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Thomas v. Jackson

United States District Court, W.D. Michigan, Southern Division

June 16, 2017

SHANE JACKSON, named as Sherman Campbell, Respondent.



         This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. Promptly after the filing of a petition for habeas corpus, the Court must undertake a preliminary review of the petition to determine whether “it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing § 2254 Cases; see 28 U.S.C. § 2243. If so, the petition must be summarily dismissed. Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court has the duty to “screen out” petitions that lack merit on their face). A dismissal under Rule 4 includes those petitions which raise legally frivolous claims, as well as those containing factual allegations that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999). After undertaking the review required by Rule 4, the Court concludes that the petition must be dismissed because it fails to raise a meritorious federal claim.

         Factual Allegations

         Petitioner Kristofferson Tyrone Thomas presently is incarcerated at the Carson City Correctional Facility. Following a jury trial in the Ingham County Circuit Court, Petitioner was convicted of one count each of being a felon in possession of a firearm (felon in possession), Mich. Comp. Laws § 750.224f, assault with a dangerous weapon (felonious assault), Mich. Comp. Laws § 750.82, assault with intent to murder, Mich. Comp. Laws § 750.83, and possession of a firearm during the commission of a felony (felony firearm), Mich. Comp. Laws § 750.227b. On March 11, 2015, the trial court sentenced him, as fourth-offense felony offender, Mich. Comp. Laws § 769.12, to respective terms of imprisonment of 10 to 25 years, 10 to 15 years, 28 to 60 years, and 2 years.

         Petitioner appealed his convictions to the Michigan Court of Appeals. Appellate counsel raised two issues, and Petitioner filed a pro per supplemental brief that raised a third multipart claim:

I. Defendant was denied a fair trial because detective Brad St. Aubin expressed the opinion, with no basis in fact, that a cell phone associated with Chanel Long was in fact the defendant's cell phone, and to the extent that defendant's trial attorney did not object to detective St. Aubin's opinions, the defendant was denied his constitutional right to effective assistance of counsel.
II. The testimony of detective Lee McAllister and his maps were inadmissible under mre 702 and the defendant as a result was denied a fair trial and to the extend that defendant's trial attorney did not object to detective McAllister's testimony, the defendant was denied his constitutional right to effective assistance of counsel.
III. Trial counsel rendered ineffective assistance when (a) failed to properly investigate, and call Karen Allen to authenticate her e-mail/text message and question Olympia Mack regarding her receipt of Allen's e-mail/text message; (b) failing to impeach D. Wayne Hobbs with firearm conviction in relation to prior testimony; and (c) failing to investigate feed from city camera(s) near the 5700 of Richwood at the time of the shooting.

(Pet., ECF No. 1, PageID.7, 9, 11.) In an unpublished opinion issued on June 21, 2016, the court of appeals denied all appellate grounds and affirmed the convictions. Petitioner sought leave to appeal to the Michigan Supreme Court, raising the same three issues. In an order issued on November 30, 2016, the supreme court denied leave to appeal. Petitioner filed his habeas petition on May 22, 2017, raising the same three grounds presented to and rejected by the Michigan appellate courts.

         Standard of Review

         This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (AEDPA). See Penry v. Johnson, 532 U.S. 782, 792 (2001). The AEDPA “prevents federal habeas ‘retrials'” and ensures that state court convictions are given effect to the extent possible under the law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). The AEDPA has “drastically changed” the nature of habeas review. Bailey v. Mitchell, 271 F.3d 652, 655 (6th Cir. 2001). An application for writ of habeas corpus on behalf of a person who is incarcerated pursuant to a state conviction cannot be granted with respect to any claim that was adjudicated on the merits in state court unless the adjudication: “(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 upon an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” 28 U.S.C. § 2254(d). This standard is “intentionally difficult to meet.” Woods v. Donald, 575 U.S. __, 135 S.Ct. 1372');">135 S.Ct. 1372, 1376 (2015) (internal quotation marks omitted).

         The AEDPA limits the source of law to cases decided by the United States Supreme Court. 28 U.S.C. § 2254(d). This Court may consider only the “clearly established” holdings, and not the dicta, of the Supreme Court. Williams v. Taylor, 529 U.S. 362, 412 (2000); Bailey, 271 F.3d at 655. In determining whether federal law is clearly established, the Court may not consider the decisions of lower federal courts. Lopez v. Smith, 135 S.Ct. 1, 3 (2014); Bailey, 271 F.3d at 655. Moreover, “clearly established Federal law” does not include decisions of the Supreme Court announced after the last adjudication of the merits in state court. Greene v. Fisher, 132 S.Ct. 38 (2011). Thus, the inquiry is limited to an examination of the legal landscape as it would have appeared to the Michigan state courts in light of Supreme Court precedent at the time of the state-court adjudication on the merits. Miller v. Stovall, 742 F.3d 642, 644 (6th Cir. 2014) (citing Greene, 132 S.Ct. at 44).

         A federal habeas court may issue the writ under the “contrary to” clause if the state court applies a rule different from the governing law set forth in the Supreme Court's cases, or if it decides a case differently than the Supreme Court has done on a set of materially indistinguishable facts. Bell, 535 U.S. at 694 (citing Williams, 529 U.S. at 405-06). “To satisfy this high bar, a habeas petitioner is required to ‘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.'” Woods, 2015 WL 1400852, at *3 (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)). In other words, “[w]here the precise contours of the right remain unclear, state courts enjoy broad discretion in their adjudication of a prisoner's claims.” White v. Woodall, 572 U.S., 134 S.Ct. 1697, 1705 (2014) (quotations marks omitted).

         Where the state appellate court has issued a summary affirmance, it is strongly presumed to have been made on the merits, and a federal court cannot grant relief unless the state court's result is not in keeping with the strictures of the AEDPA. See Harrington, 562 U.S. at 99; see also Johnson v. Williams, 133 S.Ct. 1088, 1094 (2013); Werth v. Bell, 692 F.3d 486, 494 (6th Cir. 2012) (applying Harrington and holding that a summary denial of leave to appeal by a Michigan appellate court is considered a decision on the merits entitled to AEDPA deference). The presumption, however, is not irrebuttable. Johnson, 133 S.Ct. at 1096. Where other circumstances indicate that the state court has not addressed the merits of a claim, the court conducts de novo review. See Id. (recognizing that, among other things, if the state court only decided the issue based on a state standard different from the federal standard, the presumption arguably might be overcome); see also Harrington, 562 U.S. at 99-100 (noting that the presumption that the state-court's decision was on the merits “may be overcome when there is reason to think some other explanation for the state court's decision is more likely”); Wiggins v. Smith, 539 U.S. 510, 534 (2003) (reviewing habeas issue de novo where state courts had not reached the question).

         The AEDPA requires heightened respect for state factual findings. Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir. 1998). A determination of a factual issue made by a state court is presumed to be correct, and the petitioner has the burden of rebutting the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir. 2003); Bailey, 271 F.3d at 656. This presumption of correctness is accorded to findings of state appellate courts, as well as the trial court. See Sumner v. Mata, 449 U.S. 539, 546 (1981); Smith v. Jago, 888 F.2d 399, 407 n.4 (6th Cir. 1989). Applying the foregoing standards under the AEDPA, I find that Petitioner is not entitled to relief.


         I. Admission of Lay Opinion Testimony

         In his first ground for habeas relief, Petitioner alleges that he was denied a fair trial when Detective Brad St. Aubin was permitted to introduce lay opinion testimony when St. Aubin indicated his belief that the purpose of one of Petitioner's jailhouse telephone calls was to obtain an alibi. The Michigan Court of Appeals rejected his claim as follows:

Defendant first argues that he was denied his right to a fair trial based on the admission of impermissible lay witness testimony. We disagree. Defendant objected to detective Brad St. Aubin's testimony that St. Aubin believed the purpose of one of defendant's jailhouse phone calls was to obtain an alibi. Defendant's remaining claims of error, including his due process claim, were unpreserved because defendant failed to object at trial. People v. Metamora Water Serv, Inc, 276 Mich.App. 376, 382; 741 N.W.2d 61 (2007). “Preserved evidentiary rulings are reviewed for an abuse of discretion.” People v. Unger, 278 Mich.App. 210, 216; 749 N.W.2d 272 (2008). “Unpreserved claims of evidentiary error are reviewed for plain error affecting the defendant's substantial rights.” People v. Benton, 294 Mich.App. 191, 202; 817 N.W.2d 599 (2011). We also review unpreserved constitutional claims for plain error. People v. Thomas, 260 Mich.App. 450, 453-454; 678 N.W.2d 631 (2004).

         Lay opinion testimony, such as that at issue here, is permitted pursuant to MRE 701, which provides:

If a witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue.
Defendant first complains of St. Aubin's testimony regarding a phone call defendant made in jail, arguing that the testimony was not based on fact. During trial, St. Aubin testified that defendant told him that he was at a birthday party on the evening of the shooting, but he would not give St. Aubin the names of others at the birthday party or its location. Olympia Mack testified at trial that defendant was at her daughter's birthday party at the time of the offense, thereby providing an alibi for defendant. On rebuttal, St. Aubin testified regarding a phone call defendant made in jail where he spoke to a female, presumably his girlfriend Chanel Long. Defendant asked her to contact a person named “O, ” and “pull down on her.” St. Aubin explained that “pull down on her” “can mean pull somebody off to the side to leverage them alone by themselves, ” or “[i]t could be threaten somebody, ” or that “[i]t could be just reach out to that person.” St. Aubin thereafter testified that he believed “O” referred to Mack and that defendant was trying to obtain an alibi from Mack. Based on the record, we conclude that St. Aubin's testimony was rationally based on his perceptions and no error occurred. Additionally, St. Aubin made clear to the jury that he did not know for certain who “O” was and that his testimony was merely his opinion.

People v. Thomas, No. 326645, 2016 WL 3421403, at *1 (June 21, 2016).

         The extraordinary remedy of habeas corpus lies only for a violation of the Constitution. 28 U.S.C. § 2254(a). As the Supreme Court explained in Estelle v. McGuire, 502 U.S. 62 (1991), an inquiry whether evidence was properly admitted or improperly excluded under state law “is no part of the federal court's habeas review of a state conviction [for] it is not the province of a federal habeas court to re-examine state-court determinations on state-law questions.” Id. at 67-68. Rather, “[i]n conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Id. at 68. State-court evidentiary rulings cannot rise to the level of due process violations unless they offend “‘some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.'” Seymour v. Walker, 224 F.3d 542, 552 (quoting Montana v. Egelhoff, 518 U.S. 37, 43 (1996)) (other internal quotations omitted); accord Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003); Coleman v. Mitchell, 268 F.3d 417, 439 (6th Cir. 2001). This approach accords the state courts wide latitude in ruling on evidentiary matters. Seymour, 224 F.3d at 552 (6th Cir. 2000).

         Further, under the AEDPA, the court may not grant relief if it would have decided the evidentiary question differently. The court may only grant relief if Petitioner is able to show that the state court's evidentiary ruling was in conflict with a decision reached by the Supreme Court on a question of law or if the state court decided the evidentiary issue differently than the Supreme Court did on a set of materially indistinguishable facts. Sanders v. Freeman, 221 F.3d 846, 860 (6th Cir. 2000).

         Petitioner has not met this difficult standard. No Supreme Court decision either holds or suggests that the admission of lay opinion testimony violates due process. As a consequence, the admissibility of the evidence is purely one of state law, not cognizable on habeas review. Estelle, 502 U.S. at 67-68. The decision of the state courts on a state-law issue is binding on a federal court. See Wainwright v. Goode, 464 U.S. 78, 84 (1983); see also Stumpf v. Robinson, 722 F.3d 739, 746 n.6 (6th Cir. 2013) (holding that “‘a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus.'”) (quoting Bradshaw, 546 U.S. at 76).

         Moreover, to the extent that Petitioner argues that his attorney erred by not objecting to the testimony on due process grounds, his claim is wholly without merit. In Strickland v. Washington, 466 U.S. 668, 687-88 (1984), the Supreme Court established a two-prong test by which to evaluate claims of ineffective assistance of counsel. To establish a claim of ineffective assistance of counsel, the petitioner must prove: (1) that counsel's performance fell below an objective standard of reasonableness; and (2) that counsel's deficient performance prejudiced the defendant resulting in an unreliable or fundamentally unfair outcome. A court considering a claim of ineffective assistance must “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. at 689. The defendant bears the burden of overcoming the presumption that the challenged action might be considered sound trial strategy. Id. (citing Michel v. Louisiana, 350 U.S. 91, 101 (1955)); see also Nagi v. United States, 90 F.3d 130, 135 (6th Cir. 1996) (holding that counsel's strategic decisions were hard to attack). The court must determine whether, in light of the circumstances as they existed at the time of counsel's actions, “the identified acts or omissions were outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690. Even if a court determines that counsel's performance was outside that range, the defendant is not entitled to relief if counsel's error had no effect on the judgment. Id. at 691.

         Petitioner cannot meet the first prong of the Strickland standard. As discussed, Petitioner had no due process right to exclude lay opinion testimony. As a result, any motion would have been meritless. Counsel's failure to make a frivolous or meritless motion does not constitute ineffective assistance of counsel. See Smith v. Bradshaw, 591 F.3d 517, 523 (6th Cir. 2010); O'Hara v. Brigano, 499 F.3d 492, 506 (6th Cir. 2007); Che ...

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