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Thomas v. Winn

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

May 21, 2018

MICHAEL RAY THOMAS, Petitioner,
v.
THOMAS WINN, Respondent.

          OPINION AND ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS WITHOUT PREJUDICE AND DENYING CERTIFICATE OF APPEALABILITY

          Sean F. Cox U.S. District Judge

         This is a habeas case filed under 28 U.S.C. § 2254. Petitioner Michael Ray Thomas is a state inmate currently incarcerated at the Saginaw Correctional Facility in Freeland, Michigan. He challenges his convictions for possession of child sexually abusive material, Mich. Comp. Laws 750.145c(4), using a computer to commit possession of child sexually abusive material, Mich. Comp. Laws § 752.796, and unlawful use of the internet to solicit child sexually abusive activity, Mich. Comp. Laws § 750.145.d. The petition raises claims which have not been properly exhausted in state court. The Court dismisses the petition for a writ of habeas corpus without prejudice.

         I. Background

         A jury in Macomb County Circuit Court convicted Petitioner as set forth above. On September 29, 2015, he was sentenced to concurrent terms of one to four years for the possession of child sexually abusive material conviction, one to seven years for the unlawful use of a computer conviction, and 12 to 20 years for the unlawful use of the internet conviction.

         Petitioner filed an appeal of right in the Michigan Court of Appeals raising these claims: (i) other act evidence improperly admitted; (ii) prosecutor committed misconduct during closing argument; (iii) verdict against the great weight of the evidence; (iv) Brady violation; (v) ineffective assistance of trial counsel; and (vi) prosecutor committed misconduct throughout trial. The Michigan Court of Appeals affirmed Petitioner's convictions. People v. Thomas, No. 329750, 2017 WL 1967475 (Mich. Ct. App. May 11, 2017). Petitioner filed an application for leave to appeal in the Michigan Supreme Court raising these claims: (i) Brady violation; (ii) prosecutorial misconduct; (iii) ineffective assistance of counsel; (iv) verdict against the great weight of the evidence; (v) improper bind over; (vi) improper application of Mich. Comp. Laws § 750.145d(2)(f) to secure conviction; and (vii) jury instruction failed to set forth the solicitation element of soliciting another person to commit crime. The Michigan Supreme Court denied leave to appeal. People v. Thomas, 907 N.W.2d 565 (Mich. March 5, 2018).

         Petitioner filed the pending habeas petition on April 18, 2018. He raises these claims:

I. Improper use of 404(b) evidence.
II. Insufficiency of the evidence.
III. Prosecutorial Misconduct.
IV. Ineffective assistance of trial counsel.
V. Franks violation resulting in a constitutional violation of my right to a reasonable search and seizure.
VI. Jury not instructed on essential elements of two charges.
VII. 443-day delay between the seizure and search of the computers resulted in a violation of reasonable seizure, they were never turned over to the defense for testing because ...

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