The opinion of the court was delivered by: Honorable Arthur J. Tarnow United States District Judge
OPINION AND ORDER THE DENYING PETITION FOR WRIT OF HABEAS CORPUS AND GRANTING A CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA PAUPERIS
Hans Thomas, ("petitioner"), confined at the St. Louis Correctional Facility in St. Louis, Michigan, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he challenges his conviction for first-degree felony murder, M.C.L.A. 750.316b; armed robbery, M.C.L.A. 750.529; first-degree home invasion, M.C.L.A. 750.110a(2); felon in possession of a firearm, M.C.L.A. 750.224f; and felony firearm, M.C.L.A. 750.227b. For the reasons stated below, the petition for writ of habeas corpus is DENIED. The Court will issue petitioner a certificate of appealability and an application to proceed on appeal in forma pauperis.
Petitioner was convicted of the above offenses following a jury trial in the Wayne County Circuit Court, in which he was tried jointly with co-defendants Timothy Shepard and Lamar Roberts. This Court recites verbatim the relevant facts relied upon by the Michigan Court of Appeals, which are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):
This case arises out of the murder of Sherryfield Abercrombie and an armed robbery at the Southport Apartments in Van Buren Township. In the early morning of November 5, 2002, Van Buren police officers were called to an apartment in Southport that was occupied by Pauline Jackson. Jackson reported that three men entered her apartment, one man who wore a mask pointed a gun at her, the men locked her and her brother in a bathroom, and stole some money. Jackson also told the officers that she was unable to reach her boyfriend, Abercrombie, by telephone. When the police left Jackson's apartment, one officer spotted Abercrombie's van elsewhere in the complex. The officers found Abercrombie inside and a pathologist testified that Abercrombie died from two bullet wounds to the head, fired at close range.
The trial court conducted a jury trial in March 2003, but the proceedings ended in a mistrial because the jury could not reach a unanimous verdict. At defendants' retrial in September 2003, evidence revealed that Abercrombie was a drug dealer and that he exchanged several telephone calls with Roberts and Thomas just before his murder. Jackson also admitted at trial that, in addition to cash, the three men who entered her apartment stole some of Abercrombie's inventory of marijuana and cocaine.
At trial, Jackson recalled that one of the robbers wore a gorilla or monkey mask and that another man held a yellow baby blanket over his face. According to Jackson, the third man wore a caramel hooded sweatshirt that was tightly tied. She testified that, though she could not see each robber's face in its entirety, the gunman who wore the mask was the same height and build as Thomas and that they have similar skin color and hair. She also testified that the two other robbers resembled Shepard and Roberts. Jackson remembered that, in addition to the drugs and money that the robbers stole, the men took some new shoes, including a pair of gray and white Air Jordan tennis shoes.
One of the prosecutor's key witnesses in the case was Jerry Bigham, who testified that he saw Roberts both before and after the robbery and murder. According to Bigham, on November 4, 2002, he and Roberts spent the day together at Bigham's apartment, playing dominoes and smoking marijuana. At some point, Shepard arrived at Bigham's apartment and Roberts left with him. On the morning of November 5, 2002, Roberts called Bigham and asked him to meet him at a Motel 6 to smoke marijuana. According to Bigham, when he arrived, Roberts was wearing a towel and a pair of pants. Roberts asked Bigham to drive him to his brother's house so he could get a pair of underwear. Roberts explained that his clothes had blood on them because he, Shepard, and Thomas committed a robbery the night before, during which a victim was injured. According to Bigham, Roberts expressed fear that Shepard would kill him because he knew that Shepard injured someone during the robbery. Bigham also recalled that Roberts said someone wore a mask during the robbery.
Bigham testified that, at first, Roberts told him that they committed the robbery in Southfield and that the victim was stabbed. However, Bigham and Roberts watched a local newscast that reported a robbery and murder of Abercrombie at the Southport Apartments and Roberts appeared to be worried. Bigham admitted that Roberts denied any involvement in the crime, but he also testified that Roberts gave him a new pair of gray Air Jordan tennis shoes, which Pauline Jackson later testified were stolen from her apartment during the home invasion. Furthermore, cellular phone records showed that, around the time of Abercrombie's murder, Roberts, Thomas and Abercrombie made numerous calls to one another.
Roberts testified on his own behalf after the jury deliberated the charges against Shepard and Thomas. Roberts admitted that he participated in the robbery and murder and he again implicated Shepard and Thomas in the crimes. However, he maintained that Shepard and Thomas forced him to take part in the crimes at gunpoint.
People v. Thomas, No. 257557, * 2-3 (Mich.Ct.App. November 1, 2005). Petitioner's conviction was affirmed on appeal.*fn1 Id., lv. den. 480 Mich. 928, 740 N.W.2d 297 (2007). Additional facts will be discussed when addressing petitioner's claims. Petitioner seeks a writ of habeas corpus on the following grounds:
I. Petitioner was denied his state and federal constitutional rights to confrontation and a fair trial where co-defendant Lamar Roberts' collateral hearsay statement was admitted as substantive evidence against him without an adequate indicia of reliability or firmly grounded in a hearsay exception.
II. The trial court's failure to grant a mistrial after a prosecution witness testified about other bad acts committed by all three defendants in the joint trial denied petitioner a fair trial.
III. Petitioner was denied his constitutional right to confrontation and fair and impartial jury trial where the court severed co-defendant Lamar Roberts' case at the end of the People's case because the defenses were antagonistic. Trial counsel's failure to object or request a mistrial based on this erroneous severance constitutes ineffective assistance of counsel.
IV. There was insufficient evidence as a matter of law to establish Petitioner's convictions for felony murder as a principal or aider and abettor as required by the due process clause.
V. There was insufficient evidence as a matter of law to establish Petitioner's conviction for armed robbery and home invasion as either a principal or as an aider and abettor as required by the due process clauses in the federal and state constitutions.
VI. The trial court denied petitioner of a fair trial where she refused to give a requested lesser included instruction on murder in the second degree to the felony murder charge.
VII. The trial court abused its discretion by denying petitioner's motion for new trial where the verdict was against the great weight of the evidence and resulted in a miscarriage of justice.
VIII. The cumulative effect of the foregoing errors denied petitioner of a fair trial in violation of due process of law and requires reversal.
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings 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.
A decision of a state court 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 decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An "unreasonable application" occurs when "a state court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case." Id. at 409. A federal habeas court may not "issue the writ simply because that court ...