                          NOT RECOMMENDED FOR PUBLICATION
                                  File Name: 15a0152n.06

                                               No. 14-1012

                                                                                                 FILED
                            UNITED STATES COURT OF APPEALS                                Feb 25, 2015
                                 FOR THE SIXTH CIRCUIT                                DEBORAH S. HUNT, Clerk

WILLIAM ROGER DEKEYZER,                                        )
                                                               )
        Petitioner-Appellant,                                  )
                                                               )
v.                                                             )       ON APPEAL FROM THE
                                                               )       UNITED STATES DISTRICT
SHIRLEE HARRY, Warden,                                         )       COURT FOR THE EASTERN
                                                               )       DISTRICT OF MICHIGAN
        Respondent-Appellee.                                   )
                                                               )
                                                               )



BEFORE:         BATCHELDER and ROGERS, Circuit Judges; BECKWITH, District
                Judge

        ALICE M. BATCHELDER, Circuit Judge.                        Petitioner William Roger Dekeyzer

appeals the denial of habeas relief from his Michigan convictions on three counts of criminal

sexual conduct. The district court granted a certificate of appealability as to the determinations

of the Michigan Court of Appeals that allegedly perjured testimony would not have affected the

outcome of his trial, and that his trial counsel was not ineffective for failing to investigate the

alleged perjury. We affirm.

                                                     I.

        In 2006, a grand jury in St. Clair County, Michigan, indicted Petitioner on one count of

criminal sexual conduct in the first degree (sexual penetration of a person under thirteen years of



 The Honorable Sandra S. Beckwith, United States District Judge for the Southern District of Ohio, sitting by
designation.

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age) and two counts of criminal sexual conduct in the second degree (sexual contact with a

person under the age of thirteen). The charges arose from allegations that Petitioner engaged in

sexual activity with his underage granddaughter, C.C., in 2004 and 2005, while C.C. stayed with

Petitioner and his wife in Harsens Island, Michigan. At trial, a jury considered the testimony of

many witnesses. Their testimony is summarized here.

        Sergeant Graham Rummel of the Clay Township Police Department testified that he

launched an investigation into Petitioner after he received a report from Child Protective

Services in February 2006 about C.C.’s situation. At that time, he spoke with Tracy Cook—

C.C.’s mother and Petitioner’s daughter—and Petitioner—C.C.’s grandfather—regarding the

allegations. He arranged for an interview of C.C.

        Tracy Cook testified that, although her daughter had previously enjoyed visiting her

grandfather, something changed in the summer of 2004. Specifically, C.C., about nine-years-old

at the time, complained that “grandpa was hugging her and rubbing her back” and “his hands

were traveling down around her rear and she was very uncomfortable with that.” Cook assumed

her daughter was merely apprehensive about her body’s changing during puberty, but she

nonetheless asked Petitioner to hug his granddaughter in a more appropriate manner. Although

Cook believed this conversation had settled the situation, C.C. still seemed nervous about

visiting Petitioner in the fall of 2004. Finally, in the summer of 2005, C.C. divulged the alleged

abuse to Cook. Cook confronted Petitioner and his wife (Cook’s mother), telling them that her

children would no longer visit Petitioner’s home. But Cook did not meet with the police until

early 2006, and then only after Sergeant Rummel had contacted her. After talking with the

police, Cook drafted a statement that formed the basis of the allegations against Petitioner, a

statement that C.C. signed without reading.



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        Most notably for this case, on cross-examination Cook testified that she had taken her

daughter to a family doctor, Dr. Faremouth, following the alleged abuse. She alleged that Dr.

Faremouth never performed an examination on C.C. because “even if there was any sort of

penetration, [] it wouldn’t show up.”

        Cheryl Johnson, C.C.’s aunt and Petitioner’s other daughter, testified that Petitioner had

molested her as a child. She estimated that when she was between the ages of six and sixteen,

Petitioner molested her three or four times a week, which, as the defense highlighted, is a total of

almost two thousand times. Specifically, she testified that Petitioner touched her breasts, put his

fingers in her vagina, attempted to insert his penis into her vagina, performed oral sex on her, and

forced her to perform oral sex on him. She never told anyone outside the family or contacted the

police at the time because she “honestly thought that’s how your parents taught about sex ed.”

She did, however, show her mother a tear in her vaginal area when she was thirteen years old.

And she told the jury that when she confronted Petitioner about the molestation years later, he

replied, “When you walk around in a bikini what am I supposed to do?” Finally, she testified

that in late summer 2005, C.C. confided in her about being molested by Petitioner, and that she

convinced C.C. to tell Cook.

        On the second day of trial, a now-twelve-year-old C.C. testified that, starting in 2004, her

grandfather would hug her and make her feel uncomfortable. The contact escalated until he

began to touch her in her “private areas.” On a picture of a girl provided by the prosecution, she

circled the genital area as what she was referring to when she said “private areas.” Specifically,

she testified that her grandfather’s finger went in between the folds of skin in her genital area.

The prosecution rested after C.C.’s testimony.




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        The defense called several witnesses to attack the credibility of Cook and Johnson.

Michael D’Anniballe testified that he had been engaged to Johnson between 2003 and 2005. He

did not consider Johnson to be a truthful person and was “very, very skeptical” about Johnson’s

story concerning the sexual encounters with her father, which she had told him on their first date.

Despite the supposed sexual encounters, he never noticed any strain in the relationship between

Johnson and her parents.

        Diane Dekeyzer—Petitioner’s wife and Cook and Johnson’s mother—testified that she

never noticed her husband acting improperly with any of their children. She also never noticed

anything strange in the interaction between C.C. and her husband. She and her husband removed

Cook and Johnson from their estate arrangements after their daughters lodged these allegations

against Petitioner. Finally, she testified that, when confronted by Johnson about the alleged

molestation while Johnson was a child, she believed her husband because Johnson “would tend

to look for attention.”

        Ronald Dekeyzer, Petitioner’s son and the brother of Johnson and Cook, testified that he

had never witnessed any sexual contact between Petitioner and Johnson while he lived in the

same house. He also never saw anything inappropriate happen between Petitioner and C.C. at

various family functions. He testified that Johnson is “deceitful” and “manipulative,” and Cook

has a reputation for being “kind of like the island B word.” In late fall or early winter of 2005,

he informed Johnson that she and Cook were no longer beneficiaries of their parents’ trust.

        Finally, Petitioner took the stand in his own defense. He denied all the allegations

against him, both those lodged by Johnson and those lodged by C.C.              After Petitioner’s

testimony, the defense rested.




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        The next day, the jury found Petitioner guilty as charged on all three counts. The trial

court sentenced him to imprisonment of eighty-one months to thirty years for the first-degree

criminal sexual conduct conviction and a concurrent term of nineteen months to fifteen years for

the two second-degree criminal sexual conduct convictions.

        After he was sentenced, Petitioner obtained an affidavit from the Cook family doctor, Dr.

Faremouth, stating that the doctor had never discussed any sexual abuse with Cook. Petitioner

filed a motion in the trial court for a new trial, claiming that he had new evidence that Cook had

committed perjury at his trial when she testified that she had taken C.C. to see Dr. Faremouth.

The trial court, after hearing oral argument on the motion, ruled that Petitioner’s affidavit did not

warrant a new trial because it would not produce a different result in the case.

        Petitioner appealed his conviction and the Michigan Court of Appeals, in an unpublished,

per curiam opinion, affirmed his convictions.          People v. Dekeyzer, No. 281207, 2009 WL

2477617 (Mich. Ct. App. Aug. 13, 2009). The Michigan Supreme Court summarily denied leave

to appeal further. People v. Dekeyzer, 780 N.W.2d 805 (Mich. 2010). Petitioner then filed a

motion for reconsideration of the denial of his appeal, which the Michigan Supreme Court also

denied. People v. Dekeyzer, 784 N.W.2d 210 (Mich. 2010).

        In 2011, Petitioner filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. §

2254, raising three grounds for relief: 1) that the Michigan Court of Appeals violated his due

process rights by failing to overturn his conviction when the conviction was obtained through the

use of perjured testimony; 2) that the Michigan Court of Appeals improperly applied federal law

in finding that his trial counsel was not ineffective; and 3) that the Michigan Courts denied his

right to a fair trial and his right to remain silent by permitting the admission of prior bad-acts

evidence. The district court denied the petition but granted a certificate of appealability on



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Petitioner’s perjury claim and the related claim about trial counsel’s failure to object to or

investigate the alleged perjury. Petitioner appeals on those two grounds.

                                                II.

        We review de novo a district court’s legal conclusions and mixed questions of law and

fact, and review its factual findings for clear error. Lucas v. O’Dea, 179 F.3d 412, 416 (6th Cir.

1999). Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a district court

may not grant a habeas petition with respect to any claim that was adjudicated on the merits in

the state courts unless the adjudication of the claim “resulted in a decision that was contrary to,

or involved an unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). Under the “contrary to” clause, a

federal habeas court may grant the writ 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 reaches a decision

different from that of the Supreme Court on a set of materially indistinguishable facts. Williams

v. Taylor, 529 U.S. 362, 412–13 (2000). Under the “unreasonable application” clause, a federal

habeas court may grant the writ 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

petitioner’s case. Id. An unreasonable application, however, is different from an incorrect

application. Id. at 410.

        To obtain habeas relief, “a state prisoner must show that the state court’s ruling on the

claim being presented in federal court was so lacking in justification that there was an error well

understood and comprehended in existing law beyond any possibility for fairminded

disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011). This standard, the Supreme

Court recently reminded us, is “difficult to meet.” White v. Woodall, 134 S. Ct. 1697, 1702



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(2014) (quoting Metrish v. Lancaster, 133 S. Ct. 1781, 1786 (2013)) (internal quotation marks

omitted). Further, in the context of ineffective-assistance-of-counsel claims under Strickland v.

Washington, 466 U.S. 668 (1984), the Supreme Court has stated that if AEDPA review is a

difficult standard to meet, “that is because it was meant to be.” Harrington, 562 U.S. at 102.

“Establishing that a state court’s application of Strickland was unreasonable under § 2254(d) is

all the more difficult” because “[t]he standards created by Strickland and § 2254(d) are both

highly deferential and when the two apply in tandem, review is doubly so.” Id. at 105 (internal

citations and quotation marks omitted). When § 2254(d) applies, “the question is not whether

counsel’s actions were reasonable”; instead, “[t]he question is whether there is any reasonable

argument that counsel satisfied Strickland’s deferential standard.” Id.

                                                A.

        Petitioner first contends that the Michigan Court of Appeals unreasonably applied clearly

established federal law by denying relief on his claim that his conviction was obtained through

Cook’s alleged perjury. Petitioner claims that leading up to trial, there was no indication that

Cook had taken C.C. to a doctor. Both sides mentioned during their opening statements that the

jury would not hear from a doctor or see any medical evidence. During the defense’s cross-

examination of Cook, however, she said that she had taken C.C. to the family doctor following

the alleged abuse, but that the doctor did not perform a physical examination because digital

penetration would not have left any evidence. Defense counsel did not press Cook on the issue

or investigate the truthfulness of this testimony. In her closing argument, the prosecutor made

several references to the alleged doctor visit, essentially bolstering Cook’s testimony by

observing that she made the correct choice in taking C.C. to a doctor but that the visit did not

produce any tangible evidence for purposes of this case.



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        Petitioner argues that the subsequent affidavit from the family doctor, which reveals that

Cook never talked with him about any sexual abuse of C.C., proves that Cook perjured herself

and thus the prosecution’s references to the doctor visit resulted in a conviction based on

perjured testimony in violation of his constitutional rights. The Michigan Court of Appeals

rejected this argument, holding that “there is no reason to believe that informing the jury about

the perjury would make a different result more probable.” Dekeyzer, 2009 WL 2477617 at *4.

        The Supreme Court “has consistently held that a conviction obtained by the knowing use

of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable

likelihood that the false testimony could have affected the judgment of the jury.” United States

v. Agurs, 427 U.S. 97, 103 (1976) (footnote omitted). Similarly, “a conviction obtained through

use of false evidence, known to be such by representatives of the State, must fall under the

Fourteenth Amendment.” Napue v. Illinois, 360 U.S. 264, 269 (1959). “The same result obtains

when the State, although not soliciting false evidence, allows it to go uncorrected when it

appears.” Id. Distilling these precedents, we have allowed a habeas petitioner to prevail on a

perjured-testimony claim if he shows: “(1) that the prosecution presented false testimony (2) that

the prosecution knew was false, and (3) that was material.” Akrawi v. Booker, 572 F.3d 252, 265

(6th Cir. 2009) (internal quotation marks omitted). The district court held that Petitioner’s

argument failed all three prongs of the Akrawi test.

        Our review of this claim is significantly constrained by AEDPA. We must simply

determine whether, by finding that Cook’s testimony would not have affected the judgment of

the jury, the Michigan Court of Appeals unreasonably applied Agurs and Napue. We cannot say

that it did. Although Petitioner attempts to frame the trial as a credibility contest between

himself and Cook, thus increasing the significance of Cook’s testimony, it is at least reasonable,



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if not likely, that the jury instead saw it as a credibility contest between Petitioner and C.C. If

that were the case, even if the jury had known that C.C.’s mother lied on the stand, it could have

convicted Petitioner solely on C.C.’s testimony. In fact, the prosecution contended in its closing

argument that C.C.’s testimony was all it needed for a conviction. The Michigan Court of

Appeals, therefore, did not unreasonably determine that, despite Cook’s lie, the jury convicted

Petitioner simply because it believed the nine-year-old child who detailed various sexual acts her

grandfather had perpetrated on her and that there was not a reasonable likelihood that the jury

premised its conviction on Cook’s lie.

                                                B.

        Petitioner next contends that the Michigan Court of Appeals unreasonably applied

Strickland, when it determined that he had the effective assistance of counsel despite his trial

counsel’s failure to object to or investigate the alleged perjury. See Dekeyzer, 2009 WL 2477617

at *4. In Strickland, the Supreme Court outlined the two-prong test for a claim of ineffective

assistance of counsel:

        A convicted defendant’s claim that counsel’s assistance was so defective as to
        require reversal of a conviction or death sentence has two components. First, the
        defendant must show that counsel’s performance was deficient. This requires
        showing that counsel made errors so serious that counsel was not functioning as
        the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the
        defendant must show that the deficient performance prejudiced the defense. This
        requires showing that counsel’s errors were so serious as to deprive the defendant
        of a fair trial, a trial whose result is reliable. Unless a defendant makes both
        showings, it cannot be said that the conviction or death sentence resulted from a
        breakdown in the adversary process that renders the result unreliable.

466 U.S. at 687.     Although the district court held that the Michigan Court of Appeals’s

determination was not unreasonable under either the deficient performance or prejudice prong,

“a court need not determine whether counsel’s performance was deficient before examining the

prejudice suffered by the defendant as a result of the alleged deficiencies.” Id. at 697. “If it is

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easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that

course should be followed.” Id.

        To prove prejudice, “[t]he 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.”

Id. at 694. As we have already explained, the Michigan Court of Appeals was not unreasonable

in determining that Petitioner could not show that the result of the proceeding would have been

any different even absent the alleged perjury, because the jury could have seen the trial as a

credibility contest between Petitioner and C.C., not Petitioner and Cook. And although AEDPA

accords our review of the prejudice prong of a perjury claim only one layer of deference, it

accords two such layers to our review of an ineffective-assistance-of-counsel claim. This doubly

deferential standard of review requires that we determine only whether there is any reasonable

argument that Strickland’s deferential standard was satisfied. Harrington, 562 U.S. at 105.

Clearly there is.

                                                 III.

        For the foregoing reasons, we AFFIRM the judgment of the district court.




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