                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 08a0109n.06
                           Filed: February 20, 2008

                                            No. 07-1202


                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

DONALD ERICH MUELLER,

       Petitioner-Appellant,

v.                                                     ON APPEAL FROM THE UNITED
                                                       STATES DISTRICT COURT FOR THE
TOM C. BELL,                                           EASTERN DISTRICT OF MICHIGAN

       Respondent-Appellee.

                                                 /




BEFORE:        MOORE, CLAY and ROGERS, Circuit Judges.

       CLAY, Circuit Judge. Petitioner-Appellant, Donald Mueller, appeals from an order entered

by the United States District Court for the Eastern District of Michigan denying his petition for a writ

of habeas corpus under 28 U.S.C. § 2254. Specifically, Mueller contends that his state conviction

for third degree criminal sexual conduct in violation of Michigan Comp. Laws § 750.520d(1)(c) was

not supported by sufficient evidence and that the district court erred in finding that his state

conviction was based upon a reasonable application of federal law. For the reasons that follow, we

AFFIRM the judgment of the district court.
                                           No. 07-1202

                                        BACKGROUND

       A.       Factual Background

       Petitioner, Donald Mueller (“Mueller”), was convicted in Michigan state court of third degree

criminal sexual conduct against Steven Shrock (“Steven”). At the time of the assault, Steven, who

was 33 years old, lived at home with his parents and worked part-time at Arby’s under a Michigan

Rehabilitative Services program for individuals with developmental disabilities. Every day after

work, Steven visited a local donut shop where he would meet and talk with friends over coffee.

Steven first encountered Mueller during one of his regular visits to the donut shop. Soon thereafter,

Mueller began joining Steven and his friends for coffee and would often stop by Arby’s to buy

Steven lunch.

       On March 11, 2002, Mueller invited Steven to visit his home after he finished his shift at

Arby’s. Steven accepted the invitation, and Mueller picked him up after work. When the two

arrived at Mueller’s home, Mueller asked Steven if he would like to see some pictures. Mueller told

Steven that before he could see the pictures he would have to follow the “house rules” and remove

his pants. Thereafter, Mueller displayed child pornography on his computer. Mueller instructed

Steven not to tell anyone about the pictures. Sometime later, Steven called home to let his mother

know where he was. Apparently upset that Steven did not return home after work as was his usual

routine, Steven’s mother instructed him to return home within an hour and said that she wanted to

meet Mueller prior to the two of them spending any more time together. Prior to taking Steven

home, Mueller gave him a bag of candy.




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       Mueller later dropped Steven off at home and met Steven’s parents. When asked what the

two of them had done while at Mueller’s home by his parents, Steven replied that they had “watched

Oprah and the news.” (J.A. at 52) Steven’s parents also questioned Mueller regarding his intentions

toward their son. Mueller explained that he enjoyed spending time with Steven because Steven

reminded him of his own son who was of a similar age and who also had a mental impairment.

Mueller further explained that he had been married and rarely saw his son after his divorce.

According to Steven’s mother, Shirley, Mueller explained that “I’m a very lonely person . . . Steve

is very upbeat, he makes me happy . . . I just really enjoy spending time with him.” (J.A. at 52)

Accepting Mueller’s explanation as genuine, Steven’s parents allowed the two to make arrangements

to spend time together a few days later.

       On March 13, 2002, Mueller picked Steven up from work. Prior to going to Mueller’s home,

Mueller stopped at a local video store and rented two pornographic videos. After the two arrived

at Mueller’s home, Mueller began showing a video and once again instructed Steven that he would

have to remove his pants pursuant to the “house rules.” (J.A. at 37) Steven replied “no, because I’m

on – because my mom won’t let me take them off.” (J.A. at 38) Mueller then threatened to turn the

video off. While seated on Mueller’s couch, Steven unzipped his pants. Mueller, without pants or

underwear, then joined Steven on the couch and pulled Steven’s pants down further. Mueller then

performed fellatio on Steven. Mueller again dropped Steven off at home and admonished him to

keep what happened at his home a secret.

       A few days later Mueller called Steven to invite him back to Mueller’s home. During the

conversation, Steven became quite agitated, which caught the attention of Steven’s mother. After


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overhearing Steven ask if he had to follow the house rules and remove his pants, Steven’s mother

instructed him to hang up the phone. Steven then told her about everything that occurred at

Mueller’s house, and police were contacted.

        As a result of the Shrocks’ complaint, Mueller was charged with third degree criminal sexual

conduct. In particular, Mueller was charged with sexual conduct with a person he either knew or

should have known was mentally incapable. Mich. Comp. Laws § 750.520d(1)(c). During Mueller’s

trial, the jury heard testimony from a number of witnesses, including Steven, his mother, and a

therapist who treated Steven following the allegations of sexual abuse. Steven testified regarding

his interactions with Mueller, including the alleged criminal sex acts. According to Steven, he had

never seen pornographic materials prior to his contact with Mueller.

        In addition, Steven’s mother testified regarding Steven’s developmental disabilities and his

limited ability to interact with others. Shirley testified that she and her husband began to notice that

“[Steven] just wasn’t doing things the other kids were doing when he was about six months old.”

Shirley testified that when Steven enrolled in school, he was placed in special education classes and

provided speech and hearing services. Steven remained in special education classes “until he left

school at age 26 . . . .” (J.A. at 49) Although 33 years old, Shirley testified that Steven functions

at the level of a six- to eight-year old child. Shirley estimated that Steven has an IQ between 45 and

55 and that he is able to learn things through repetition. Because he is able to learn through

repetition, Steven was able to obtain a job at Arby’s under a Michigan Rehabilitative Services

program. Shirley also testified that Steven has difficulty making “judgment calls” and that “he’s

always trying to please people.” (J.A. at 50)


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       Shirley also testified that Steven had very little knowledge of sex prior to his interactions

with Mueller. In a similar vein, the jury also heard testimony from Jay McCrae of the Saginaw

County Community Mental Health Authority. McCrae testified that he evaluated Steven after the

allegations of sexual abuse surfaced. After some initial testing, McCrae diagnosed Steven as being

“mild[ly] mentally retarded” with obsessive compulsive disorder. (J.A. at 60) According to

McCrae, Steven’s awareness of sex-related issues was at the “level of a five- to seven-year-old

child.” (J.A. at 59) On cross-examination, McCrae’s assessment of Steven’s sexual awareness was

challenged by Mueller’s counsel. Mueller’s counsel questioned McCrae regarding whether Steven

had a “history of sexual preoccupation.” (J.A. at 60) McCrae, however, would not confirm that

Steven had a sexual preoccupation.

       Mueller did not put forward any witnesses in his defense and was convicted of third degree

criminal sexual conduct.

       B.      Procedural Background

       Following his conviction, a Michigan state trial court sentenced Mueller to 162-270 months

of imprisonment. On direct appeal to the Michigan Court of Appeals, Mueller argued that there was

insufficient evidence to support his conviction. People v. Mueller, No. 247660, 2004 WL 1366953,

at *1 (Mich. Ct. App. June 17, 2004). Based on the witness testimony described above, the Court

of Appeals rejected Mueller’s argument and affirmed his conviction. Id. at *2. Mueller then filed

a petition for leave to appeal to the Michigan Supreme Court, which was denied. (J.A. at 28)

       After exhausting his state court remedies, Mueller filed a petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254 in the United States District Court for the Eastern District of Michigan.


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                                           No. 07-1202

Upon review of the record and the decision of the Michigan Court of Appeals, the district court

denied Mueller’s petition and concluded that “the resolution of Petitioner’s sufficiency of the

evidence claim was neither contrary to nor [] an unreasonable application of clearly established

federal law.” (J.A. at 81)

       Mueller now timely appeals.

                                          DISCUSSION

SUFFICIENCY OF THE EVIDENCE SUPPORTING MUELLER’S CONVICTION FOR
THIRD DEGREE CRIMINAL SEXUAL CONDUCT

       A.      Standard of Review

       “In a habeas corpus proceeding, this Court reviews a district court’s legal conclusions de

novo and its factual findings for clear error.” Miskel v. Karnes, 397 F.3d 446, 451 (6th Cir. 2005).

This Court’s power, however, to review a state court’s determination regarding the sufficiency of

the evidence supporting a conviction is limited by the Antiterrorism and Effective Death Penalty Act

of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996). Because Mueller filed his habeas

petition after 1996, AEDPA governs his appeal.

       AEDPA prohibits a federal court from granting a writ of habeas corpus to a person

incarcerated pursuant to a state court judgment with respect to a claim that was adjudicated on the

merits in state court unless the adjudication of the claim


       (1) 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

       (2) resulted in a decision that was based on an unreasonable determination of the
       facts in light of the evidence presented in the State Court proceeding.

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                                             No. 07-1202

28 U.S.C. § 2254(d)(1)-(2). A state court decision is contrary to clearly established federal law if

“the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question

of law or if the state court decision arrives at a conclusion opposite to that reached by [the Supreme

Court] on a set of materially indistinguishable facts.” Williams v. Taylor, 120 S.Ct. 1495, 1523

(2000).

          Moreover, a state court determination is an unreasonable application of clearly established

federal law if “the state court identifies the correct governing legal principle from [the Supreme

Court’s] decisions, but unreasonably applies that principle to the facts of the prisoner’s case.” Id.

However, when evaluating the propriety of a state court’s application of a legal principle to the facts

of a petitioner’s case, this Court must presume the factual determinations made by the state court to

be correct. 28 U.S.C. § 2554(e)(1). The presumption of correctness may be rebutted only upon a

showing of clear and convincing evidence to the contrary. Williams, 120 S.Ct. at 1523.

          A state court decision may also be unreasonable where the state court extends a legal

principle to an inapposite context or refuses to extend a principle to an analogous context. Id. at

1520. However, a federal habeas court may not reverse a state court decision on the grounds that

it was unreasonable “simply because that court concludes in its independent judgment that the

relevant state-court decision applied clearly established law erroneously or incorrectly.” Id. at 1522.

Instead, a federal habeas court may reverse only where the state court’s application of clearly

established law is “objectively unreasonable.” Id. at 1521.




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                                            No. 07-1202

        B.      Analysis

        Mueller does not challenge any of the factual findings of the Michigan Court of Appeals.

Rather, he alleges that the Michigan Court of Appeals improperly applied Jackson v. Virginia, 443

U.S. 307 (1979), to find that the facts adduced at his trial supported a conviction for third degree

criminal sexual conduct. We disagree.

        Under Jackson, a petitioner challenging a state court conviction “is entitled to habeas corpus

relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could

have found proof of guilt beyond a reasonable doubt.” 443 U.S. at 324. In examining the sufficiency

of the evidence to support a state conviction, this Court must give deference to the fact-finder’s

determination based on “the responsibility of the trier of fact fairly to resolve conflicts in the

testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate

facts.” Id. at 319.

        This Court “will reverse a judgment for insufficiency of evidence only if, viewing the record

as a whole, the judgment is not supported by substantial and competent evidence.” United States

v. Blakeney, 942 F.2d 1001, 1010 (6th Cir. 1991). This Court has “defined substantial evidence as

being ‘more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept

to support a conclusion. It is evidence affording a substantial basis of fact from which the fact in

issue can be reasonably inferred.'” United States v. Grubbs, 506 F.3d 434, 438 (6th Cir. 2007)

(quoting United States v. Martin, 375 F.2d 956, 957 (6th Cir. 1967)). Circumstantial evidence alone

may constitute substantial evidence where it “can sustain a guilty verdict and . . . [such] evidence

need not remove every reasonable hypothesis except that of guilt.” United States v. Hughes, 505

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                                            No. 07-1202

F.3d 578, 592 (6th Cir. 2007) (quoting United States v. Stone, 748 F.2d 361, 362 (6th Cir. 1984)).

In evaluating the evidence adduced at trial, this Court must “view all evidence and resolve all

reasonable inferences in favor of the government.” Id.

       The Due Process Clause of the Fourteenth Amendment requires that the prosecution prove

“all elements of the offense charged, and must persuade the fact finder ‘beyond a reasonable doubt’

of the facts necessary to establish each of those elements.” Sullivan v. Louisiana, 508 U.S. 275, 277-

78 (1993) (internal citations omitted). Therefore, in reviewing the sufficiency of the evidence to

support a jury’s verdict, this Court must “do so ‘with explicit reference to the substantive elements

of the criminal offense as defined by state law.’” Parker v. Renico, 506 F.3d 444, 447 (6th Cir.

2007) (quoting Jackson, 443 U.S. at 324 n. 16).

       To sustain a conviction for third degree criminal sexual conduct under Mich. Comp. Laws

§ 750.520d(1)(c), the prosecution must prove, beyond a reasonable doubt, that (1) “[a] person

engag[ed] in sexual penetration with another person;” (2) the other person must have been mentally

incapable, mentally incapacitated, or physically helpless; and (3) “[t]he actor knows or has reason

to know that the victim is mentally incapable, mentally incapacitated, or physically helpless.” Mich.

Comp. Laws § 750.520d(1)(c). Mueller alleges that the evidence adduced at trial was insufficient

with respect to the latter two prongs of third degree criminal sexual conduct. We find Mueller’s

argument to be wholly unpersuasive.




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                                           No. 07-1202

               1.      Victim’s Mental Capacity

       Under Michigan law, a person is “mentally incapable” where the person “suffers from a

mental disease or defect that renders that person temporarily or permanently incapable of appraising

the nature of his or her conduct.” Mich. Comp. Laws § 750.520a(i). In People v. Breck, 584 N.W.2d

602 (Mich. Ct. App. 1988), the Michigan Court of Appeals noted that “the rationale behind the

statutes prohibiting sexual relations with a mentally incapable person is that such a person is

presumed to be incapable of truly consenting to the sexual act.” Id. at 605.

       Based on the rationale of the statute, the Breck court rejected a defendant’s assertion that the

statute was intended to reach only those mental disabilities which impact a person’s ability to

“understand the physical nature of the act.” Id. at 603. Instead, the court read the term “mentally

incapable” to include “not only an understanding of the physical act but also an appreciation of the

nonphysical factors, including the moral quality of the act, that accompany such an act.” Id.

Applying this definition, the Breck court found that the victim was “mentally incapable” based on

the fact that the victim was unable to understand the “long-term ramifications of safe sex” or “the

nature of a romantic relationship.” Id. at 605. Moreover, the victim was deemed to be mentally

incapable because of testimony from a psychologist indicating that the victim “was a trusting

individual who would quickly make a person his friend and do anything that person asked him to

do.” Id. The psychologist also testified that the victim was “unable to make personality or character

judgments.” Id. Taken together, the court found that the evidence established that the victim was

mentally incapable of “appraising the nature of his conduct.” Id.



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       Similarly, in People v. Cox, 709 N.W.2d 152 (Mich. Ct. App. 2005), the defendant appealed

a conviction for third degree criminal sexual conduct, alleging that there was insufficient evidence

to support a finding that the victim was mentally incapable. There, the defendant engaged in oral

sex with a seventeen year-old victim who was alleged to be mentally incapable. During the

defendant’s trial, the victim testified regarding the sex acts between him and the defendant, stating

“I just wanted to try something new and so he asked me if I wanted to, and I said yeah, so we went

on.” Id. at 156. Various caseworkers and psychologists testified that the victim was unable to live

on his own, was easily manipulated and functioned at a “‘borderline’ range of intelligence.” Id. In

the opinion of these experts, the victim was “developmentally around the age of eleven, twelve or

thirteen.” Id. One expert further testified that, although the victim was “aware of his conduct,” he

could not appreciate the significance of a sexual relationship with the defendant. Id. at 157. Based

on this evidence, the Michigan Court of Appeals found that there was sufficient evidence to support

a finding that the victim was “mentally incapable” within the meaning of the third degree criminal

sexual conduct statute. Id.

       In the instant case, which is like Breck and Cox, the Michigan Court of Appeals was not

unreasonable in determining that there was ample evidence from which a rational trier of fact could

find that Steven was mentally incapable beyond a reasonable doubt. Like the victim in Cox, there

was evidence produced at trial regarding Steven’s cognitive disabilities. For instance, Steven’s

mother testified that Steven was in special education classes until age 26 because of his

developmental disabilities. While in school, Steven was classified as “trainable mentally impaired,”




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which corresponds to an IQ of 45 to 55. (J.A. at 50) Steven’s mother also testified that his ability

to reason and make decisions is equivalent to that of a six- to eight-year-old child.

        Additionally, as in Breck, the jury heard testimony from Steven’s mother regarding his

dependency on others to meet his basic needs, as she testified that “he would never be completely

on his own in society.” (Id.) Indeed, although Steven maintained a job at Arby’s, it was obtained

through a Michigan Rehabilitation Services program that matches a job coach with individuals with

a mental disability to teach basic job skills and functions. Steven’s mother further testified regarding

his need of supervision because he is “too trusting of others,” and “always trying to please people.”

(Id.)

        Moreover, the jury heard testimony regarding Steven’s limited knowledge regarding

reproductive matters. During the trial, the prosecution offered evidence in the form of testimony that

Steven’s knowledge of sex prior to his encounter with Mueller was equivalent to what a young child

would know, and that Steven had not asked his parents many sex-related questions. This assessment

was further bolstered by the testimony of Jay McCrae of the Saginaw County Community Mental

Health Authority, who evaluated Steven after the alleged sexual abuse. According to McCrae,

Steven’s awareness of sex-related issues is likely “on the level of a five- to seven-year-old child. It’s

very elementary – his awareness is very elementary of some of those concepts.” (J.A. at 59)

        Mueller, however, argues that the evidence adduced at trial demonstrates that Steven had an

awareness of sex prior to the alleged abuse such that he could appreciate both the physical act and

the non-physical factors. To support this assertion, Muller points to three pieces of evidence: (1) a

diagnosis by a staff member at the Community Mental Health Authority that Steven had a “history

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                                            No. 07-1202

of sexual preoccupation;” (2) testimony that Steven told his mother that he watched “Oprah and the

news” rather than pornographic materials while at Mueller’s home; and (3) testimony that Steven

wanted to see the pornographic materials obtained by Mueller.

        Mueller’s arguments regarding Steven’s ability to appreciate the nature and consequences

of his sexual activity, however, are unavailing when placed in the context of the totality of the

evidence presented to the jury. First, the evidence suggesting that Steven had a “history of sexual

preoccupation” was disputed at trial and was not corroborated by McCrae. Second, while Steven

did testify that he lied to his mother regarding his viewing of pornographic materials, Mueller

neglects to note that the jury heard evidence that Steven was instructed not to tell his parents about

what occurred. Additionally, as Cox demonstrates, the mere fact that a victim may have wanted an

act to occur, does not mean that the victim could consent to or understand the significance of a

particular act.

        Importantly, while the jury could have inferred that Steven was aware of the moral quality

of his act based on the evidence cited by Mueller, it was not compelled to do so. As noted above,

the jury was presented with significant evidence regarding Steven’s limited cognitive abilities as well

as some evidence regarding Steven’s ability to consent to the sexual activity that took place. After

evaluating the evidence, it appears that the jury discounted evidence of Steven’s ability to consent

based on its verdict. Indeed, under Jackson “a federal habeas corpus court faced with a record of

historical facts that support conflicting inferences must presume—even if it does not affirmatively

appear in the record—that the trier of fact resolved any such conflicts in favor of the prosecution,

and must defer to that resolution.” 443 U.S. at 326. Thus, the district court properly concluded that

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the Michigan Courts did not unreasonably apply federal law in holding that there was adequate

evidence to support a finding that Steven was “mentally incapable.”

2.      Knowledge that Victim was Mentally Incapable

        Mueller also contends that there was insufficient evidence to establish that he knew or should

have known of Steven’s mental incapacity. This claim is also without merit.

        Under Michigan law, criminal liability attaches for third degree criminal sexual conduct

where the defendant knew or had reason to know of the victim’s mental incapacity. Mich. Comp.

Laws § 750.520d(1)(c). The Michigan Court of Appeals has noted that, in enacting the statute, “the

Legislature only intended to eliminate liability where the mental defect is not apparent to reasonable

persons.” People v. Baker, 403 N.W.2d 479, 481 (Mich. Ct. App. 1986) (quoting People v. Davis,

301 N.W.2d 871, 874 (Mich. Ct. App. 1980)). Consequently, a defendant may be held liable for

third degree criminal sexual conduct under Mich. Comp. Laws § 750.520d(1)(c) where a reasonable

person would have known that the victim was mentally incapable.

        In the case at bar, the Michigan Court of Appeals found that Steven’s mental disability would

not only have been evident to a reasonable person, but was subjectively known to Mueller based on

his interactions with Steven and his comments to Steven’s parents. As an initial matter, the

prosecution offered evidence in the form of testimony by McCrae that a person with “mild mental

retardation,” such as Steven, may appear to have more severe developmental disabilities to a lay

person. Thus, this testimony, if credited by the trier of fact, could serve as a basis for a finding that

Steven’s mental incapacity was objectively ascertainable. Moreover, the trier of fact also had ample



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basis to support a finding that Mueller had subjective knowledge of Steven’s mental impairment.

Here, the jury heard testimony from Steven’s mother regarding a conversation with Mueller wherein

he stated he had experience with developmentally disabled individuals because his son also had a

mental disability. Thus, a jury could rationally infer that Mueller recognized similar traits in Steven.

Additionally, the trier of fact could rationally infer from evidence indicating that Mueller instructed

Steven regarding the “house rules” requiring him to disrobe, asked Steven not to tell anyone about

their activities together, and gave Steven candy, that Mueller was aware of Steven’s mental

disability. Thus, the district court properly found that the evidence relied upon by the State court

satisfied the knowledge prong of the statute, and that therefore Jackson was reasonably applied.

                                          CONCLUSION

        For the reasons set forth above, we AFFIRM the district court’s judgment.




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