Mark McQueen v. O'Bell Winn
19-2212
| 6th Cir. | Jul 21, 2021Background
- Mark McQueen was convicted in Michigan state court of first-degree criminal sexual conduct against his 11-year-old daughter and sentenced to 25–40 years (fourth felony sentence enhancement).
- Key evidence: the victim’s in-court testimony; corroborating testimony from the victim’s mother, a pediatric nurse (who noted vaginal trauma), a detective, and a forensic interviewer (Margo Moltmaker) who testified that the child appeared truthful.
- Moltmaker’s forensic interview was not videotaped; the interviewer’s team member took verbatim notes. The prosecution presented Moltmaker as an expert; defense cross-examined her about protocol adherence and inconsistencies in the child’s accounts.
- Trial counsel was granted $1,500 to retain defense expert Dr. Katherine Okla but did not call or meaningfully consult her; counsel presented cross-examination and called Tawanna Patterson as an alibi witness but did not call McQueen’s cousin Archie (another alleged alibi).
- Post-conviction: Michigan courts denied relief (citing MCR 6.508(D)(3) in an order later deemed ambiguous); McQueen filed habeas corpus in federal court raising ineffective-assistance claims. Sixth Circuit granted COA on three claims: (1) failure to consult/call Dr. Okla, (2) failure to call Archie as alibi, (3) ineffective appellate counsel for not raising those claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Trial counsel ineffective for not consulting/calling Dr. Katherine Okla | Dr. Okla would have rebutted Moltmaker’s methods and undermined the forensic interview, creating reasonable doubt | Counsel reasonably relied on extensive cross-examination and the lack of a videotaped interview limited what an expert could add | No deficient performance or prejudice; counsel’s cross-examination covered the same points and other corroborating witnesses and the victim’s testimony made reversal unlikely |
| Trial counsel ineffective for not calling cousin Archie as alibi witness | Archie would have testified McQueen was at a late-night party, contradicting the victim’s timeline | Counsel reasonably declined because Patterson’s alibi (that McQueen was home with her) already favored defense and Archie’s testimony could have contradicted Patterson or been unhelpful | No deficient performance or prejudice; calling Archie might have contradicted other defense testimony and likely would not have helped the defense |
| Appellate counsel ineffective for failing to raise the two trial-counsel claims on direct appeal | Appellate counsel’s omission caused procedural default of trial-counsel claims and was objectively unreasonable | Appellate counsel reasonably winnowed claims; the omitted claims lacked merit so omission was not ineffective | Appellate-counsel claim fails on the merits; because trial claims lack merit, the procedural default is not excused and habeas relief is barred |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes the two-prong standard for ineffective assistance of counsel)
- Harrington v. Richter, 562 U.S. 86 (deference to counsel’s strategic choices; difficulty of proving ineffective assistance)
- Ylst v. Nunnemaker, 501 U.S. 797 (look-through presumption for unexplained state-court orders)
- Wilson v. Sellers, 138 S. Ct. 1188 (clarifies application of Ylst look-through when later unexplained orders exist)
- Jones v. Barnes, 463 U.S. 745 (appellate counsel may winnow issues; not ineffective for omitting weaker claims)
- Cullen v. Pinholster, 563 U.S. 170 (federal habeas review limited to state-court record when no evidentiary hearing granted)