United States District Court, E.D. Michigan, Southern Division
RONALD B. THOMPSON, Petitioner,
BONITA HOFFNER, Respondent.
OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF
HABEAS CORPUS, (2) DENYING CERTIFICATE OF APPEALABILITY, AND
(3) GRANTING PERMISSION TO APPEAL IN FORMA PAUPERIS.
Honorable Victoria A. Roberts United States District Judge.
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.
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.
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.
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.
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
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.
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
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.
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.
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.
arguments and instructions, the jury found Petitioner guilty
of the offenses indicated above, and Petitioner was sentenced
to life imprisonment plus two-years.
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).
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.
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)
Standard of Review
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.
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).
‘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.
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
Admission of Victim's Dying Declaration
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 ...