NOT RECOMMENDED FOR PUBLICATION File Name: 20a0445n.06
Case No. 19-1736
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Jul 31, 2020 RANDALL SCOTT OVERTON, ) DEBORAH S. HUNT, Clerk ) Petitioner-Appellant, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE EASTERN DISTRICT OF MATT MACAULEY, Warden, ) MICHIGAN ) Respondent-Appellee. ) OPINION ) )
BEFORE: DONALD, THAPAR, and NALBANDIAN, Circuit Judges.
NALBANDIAN, Circuit Judge. States have broad authority to craft, enact, and interpret
their criminal statutes. Although the federal judiciary often acts as a backstop, federalism cautions
us against wielding the federal constitution to meddle in state affairs. That said, the Fourteenth
Amendment’s Due Process Clause requires us to invalidate state court interpretations of criminal
statutes so unexpected and indefensible as to penalize behavior previously considered innocent.
See Bouie v. City of Columbia, 378 U.S. 347, 354 (1964). But this does not mean that every close
state-level criminal case warrants federal intervention. Instead, this Court recognizes fair-notice
due process violations only when the defendant could not have known that the state criminal statute
encompassed his conduct. Liberally permitting fair-notice due process claims to vacate state court
decisions would upset the foundational principal that federal judges exercise “neither Force nor No. 19-1736 Overton v. MaCauley
Will, but merely judgment.” THE FEDERALIST NO. 78, at 523 (Alexander Hamilton) (J. Cooke ed.,
1961).
Overton tells us that his conduct could not have fallen under Michigan’s statutory definition
of sexual penetration. Because that statute requires an insertion into “the genital or anal openings
of another person’s body,” Mich. Comp. Laws Ann. § 750.520a(r) (emphasis added), he argues
that coercing or instructing a minor to self-penetrate does not amount to sexual penetration. But
even if that interpretation is plausible, Overton needs to meet a higher standard for his fair-notice
claim: He must show that the Michigan judiciary rendered an indefensible holding when it found
that coerced self-penetration satisfied the statutory definition of sexual penetration. And Overton
must also prove that he lacked notice that the Michigan court could render such a ruling. Because
other courts have understood near-identical statutes to cover coerced or directed self-penetration,
Overton cannot show an error significant enough to warrant habeas relief. We AFFIRM.
I.
Randall Overton lived with his girlfriend, Chrystal Pope, and her minor daughter, D.P. In
2010, D.P.’s biological father informed law enforcement officers that he believed Overton and
Pope had sexually abused his daughter. D.P. testified that Overton and Pope had forced her to
undergo “virginity checks” when she was eleven years old. (R. 5-10, Trial Tr., Page ID # 717–
721, 728.) These incidents involved D.P. fully undressing and displaying her genitals to Overton
and Pope. Neither Overton nor Pope touched D.P.’s genitals, yet they instructed her to use her
fingers to permit a visual inspection of her vagina. One incident involved D.P. inserting her finger
into her vagina to show Overton “where a tampon goes.” (Id. at 742.)
At trial in Michigan state court, a jury found Overton guilty of first-degree criminal sexual
conduct. The controlling statute states: “A person is guilty of criminal sexual conduct in the first
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degree if he or she engages in sexual penetration with another person and if any of the following
circumstances exists: (a) That other person is under 13 years of age . . . .” Mich. Comp. Laws Ann.
§ 750.520b. And Michigan law defines sexual penetration as: “[S]exual intercourse, cunnilingus,
fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person's body or
of any object into the genital or anal openings of another person's body[.]” Mich. Comp. Laws
Ann. § 750.520a(r). The jury also convicted Overton of second-degree criminal sexual conduct
and three counts of gross indecency, which he does not challenge now. The trial court sentenced
him to twenty-five to forty years for the first-degree criminal sexual conduct conviction, twenty-
nine months to fifteen years for the second-degree criminal sexual conduct conviction, and
seventeen months to five years for the three counts of gross indecency, all running concurrently.
Overton appealed his conviction, arguing that the jury had insufficient evidence to convict
him of first-degree criminal sexual conduct. He reasoned that he couldn’t have violated the sexual
penetration statute because neither his body nor an object under his control entered the body of
another. But the Michigan appellate court disagreed. It found that Overton “engaged in the
intrusion of a human body part—a finger—into the genital opening of another person’s body[,]”
which violated the governing statute. (R. 1-4, Op. & Order, Page ID # 134.) So Overton filed an
appeal with the Michigan Supreme Court, which heard oral argument and called for supplemental
briefing on the sufficiency of the evidence claim. People v. Overton, 846 N.W.2d 929 (Mich. 2012)
(order). Although the Michigan Supreme Court denied Overton’s appeal application, Justices
Cavanagh and McCormack dissented from that decision. They believed Overton did not penetrate
the body of another, which the statute required, because only D.P. performed the penetrative act.
In August 2015, Overton filed a post-conviction motion for relief in the Wayne County
Circuit Court. There, he argued: (1) that he lacked fair notice that his conduct constituted sexual
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penetration under Michigan law, (2) that the jury instructions about the statute were erroneous and
thus violated his right to due process, and (3) that he received ineffective assistance of counsel
from both his trial and appellate lawyers. The court found against Overton on all issues. Then the
Michigan Court of Appeals denied Overton’s motion for leave to appeal. And the Michigan
Supreme Court also denied Overton’s motion for relief.
After failing to secure post-conviction relief in state court, Overton petitioned for a writ of
habeas corpus in the Eastern District of Michigan. In his habeas petition, Overton argued, among
many claims, that he received insufficient notice that his conduct violated Michigan’s first-degree
criminal sexual conduct statute and that he suffered ineffective assistance of counsel in his state
court proceedings. The district court rejected Overton’s claims. This timely appeal followed.
II.
We review a federal court’s denial of a state prisoner’s habeas corpus petition under “a
mixed standard of review,” examining “legal conclusions de novo” and “factual findings under a
‘clearly erroneous’ standard.” Kelly v. Lazaroff, 846 F.3d 819, 827 (6th Cir. 2017) (quoting Caver
v. Straub, 349 F.3d 340, 345 (6th Cir. 2003)). When “the facts are uncontested,” as they are here,
the district court’s habeas ruling is “entirely subject to de novo review.” Id. For petitions filed after
the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), this
Circuit:
[M]ay grant relief on claims “adjudicated on the merits in State court proceedings” only if the challenged 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,” or “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented” to the relevant state court[.]
O’Neal v. Bagley, 743 F.3d 1010, 1014–15 (6th Cir. 2013) (citation omitted) (quoting 28 U.S.C.
§ 2254(d)).
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Failure to show a violation of clearly established federal law is fatal to a post-AEDPA
challenge. Metrish v. Lancaster, 569 U.S. 351, 358 (2013). In short, “[t]o obtain habeas corpus
relief from a federal court, a state prisoner must show that the challenged state-court ruling rested
on ‘an error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.’” Id. (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)). This
standard also applies when the state court issues a procedural bar to relief accompanied by an
alternative merits ruling. Brooks v. Bagley, 513 F.3d 618, 624–25 (6th Cir. 2008).1 On habeas
review, we are “limited to the record that was before the state court that adjudicated the claim on
the merits” and cannot consider “evidence presented to the federal habeas court[.]” Cullen v.
Pinholster, 563 U.S. 170, 180–81 (2011).
III.
A petitioner typically procedurally defaults claims not raised on direct appeal. “[A] federal
court usually may not review a state prisoner’s habeas claim if (1) the prisoner broke a state
procedural rule, (2) the state court enforced the rule, and (3) the procedural forfeiture was an
adequate and independent ground for denying relief.” Benton v. Brewer, 942 F.3d 305, 307 (6th
Cir. 2019). Overton concedes that all three of those criteria are met. Yet procedural default does
1 Although procedural default applies here for reasons discussed below, we also apply AEDPA deference. The Michigan courts did not adjudicate the merits of Overton’s fair-notice claim on direct appeal because Overton didn’t present that claim to them. But a state court did adjudicate the merits of his claim on habeas review, finding that Overton “had sufficient notice that his conduct was unlawful.” (R. 5-23, Op., Page ID # 1687.) Rejecting Overton’s fair-notice claim constituted a merits decision, even though the state court also found his case procedurally barred. See Gumm v. Mitchell, 775 F.3d 345, 362 (6th Cir. 2014) (“[W]here a state court decides a petitioner’s claim on alternative grounds, one on the merits and the other on a procedural bar ruling, a federal habeas court may still review that court's merits analysis and apply AEDPA deference to that adjudication.”). 5 No. 19-1736 Overton v. MaCauley
not always end a case: A habeas petition can proceed despite containing defaulted claims if the
petitioner shows “cause for the default and actual prejudice from the claimed error.” Id.
Overton argues that his state trial and appellate counsel rendered ineffective assistance,
which would excuse his default. It’s true that a “way to show cause for a default is to show that
appellate counsel’s failure to raise the issue was ineffective assistance in its own right.” Id. That
means Overton can escape default by showing ineffective assistance under the familiar test
announced in Strickland v. Washington, 466 U.S. 668, 687 (1984). That test has two elements:
(1) deficient performance by counsel, and (2) prejudice stemming from the deficient performance.
Id. Deficient performance requires “errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. And prejudice means that
counsel committed “errors . . . so serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.” Id. Restated, a successful ineffective assistance claim must show: (1) that
counsel’s conduct “fell below an objective standard of reasonableness[,]” and (2) “that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Williams v. Taylor, 529 U.S. 362, 390–91 (2000). Yet making a
Strickland claim on collateral review is no easy task. “An ineffective-assistance claim can function
as a way to escape rules of waiver and forfeiture and raise issues not presented at trial, and so
the Strickland standard must be applied with scrupulous care[.]” Harrington, 562 U.S. at 105. In
brief, “[s]urmounting Strickland’s high bar is never an easy task.” Id. (quoting Padilla v. Kentucky,
559 U.S. 356, 371 (2010)).
To begin, the government faults Overton for not discussing procedural default in his
opening brief. While that observation is true, it’s not fatal. Procedural default is an affirmative
defense that the government must raise. Whiting v. Burt, 395 F.3d 602, 610 (6th Cir. 2005). And
6 No. 19-1736 Overton v. MaCauley
appellants need not anticipate affirmative defenses in their opening briefs to avoid forfeiture. It’s
true that appellate briefing “devoid of any affirmative substantive argument maintaining that [the
appellant’s] . . . claim is not procedurally defaulted” can forfeit a response to the government’s
assertion of procedural default. Ivy v. Mills, 500 F. App’x 475, 478 (6th Cir. 2012). But that’s not
the case here. Overton’s reply brief discusses both cause and prejudice, the two elements required
for avoiding default. So Overton didn’t forfeit his argument against procedural default.
Overton faults his trial and appellate state court counsel for failing to raise a fair-warning
due process claim. He now believes that fair-notice was his strongest argument, yet it neither arose
at trial nor on appeal in state court. Instead, Overton’s counsel argued that the jury lacked sufficient
evidence to convict Overton of first-degree criminal sexual conduct. The government counters by
arguing that Overton’s counsel made a strategic decision to not discuss fair-notice in order to
pursue better claims. Although it’s true that omitting claims as trial strategy is not ineffective
assistance, see Miller v. Francis, 269 F.3d 609, 616 (6th Cir. 2001), the government offers no
direct evidence that Overton’s counsel omitted fair-notice arguments for strategic purposes.
Instead, it identifies weaknesses in Overton’s fair-notice claim that purportedly explain why
omitting the claim was an easy choice. In essence, the parties’ procedural default arguments
dispute whether Overton’s fair-notice claim had merit: Overton believes that his counsel erred by
omitting a winning claim while the government contends that Overton’s counsel rightly jettisoned
the fair-notice issue as unhelpful. Rephrased, the parties suggest that this issue turns on whether
failure to raise a fair-notice claim prejudiced Overton.
Although procedural default often appears as a preliminary question, we may decide the
merits first. Hudson v. Jones, 351 F.3d 212, 215 (6th Cir. 2003) (citing Lambrix v. Singletary,
520 U.S. 518, 525 (1997) (“The U.S. Supreme Court has held that federal courts are not required
7 No. 19-1736 Overton v. MaCauley
to address a procedural-default issue before deciding against the petitioner on the merits.”)). This
procedural default question turns on whether Overton had a colorable fair-notice claim, so we opt
to decide this case on the merits. Because we find Overton’s fair-notice claim unavailing, as
discussed below, we need not perform a separate procedural default analysis.
IV.
Habeas petitioners must show that the state proceedings either (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.” 28 U.S.C. § 2254(d). A state court decision runs contrary to federal law if it
“contradicts the governing law set forth in [Supreme Court] cases” or if it “confronts a set of facts
that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless
arrives at a result different from [its] precedent.” Williams, 529 U.S. at 405–06. And a state court
performs an unreasonable application of facts if it “identifies the correct governing principle from
[the Supreme Court’s] decisions but unreasonably applies that principle to the facts of the
prisoner’s case.” Id. at 413. “In order for a federal court to find a state court’s application of
[Supreme Court] precedent ‘unreasonable,’ the state court’s decision must have been more than
incorrect or erroneous,” but rather “must have been ‘objectively unreasonable.’” Hill v. Curtin,
792 F.3d 670, 676 (6th Cir. 2015) (quoting Wiggins v. Smith, 539 U.S. 510, 520–21 (2003)). That
analysis demands giving “state courts due respect by overturning their decisions only when there
could be no reasonable dispute that they were wrong.” Id. (quoting Woods v. Donald, 575 U.S.
312, 315 (2015) (per curiam)). So Overton must show that the Michigan state court deviated from
8 No. 19-1736 Overton v. MaCauley
settled federal law or performed an unreasonable factual application; otherwise his habeas petition
fails.
Supreme Court precedent establishes criminal defendants’ right to fair notice that their
conduct was prohibited by a criminal statute. This line of cases tells us that, under the Due Process
Clause, both inscrutably vague statutory language and “unforeseeable and retroactive judicial
expansion of narrow and precise statutory language” violate the due process “right of fair
warning.” Bouie, 378 U.S. at 352. By engaging in “unforeseeable judicial enlargement of a
criminal statute,” courts punish conduct that was perfectly legal until the case’s conclusion. Id. at
353. Such a holding works “precisely like an ex post facto law, such as Art. I, [§] 10, of the
Constitution forbids.” Id. So the Due Process Clause requires vacating state court judgments that
turn on an “unexpected and indefensible” construction of a criminal statute. Id. at 354 (quoting
HALL, GENERAL PRINCIPLES OF CRIMINAL LAW 61 (2d ed. 1960)); see also Rogers v. Tennessee,
532 U.S. 451, 461 (2001) (quoting Bouie, 378 U.S. at 354 (“Bouie restricted due process
limitations on the retroactive application of judicial interpretations of criminal statutes to those
that are ‘unexpected and indefensible by reference to the law which had been expressed prior to
the conduct in issue.’”)). In sum, “fair notice cases ‘involve [] judicial decisions that allegedly
retroactively converted an innocent act into a crime.’” Kelsey v. Pope, 809 F.3d 849, 866 (6th Cir.
2016) (quoting Webb v. Mitchell, 586 F.3d 383, 393 (6th Cir. 2009) (alteration in original)).
Overton argues that he lacked fair notice that Michigan’s first-degree sexual criminal
conduct statute encompassed forcing D.P. to undergo virginity checks and directing her to self-
penetrate. He alleges that coerced self-penetration “does not satisfy the element of sexual
penetration” required by Michigan’s first-degree criminal sexual conduct statute. (Appellant’s Br.
at 19.) Because D.P. penetrated herself, Overton claims that no penetration “of another person’s
9 No. 19-1736 Overton v. MaCauley
body” could have occurred, as required by Mich. Comp. Laws Ann. § 750.520a(r). This reasoning
echoes the dissenting Michigan Supreme Court Justices from Overton’s direct appeal, who both
read the statute’s text as excluding self-penetration. It’s true that fair-notice claims can invalidate
state court decisions “so clearly at variance with the statutory language [that they] ha[ve] not the
slightest support in prior [state court] decisions.” Bouie, 378 U.S. at 356. But even if Overton
offers a plausible, perhaps even the best, reading of the statute, our analysis focuses on whether
Overton had fair notice that Michigan courts could have found that his conduct violated the first-
degree criminal sexual conduct statute.
To his credit, Overton offers a handful of cases in which other jurisdictions have held that
statutory language referencing “another” requires two actors committing the conduct. See State v.
Bryant, 670 A.2d 776, 779 (R.I. 1996) (concluding that telling another person to penetrate herself
did not constitute sexual penetration under a statute nearly identical to Michigan’s); United States
v. Yonan, 622 F. Supp. 721, 723 (N.D. Ill. 1985) (reasoning that a solo practitioner could not be
employed by another person). But those cases only show that the state court could have possibly
ruled in Overton’s favor, and not that a failure to do so was unexpected and indefensible. And that
shortcoming is decisive.
Until Overton’s case, Michigan courts had never decided whether coerced self-penetration
fell under Michigan’s sexual penetration statute. But other jurisdictions have interpreted similarly
worded statutes to cover conduct nearly identical to Overton’s. For instance, the Ninth Circuit held
that a defendant who caused “his victim to penetrate herself” committed sexual penetration under
a Guam statute identical to Michigan’s. Guam v. Quidachay, 374 F.3d 820, 822 (9th Cir. 2004).
There, the victim’s “finger became an object operating at [the defendant’s] command. [The
defendant] successfully and criminally intruded with this object into a body which was not his. . .
10 No. 19-1736 Overton v. MaCauley
. He engaged in sexual penetration with the victim.” Id. Considering similarities between the
conduct and the statute here and those in Quidachay, it seems unlikely that Overton’s state criminal
conviction and unsuccessful appeal were so unexpected and heterodox as to offend the Due
Process Clause.
What’s more, other state courts have found that digital self-penetration at another’s behest
can amount to sexual penetration when the victim’s finger acts as the defendant’s “object.” See
Kirby v. State, 625 So. 2d 51, 55 (Fla. Dist. Ct. App. 1993) (finding conduct identical to Overton’s
to constitute sexual penetration); People v. Keeney, 29 Cal Rptr. 2d 451, 453 (Cal. Ct. App. 1994)
(same). In the end, Overton only needed to know that his conduct was punishable under the statute,
and not under the exact rationale the Michigan court would use. See Kelsey, 809 F.3d at 866
(underscoring the “emphasis on the retroactive criminalization of conduct in examining fair notice
challenges”). Both Kirby and Keeney, which held that forced self-penetration constituted sexual
penetration under similar statutes as Michigan’s, suggest that a state court could have found
Overton’s conduct criminalized by the Michigan statute.
This is not to say that this Court holds defendants responsible for knowing every holding
in every jurisdiction before asserting a fair-notice violation. See Rogers, 532 U.S. at 464 (“Due
process, of course, does not require a person to apprise himself of the common law of all 50 States
in order to guarantee that his actions will not subject him to punishment[.]”) After all, “[i]t would
be a rare situation in which the meaning of a statute of another State sufficed to afford a person
‘fair warning’ that his own State’s statute meant something quite different from what its words
said.” Bouie, 378 U.S. at 359–60.
But even if this is not one of those rare situations in which state court decisions can provide
notice, Kirby and Keeney still weigh against Overton on the AEDPA deference issue. Under
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AEDPA, Overton must show that a state court committed “an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington,
562 U.S. at 103. Given that multiple jurisdictions rejected Overton’s theory, or at least decided
against defendants in near-identical cases, it’s difficult to say that a Michigan court issued a ruling
against Overton that would have been thought impossible. So AEDPA deference bars Overton’s
claim, independent of whether Kirby and Keeney can show that Overton had notice that his conduct
could have been found criminal.
On top of that, surveying cases applying similar laws to similar facts reveals that the
Michigan Supreme Court employed reasoning within the jurisprudential mainstream. Without a
Michigan case placing self-penetration outside the sexual penetration statute’s ambit, Overton’s
allegedly upended expectations could have been informed only by interpretations from other
jurisdictions or by the statute’s language. If the former, then statutory interpretation performed in
other jurisdictions shows that any error committed by the Michigan courts was not so
unprecedented as to meet the AEDPA deference standard. If the latter, then Michigan gave Overton
no precedent on which to establish expectations about how it would resolve the self-penetration
question. See Metrish, 569 U.S. at 367–68 (expressing doubt that a fair-notice due process
violation arises when state supreme courts “squarely address[] a particular issue for the first time”).
All that remains is the text itself. And we believe the Michigan Court of Appeals delivered
a defensible explanation about how Overton’s role in the intrusion of a body part into the body of
another violated the statute. Overton caused D.P.’s penetration and D.P. was another person, so
we recognize the logic driving the decisions below. Again, at a minimum, Overton does not show
that his conviction rested on “an error well understood and comprehended in existing law beyond
any possibility for fairminded disagreement.” Id. at 358 (quoting Harrington, 562 U.S. at 103). To
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be clear, we do not opine on whether the statute compelled the Michigan Court of Appeals to
uphold Overton’s conviction nor do we endorse that court’s statutory interpretation as superior to
Overton’s. So we refrain from speculating about where to draw the line between criminal and
innocent conduct under Michigan’s statute. In the end, we side with the government only because
the state courts did not commit such an unprecedented or egregious statutory interpretation error
as to permit relief under AEDPA.
V.
For these reasons, we AFFIRM.