United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITIONER'S
APPLICATION FOR A WRIT OF HABEAS CORPUS, DECLINING TO ISSUE A
CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO PROCEED ON
APPEAL IN FORMA PAUPERIS
BERNARD A. FRIEDMAN SENIOR UNITED STATES DISTRICT JUDGE.
a Michigan prisoner, has filed an application in this matter
for a writ of habeas corpus pursuant to 28 U.S.C. §
2254. He challenges his convictions for second-degree murder
and felony-firearm, Mich. Comp. Laws §§ 750.317 and
750.227b. For the reasons stated below, the Court shall deny
was convicted following a jury trial in Wayne County Circuit
Court. The relevant facts have been summarized by the
Michigan Court of Appeals as follows:
Minutes before the shooting death of Aljibory at his
lower-level flat on September 11, 2012, defendant's
cellular phone was used in a cellular sector near
Aljibory's flat and, at 9:43 p.m., exterior security
cameras neighboring Aljibory's flat recorded an SUV pull
up near Aljibory's house. Sergeant Robert Wellman, a
member of the commercial auto theft section of the Detroit
Police Department, reviewed the footage and opined that the
SUV was a Cadillac Escalade, made between 2002 and 2006.
According to several witnesses, defendant had access to a
Cadillac Escalade owned by his mother; one witness saw him
driving it earlier that evening.
From her upper-level flat, above Aljibory's flat,
Courtney Daniels testified that she heard two gunshots.
Daniels testified that she ran to her bedroom window to see
if Aljibory was on the porch; she thought he might know what
had happened. Daniels testified that, from the window, she
saw defendant walking away from their front door on the
walkway, by the driveway. Daniels testified that it was dark
outside, but she could see defendant because of a streetlight
and a lamp in her apartment; she recognized defendant because
she had spoken to him during a barbeque at the flat just
three days earlier. At trial, Daniels testified that she was
“almost 100 percent positive” of her
identification of defendant.
Daniels recalled asking defendant, “[W]hat was
that?” Defendant turned and responded, but Daniels did
not hear him. Daniels testified that defendant continued
walking toward a dark-colored SUV. She testified that it was
like the Cadillac Escalade she saw defendant arrive in at the
barbeque, but she was unsure if it was the exact vehicle.
Daniels testified that she did not see whether defendant
entered the SUV because, when he continued walking, she ran
out of her apartment and downstairs. She saw Aljibory's
door was open about a foot wide and Aljibory was lying on the
floor. She called 911 at 9:44 p.m.
A medical examiner testified that Aljibory died as a result
of multiple gunshot wounds and the manner of death was
homicide. One gunshot entered the inner surface of the left
eye and the other entered the left side of the neck-the
bullets recovered were .22 caliber. Aljibory had bruising
that the medical examiner opined was most likely from falling
after the gunshot wounds and blood pooling. On
cross-examination, the medical examiner testified that it was
possible, but less likely, that the bruising resulted from a
fight. The medical examiner testified that the bullets were
deformed; they could have been damaged from contact with
Aljibory's skull and it was unlikely they were damaged
from contact with a wall or the floor .
Search warrants were executed at defendant's house and a
family member's house. A key and key fob for an Escalade,
along with .22 caliber long rifle ammunition were recovered,
but the SUV itself was never found.
On September 15, 2012, defendant was arrested, in Texas, on a
Greyhound bus traveling to Mexico. According to Detective
Steven David, in an interview, defendant denied any knowledge
of a murder in Detroit or Hussain Aljibory and he stated that
he did not own or have access to an Escalade, but his mother
owned one. Detective David testified that defendant explained
that he was riding to Phoenix, Arizona to visit a family
friend that he could only identify as Muhammad.
At trial, Gerardo Garza testified that he had been in jail
with defendant after his arrest in Texas and defendant
admitted to shooting a person following an argument over car
parts and a debt. Garza also testified that defendant said,
“I don't let nobody f* * * me over or my
family.” Garza recalled that defendant was confident
that his family would either pay to get him out of trouble or
help him flee, and that defendant explained his mother had
previously helped him avoid punishment for beating a person
with a hammer at a liquor store.
Defendant was charged with first-degree murder, MCL 750.316,
and felony-firearm. The trial court instructed the jury that
it could also consider the lesser offense of second-degree
murder. Following trial, the trial court noted that there had
been threats and comments causing the court to
“[r]emove people from both families from the courtroom
and from the building. And, I mean, it's just been
ridiculous.” Trial counsel stated she had “never
seen a trial quite like this, Judge, where there's so
much animus, so many fights, so many disruptions....”
The prosecutor added there had been death threats. The jury
ultimately convicted defendant of second-degree murder and
People v. Tomaz, No. 318663, 2015 WL 1814043, at
*1-2 (Mich. Ct. App. Apr. 21, 2015) (footnotes omitted). The
Michigan Court of Appeals affirmed petitioner's
conviction. Id. at *11.
filed an application for leave to appeal to the Michigan
Supreme Court. The Michigan Supreme Court remanded the matter
to the trial court in light of that court's decision in
People v. Lockridge, 498 Mich. 358; 870 N.W.2d 502
(Mich. 2015), because the jury did not find the facts to
support the scoring of the sentencing guidelines beyond a
reasonable doubt and petitioner did not admit to these facts.
On remand, the trial judge was to determine whether he would
have imposed a materially different sentence but for the
constitutional error. The Michigan Supreme Court denied
petitioner leave to appeal regarding his remaining issues.
See People v. Tomaz, 499 Mich. 933, 879 N.W.2d 251
remand, the trial judge issued an opinion concluding that he
would not have imposed a materially different sentence and
affirmed the original sentence. See People v. Tomaz,
No. 13-001199-01-FC (Wayne Cty. Cir. Ct. Aug. 19, 2016).
instant action, petitioner seeks a writ of habeas corpus on
the following grounds:
I. Where the prosecution failed to establish that key
witness, Dallas police Sgt. Steven David, was unavailable to
testify, use of his preliminary examination testimony at
trial deprived Haider Tomaz of his Sixth Amendment right to
confront the witnesses against him and violated the rule
II. [Tomaz's] right to silence, right to counsel and his
right to a fair trial by the introduction of testimony that
he, during a post-arrest custodial interrogation, asked for
an attorney and exercised his right to remain silent.
III. Where the trial court permitted the prosecution to offer
in its case in chief evidence that [Tomaz] had allegedly
committed a completely unrelated violent assault, based upon
the theory that this was relevant to the credibility of a
prosecution witness; where credibility is not a proper basis
for the admission of MRE 404(b) evidence; where the evidence
was not admissible for any proper purpose; and where the
evidence did not tend to identify [Tomaz] as the perpetrator,
and did not show a common scheme or plan, and where the
evidence was more prejudicial than probative, as it raised an
improper inference that [Tomaz] had a propensity to engage in
violent conduct; [Tomaz] was deprived of his right to a trial
conducted in conformance with the Michigan rules of evidence,
and of his due process right to a fair trial; and a new trial
must be granted.
IV. Mr. Tomaz should be granted a new trial because the trial
court allowed the prosecution to present improper lay opinion
testimony by police officer that the vehicle seen in two
video tapes is a Cadillac Escalade, where this testimony
impermissibly encroached on the province of the jury.
V. The trial court violated [Tomaz's] due process right
to present a defense by declining to instruct the jury on
voluntary manslaughter as a lesser offense, where there was
evidence of provocation.
VI. The detective-in-charge of this case together with
courtroom and courthouse deputies improperly ordered family
and supporters of Mr. Tomaz to leave the courtroom, or barred
them from entering the court building, during the last three
days of the trial, including the jury verdict, in violation
of the constitution's guarantee of a public trial.
VII. An evidentiary hearing should be granted where Mr. Tomaz
has submitted significant evidence establishing that his
state and federal constitutional to the effective assistance
of counsel were violated and he should have a new trial where
trial counsel repeatedly performed in a deficient manner, by
failing to lodge appropriate objections and failing ...