulder pain, Petitioner touched her bare breast and nipple.

(ECF No. 17-9, at 23-24.) Earnest did not go to the police until she saw an article in

the Toledo Blade about another woman making a similar complaint against

Petitioner in Ohio. {Id. 32.) Due to the nature of her medical complaints, however,

which included complaints about her breast, and her description of how Petitioner

contacted her breasts, the trial court directed a verdict in favor of Petitioner with

respect to the charges involving Earnest. The court found there was reasonably doubt

as to whether the contact was medically unethical or unacceptable {Id. 233-34.)

The second patient, Ms. Gray, testified that she grew up with Petitioner and

they had attended the same high school. {Id. 69.) At an April 2015 appointment with

Petitioner, Gray complained of lower back pain and stiffness in her neck. {Id. 76,

79.) Gray never told Petitioner that she had pain in her chest or breast area, and she

never described pain radiating to her chest or breast. {Id. 75, 80, 97, 103.)

Petitioner started by examining Gray’s lower extremities {Id. 76, 102). He

then examined her upper body. He pulled her gown and bra off her shoulder and

grabbed her breast and squeezed it twice. {Id. 77-78). Petitioner did not explain to

Gray why he was touching her breasts. {Id. 105.)

Gray demonstrated for the court the manner in which Petitioner squeezed her

breasts: “The bra came down, grab, squeeze, whatever you call this motion. This. It

Case 2:19-cv-12474-SFC-SDD ECF No. 42, PagelD.11850 Filed 08/21/23 Page 3 of 32

was not this. It was this type of motion.” {Id. 78.) The exam was not the same as a

breast exam conducted at a gynecologist’s office {Id. 106.) Because the court thought

it to be “the critical part of everything that we’ve been listening to,” it had Gray

demonstrate the motion used by Petitioner on her breasts again on redirect

examination. {Id. 118-19.)

After the appointment, Gray felt confused. About an hour later she called her

friend and told her that, “I just went and saw Jake. You’re not going to believe this?

I had my exam. He touched my boobs.” {Id. 85.) She felt uncomfortable enough

about the exam that she also told her mother, her sister, and a few friends who were

nurses. {Id. 85-87.)

Nevertheless, about a week later Gray allowed Petitioner to perform an

injection procedure under anesthesia at the hospital. {Id. 82, 87.) She tried to

convince herself that Petitioner’s actions were just a normal part of the examination.

{Id. 87.)

Several months later, Gray saw a news article about allegations made by

women in Ohio against Petitioner, and she called the police. {Id. 89,151.) Petitioner

later texted Gray and asked her to speak on his behalf regarding the allegations that

were being made against him. {Id. 92.) He tried to explain that that part of the

examination, while uncomfortable, was necessary. {Id.)

Case 2:19-cv-12474-SFC-SDD ECF No. 42, PagelD.11851 Filed 08/21/23 Page 4 of 32

Ms. Stone testified at trial as a similar-acts witness. Stone testified that she

saw Petitioner in November 2014 for pain in her shoulder. He administered several

injections. (Id. 127.) At a follow up appointment, Petitioner asked Stone to remove^

her arm from her bra and tank top. He told her that pain from the breast can cause or

radiate to the arm and cause pain in the arm. (Id. 143.) He asked if he could do an

exam of her breast and she consented. (Id. 143.) He exposed her left breast, pushed

on it with one or two fingers and then pushed and squeezed the entire breast with his

thumb and fingers. (Id. 145, 163-164.)

The breast exam was not like the breast exams Stone had experienced at the

gynecologist. (Id. 152-53.) Stone told several others about her experience. She called

another orthopedic surgeon ?s office, and she contacted the state medical board. (Id.

157.)

Ms. Okulski testified as another similar-acts witness. Okulski saw Petitioner

in Ohio for shoulder pain. (Id. 169.) She told Petitioner that she did not have any

breast discharge or any breast pain. (Id. 170.) Petitioner had Okulski remove her left

arm from her tank top and bra strap and gave her “like a breast exam and asked me

if that hurt.” (Id. 171.) He pressed around her breast area with his fingers. He held

her arm up and conducted a second breast exam. Petitioner performed a third breast

exam and cupped her breast for a few seconds. (Id. 185.) Okulski did not understand

■i

Case 2:19-cv-12474-SFC-SDD ECF No. 42, PagelD.11852 Filed 08/21/23 Page 5 of 32

why he was doing the breast exam. The exam was not like any breast exam that

Okulski had experienced with her gynecologist. (Id. 176.)

Petitioner then had Okulski stand up so that he could look at her lower back.

He was behind her and asked her to touch her toes. (Id. 178.) He pulled her pants

and underwear to her knees. (Id. 178.) He pressed on her hips and buttocks and

touched her inner thigh, and his fingers brushed her vagina. (Id. 188.) After the

appointment she called the police.

Detective Laura Bliss testified that she was employed with the Sylvania Police

Department in Ohio. (Id. 192.) She investigated the case against Petitioner. During

the investigation, she spoke with Petitioner. Bliss asked him about his examination

of Okulski. She asked Petitioner how he conducted shoulder evaluations and asked

if it would include a breast examination. Petitioner indicated that he would not

perform a breast examination unless there was a complaint “about pain radiating or

something of that nature.” (Id. 195.) He indicated that if he were to conduct a breast

examination that he would use his fingers to palpate the area including the pectoral

muscle. (Id. 196.)

Brian Kinsella testified that he was employed by an independent orthopedic

organization and was assigned to work at Petitioner’s clinics. (Id. 206.) Kinsella

wrote out prescriptions and set up injections. (Id. 212.) Kinsella had seen Petitioner

Case 2:19-cv-12474-SFC-SDD ECF No. 42, PagelD.11853 Filed 08/21/23 Page 6 of 32

conduct many shoulder examinations. He observed Petitioner conduct breast exams

as a part of shoulder evaluations. {Id. 209.)

Kinsella recalled Christy Gray’s visit to the office in April 2015. Kinsella was'

in the room with Petitioner and Gray during the entire appointment. He did not see

Petitioner do anything inappropriate during that exam. {Id. 221.) He did not know

whether Petitioner touched Gray’s breast because he was standing behind her. He

did see that Petitioner was examining her in that area beneath the gown. {Id.)

Dana Lefever testified for the defense that she was a medical assistant and had

worked with Petitioner. Petitioner always wanted someone in the room with him

during examinations. {Id. 238.) Lefever recalled Gray’s appointment in April 2015.

Lefever had observed Petitioner conduct physical examinations. She observed him

palpate breast tissue. The breast examination was not the same as a gynecological

breast exam. {Id. 243.)

Nicole Vernon testified that she worked with Petitioner checking patients in

and out and scheduling procedures. Gray never complained about any of the

examinations at the office.

The trial court found Petitioner guilty of two counts of fourth-degree criminal

sexual conduct relating to Gray:

The defendant is charged in this matter of two counts of criminal

sexual conduct on [Ms.] Gray. The elements of those offenses are that

the defendant did intentionally touch Ms. Gray’s breasts. Said touching

was done for sexual purpose or could be reasonably construed as having

Case 2:19-cv-12474-SFC-SDD ECF No. 42, PagelD.11854 Filed 08/21/23 Page 7 of 32

been done for a sexual purpose. The defendant engaged in medical

treatment or examination of the victim in a manner or for purposes

which are medically recognized as unethical or unacceptable.

It’s clear the prosecutor has the burden of proof to show all of

these elements beyond a reasonable doubt. The Court heard the

testimony of a number of witnesses. Four women testified, two who are

victims in this matter and two who were 404(b) witnesses. Many things

were consistent about the women’s testimony. Not one of the women

said they had pain in her breast, discharge, or complained of any pain

radiating to or from the breast. They all said that they were alone with

the defendant except for check in and check out. None recalled the

defendant wearing gloves. None, other than Ms. Stone, received any

explanation as to the nature of the exam that they were receiving. All

of them discussed it with friends, parents, other medical professionals

almost immediately after it happened.

Now, perhaps now is a good time to say that I don’t disbelieve

Ms. Earnest just because I dismissed those claims but she struggled

with memory issues and there was a significant medical issue-- medical

issue pertaining to cysts and a mass removal as well as the testimony

that Dr. Heiney palpa- or palpated her breasts.

Now, I don’t quite see the connection between the women as the

defense does. I don’t find it unusual for there to be confusion. I mean

there was testimony did that happen? Perhaps I’m missing something.

You know, there’s the issue of physical authority. I really— I don’t see

that as an unusual reaction here. I also don’t think it’s unusual that one

of the 404(b) witnesses consulted with an attorney. [I] mean that

happened multiple times to me when I was an attorney. People would

come and talk to me about that. That’s why we’re called attorneys and

counselors at law.

Detective Bliss testified that she spoke to the defendant in May

of 2015. Dr. Heiney said breast exams only happen if pain is radradiating from the breasts or discharge. The patient would have to raise

it and then I would palpate the breast and the pectoral muscle.

Christy Gray is the only one out of all of these women who didn’t

have shoulder pain. She went to a seminar, I think at Quimby’s she said,

Case 2:19-cv-12474-SFC-SDD ECF No. 42, PagelD.11855 Filed 08/21/23 Page 8 of 32

the defendant was giving with respect to sacroiliac surgery.

Defendant’s exhibit B is her progress notes, her medical records. In

there the chief complaint is bilateral knee pain and weakness, bilateral

hand numbness, right sacroiliac joint disease, right lower back pain and

weakness, right lower extremity numbness and pain.

Her testimony was that the defendant was on both sides of her.

On each time he grabbed the gown and the bra and pulled it down and

then squeezed the breasts twice. He did that on both sides of her. She

did not, as previously stated, complain about any pain radiating to or

from the breast. Her testimony was quite definitive. He didn’t palpate

her breasts but he grabbed it and squeezed. She used her hands to kind

of show how that happened.

It’s true she didn’t call the police right away. She did tell her

mom, her friends, and her sister almost immediately. She testified she

didn’t want to believe it but she definitively testified that within 15

minutes of reading the Toledo Blade article she called first the Sylvania

Police and then the Monroe County Sheriffs. I don’t really know what

to make of the phone call one way or the other. I mean that could—

could go either way and for me to comment any further on the phone

call would be just speculation.

I do find, however, after review of all the evidence, the testimony

of the four women who I mentioned as well as Detective Bliss, Brian

Kinsella, Dawn Lefevers, and Nicole Vernon that the prosecutor has

proven beyond a reasonable doubt that the defendant is guilty of

criminal sexual conduct in the fourth degree as detailed in counts one

and two of the complaint.

I find that the defendant is guilty of criminal sexual conduct in

the fourth degree as counts one and two that occurred in the county of

Monroe, state of Michigan on or about April 14th, 2015.

(ECF No. 17-10, at 27-30.)

Case 2:19-cv~12474-SFC-SDD ECF No. 42, PagelD.11856 Filed 08/21/23 Page 9 of 32

Following his conviction and sentence, Petitioner filed a claim of appeal. His

appellate counsel filed a brief in the Michigan Court of Appeals that raised two

claims:

I. Defendant’s convictions for criminal sexual conduct in the fourth

degree must be vacated where the trial court failed to make findings of

fact and conclusions of law consistent with a verdict of guilt where the

prosecution failed to present sufficient evidence that defendant’s

actions were medically recognized as unethical or unacceptable.

II. The trial court violated defendant’s right to confront the witnesses

against him by prohibiting him from cross-examining one of those

witnesses for motive and bias. U.S. Const. Am VI, XIV.

The Michigan Court of Appeals affirmed in an unpublished opinion. People

v. Heiney, No. 333363, 2017 WL 6624110, at *1 (Mich. Ct. App. Dec. 28, 2017).

Petitioner appealed to the Michigan Supreme Court, but his application for leave to

appeal was denied. People v. Heiney, 911 N.W.2d 708 (Mich. 2018)(Table).

Petitioner then returned to the trial court and through new counsel he filed a

motion for relief from judgment that raised the following claims:

I. Defendant was deprived of Michigan and federal constitutional rights

to the effective assistance of trial counsel due to counsel’s failure to file

a timely notice of a proposed defense expert and consequent failure to

call an expert at trial.

II. Defendant was deprived of the effective assistance of appellate

counsel in the appeal of right for the failure of appellate counsel to file

a timely motion for new trial, or a motion to remand in the Court of

Appeals, raising an ineffective assistance of trial counsel claim.

Case 2:19-cv-12474-SFC-SDD ECF No. 42, PagelD.11857 Filed 08/21/23 Page 10 of 32

The trial court denied the motion for relief from judgment by opinion dated

November 5, 2019. (ECF No. 17-19). Though the trial court cited Michigan Court

Rule 6.50-8(D)(3), outlining the procedural limitations for raising claims-on.posK.

conviction review, the court found that the claims were without merit because

Petitioner failed to demonstrate prejudice. {Id., PagelD.804-09.)

Petitioner filed an application for leave to appeal in the Michigan Court of

Appeals. The court denied leave to appeal because Petitioner failed to establish that

the trial court erred in denying the motion for relief from judgment. (ECF No. 1723, PageID.968.) Petitioner filed an application for leave to appeal in the Michigan

Supreme Court, but it was denied by standard form order. People v. Heiney, 957

N.W.2d 774 (Mich. 2021)(Table).

Heiney returned to the trial court again and filed a second motion for relief

from judgment that raised the following claims:

I. Petitioner was deprived of his right to a fair trial, due process, and

equal protection provided in the United States and the State of Michigan

Constitutions as established in Bostockv. Clayton County, Georgia 140

S.Ct. 1731 (2020).

II. New exculpatory evidence makes a probable different result on

retrial for petitioner; also new evidence demonstrates petitioner was

deprived of his right to a fair trial, due process, and equal protection

provided in the United State and the State of Michigan Constitutions;

also new evidence provides petitioner a claim of actual innocence.

III. Petitioner was deprived of his first amendment right to freedom of

religion and has a significant possibility of being innocent.

? f

t■

Case 2:19-cv-12474-SFC-SDD ECF No. 42, PagelD.11858 Filed 08/21/23 Page 11 of 32

The trial court denied the motion for relief from judgment because Petitioner

failed to demonstrate under Michigan Court Rule 6.508(G)(2) that he was permitted

to file a second post-conviction motion. (ECF No. 17-21, PageID.877-80.)

Petitioner appealed, and the Michigan Court of Appeals denied his application

for leave to appeal because Petitioner “failed to establish that the trial court erred in

denying the successive motion for relief from judgment. MCR 6.502(G).” (ECF No.

17-24, PageID.1320.) The Michigan Supreme Court likewise denied relief under

Rule 6.502(G). (ECF No. 17-29, PageID.2966.)

A § 2254 habeas petition is governed by the heightened standard of review set

forth in the Anti-Terrorism and Effective Death Penalty Act (AEDPA). 28 U.S.C. §

2254. To obtain relief, habeas petitioners who raise claims adjudicated by state

courts must “show that the relevant state-court ‘decision’ (1) ‘was contrary to, or

involved an unreasonable application of, clearly established Federal law,’ or (2) ‘was

based on an unreasonable determination of the facts in light of the evidence

i Petitioner filed a motion for leave to file portions of the state court record that were

omitted from the Rule 5 materials by Respondent. (ECF No. 32.) Respondent’s

answer to the motion conceded that portions of the record relevant to Petitioner’s

claims were omitted, and it contended that other materials submitted by Petitioner

were duplicative to what Respondent has already filed. (ECF No. 40.) The Court will

therefore accept Petitioner’s supplemental filings and grant Petitioner’s motion, as

it appears Petitioner has not attempted to present the Court with any document that

was not made part of the state court record.

Case 2:19-cv-12474-SFC-SDD ECF No. 42, PagelD.11859 Filed 08/21/23 Page 12 of 32

presented in the State court proceedings.’” Wilson v. Sellers, 138 S. Ct. 1188, 1191

(2018)(quoting 28 U.S.C. § 2254(d)).

The focus of this standard “is not whether a federal court believes the state

court’s determination was incorrect but whether that determination was

unreasonable—a substantially higher threshold.” Schriro v. Landrigan, 550 U.S.

465,473 (2007). “AEDPA thus imposes a highly deferential standard for evaluating

state-court rulings and demands that state-court decisions be given the benefit of the

doubt.” Renico v. Lett, 559 U.S. 766, 773 (2010)(intemal citations and quotation

marks omitted).

Ultimately, “[a] state court’s determination that a claim lacks merit precludes

federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness

of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101

(201 l)(quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Additionally, a

state court’s factual determinations are presumed correct on federal habeas review5

28 U.S.C. § 2254(e)(1), and review is “limited to the record that was before the state

court.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

Ill

Petitioner first asserts that insufficient evidence was presented at trial to

sustain his convictions. Specifically, he asserts that no evidence admitted at trial

Case 2:19-cv-12474-SFC-SDD ECF No. 42, PagelD.11860 Filed 08/21/23 Page 13 of 32

indicated that the way he touched Gray’s breasts was medically unethical or

unacceptable,

a necessary

element to

sustain

a conviction

under

750.520e(l)(b)(iv). He asserts expert testimony or other medical evidence is the only

way to establish that element. (ECF No. 13, PageID.97-98.)

The Michigan Court of Appeals, after reciting the constitutional standard

governing sufficiency of the evidence claims and the elements of the offense,

rejected the claim on the merits:

The trial court concluded that defendant touched CG’s breasts

for a sexual purpose and engaged in a medical examination of CG that

was medically recognized as unethical or unacceptable. More

specifically, the trial court found that (1) CG did not complain of breast

pain or discharge and (2) according to defendant the patient would have

to complain of pain radiating from the breast or discharge from the

breast in order to perform a breast examination. The trial court also

noted the similar testimony of other witnesses.

Defendant argues that the trial court’s legal conclusion was

erroneous and the verdict was not based on the evidence produced at

trial because the prosecution offered no evidence that defendant

“engaged in unethical or unacceptable medical practices,” a required

element under the statute. Defendant notes that no witness provided

testimony regarding what constituted an unethical or unacceptable

orthopedic physical examination for a patient with CG’s symptoms.

The Supreme Court in People v. Baisden, 482 Mich. 1000

(2008), held that medical testimony is not required in all prosecutions

involving CSC in the medical context because “it is common

knowledge that” some actions, such as “penile penetration constitute []

an unethical and unacceptable method of ‘medical treatment.’” There

is no case law determining whether it is common knowledge that

squeezing breasts during an orthopedic examination for neck, back, and

leg pain is an unethical and unacceptable method of medical treatment.

However, in People v. Hallak, 310 Mich. App. 555, 565 (2015), rev’d

Case 2:19-cv-12474-SFC-SDD ECF No. 42, PagelD.11861 Filed 08/21/23 Page 14 of 32

in part on other grounds 499 Mich. 879 (2016), the Court upheld the

trial court’s determination, based in part on expert testimony, that a

physician touching the breast of a patient during an examination for a

throat problem was “sufficient for the jury to conclude that the touching

was not for a legitimate medical purpose.”

Despite the lack of any expert testimony on the issue, there was

some testimony from which the trial court could have inferred that

squeezing CG’s breasts was not an acceptable medical practice. First,

CG testified that including her breasts in the examination seemed

unusual and she was confused by the examination, which defendant did

not explain. Second, three other women testified that defendant touched

their bare breasts in various ways while purportedly examining them

for pain. That all the women claimed to have pain, but not chest-related

pain, and defendant accessed and manipulated their breasts in various

inconsistent ways, is some evidence that squeezing CG’s breasts was

not a part of a standard examination for her pain. Third, and most

significantly, there was medical testimony that examining a breast

during an orthopedic examination without a complaint of pain or

discharge in the area was not medically acceptable. According to

Detective Bliss, defendant stated that he would only examine a breast

when the presenting complaint was shoulder pain and there was a

complaint such as pain radiating or discharge from the breast.

Defendant denied that a breast exam was a normal part of his

investigation. CG testified that she never complained of pain in her

chest and, thus, by defendant’s standards, a breast examination would

not be a medically appropriate part of his examination.

Additionally, Bliss testified that defendant reported that he

would examine both breasts for comparison, and that the examination

would consist of palpitating the muscle above the breast tissue. Further,

the chest palpitation of the muscles of both sides of the chest that

defendant described as medically appropriate was not the examination

that CG described. The trial court found, consistent with the testimony,

that CG was “quite definitive” in stating that she did not complain of

breast pain or discharge and that defendant did not palpitate her breasts,

but grabbed and squeezed.

Additionally, CG had interactions with three physicians for

possible back surgeries after seeing defendant, and they performed

Case 2:19-cv-12474-SFC-SDD ECF No. 42, PagelD.11862 Filed 08/21/23 Page 15 of 32

MRIs, a nerve study, and a bone study, rather than physical

examinations. MS, KO, and SE all testified that they were familiar with

breast examinations and noted that defendant’s breast examinations

were much different from other examinations because he did not have

any of the women lay down with an arm behind the head, did not move___

in slow small circles (palpitate), did not explain what he was doing or

always ask questions, and did not always examine both breasts or use

the same examination on both breasts. Thus, there was evidence, when

viewed in a light most favorable to the prosecutor, that defendant’s

touching of CG’s breasts was a medical examination done in a manner

that was medically recognized as unethical or unacceptable.

Heiney, 2017 WL 6624110, at *1-2 (footnote omitted).

Under clearly established Supreme Court law, the standard governing

sufficiency of the evidence claims is “whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443

U.S. 307,319(1979).

A habeas court’s “review of a state-court conviction for sufficiency of the

evidence is very limited,” Thomas v. Stephenson, 898 F.3d 693,698 (6th Cir. 2018),

because Jackson claims are “subject to two layers of judicial deference.” Coleman

v. Johnson, 566 U.S. 650, 651 (2012)(per curiam). First, it is the responsibility of

the fact finder at trial to decide what conclusions should be drawn from the evidence

admitted. Johnson, 566 U.S. at 651 (quoting Cavazos v. Smith, 565 U.S. 1, 2 (2011)

(per curiam)). “And second, on habeas review, ‘a federal court may not overturn a

state court decision rejecting a sufficiency of the evidence challenge simply because

Case 2:19-cv-12474-SFC-SDD ECF No. 42, PagelD.11863 Filed 08/21/23 Page 16 of 32

the federal court disagrees with the state court. The federal court instead may do so

only if the state court decision was ‘objectively unreasonable.’” Id. (quoting Smith,

565 U.S. at 2). The question under this standard is whether the state court

determination that sufficient evidence was presented “was so insupportable as to fall

below the threshold of bare rationality.” Johnson, 566 U.S. 650, 656 (2012).

Petitioner asserts that without expert testimony, there was no basis for the trial

court to conclude beyond a reasonable doubt that his conduct was medically

unethical or unacceptable. There is no such categorical requirement under Michigan

law. In interpreting § 520e(l)(b)(iv), the Michigan Supreme Court held that there

are situations where a fact finder may refer to common knowledge that some actions

are medically unethical or unacceptable without the aid of medical testimony. See

People v. Baisden, 482 Mich. 1000 (2008)(expert testimony unnecessary for fact

finder to determine that physician’s penile penetration of victim was unethical and

unacceptable for purposes of medical treatment).

Petitioner asserts that Baisden created a limited exception that has no

application to the facts presented here, where there is room for debate whether the

conduct amounted to medically acceptable palpitation or medically unacceptable

fondling for a sexual purpose. That sort of argument, however, has no place in a

federal habeas proceeding. The United States Supreme Court has “repeatedly held

that a state court’s interpretation of state law, including one announced on direct

Case 2:19-cv-12474-SFC-SDD ECF No. 42, PagelD.11864 Filed 08/21/23 Page 17 of 32

appeal of the challenged conviction, binds a federal court sitting in habeas corpus.”

Bradshaw v. Richey, 546 U.S. 74,76 (2005). State courts are the “ultimate expositors

of state law.” Mullaney v. Wilbur, 421 U.S. 684, 691 (1975). “‘What is essential to

establish an element, like the question whether a given element is necessary, is a

question of state law.’” Sanford v. Yukins, 288 F.3d 855, 861 (6th Cir. 2002)(quoting

Bates v. McCaughtry, 934 F.2d 99, 103 (7th Cir. 1991).

Here, the Michigan Court of Appeals determined—as a matter of state law—

that expert medical testimony was not necessary to establish the disputed element

under the statute of conviction and the facts of this case. The state court’s ruling

essentially extended the rationale of Baisden to the situation presented here.

Common knowledge can provide a sufficient basis for determining beyond a

reasonable doubt that certain types of sexual contact are medically unethical or

unacceptable. Certainly, that is true of penile penetration, and the state court found

here that a certain manner of grabbing and squeezing of a woman’s breasts may be

too.

Given that expert testimony is not required under state law to establish the

disputed element, the state court’s finding that sufficient evidence was presented

does not fall below the “threshold of bare rationality.” Johnson, 566 U.S. at 656.

Both complainants demonstrated for the trial court, sitting as finding of fact,

how Petitioner touched their breasts. With respect to Earnest, the court noted that

Case 2:19-cv-12474-SFC-SDD ECF No. 42, PagelD.11865 Filed 08/21/23 Page 18 of 32

Petitioner used a palpating motion, and in light of her particular condition and

complaints, the court directed a verdict in Petitioner’s favor. The court contrasted

that incident with what Gray described. She twice demonstrated for the court how,_____

Petitioner grabbed and squeezed her breasts. The court found: “Her testimony was

quite definitive. He didn’t palpate her breasts, but he grabbed it and squeezed. She

used her hands to kind of show how that happened.” (ECF No. 17-10, at 27-30.)

While perhaps not as obviously unacceptable as the facts in Baisden, it did not

fall below the level of bare rationality for the court to rely on Gray’s demonstration.

her reaction in telling friends and family about what happened, and the similar-acts

witnesses’ testimony to determine that Petitioner touched Gray’s breasts for

purposes of sexual gratification in a way that was medically unethical or

unacceptable. The state adjudication of this claim did not unreasonably apply the

Jackson standard.

Petitioner’s second claim asserts that he was denied the right to confront

witnesses under the Sixth Amendment. Specifically, he asserts that he was

prohibited from cross-examining Earnest about her finances, which he argues

incentivized her to falsely accuse him to support a possible civil action.

The Michigan Court of Appeals rejected the claim on the merits. It found that

Petitioner’s confrontation rights were not violated because Petitioner was allowed to

Case 2:19-cv-12474-SFC-SDD ECF No. 42, PagelD.11866 Filed 08/21/23 Page 19 of 32

ask Earnest whether she intended to file a civil action. When Earnest denied that she

intended to file suit, it rendered any personal financial difficulties irrelevant. Heiney,

2017 WL 6624110, at *3.

The Court of Appeals went on to find that any alleged error was nevertheless

harmless:

Moreover, even where a defendant is denied his constitutional

rights under the Sixth Amendment, reversal is not required if the error

is harmless beyond a reasonable doubt. People v. McPherson, 263

Mich. App. 124, 131-132 (2004). An error is harmless beyond a

reasonable doubt when it has had no effect on the verdict. Morton, 213

Mich. App. at 335-336. Here, the trial court granted defendant’s motion

for a directed verdict of acquittal regarding his actions with SE because

it found a reasonable doubt that his actions were medically recognized

as unethical or unacceptable based on her history of having a cyst

removed from her breast. Thus, SE’s testimony did not contribute to

defendant’s conviction.

Under established federal law, “[unconstitutional limitations on crossexamination are normally subject to harmless-error analysis.” Hargrave v. McKee,

248 F. App’x 718, 728 (6th Cir. 2007)(citing Delaware v. Van Arsdall, 475 U.S.

673, 684 (1986)). Where, as here, a state court determines that a constitutional error

at trial is harmless beyond a reasonable doubt, a federal court cannot grant habeas

relief without first applying both the test outlined in Brecht v. Abrahamson, 507 U.S.

619 (1993), and the test that Congress prescribed in AEDPA. Brown v. Davenport,

142 S. Ct. 1510, 1517(2022).

Case 2:19-cv-12474-SFC-SDD ECF No. 42, PagelD.11867 Filed 08/21/23 Page 20 of 32

Brecht requires a state prisoner in a federal habeas proceeding to show that

the error had a “substantial and injurious effect or influence” on the outcome of his

trial. 507 U.S. at 637 (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946).

A “substantial and injurious effect or influence” means “actual prejudice.” To?, at 63738. Meanwhile, “AEDPA asks whether every fairminded jurist would agree that an

error was prejudicial.” Brown, 142 S. Ct. at 1525.

Petitioner has not shown that any error in limiting the cross-examination of

. *.

Earnest had a substantial and injurious influence on the outcome of his case. As

indicated, the trial court directed a verdict in favor of Petitioner with respect to

Earnest. Meanwhile, the prohibited cross-examination had no connection to Gray,

the charges that resulted in the conviction. Therefore, not every fairminded jurist

would agree that the limitations placed on cross-examining Earnest about her

finances resulted in prejudice. Petitioner fails to demonstrate entitlement to relief

with respect to his claim.

Petitioner’s third and fourth claims assert that he was denied the effective

assistance of counsel. He asserts that his trial attorney failed to call an expert witness

to testify that his conduct was not medically unethical or unacceptable. He also

asserts that his appellate counsel was ineffective for failing to raise the issue on direct

appeal.

Case 2:19-cv-12474-SFC-SDD ECF No. 42, PagelD.11868 Filed 08/21/23 Page 21 of 32

This claim was presented to the trial court in Petitioner’s first motion for relief

from judgment. The motion was supported with an affidavit from a physician, Dr.

Com. (ECF No. 17-13, PageID.717-20.) After reciting Michigan’s procedural rules

regarding entitlement to post-conviction review,2 and the controlling constitutional

standard governing claims of ineffective assistance of counsel, the trial court rejected

the claims on the merits:

The first assignment of error alleged by the Defendant is that he

was deprived of his right to the effective assistance of counsel due to

counsel’s failure to file a timely notice of a proposed witness at trial.

Defendant alleges he was prejudiced because there was a favorable

expert witness with who counsel had conferred with and who was ready

and available to testify. The case was tried without any expert testimony

from either side regarding whether the examinations Defendant

performed were medically proper or not. The expert witness Defendant

alleges was ready and available to testify was not contacted for the

Michigan trial, but only for the Ohio trial.

Even if counsel’s failure to file a timely notice of a proposed

expert witness could be deemed an unreasonable performance, it did

not cause prejudice to the Defendant. To show prejudice, the Defendant

must show that counsel’s errors “are so serious as to deprive him of a

trial whose results is fair and reliable.” Lockhart v. Fretwell, 506 U.S.

364 (1993). The Supreme Court in People v. Baisden, 482 Mich. 1000

(2008), held that medical testimony is not required in all prosecutions

involving CSC in the medical context because “it is common

knowledge that” some actions, such as “penile penetration constitute []

an unethical and unacceptable method of ‘medical treatment.’” Despite

2 Contrary to Respondent’s assertion, the claim is not defaulted under Michigan

Court Rule 6.508(D)(3). Though the trial court cited this procedural rule, it did not

clearly and expressly rely on it as a basis for denying relief. Instead, the trial court’s

opinion suggests that it found Petitioner’s claim lacked merit because he failed to

demonstrate Strickland prejudice. See Guilmette v. Howes, 624 F.3d 286 (6th Cir.

2010).

Case 2:19-cv-12474-SFC-SDD ECF No. 42, PagelD.11869 Filed 08/21/23 Page 22 of 32

the lack of any expert testimony on the issue, there was some testimony

from which the trial court inferred that squeezing CG’s breasts was not

an acceptable medical practice. First, CG testified that including her

breasts in the examination seemed unusual and she was confused by the

examination, which defendant did not explain. Second, three other

women testified that defendant touched their bare breasts in various

ways while purportedly examining them for pain. That all the women

claimed to have pain, but no chest related pain, and defendant accessed

and manipulated their breasts in various inconsistent ways, is some

evidence that squeezing CG’s breasts was not a part of a standard

examination for her pain. Third, and most significantly, there was

medical testimony that examining a breast during an orthopedic

examination without a complaint of pain or discharge in the area was

not medically acceptable. According to Detective Bliss, defendant

stated that he would only examine a breast when the presenting

complaint was shoulder pain and there was a complaint such as pain

radiating or discharge from the breast. Defendant denied that a breast

exam was a normal part of his investigation. CG testified that she never

complained of pain in her chest and thus, by defendant’s standards, a

breast examination would not be a medically appropriate part of his

examination.

The second assignment of error alleged by Defendant is that he

was deprived of the effective assistance of appellate counsel due to

counsel’s failure to raise a claim on direct appeal that he was deprived

of the effective assistance of trial counsel. The principal issue raised on

appeal was that the evidence was insufficient to convict without expert

testimony. Defendant claims appellate counsel should have filed a

timely motion for a new trial or a motion to remand in the Court of

Appeals for a claim that trial counsel was ineffective for failure to call

an expert witness. An appellate attorney is not required to raise every

non-frivolous issue qn appeal. Jones v. Barnes, 463 U.S. 745 (1983).

The decision to withhold issues on appeal must be done as a tactical

choice made in sound professional judgment. Defendant has not shown

a reasonable probability that, but for appellate counsel’s mistake, the

result would have been different. Defendant has failed to demonstrate

actual prejudice, i.e., that the result would have been different had

appellate attorney filed a motion for a new trial or a motion to remand

claiming trial counsel was ineffective for the failure to call an expert

witness.

Case 2:19-cv-12474-SFC-SDD ECF No. 42, PagelD.11870 Filed 08/21/23 Page 23 of 32

(ECFNo. 17-19, PagelD.807-09.)

To show that he was denied the effective assistance of counsel under federal

constitutional standards, a defendant must satisfy a two-prong test. First, the

defendant must demonstrate that, considering all of the circumstances, counsel’s

performance was so deficient that the attorney was not functioning as the “counsel”

guaranteed by the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 687

(1984). In so doing, the defendant must overcome a strong presumption that

counsel’s behavior lies within the wide range of reasonable professional assistance.

Id.

Second, the defendant must show that such performance prejudiced his

defense. Id. To demonstrate prejudice, the defendant must show that “there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland, 466 U.S. at 694. “‘The likelihood

of a different result must be substantial, not just conceivable.’” Storey v. Vasbinder,

657 F.3d 372,379 (6th Cir. 201 l)(quoting Harrington, 562 U.S. at 112). The habeas

petitioner bears the burden of demonstrating prejudice under this standard. See Wong

v. Belmontes, 558 U.S. 15, 27 (2009).

The trial court reasonably decided that Petitioner failed to establish Strickland

prejudice. The trial court, who also sat as trier of fact during the trial, was

unpersuaded that the presentation of the proffered expert testimony would have

Case 2:19-cv-12474-SFC-SDD ECF No. 42, PagelD.11871 Filed 08/21/23 Page 24 of 32

made a difference in the outcome. Though the court parroted much of the language

used by the Court of Appeals in its decision on direct appeal, a reasonable basis

exited for the trial court to find that Petitioner did not demonstrate Strickland---- prejudice.

Dr. Com, a board-certified orthopedic surgeon, states in his affidavit that he

was retained by Petitioner’s Ohio attorney, and he reviewed materials for that case.

He states that he was never contacted by Petitioner’s Michigan trial counsel. In

pertinent part, Com asserts that with respect to the Michigan case, he “reviewed the

testimony of both complainants,” and that “[n]one of the treatment or examinations

described by the complainant[s] at trial is medically recognized as unethical or

unacceptable.” He also asserts that it is “medically acceptable and ethical to examine

the breast and chest area during an orthopedic examination without a complaint of

pain or discharge in the area.” (ECF No. 17-13, PageID.717-20.)

The trial court was unpersuaded that Corn’s testimony would have made a

difference. First, the trial court noted that Gray testified that including her breasts in

the examination seemed unusual, it confused her, and Petitioner did not explain what

he was doing. Corn’s affidavit did not speak to this feature of her testimony. He did

not assert that it is medially acceptable and ethical to touch a patient’s breasts

without explaining to her why he is doing so or that he is about to do so. Furthermore,

while an examination of breasts may sometimes be acceptable as Com describes as

Case 2:19-cv-12474-SFC-SDD ECF No. 42, PagelD.11872 Filed 08/21/23 Page 25 of 32

a general proposition, Gray’s particular description and demonstration of the episode

with Petitioner persuaded the trial court to find that it was specifically performed for

purposes of sexual gratification.

Next, the fact that Petitioner manipulated various other women’s breasts in

inconsistent ways, and without any complaint of referred pain, was also evidence

persuading the trial court that the squeezing described by Gray was not a bone fide

part of an examination for her pain. Com did not address the testimony from the

women about the variety of manners in which Petitioner touched their breasts.

Third, Petitioner’s own statements to police in relation to the Ohio case was

inconsistent with his examination of Gray. Com did not address or explain this

apparent inconsistency in his affidavit.

Now, whether the trial court was correct or not, and whether another judge

confronted with the same issue would necessarily reach the same result, is not the

question on federal habeas review. Here, the scope of review is significantly

narrowed by AEDPA. The features relied upon by the trial court allowed it to reject

Petitioner’s claim without objectively unreasonably applying the Strickland

prejudice standard.

Perhaps more significantly, there is another feature of the case that makes it

especially difficult for a reviewing court to second-guess the trial court’s no

prejudice finding. Though Corn stated that he reviewed the trial testimony, the fact

Case 2:19-cv-12474-SFC-SDD ECF No. 42, PagelD.11873 Filed 08/21/23 Page 26 of 32

remains that he could not have seen Gray demonstrate the manner in which Petitioner

grabbed and squeezed her breasts. It is unclear how Corn could determine from

reading the transcripts that what Petitioner did was medically acceptable without

seeing the demonstrations. The trial court, on the other hand, saw the

demonstrations, and it stated during Gray’s re-direct examination that the

demonstrations were critical to resolving the issue presented by the case.

The fact that the trial court saw Gray testify taken together with the fact that

it served as the fact finder at trial put it in a unique position to determine whether

Petitioner was prejudiced by counsel’s failure to present a defense expert. See, e.g.,

Dunham v. Travis, 313 F.3d 724, 732 (2nd Cir. 2002)(lack of prejudice confirmed

when same trial judge who convicted petitioner at bench trial was unpersuaded by

evidence later raised in post-conviction motion); Price v. Romanowski, 2008 U.S.

Dist. LEXIS 4216, 2008 WL 186361 (E.D. Mich Jan. 22,2008)(petitioner unable to

show prejudice where same trial judge who convicted petitioner at bench trial

reviewed petitioner’s proposed evidence in a post-conviction motion, and indicated

it would not have changed the outcome); Robinson v. Wolfenbarger, 2006 U.S. Dist.

LEXIS 16452, 2006 WL 897333 at *3 (E.D. Mich. April 5, 2006)(“petitioner is

unable to show that he was prejudiced by counsel’s alleged ineffectiveness in light

of the fact that the same trial judge that convicted petitioner at his bench trial was

‘unmoved’ by this additional evidence when it was presented to him in petitioner’s

Case 2:19-cv-12474-SFC-SDD ECF No. 42, PagelD.11874 Filed 08/21/23 Page 27 of 32

post-trial motion.”). Given the trial court’s vantage point here, it would be difficult

to characterize its determination that Petitioner was not prejudiced as involving an

objectively unreasonable application of Strickland.

Petitioner also asserts that he was denied the effective assistance of appellate

counsel for the failure to raise his trial counsel claim on direct review. Appellate

counsel, however, cannot be ineffective for a failure to raise an issue on appeal that

lacks merit. Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir. 2001); Mahdi v. Bagley,

522 F.3d 631, 638 (6th Cir. 2008)(“No prejudice flows from the failure to raise a

meritless claim.”).

Petitioner therefore fails to demonstrate entitlement to relief based on this

claim.

Petitioner’s remaining claims are comprised of the claims he raised in his

second motion for relief from judgment. Petitioner’s fifth habeas claim is made up

of several distinct arguments. He asserts that the prosecutor committed misconduct,

that his trial and appellate counsel were ineffective, that prior-acts evidence was

improperly admitted, that the result of civil suits related to his conduct proves that

he is innocent, and that the opinions of additional medical experts and medical

literature indicate that his examination of Gray was medically appropriate.

Petitioner’s sixth claim asserts that his rights were violated under the Supreme

Case 2:19-cv-12474-SFC-SDD ECF No. 42, PagelD.11875 Filed 08/21/23 Page 28 of 32

Court’s recent ruling in Bostic v. Clayton County, 140 S.Ct. 1731 (2020). Finally,

Petitioner’s seventh claim asserts that his First Amendment right to the free exercise

of religion was violated by his prosecution.

Michigan Court Rule 6.502(G)(1) provides that except as outlined in subrule

(G)(2) “one and only one motion for relief from judgment may be filed with regard

to a conviction.” Rule 6.502(G)(2) allows a defendant to file a second or subsequent

motion in only two situations: if the motion is based on a retroactive change in law

that occurred after the first motion for relief from judgment was filed, or if evidence

discovered after the first such motion supports the claim. The court may waive the

provisions of Rule 6.502(G) if it concludes that there is a significant possibility that

the defendant is innocent of the crime. Rule 6.502(G)(2).

The Michigan courts rejected Petitioner’s second motion for relief from

judgment under Rule 6.502(G)(2), a valid state procedural rule at the time Petitioner

filed his motion. See Maslonka v. Hoffner, 900 F.3d 269, 276 (6th Cir. 2018)

(rejecting habeas relief for ineffective assistance of counsel claim procedurally

defaulted under MCR 6.502(G)). (ECF No. 17-21, PageID.877-80.)

When a state court clearly and expressly relies on a state procedural rule to

reject a claim, federal habeas review is barred unless the petitioner can demonstrate

cause for the default and actual prejudice, or he can demonstrate that failure to

consider the claim will result in a fundamental miscarriage of justice. Hodges v.

Case 2:19-cv-12474-SFC-SDD ECF No. 42, PagelD.11876 Filed 08/21/23 Page 29 of 32

Colson, 727 F.3d 517, 530 (6th Cir. 2013)(citing Coleman v. Thompson, 501 U.S.

722, 750-51 (1991)). If a petitioner fails to show cause for his procedural default, it

is unnecessary for the court to reach the prejudice issue. See Hargrave-Thomas^ vy

Yukins, 374 F.3d 383, 389 (6th Cir. 2004)(citing Smith v. Murray, All U.S. 527,533

(1986)).

Petitioner cannot demonstrate good cause to excuse his default. To the extent

that Petitioner is asserting ineffective assistance of appellate counsel as cause, the

argument is meritless. Because there is no constitutional right to counsel on

collateral review, ineffective assistance of appellate counsel does not excuse

Petitioner’s failure to fully present these claims in his first motion for relief from

judgment. Hannah v. Conley, 49 F.3d 1193, 1196 (1995). Thus, Petitioner cannot

blame his direct appeal counsel or his first post-conviction counsel for failing to raise

these claims previously.

Petitioner does not adequately explain why his new claims were not presented

in his first post-conviction review proceeding. While it is true that Bostick was not

decided until 2020, after the first post-conviction motion was filed, that employment

discrimination case has no application to Petitioner’s criminal case. Petitioner does

not explain how his sexual orientation as a heterosexual male was a factor in his

prosecution. With respect to his eighth claim, Petitioner similarly fails to explain

how his religious belief insulted him from a criminal sexual conduct prosecution.

Case 2:19-cv-12474-SFC-SDD ECF No. 42, PagelD.11877 Filed 08/21/23 Page 30 of 32

Nor does he explain how . such a theory was previously unavailable. Similarly,

Petitioner does not demonstrate that the other trial errors complained of concern facts

that were not available or through the exercise of due diligence could have-been-—--- —

discovered by Petitioner when he filed his first motion for relief from judgment.

The claims raised in the second motion for relief from judgment are therefore

procedurally defaulted and barred from review unless Petitioner can establish that a

constitutional error resulted in a fundamental miscarriage of justice. See Schlup v.

Delo, 513 U.S. 298,321 (1995). The narrow exception for fundamental miscarriages

of justice is reserved for the extraordinary case in which the alleged constitutional

error probably resulted in the conviction of one who is actually innocent of the

underlying offense. Dretke v. Haley, 541 U.S. 386, 388 (2004). A prisoner asserting

actual innocence to excuse a procedural default “must establish that, in light of new

evidence, ‘it is more likely than not that no reasonable juror would have found

petitioner guilty beyond a reasonable doubt.’” House v. Bell, 547 U.S. 518, 536-37

(2006)(quoting Schlup, 513 U.S. at 327). This standard is “demanding and permits

review only in the ‘extraordinary’ case.”/J. at 538 (quoting Schlup, 513 U.S. at 327).

A credible actual-innocence claim “requires [the] petitioner to support his

allegations of constitutional error with new reliable evidence—whether it be

exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical

evidence—that was not presented at trial.” Schlup, 513 U.S. at 324.

Case 2:19-cv-12474-SFC-SDD ECF No. 42, PagelD.11878 Filed 08/21/23 Page 31 of 32

In support of his actual innocence claim, Petitioner submitted to the state court

medical literature regarding breast examinations (ECF No. 18-1), the affidavits of

two additional physicians (ECF No. 18-4, PageID.4399-4411), and records related

to civil lawsuits that did not result in a judgment against him. None of these materials

demonstrate the existence of an extraordinary case showing that it is more likely

than not that no reasonable juror would have found Petitioner guilty. House, 547

U.S. at 536-37.

Neither the voluminous medical texts nor the new affidavits speak to Gray’s

demonstration of how Petitioner squeezed her breasts and how the trial court

distinguished her description from Earnest’s case in finding that it was done for

purposes of sexual gratification. The fact that civil suits against Petitioner did not

result in a judgment against him is not evidence showing that it is more likely than

not that no reasonable juror would have found Petitioner guilty beyond a reasonable

doubt. The standard for demonstrating a fundamental miscarriage of justice is high.

Nothing in Petitioner’s submissions undermines Gray’s relatively straight-forward

testimony about how Petitioner grabbed and squeezed her breasts and the trial

court’s specific factual finding that Petitioner did so for the purposes of sexual

gratification. Review of these claims is therefore inexcusably barred.

Case 2:19-cv-12474-SFC-SDD ECF No. 42, PagelD.11879 Filed 08/21/23 Page 32 of 32

For the reasons stated, the Court concludes that Petitioner fails to establish

entitlement to habeas relief with respect to any of his claims. Accordingly, the Court

DENIES WITH PREJUDICE the petition for a writ of habeas corpus.

Before Petitioner may appeal this decision, the Court must determine whether

to issue a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(A); Fed. R. App.

P. 22(b). A certificate of appealability may issue “only if the applicant has made a

substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).

To satisfy § 2253(c)(2), Petitioner must show “that reasonable jurists could debate

whether (or, for that matter, agree that) the petition should have been resolved 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)(citation and internal quotation marks omitted). Petitioner has failed to make

this showing. Accordingly, the Court DENIES a certificate of appealability.

IT IS SO ORDERED.

s/Sean F. Cox

Sean F. Cox

U. S. District Judge

Dated: August 21, 2023

I hereby certify that on August 21,2023, the document above was served on counsel

and/or the parties of record via electronic means and/or First Class Mail.

s/J. McCoy

Case Manager

APPENDIX C

Case: 23-1772

Document: 13-1

Filed: 03/29/2024

Page: 1

(1 of 2)

No. 23-1772

FILED

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Mar 29, 2024

KELLY L STEPHENS, Clerk

✓

JAKE PAUL HEINEY,

Petitioner-Appellant,

HEIDI E. WASHINGTON,

Respondent-Appellee.

)

ORDER

Before: BOGGS, WHITE, and THAPAR, Circuit Judges.

Jake Paul Heiney, a former Michigan prisoner proceeding pro se, petitions for rehearing of

this court’s February 9, 2024, order denying his motion for a certificate of appealability. We have

reviewed the petition and conclude that the court did not overlook or misapprehend any point of

law or fact in denying Heiney’s motion for a certificate of appealability. See Fed. R. App.

P. 40(a)(2). The petition for rehearing is therefore DENIED.

ENTERED BY ORDER OF THE COURT

Kelly C. Stephens. Clerk

Case: 23-1772

Document: 13-2

Filed: 03/29/2024

Page: 1

(2 of 2)

' ^-

United States Court of Appeals for the Sixth Circuit

U.S. Mail Notice of Docket Activity

The following transaction was filed on 03/29/2024.

Case Name: Jake Heiney v. Heidi Washington

Case Number: 23-1772

Docket Text:

ORDER filed DENYING petition for panel rehearing [7123346-2] filed by Jake Paul Heiney.

Danny J. Boggs, Circuit Judge; Helene N. White, Circuit Judge and Amul R. Thapar, Circuit

Judge.

The following documents(s) are associated with this transaction:

Document Description: Order

Notice will be sent to:

Jake Paul Heiney

3374 Quail Hollow Drive

Lambertville, MI 48144

A copy of this notice will be issued to:

Ms. Kinikia D. Essix

Mr. John S. Pallas

APPENDIX D

Case 2:19-cv-12474-SFC-SDD ECF No. 49, PagelD.11914 Filed 10/13/23 Page 1 of 5

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JAKE PAUL HEINEY,

Petitioner,

Case No. 2:19-cv-12474

Hon. Sean F. Cox

HEIDI E. WASHINGTON,

Respondent.

ORDER DENYING MOTION TO ALTER OR AMEND JUDGMENT

fECF No. 441 AND GRANTING LEAVE TO APPEAL IN FORMA

PAUPERIS fECF Nos. 47 and 481

This matter is before the Court on petitioner Jake Paul Heiney’s motion to

alter or amend judgment. On August 21,2023, the Court issued an opinion and order

denying Heiney’s 28 U.S.C. § 2254 habeas corpus petition, finding that his claims

were without merit or barred by his state court procedural defaults. (ECF No. 42).

Heiney’s motion to alter or amend judgment seeks a certificate of appealabilty on all

seven of his habeas claims. (ECF No. 44). Heiney also seeks to proceed on appeal

to the Sixth Circuit in forma pauperis. (ECF Nos. 47 and 48).

The decision to grant a motion to alter or amend judgment under Fed. R. Civ;

P. 59 is discretionary with the district court. Davis by Davis v. Jellico Cmty. Hosp.,

Inc., 912 F.2d 129, 132 (6th Cir. 1990). A motion to alter or amend judgment will

Case 2:19-cv-12474-SFC-SDD ECF No. 49, PagelD.11915 Filed 10/13/23 Page 2 of 5

generally be granted if the district court made a clear error of law, if there is an

intervening change in the controlling law, or if granting the motion will prevent

manifest injustice. GenCorp, Inc. v. Am. Int’l Underwriters, 178 F.3d 8047834”(6tH

Cir. 1999). “A Rule 59 motion ‘may not be used to relitigate old matters, or to raise

arguments or present evidence that could have been raised prior to the entry of

judgment.”’ Brumley v. United Parcel Serv., Inc., 909 F.3d 834, 841 (6th Cir. 2018)

(quoting Exxon Shipping Co. v. Baker, 554 U.S. 471, 486, n. 5 (2008) (additional

quotation omitted)). A Rule 59(e) motion to alter or amend judgment is not a

substitute for an appeal. See Johnson v. Henderson, 229 F. Supp. 2d 793, 796 (N.D.

Ohio 2002).

Heiney asserts that he is entitled to a certificate of appealability on all seven

of his claims to prevent manifest injustice. He notes generally that district courts

have erred in denying habeas relief and might be reversed on appeal. He also asserts

that Respondent’s failure to provide all the Rule 5 material resulted in a decision

based on an incomplete record. But as far as the Court can discern, the bulk of the

motion to amend reiterates the arguments presented in the habeas petition and assert

that they at least have some arguable merit.

With respect to Heiney’s first through fourth claims, the Court explained in

detail in its opinion denying the petition why the claims were without merit. To be

entitled to a certificate of appealability, Heiney must show “that reasonable jurists

Case 2:19-cv-12474-SFC-SDD ECF No. 49, PagelD.11916 Filed 10/13/23 Page 3 of 5

could debate whether (or, for that matter, agree that) the petition should have been

resolved 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)'^’"

(citation and internal quotation marks omitted). Heiney’s motion simply restates the

arguments he presented in his habeas petition. Those arguments have already been

rejected by the Court, and there is nothing new presented in Heiney’s motion

indicating that reasonable jurists might debate the Court’s resolution of the claims.

Heiney also asserts that the Court adjudicated his claims on an incomplete

record. Not so. The Court granted Heiney’s motion for leave to file portions of the

state court record that were omitted from the Rule 5 materials by Respondent and

considered the materials relevant to the resolution of his claims. (ECF No. 42,

PagelD. 11858, n. 1).

With respect to Heiney’s fifth through seventh habeas claims, the Court found

the claims were procedurally barred. When a federal district court denies a habeas

claim on procedural grounds, a certificate of appealability should be issued if the

petitioner shows that jurists of reason would find it debatable whether the district

court was correct in its procedural ruling. See Slack, 529 U.S. at 484-85. Where a

plain procedural bar is present and the district court is correct to invoke it to dispose

of the matter, a reasonable jurist could not conclude either that the district court erred

in dismissing the petition or that the petitioner should be allowed to proceed. Id. In

Case 2:19-cv-12474-SFC-SDD ECF No. 49, PagelD.11917 Filed 10/13/23 Page 4 of 5

such a case, no appeal is warranted. Id. For the reasons explained in the opinion

denying the petition, Heiney’s last three claims are clearly barred, and Heiney failed

to demonstrate cause to excuse the default or that a fundamental miscarriage-of*-----justice would result. Reasonable jurists would not disagree.

Accordingly, Heiney is not entitled to a certificate of appealability with

respect to any of his claims. His motion to amend will be denied.

Heiney also moves to proceed on appeal in forma pauperis. (ECF Nos. 47 and

48). He submits an affidavit indicating that his only source of income is social

security disability, that his living expenses exceed his income, that his only asset is

a vehicle worth less than a thousand dollars, and that he has debts exceeding $80,000.

A court may grant IFP status if the inmate is unable to pay the fee and the

appeal is being taken in good faith. 28 U.S.C. § 1915(a); Fed. R. App. 24(a). “Good

faith” requires a showing that the issues raised are not frivolous. Foster v. Ludwick,

208 F. Supp. 2d 750, 765 (E.D. Mich. 2002). Though the Court denied the habeas

petition and finds that Heiney fails to meet the standard for a certificate of

appealability, an appeal can nevertheless be taken in good faith. Id.

IT IS HEREBY ORDERED that Petitioner’s motion to alter or amend

judgment is therefore DENIED.

IT IS FURHTER ORDERED that leave to appeal in forma pauperis is

GRANTED.

Case 2:19-cv-12474-SFC-SDD ECF No. 49, PagelD.11918 Filed 10/13/23 Page 5 of 5

Dated: October 13, 2023

s/Sean F. Cox

Sean F. Cox

U. S. District Judge

I hereby certify that on October 13,2023, the document above was served on counsel

and/or the parties of record via electronic means and/or First Class Mail. :

s/J. McCoy

Case Manager

APPENDIX E

■

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V,<

£O

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

JAKE PAUL HEINEY,

UNPUBLISHED

December 28, 2017

No. 333363

Monroe Circuit Court

LC No. 15-2423 61-FH

Plaintiff-Appellee,

c/5

Defendant-Appellant.

Before: Murray, P.J., and K. F. Kelly and Fort Hood, JJ.

Per Curiam.

Defendant appeals as of right his bench trial convictions of two counts of criminal sexual

conduct, fourth degree (CSC-IV), MCL 750.520e(l)(b) (sexual contact by force or coercion).

We affirm.

Defendant was a physician and his convictions resulted from his touching the breasts of

one of his patients, CG, during an orthopedic examination. The trial court granted defendant a

directed verdict on two other counts of CSC-IV related to similar allegations regarding another

patient, SE. Two other women also provided testimony of defendant touching them during

examinations.

For his first argument, defendant asserts that the evidence was insufficient to convict him

because there was no medical testimony that his examination was medically “unethical or

unacceptable.” This Court reviews de novo a challenge to the sufficiency of the evidence in a

bench trial. People v Ventura, 316 Mich App 671, 678; 894 NW2d 108 (2016). This Court also

reviews questions of law de novo. People v Lanzo Constr Co, 272 Mich App 470, 473; 726

NW2d 746 (2006).

The federal Due Process Clause1 requires that evidence of every element of a crime be

proved beyond a reasonable doubt in order to sustain a criminal conviction. People v Hampton,

407 Mich 354, 366; 285 NW2d 284 (1979), citing In re Winship, 397 US 358, 364; 90 S Ct

1068; 25 L Ed 2d 368 (1970). To determine if the prosecutor produced evidence in a bench trial

US Const, Am XIV.

-1-

sufficient to support a conviction, this Court considers the evidence “in a light most favorable to

the prosecution” to ascertain “whether the trial court could have found that the essential elements

of the crime were proved beyond a reasonable doubt.” People v Sherman-Huffman, 241 Mich

App 264, 265; 615 NW2d 776 (2000), affd 466 Mich 39 (2002). Direct and circumstantial

evidence, as well as all reasonable inferences that may be drawn by the trial court, are considered

to determine whether the evidence was sufficient to sustain the defendant’s conviction. People v

Legg, 197 Mich App 131, 132; 494 NW2d 797 (1992).

Defendant was convicted of two counts of CSC-IV for his touching of CG. MCL

750.520e(l)(b) provides, in relevant part:

(1) A person is guilty of criminal sexual conduct in the fourth degree if he

or she engages in sexual contact with another person and if any of the following

circumstances exist:

(b) Force or coercion is used to accomplish the sexual contact. Force or

coercion includes, but is not limited to, any of the following circumstances:

0'v) When the actor engages in the medical treatment or examination of the

victim in a manner or for purposes which are medically recognized as unethical or

unacceptable.

The trial court concluded that defendant touched CG’s breasts for a sexual purpose and

engaged in a medical examination of CG that was medically recognized as unethical or

unacceptable. More specifically, the trial court found that (1) CG did not complain of breast pain

or discharge and (2) according to defendant the patient would have to complain of pain radiating

from the breast or discharge from the breast in order to perform a breast examination. The trial

court also noted the similar testimony of other witnesses.

Defendant argues that the trial court’s legal conclusion was erroneous and the verdict was

not based on the evidence produced at trial because the prosecution offered no evidence that

defendant “engaged in unethical or unacceptable medical practices,” a required element under

the statute. Defendant notes that no witness provided testimony regarding what constituted an

unethical or unacceptable orthopedic physical examination for a patient with CG’s symptoms.

The Supreme Court in People v Baisden, 482 Mich 1000 (2008), held that medical

testimony is not required in all prosecutions involving CSC in the medical context because “it is

common knowledge that” some actions, such as “penile penetration constitute^ an unethical and

unacceptable method of ‘medical treatment.’ ” There is no case law determining whether it is

common knowledge that squeezing breasts during an orthopedic examination for neck, back, and

leg pain is an unethical and unacceptable method of medical treatment. However, in People v

Hallak, 310 Mich App 555, 565; 873 NW2d 811 (2015), rev’d in part on other grounds 499 Mich

879 (2016), the Court upheld the trial court’s determination, based in part on expert testimony,

-2-

H—I

that a physician touching the breast of a patient during an examination for a throat problem was

“sufficient for the jury to conclude that the touching was not for a legitimate medical purpose.”

Despite the lack of any.expert testimony on the issue, there was some testimony from

which the trial court could have inferred that squeezing CG’s breasts was not an acceptable

medical practice. First, CG testified that including her breasts in the examination seemed

unusual and she was confused by the examination, which defendant did not explain. Second,

three other women testified that defendant touched their bare breasts in various ways while

purportedly examining them for pain. That all the women claimed to have pain, but not chestrelated pain, and defendant accessed and manipulated their breasts in various inconsistent ways,

is some evidence that squeezing CG’s breasts was not a part of a standard examination for her

pain. Third, and most significantly, there was medical testimony that examining a breast during

an orthopedic examination without a complaint of pain or discharge in the area was not

medically acceptable. According to Detective Bliss, defendant stated that he would only

examine a breast when the presenting complaint was shoulder pain and there was a complaint

such as pain radiating or discharge from the breast. Defendant denied that a breast exam was a

normal part of his investigation. CG testified that she never complained of pain in her chest and,

thus, by defendant’s standards, a breast examination would not be a medically appropriate part of

his examination.

Additionally, Bliss testified that defendant reported that he would examine both breasts

for comparison, and that the examination would consist of palpitating the muscle above the

breast tissue. Further, the chest palpitation of the muscles of both sides of the chest that

defendant described as medically appropriate was not the examination that CG described. The

trial court found, consistent with the testimony, that CG was “quite definitive” in stating that she

did not complain of breast pain or discharge and that defendant did not palpitate her breasts, but

grabbed and squeezed.

Additionally, CG had interactions with three physicians for possible back surgeries after

seeing defendant, and they performed MRIs, a nerve study, and a bone study, rather than

physical examinations. MS, KO, and SE all testified that they were familiar with breast

examinations and noted that defendant’s breast examinations were much different from other

examinations because he did not have any of the women lay down with an arm behind the head,

did not move in slow small circles (palpitate), did not explain what he was doing or always ask

questions, and did not always examine both breasts or use the same examination on both breasts.

Thus, there was evidence, when viewed in a light most favorable to the prosecutor, that

defendant’s touching of CG’s breasts was a medical examination done in a manner that was

medically recognized as unethical or unacceptable.

Next, defendant argues that the trial court violated his right to confront SE by sustaining

plaintiffs objection to questions on cross-examination about her financial difficulties. We

review de novo the legal question of whether the admission or exclusion of evidence would

violate a defendant’s constitutional right of confrontation. People v Nunley, 491 Mich 686, 696697; 821 NW2d 642 (2012).

In all criminal prosecutions, the accused shall enjoy the right “to be confronted with the

witnesses against him . . . .” US Const, Am VI. The central protection offered by the

-3-

Xfl

H-H

Confrontation Clause is “to ensure the reliability of the evidence against a criminal defendant by

subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.”

People v Sammons, 191 Mich App 351, 356; 478 NW2d 901 (1991). Such testing is at the heart

of the right of cross-examination. People v Adamski, 198 Mich App 133, 138; 497 NW2d 546

(1993). Defendants are “guaranteed a reasonable opportunity to test the truth of a witness’

testimony,” id., and “a broad range of evidence may be elicited on cross-examination for the

purpose of discrediting a witness,” Wischmeyer v Schanz, 449 Mich 469, 474; 536 NW2d 760

(1995). However, the Confrontation Clause does not include the right to cross-examine on any

subject, and there is no “right to cross-examine on irrelevant issues.” Adamski, 198 Mich App at

138.

Defendant argues that the evidence of SE’s financial condition should have been admitted

as tending to establish SE’s financial motivation to testify against him because his conviction

could assist in any civil lawsuit that she may have intended to file.2 Issues regarding the

credibility of a witness by exposing “possible biases, prejudices, or ulterior motives” are always

relevant on cross-examination. Davis v Alaska, 415 US 308, 316-317; 94 S Ct 1105; 39 L Ed 2d

347 (1974). Defendant analogizes this case to People v Morton, 213 Mich App 331, 334-336;

539 NW2d 771 (1995), where the Court held that it was error to limit the defendant’s crossexamination of a witness regarding any civil lawsuit she was contemplating against the

defendant. The Court stated that “whether a witness has filed or is contemplating filing a civil

lawsuit, the prospects for which may be affected by the outcome of a criminal action, is always

relevant to a witness’credibility.” Id. at 334-335.

Consistent with Morton, defendant was permitted to ask SE about any civil lawsuit that

she intended to file, but although SE testified that she had contacted a friend who was an

attorney, she ultimately was not planning to file a civil lawsuit. Because SE testified that she

was not filing a civil lawsuit, her financial difficulties were not relevant. Without a civil lawsuit,

there would be no financial motivation to testify in a criminal trial against defendant. Because

defendant had the opportunity to cross-examine SE regarding her contact with an attorney and

her consideration of a civil lawsuit, he was not denied his right to confront SE regarding her

motivation for testifying.

Moreover, even where a defendant is denied his constitutional rights under the Sixth

Amendment, reversal is not required if the error is harmless beyond a reasonable doubt. People

v McPherson, 263 Mich App 124, 131-132; 687 NW2d 370 (2004). An error is harmless beyond

a reasonable doubt when it has had no effect on the verdict. Morton, 213 Mich App at 335-336.

Here, the trial court granted defendant’s motion for a directed verdict of acquittal regarding his

actions with SE because it found a reasonable doubt that his actions were medically recognized

as unethical or unacceptable based on her history of having a cyst removed from her breast.

Thus, SE’s testimony did not contribute to defendant’s conviction.

2 Evidence is relevant if it has “any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than it would be

without the evidence.” MRE 401.

-4-

Affirmed.

ffl

/s/ Christopher M. Murray

/s/ Kirsten Frank Kelly

/s/ Karen M. Fort Hood

-5-

STATE OF MICHIGAN

^0^'

IN THE CIRCUIT COURT FOR THE COUNTY OF$«*NROE..

THE PEOPLE OF THE STATE OF MICHIGAN,

Case NSTTs-SSW-FH

Plaintiff,

Hon. Daniel S. White

JAKE PAUL HEINEY,

Defendant.

MONROE COUNTY PROSECUTING ATTORNEY

Attorney for Appellee

125 East Second Street

Monroe, MI 48161

(734) 240-7600

JOHN MINOCK (P24626)

Cramer, Minock, & Sweeney, PLC

Attorney for Appellant

339 E. Liberty

Ann Arbor, MI 48104

(734) 668-2200

ORDER DENYING MOTION FOR RELIEF FROM JUDGMENT

"At a session of said Court in the Courthouse in the

City of Monroe, in said County, on the

_____ day of November, 2019"

PRESENT:

HON. DANIEL S. WHITE, Circuit Court Judge

The matter having come on to be heard upon the Defendant’s Motion for Relief from

Judgment, and the Court being otherwise fully advised in the premises;

Defendant Jake Paul Heiney brings forth this motion through his attorney, John Minock,

for Relief from Judgment under Michigan Court Rule 6.500. Defendant brings two assignments

of error in his motion. The first assignment of error alleges that Defendant was deprived of his

right to the effective assistance of counsel due to counsel’s failure to file a timely notice of a

proposed defense expert and the failure to call an expert witness at trial. In the second

assignment of error, Defendant alleges that he was deprived of effective assistance of appellate

counsel due to counsel’s failure to raise a claim on direct appeal that he was deprived of the

effective assistance of trial counsel.

STATEMENT OF FACTS

Defendant was charged in this case with two counts of criminal sexual conduct, fourth

degree, MCL 750.520e(l)(b). Defendant was also charged in another case with two counts of

criminal sexual conduct, fourth degree, MCL 750.520e(l)(b). The cases were tried jointly. A

direct verdict was declared in the second case. On April 19,2016, Defendant was convicted in

this case after a bench trial. Defendant was sentenced to five years probation, including 90 days

in Monroe County Jail.

On December 28, 2017, the Court of Appeals affirmed in an unpublished opinion, People

v. Jake Paul Heiney, Docket No. 333363. Defendant then filed an Application for Leave to

Appeal in the Michigan Supreme Court, which was denied on May 28,2018, for they were “not

persuaded that the questions presented should be reviewed by [the] Court.” People v. Heiney,

501 Mich. 2083 (2018). The Defendant now moves for Relief from Judgment.

LAW AND ARGUMENTS

Michigan Court Rule 6.502, Motion for Relief from Judgment states:

(A) Nature of Motion. The request for relief under this subchapter must be in the form of a

motion to set aside or modify the judgment. The motion must specify all of the grounds for relief

which are available to the defendant and of which the defendant has, or by the exercise of due

diligence, should have knowledge.

(B) Limitations on Motion. A motion may seek relief from one judgment only. If the defendant

desires to challenge the validity of additional judgments, the defendant must do so by separate

motions. For the purpose of this rule, multiple convictions resulting from a single trial or plea

proceeding shall be treated as a single judgment.

handwritten and include a verification by the defendant or defendant's lawyer in accordance

with MCR 2.114. Except as otherwise ordered by the court, the combined length of the motion

and any memorandum of law in support may not exceed 50 pages double-spaced, exclusive of

attachments and exhibits. If the court enters an order increasing the page limit for the motion, the

same order shall indicate that the page limit for the prosecutor's response provided for in MCR

6.506(A) is increased by the same amount. The motion must be substantially in the form

approved by the State Court Administrative Office, and must include:

(1) The name of the defendant;

(2) The name of the court in which the defendant was convicted and the file number of the

defendant's case;

(3) The place where the defendant is confined, or, if not confined, the defendant's current

address;

(4) The offenses for which the defendant was convicted and sentenced;

(5) The date on which the defendant was sentenced;

(6) Whether the defendant was convicted by a jury, by a judge without jury, or on a plea of

guilty, guilty but mentally ill, or nolo contendere;

(7) The sentence imposed (probation, fine, and/or imprisonment), the length of the sentence

imposed, and whether the defendant is now serving that sentence;

(8) The name of the judge who presided at trial and imposed sentence;

(9) The court, title, and file number of any proceeding (including appeals and federal court

proceedings) instituted by the defendant to obtain relief from conviction or sentence, specifying

whether a proceeding is pending or has been completed;

(10) The name of each lawyer who represented the defendant at any time after arrest, and the

stage of the case at which each represented the defendant;

(11) The relief requested;

(12) The grounds for the relief requested;

(13) The facts supporting each ground, stated in summary form;

(14) Whether any of the grounds for the relief requested were raised before; if so, at what stage

of the case, and, if not, the reasons they were not raised;

(15) Whether the defendant requests the appointment of counsel, and, if so, information

necessary for the court to determine whether the defendant is entitled to appointment of counsel

at public expense.

Generally, a defendant seeking post appellate relief from judgment under this rule must

initiate proceedings by filing a correct motion and listing all grounds for relief upon which the

defendant has knowledge. MCR 6.502(A)(1). Defendant must show actual prejudice from the

alleged irregularities that support his claim for relief. MCR 6.508(D)(3)(b). The Court Rule

states “Defendant has the burden of establishing entitlement to the relief requested. The court

may not grant relief if the motion ... alleges grounds for relief other than jurisdictional defects

which could have been raised on appeal from the conviction and sentence or in a prior motion

under this subchapter unless the defendant demonstrates ... actual prejudice from the alleged

irregularities that support the claim for relief.

Michigan follows the federal rules put forth by Strickland v. Washington, 466 U.S. 688

(1984), where the essential test is “whether counsel’s conduct was so deficient that he or she

cannot be said to have been functioning as the ‘counsel’ required by the Sixth Amendment.”

Gillespie Mich. Crim. L. & Proc. Prac. Deskbook § 4:23. The two part test includes (1)

unreasonable performance by the attorney and (2) that the deficient performance earned

prejudice to the Defendant. Id. at 24. To properly show prejudice under Strickland, the

Defendant must demonstrate that counsel’s errors “are so serious as to deprive him of a trial

whose result is fair and reliable, not merely that the outcome would have been different.”

Lockhart v. Fretwell, 506 U.S. 364 (1993). “Any deficiencies in counsel’s performance must be

prejudicial to the defense in order to constitute ineffective assistance under the Constitution.”

People v. Pickens, 446 Mich. 298, 312 (1994), quoting Strickland, 466 U.S. at 691-92. In order

to find prejudice, “a court must conclude that there is a ‘reasonable probability that, absent the

errors, the fact-finder would have had a reasonable doubt respecting guilt.’” Id.

The first assignment of error alleged by the Defendant is that he was deprived of his right

to the effective assistance of counsel due to counsel’s failure to file a timely notice of a proposed

witness at trial. Defendant alleges he was prejudiced because there was a favorable expert

witness with who counsel had conferred with and who was ready and available to testify. The

case was tried without any expert testimony from either side regarding whether the examinations

Defendant performed were medically proper or not. The expert witness Defendant alleges was

ready and available to testify was not contacted for the Michigan trial, but only for the Ohio trial.

Even if counsel’s failure to file a timely notice of a proposed expert witness could be

deemed an unreasonable performance, it did not cause prejudice to the Defendant. To show

prejudice, the Defendant must show that counsel’s errors “are so serious as to deprive him of a

trial whose results is fair and reliable.” Lockhart v. Fretwell, 506 U.S. 364 (1993). The Supreme

Court in People v Baisden, 482 Mich 1000 (2008), held that medical testimony is not required in

all prosecutions involving CSC in the medical context because "it is common knowledge that"

some actions, such as "penile penetration constitute [] an unethical and unacceptable method of

'medical treatment.'" Despite the lack of any expert testimony on the issue, there was some

testimony from which the trial court inferred that squeezing CG's breasts was not an acceptable

medical practice. First, CG testified that including her breasts in the examination seemed

unusual and she was confused by the examination, which defendant did not explain. Second,

three other women testified that defendant touched their bare breasts in various ways while

purportedly examining them for pain. That all the women claimed to have pain, but no chestrelated pain, and defendant accessed and manipulated their breasts in various inconsistent ways,

is some evidence that squeezing CG's breasts was not a part of a standard examination for her

pain. Third, and most significantly, there was medical testimony that examining a breast during

an orthopedic examination without a complaint of pain or discharge in the area was not

medically acceptable. According to Detective Bliss, defendant stated that he would only

examine a breast when the presenting complaint was shoulder pain and there was a complaint

such as pain radiating or discharge from the breast. Defendant denied that a breast exam was a

normal part of his investigation. CG testified that she never complained of pain in her chest and

thus, by defendant's standards, a breast examination would not be a medically appropriate part of

his examination.

The second assignment of error alleged by Defendant is that he was deprived of the

effective assistance of appellate counsel due to counsel’s failure to raise a claim on direct appeal

that he was deprived of the effective assistance of trial counsel. The principal issue raised on

appeal was that the evidence was insufficient to convict without expert testimony. Defendant

claims appellate counsel should have filed a timely motion for a new trial or a motion to remand

in the Court of Appeals for a claim that trial counsel was ineffective for failure to call an expert

witness. An appellate attorney is not required to raise every non-frivolous issue on appeal. Jones

v. Barnes, 463 U.S. 745 (1983). The decision to withhold issues on appeal must be done as a

tactical choice made in sound professional judgment. Defendant has not shown a reasonable

probability that, but for appellate counsel’s mistake, the result would have been different.

Defendant has failed to demonstrate actual prejudice, i.e., that the result would have been

different had appellate attorney filed a motion for a new trial or a motion to remand claiming

trial counsel was ineffective for the failure to call an expert witness.

For the reasons set forth above, the Defendant’s Motion for Relief from Judgment is

*% <

DENIED.

Date:

HonTDaniel S.

Circuit Court Judge

Copies to:

Michael Roehrig

Monroe County Prosecuting Attorney

Personal delivery

...u'V

John Minock

Cramer, Minock, & Sweeney, PLC

Attorney for Appellant

339 E. Liberty

Ann Arbor, MI 48104

I certify that on this date, copies of the above were served upon the parties or their

attorneys indicated above by ordinary mail addressed to the address shown unless otherwise

indicated.

Date:

111? li^

ffiermayn E. Gorman

'Secretary to Hon. Daniel S. White

STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY OF MONROE

PEOPLE OF TIDE STATE OF MICHIGAN,

Case No.

Plaintiff,

15-242361-FH

Hon. Daniel S. White

v. ■

JAKE PAUL HEINEY,

Defendant.

MICHAEL G. ROEHRIG (P 47639)

Monroe County Prosecuting Attorney

125 E. Second St.

Monroe, MI 48161

(734) 240-7600

JAKE HEINEY

In Pro Per

3374 Quail Hollow Dr.

Lambertville, MI 48144

■4,Vi

V.‘

»>?

'%.■ COUNTY ei&RC r

' 3"V:;.

ORDER DENYING MOTION FOR RELIEF FROM JUDGMENT

"At a session of said Court in the Courthouse in the

City of Monroe, in said County, on the

__ day of November, 2021"

PRESENT:

...........

TBttECdp.Yv

HON. DANIEL S. WHITE, Circuit Court Judge

The matter having come on to be heard upon the Defendant's second Motion for Relief

from Judgement, and the Court being otherwise fully advised in the premises;

STATEMENT OF FACTS

The Defendant was charged with four counts of criminal sexual conduct, fourth degree,

MCL 750.520(e)l(b). A bench trial was held on April 19,2016 wherein the Defendant was

convicted of two of the four counts of CSC4th. The conviction was affirmed by the Court of

Appeals in an unpublished decision, People v Jake Paul Heiney, Docket No. 333363. Defendant

then filed an Application for Leave to Appeal in the Michigan Supreme Court which was denied

on May 29,2018.

The Defendant filed a Motion for Relief from Judgment with this Court on August 23, - -~

2019 which was denied on November 4,2019. The Michigan Court of Appeals denied the

Defendant's Application for Leave to Appeal because the Defendant had failed to establish that

the trial court erred in denying the Motion for Relief from Judgment. The Michigan Supreme

Court denied Leave to Appeal the Order of the Court of Appeals on April 27,2021 because the

Defendant had failed to meet the burden of established entitlement to relief under MCR

6.508(D).

In July of 2021 the Defendant filed a second Motion for Relief from Judgment arguing as

follows:

Defendant was deprived of his right to a fair trial, due process and equal

protection as established in Bostock v Clayton County Georgia, 590 US —

(2020).

New exculpatory evidence makes a probable different result on retrial for

Defendant.

IE.

Defendant was deprived of his First Amendment Right of Freedom of Religion.

ANALYSIS

Pursuant to MCR 6.502(G)(2) a Defendant may file a second or subsequent based on a

retroactive change in law that occurred after the first motion or a claim of new evidence that was

not discovered before the first motion. The Defendant must make a threshold showing that the

motion is brought on the basis of a retroactive change in law, that there was new evidence that

was not discovered before the first motion or that there is a significant possibility that the

Defendant is actually innocent. MCR 6.508(D) is the Court Rule that addresses the Defendant's

burden to establish entitlement to relief and only becomes relevant after the Defendant has made

a preliminary showing under MCR 6.502(G).

The Defendant argues both a retroactive change in law and newly discovered evidence.

Defendant asserts that Bostock v Clayton County, Georgia 590 US _ (2020) has an impact on

this case. On the contrary, Bostock was a landmark civil rights case in which the Supreme Court

held that Title VII of the Civil Rights Act of 1964 protects employees from discrimination

because they are gay or transgender. The Court ruled in a 6-3 decision that discrimination on the

basis of sexual orientation or gender identity is necessarily discrimination because of sex as

prohibited by Title VII.

The Defendant maintains this case applies and "if the same evidence the state presented

in Heiney's case was applied to a homosexual male, heterosexual female or an intersex physician,

then there could be no conviction." He further asserts that "the state created and relied on an

anti-heterosexual male agenda for conviction."

First, the Bostock decision has no application to the case at bar and is not a retroactive

change in the law which would affect this conviction. Secondly, the Defendant did not testify at

trial nor was there any testimony from other witnesses that he was a heterosexual, homosexual or

intersex physician. Most importantly, MCL 750.520(e) states as follows:

(1) A person is guilty of criminal sexual conduct in the fourth degree if he or she engages

in sexual contact with another person (emphasis added).... The NP statute does not

limit or discriminate by sex or orientation. Any person can be guilty of criminal

sexual conduct fourth by having contact with any person.

The Defendant next argues that there is newly discovered evidence not available at the

time of filing the first motion that makes a different result at trial probable. Defendant asserts a

multitude of facts as newly discovered evidence, as follows:

1.) Testimony from several medical experts is raised many times. This

addressed directly by the Court of Appeals and cannot be readdressed in this Motion.

2.) Civil suits failed to get a judgment. While this may have happened subsequently, it is

not evidence which would be admissible nor would it add to or change testimony

heard at trial.

3.) Defendant's male patients and female patients had exams that included touching of

breast tissue. This is clearly evidence that existed at trial and the subsequent Motion

for Relief from Judgment

4.) Witnesses violated sequestration order by being outside together and Detective Bliss

sat in on the Ohio trial. The Ohio trial was before the trial before this Court No

witnesses were allowed to hear the testimony of other witnesses. There is no

allegation made that any witness discussed their testimony with any other witness.

5.) Improper information was provided to the media by the "adversarial actors". It is not

alleged as to the timing of the articles but to have "biased Heiney" they must have

been before the trial.

6.) There are a multitude of allegations that can be generally characterized as things the

prosecutor should have done and did not do. Defendant cannot dictate the charges

brought against him (overcharged because "skin is a single system"), medical experts,

discovery, forcing Defendant to sit in an interrogation room, didn't interview any

male patients, police reports filled with inaccuracies. These issues do not constitute

evidence, most would not be admissible and have no bearing on Defendant's guilt or

innocence.

7.) Defendant alleges improper use of404(B) testimony. This happened at trial, was not

reversed on appeal or the first Motion for Relief from Judgment, and is clearly not

new evidence.

8.) Defendant alleges ineffectiveness of counsel for failure to object to 404(B) testimony

and "improperly advising" the Defendant to have a bench trial. Neither issue is new

nor do they constitute newly discovered evidence.

The Defendant's final argument is that he was deprived his First Amendment right to

Freedom of Religion. The Court is hard pressed to understand this argument or to see even a

minute causal connection. Defendant's argument makes no sense and there is no connection

between the instant case and any religious beliefs Defendant claims. This is not newly

discovered evidence nor is it covered by a retroactive change in the law.

For the reasons set forth herein, Defendant's Motion is D.

Dated:

/ijsju

Hon. Ddnia S. White (P 33070)

Circuit Court Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.