United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITIONER'S
APPLICATION FOR A WRIT OF HABEAS CORPUS AND DECLINING TO
ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO APPEAL IN
BERNARD A. FRIEDMAN SENIOR UNITED STATES DISTRICT JUDGE
presently confined at the Gus Harrison Correctional Facility
in Adrian, Michigan, has filed an application for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. He
challenges his conviction for first-degree premeditated
murder, Mich. Comp. Laws § 750.316. For the reasons
stated below, the Court shall deny the application.
was convicted on September 10, 2009, following a jury trial
in Kent County Circuit Court. The Michigan Court of Appeals
summarized the facts as follows:
Debra Jean VanKlaveren, the victim, was found dead on January
5, 2009, in her apartment. Asphyxia by manual strangulation
was determined to be the cause of death. Billie Jo Lowry
talked to VanKlaveren about rent money on January 2, 2009,
outside VanKlaveren's apartment. VanKlaveren advised
Lowry that she did not have the rent money that day. Lowry
returned on Monday, January 5, 2009, but received no response
when she knocked on VanKlaveren's door. Lowry then got
permission from her supervisor and entered VanKlaveren's
locked apartment using her own keys. From across the
apartment, Lowry saw a person on the bed in the bedroom. Upon
realizing that the person on the bed was VanKlaveren, Lowry
left the apartment and contacted the police.
Thomas was staying with VanKlaveren in December 2008 and
early January 2009. VanKlaveren's neighbor, David Badger,
testified that he saw Thomas leave VanKlaveren's
apartment on Saturday night, January 3, 2009. Badger observed
Thomas lock VanKlaveren's apartment door and then drive
away in VanKlaveren's car.
On January 5, 2009, Thomas telephoned his brother for a ride.
When Thomas got in his brother's car, he was high on
crack cocaine and was speaking rapidly about numerous topics.
Thomas told his brother, “I might have choked
someone.” His brother was upset and brought Thomas to
their sister's home. Thomas then told his brother, his
sister, and his brother-in-law that he did choke someone,
that the person he choked still had a pulse, and that she was
on a bed. Thomas demonstrated to them how he choked his
victim, by placing both thumbs and fingers together with a
circle in the center.
After his arrest, Thomas also allegedly confessed to his
cellmate while incarcerated. Thomas told Christopher Eugene
Cummings that he was smoking crack cocaine with VanKlaveren.
She started pointing and telling him to look under the
furniture for some crack cocaine that may have dropped.
Cummings testified that Thomas said he then pushed
VanKlaveren's hand away, punched her in the face, and
choked her. Cummings testified that Thomas said
“Deb” was the person he choked. Thomas said he
left the apartment after he choked her, but that he later
came back to take money from VanKlaveren and to take her dog
so that no one would hear it barking. Thomas said that he
moved VanKlaveren to the bed so it would look like she was
People v. Thomas, No. 294789, 2011 WL 192384, at *1
(Mich. Ct. App. Jan. 20, 2011).
conviction was affirmed on appeal. Id.; lv. den. 490
Mich. 878, 803 N.W.2d 690 (2011). On September 27, 2012,
petitioner filed a post-conviction motion for relief from
judgment pursuant to M.C.R. 6.500, et seq., which was denied
by the trial court. People v. Thomas, No.
09-02487-FC (Kent Cty. Cir. Ct., Oct. 9, 2012). The Michigan
appellate courts denied petitioner leave to appeal.
People v. Thomas, No. 313330 (Mich. Ct. App.);
lv. den. 495 Mich. 949, 843 N.W.2d 524 (2014). On
May 19, 2014, petitioner filed the instant application for a
writ of habeas corpus seeking relief on the following
1. Whether the Court of Appeals should have decided that the
Appellant's conviction of first-degree premeditated
murder is erroneous and should be set aside because: A. The
proofs presented at trial are insufficient to establish that
the Appellant caused the decedent's death; and/or B. the
trial court erroneously denied the defendant's motion for
directed verdict regarding premeditation?
2. The Court of Appeals should have decided that the
Appellant's right to present a defense under the Michigan
and Federal Constitutions was denied by the trial court's
3. The Court of Appeals should have decided that the totality
of the trial court proceedings denied the Appellant his
rights under the Michigan and Federal Constitutions to a fair
4. The Court of Appeals should have decided that the
Appellant's federal and state constitutional rights to
effective assistance of counsel were violated in this case.
5. Trial counsel rendered incompetent advice during the plea
bargaining process, which denied Mr. Kenneth Ray Thomas the
effective assistance of counsel.
6. Whether Mr. Thomas is entitled to avail himself of a plea
offer to a reduced charge that included a sentence agreement
of 25 years, which he turned down based on legally erroneous
advice from his trial counsel, in violation of the recent
United States Supreme Court case Lafler v Cooper,
566 U.S.; 132 S.Ct. 1376; 182 L.Ed.2d 398 (2012).
Standard of Review
following standard applies in federal habeas cases:
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;
(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 proceedings.
28 U.S.C. § 2254(d). “A state court's decision
is ‘contrary to' . . . clearly established law if
it ‘applies a rule that 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 [that]
precedent.'” Mitchell v. Esparza, 540 U.S.
12, 15-16 (2003) (quoting Williams v. Taylor, 529
U.S. 362, 405-06 (2000)); see also Bell v. Cone, 535
U.S. 685, 694 (2002). “[T]he ‘unreasonable
application' prong of § 2254(d)(1) permits a federal
habeas court to ‘grant the writ if the state court
identifies the correct governing legal principle from [the
Supreme] Court but unreasonably applies that principle to the
facts of petitioner's case.” Wiggins v.
Smith, 539 U.S. 510, 520 (2003) (quoting
Williams, 529 U.S. at 413); see also Bell,
535 U.S. at 694. However, “[i]n order for a federal
court find a state court's application of [Supreme Court]
precedent ‘unreasonable, ' the state court's
decision must have been more than incorrect or erroneous. The
state court's application must have been
Wiggins, 539 U.S. at 520-21; see also
Williams, 529 U.S. at 409. “AEDPA thus imposes a
‘highly deferential standard for evaluating state-court
rulings, ' and ‘demands that state-court decisions
be given the benefit of the doubt.'” Renico v.
Lett, 559 U.S. 766, 773 (2010) (quoting Lindh,
521 U.S. at 333 n.7).
United States Supreme Court has held that “a state
court's determination that a claim lacks merit precludes
federal habeas relief so long as ‘fairminded jurists
could disagree' on the correctness of the state
court's decision.” Harrington v. Richter,
131 S.Ct. 770, 786 (2011). The Court emphasized “that
even a strong case for relief does not mean the state
court's contrary conclusion was unreasonable.”
Id. Pursuant to § 2254(d), “a habeas
court must determine what arguments or theories supported or
. . . could have supported, the state court's decision;
and then it must ask whether it is possible fairminded
jurists could disagree that those arguments or theories are
inconsistent with the holding in a prior decision” of
the Supreme Court. Id. Thus, in order to obtain
federal habeas relief, a state prisoner ...