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Tomaz v. Smith

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

November 1, 2017

HAIDER TOMAZ, Petitioner,
v.
WILLIE SMITH, Respondent.

          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.

         Petitioner, 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 the application.

         I. Background

         Petitioner 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 felony-firearm.

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.

         Petitioner 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 (2016).

         On 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).

         In the 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 against hearsay.
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 ...

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