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Thompson v. Hoffner

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

May 15, 2018



          Honorable Victoria A. Roberts United States District Judge.

         This is a habeas case filed by a Michigan prisoner under 28 U.S.C. § 2254. Petitioner Ronald B. Thompson was convicted after a jury trial in the Wayne Circuit Court of first-degree premeditated murder, Mich. Comp. Laws § 750.316(1)(a), and possession of a firearm during the commission of felony, Mich. Comp. Laws § 750.227b. Petitioner was sentenced to life imprisonment for the murder conviction, and a mandatory 2-year consecutive term for the firearm conviction.

         The petition raises twelve claims: (1) the trial court erred in allowing admission of a note written by the victim naming his shooter, (2) insufficient evidence was presented at the preliminary examination to warrant a bind-over for trial, (3) the trial court erroneously admitted the opinion testimony of the pathologist regarding the victim's labored breathing during a 9-1-1 call, (4) insufficient evidence was admitted at trial to sustain Petitioner's convictions, (5) the state court erroneously failed to address the merits of Petitioner's post-conviction review claims where appellate counsel was ineffective for failing to raise those claims on direct appeal, (6) the police failed to comply with the Stored Communications Act (“SCA”) with respect to Petitioner's cell phone records, (7) the police failed to comply with the SCA with respect to cell tower location evidence, (8) admission of the note naming Petitioner as the shooter violated the Confrontation Clause, (9) the trial court erroneously admitted hearsay testimony regarding the autopsy report, (10) the trial court erroneously instructed the jury on the element of causation, (11) Petitioner was denied the effective assistance of trial counsel, and (12) Petitioner was denied the effective assistance of appellate counsel.

         The Court finds that Petitioner's claims are without merit or barred by his state court procedural defaults. Therefore, the petition will be denied. The Court will also deny a certificate of appealability, but it will grant permission to appeal in forma pauperis.

         I. Background

         At Petitioner's trial, cell phone records were admitted indicating that at 12:42 a.m. on March 26, 2010, the victim, Dennis VanHulle, received a phone call from Petitioner's cell phone. Eight minutes later, at 12:50 a.m., the victim called 9-1-1 for help. Over the course of the nearly ten-minute 9-1-1 call, the victim managed to tell the operator that he was shot and repeatedly asked for help, but he did not name the shooter when asked.

         Detroit Police Officers Jeffrey Elgert and Detrick Mott testified that on that date they responded to a shooting at a duplex located on a residential street in Detroit. The officers arrived around 1:00 a.m., about ten minutes after the victim called 9-1-1. The officers were met at the front door by the victim, who pointed to a gunshot wound in the middle of his throat. The officers asked VanHulle if he knew who the shooter was, and VanHulle retrieved a piece of paper and wrote down the name he knew Petitioner by, “Ron Hilgendorf.” VanHulle could not speak, but he tried to indicate what happened by making gestures with his hands suggesting that he was shot when he answered his front door. The officers tried to keep the victim calm until the ambulance arrived. The victim died in the hospital several days later.

         Kevin VanHulle, the victim's brother, testified that the victim was a member of “The Highwaymen” motorcycle club, but he was not an active member at the time of his death. Kevin indicated that Petitioner and the victim were best friends despite the fact that Petitioner was a member of the rival “The Liberty Riders” motorcycle club. Kevin did not hear from Petitioner from the date Dennis was shot, and Petitioner did not attend the funeral. Tara Miller, the victim's daughter, likewise testified that she did not recall seeing or hearing from Petitioner while her father was in the hospital or at the funeral.

         Sara Nall, the victim's girlfriend, testified that she lived with the victim for five months prior to his death. Nall testified that the victim and Petitioner were very close, and the victim referred to Petitioner as his brother. Nall testified that two weeks before the shooting, Petitioner's wife came over to the house in the middle of night, covered in mud. She said she Petitioner fought with her, and Petitioner accused her of having an affair with the victim.

         Detroit Police Officer Michael McGinnis testified that he reviewed the cell phone records for Petitioner and the victim in order to create a map showing where they were in the time period of the crime. McGinnis testified that just prior to the shooting, Petitioner's cell phone was used in an area whose cell phone tower was within the region of the victim's house. Petitioner's cell phone was used again just after the shooting through a cell phone tower just to the north of the victim's house.

         Dr. John Somerset, an assistant medical examiner with the Wayne County Medical Examiner's office, testified regarding the autopsy conducted by Dr. Cheryl Loewe, who was retired at the time of trial. Dr. Somerset testified that the victim was shot in the neck, and the wound involved his trachea and windpipe. Dr. Somerset indicated that the cause of death was classified by Dr. Loewe as a single gunshot wound to the neck complicated by adult respiratory distress syndrome and sepsis, and the manner of death was homicide. Dr. Somerset gave opinion testimony regarding Petitioner's labored breathing and difficulty speaking during the 9-1-1 call.

         Aaron Hilgendorf testified for the defense that he was Petitioner's brother. He testified that Petitioner did not use the Hilgendorf name since childhood. He did not know of anyone who referred to Petitioner by that name. Evidence was admitted that years before the shooting the FBI warned the victim that a “hit” was put out on him.

         Following arguments and instructions, the jury found Petitioner guilty of the offenses indicated above, and Petitioner was sentenced to life imprisonment plus two-years.

         Petitioner filed an appeal of right. His appellate counsel filed a brief on appeal, raising what now form his first four habeas claims. The Michigan Court of Appeals affirmed Petitioner's convictions in an unpublished opinion. People v. Thompson, 2013 WL 276042 (Mich. Ct. App. Jan. 24, 2013). Petitioner subsequently filed an application for leave to appeal in the Michigan Supreme Court, raising the same claims that he raised in the Michigan Court of Appeals. The Michigan Supreme Court denied the application because it was not persuaded that the questions presented should be reviewed. People v. Thompson, 834 N.W.2d 504 (Mich. July 30, 2013) (Table).

         Petitioner returned to the trial court and filed a motion for relief from judgment, raising what now form his fifth through twelfth habeas claims. The trial court issued an opinion and order denying the motion for relief from judgment, finding in part that Petitioner “has not shown ‘good cause' under MCR 6.508(D)(3), nor has he proven actual prejudice.” Dkt. 6-19, at 8.

         Petitioner filed an application for leave to appeal in the Michigan Court of Appeals, raising the same claims. The Michigan Court of Appeals denied the application because “the defendant alleges grounds for relief that could have been raised previously and he has failed to establish good cause for failing to previously raise the issues, and has not established that good cause should be waived. MCR 6.508(D)(3)(a).” People v. Thompson, No. 328944 (Mich. Ct. App. Nov. 19, 2015). Petitioner applied for leave to appeal this decision in the Michigan Supreme Court, but it was denied with citation to Rule 6.508(D). People v. Thompson, 886 N.W.2d 421 (Mich. Oct. 26, 2016) (Table).

         II. Standard of Review

         28 U.S.C. § 2254(d)(1) curtails a federal court's review of constitutional claims raised by a state prisoner in a habeas action if the claims were adjudicated on the merits by the state courts. Relief is barred under this section unless the state court adjudication was “contrary to” or resulted in an “unreasonable application of” clearly established Supreme Court law.

         “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 [this] precedent.'” Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam), quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000).

         “[T]he ‘unreasonable application' prong of the statute 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.

         “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, 562 U.S. 86, 101 (2011), quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). “Section 2254(d) reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal. . . . As a condition for obtaining habeas corpus from a federal court, a state prisoner must 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.” Richter, 562 U.S. at 103 (internal quotation omitted).

         III. Analysis

         A. Admission of Victim's Dying Declaration

         Petitioner's first claim concerns admission of the note written by the victim indicating that Petitioner was the man who shot him. Petitioner argues that prior to writing the name “Ron Hilgendorf” at the direction of the police officers, the victim spent about ten minutes on the phone with the 9-1-1 operator, and though the operator asked him multiple times who shot him, the victim did not name the shooter. Petitioner asserts that at no time during the conversation with the 9-1-1 operator did the victim indicate a belief that he was dying. On direct review, Petitioner argued that the trial court erred under Michigan Rule of Evidence 804(b)(2) admitting the note ...

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