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Graham v. McCullick

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

October 28, 2019

SOONEJOO KIM GRAHAM, #425697, Petitioner,
v.
MARK MCCULLICK, Respondent.

          OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

          HON. GERSHWIN A. DRAIN United States District Court Judge

         I. INTRODUCTION

         This is a habeas case brought pursuant to 28 U.S.C. § 2254. Michigan prisoner Soonejoo Kim Graham (“Petitioner”) was convicted of first-degree home invasion, Mich. Comp. Laws § 750.110a(2), following a jury trial in the Jackson County Circuit Court. He was sentenced, as a third habitual offender, Mich. Comp. Laws 21 769.11, to 15 to 40 years imprisonment in 2017. In his current pleadings, he raises claims concerning the sufficiency of the evidence; the admission of other acts evidence; and the validity of his sentence. For the reasons stated herein, the Court denies the petition for a writ of habeas corpus, denies a certificate of appealability, and grants leave to proceed in forma pauperis on appeal.

         II. FACTS AND PROCEDURAL HISTORY

         Petitioner's convictions arise from a home invasion in Jackson, Michigan during the early morning hours on July 2, 2014. The Michigan Court of Appeals described the relevant facts, which are presumed correct on habeas review, 28 U.S.C. § 2254(e)(1); see also Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009), as follows:

This case arises out of a home invasion that occurred July 2, 2014, in Jackson County, Michigan. Courtney Husak, who was visiting her grandparents, George and Mary Husak, testified that she woke up at approximately 2:00 a.m. and saw a figure standing in the doorway to her bedroom. Courtney yelled and ran after the person, who ran out of the house. Courtney described the intruder as being at least six feet tall and having a heavier build, but she later testified that she could not give a good description of the intruder because she had just woken up and was wearing contacts that blurred her vision. She testified that after the incident she determined that money was missing from her purse.
Mary Husak testified that she woke up that morning when she heard Courtney's voice. Mary went into the hallway to help Courtney, then called 911. After police arrived at the home, Mary found a partial cigarette lying in her bedroom doorway. Mary testified that the cigarette appeared as though someone had pinched it off so that it could be smoked more later. There was no indication that the cigarette had been smoked while in the house. According to Mary and Courtney, no one in the home smoked, and the cigarette was not there before the incident. Mary later concluded that a $50 bill was missing from her billfold, as well as some $2 bills, bicentennial quarters, and 50 cent pieces.
Officer Darin McIntosh testified that he responded to the home invasion and that Courtney's description of the intruder was very vague, but that she generally described the suspect as being a male between six feet tall and six feet two inches tall, and having a heavier build. Officer McIntosh collected the partial cigarette from the home, and testified that the house did not smell like smoke and that the cigarette did not look like it had been lit and thrown down on the ground. DNA testing identified defendant's DNA on the partial cigarette.
Sherry Peters, defendant's ex-girlfriend, testified that in July 2014 defendant lived at her home approximately five miles from the location of the home invasion. Peters testified that she and defendant went to bed at 12:30 a.m. on the morning of July 2, 2014. When she woke up later that morning, defendant was present and then left for work. Peters testified that she is a light sleeper and that as far as she knew, defendant did not get out of bed that night. She further testified that although her two dogs bark at any noise, she never heard the dogs bark that night. Peters testified that in her conversations with defendant at the time, he said that he was not involved in the home invasion. She also testified that she regularly smokes on her patio and that she has observed people in her neighborhood pick up discarded cigarette butts “all the time.” Defendant testified that he got up around 3:30 a.m. on July 2, 2014, to finish a painting job before the holiday weekend. Defendant testified that he smokes and that he does not always smoke the entire cigarette. He testified that he did not know how a cigarette with his DNA got into the victim's house, but that he had seen people pick up his discarded cigarette butts. Defendant testified that he had not smoked crack cocaine in two years. Defendant further testified that he was five feet, eight inches tall and weighed around 165 pounds. Defendant stated that when he heard there was a warrant for his arrest for the home invasion he turned himself in to police.
Before trial, the prosecutor filed a motion to admit evidence concerning defendant's two prior home invasion convictions from 2004. The trial court permitted testimony of the prior convictions to be introduced at trial under MRE 404(b) to show motive, identity, scheme, or plan. The testimony described a home invasion in the early in the morning of August 19, 2004. At a home near where defendant lived, the homeowner reported that she woke up while sleeping on the couch and saw a man standing near her television. The homeowner's purse had been hanging near the front door and was spread out on the floor. On the front porch of the house, police discovered a Michigan Identification Card belonging to defendant. Defendant confessed to police that he had entered the home that night to steal items to sell to support his drug habit. Defendant also admitted to breaking into another house that same evening, where he stole a VCR that he traded for a rock of crack cocaine. Defendant pleaded guilty to the two home invasions that occurred in 2004.
At the conclusion of the evidence, the jury in this case returned a verdict finding defendant guilty of the 2014 home invasion. The trial court thereafter sentenced defendant to 15 to 40 years' imprisonment.

People v. Graham, No. 337780, 2018 WL 1832095, *1-2 (Mich. Ct. App. April 17, 2018) (unpublished).

         Following his convictions and sentencing, Petitioner filed an appeal of right with the Michigan Court of Appeals essentially raising the same claims as presented on habeas review. The court denied relief on those claims and affirmed Petitioner's conviction and sentence. Petitioner then filed an application for leave to appeal with the Michigan Supreme Court, which was denied in a standard order. People v. Graham, 503 Mich. 911, 919 N.W.2d 405 (2018).

         Petitioner thereafter filed his initial pro se habeas petition raising the sufficiency of the evidence and the admission of other acts evidence claims that he raised on direct appeal in the state courts. ECF No. 1. Respondent filed an answer to the petition contending that it should be denied for lack of merit. ECF No. 8. Petitioner filed a reply to that answer. ECF No. 10. Additionally, he recently filed an amendment to his habeas petition to include the sentencing claim that he raised on direct appeal in the state courts, but had neglected to include in his original petition. ECF No. 11.

         III. STANDARD OF REVIEW

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) sets forth the standard of review that federal courts must use when considering habeas petitions brought by prisoners challenging ...


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