Holden v. Mackie

          OPINION AND ORDER DENYING THE HABEAS CORPUS PETITION AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

          ROBERT H. CLELAND UNITED STATES DISTRICT JUDGE

         Petitioner Thomas Eugene Holden seeks the writ of habeas corpus under 28 U.S.C. § 2254. He challenges his Michigan convictions for assault with intent to commit murder, Mich. Comp. Laws § 750.83, felon in possession of a firearm, Mich. Comp. Laws § 750.224f, and possession of a firearm during the commission of a felony (felony firearm), Mich. Comp. Laws § 750.227b. Holden argues in an amended brief filed on February 13, 2017 (ECF No. 16) iterations of the following claims: (1) he was deprived of a fair trial by the use of “other acts” evidence and the prosecutor's closing argument; (2) the trial court relied on inaccurate information at his sentencing and mis-scored the Michigan sentencing guidelines; and (3) he was deprived of effective assistance of trial and appellate counsel. In its response to the petition, the State argues that Holden's claims are procedurally defaulted, not cognizable on habeas review, barred by the statute of limitations, or meritless and were reasonably rejected by the state courts. (ECF Nos. 10, 19.) For the reasons explained below, the court agrees with the State that Holden is not entitled to habeas corpus relief. Accordingly, the petition, as amended, will be denied.

         I. BACKGROUND

         Holden was initially charged with assault with intent to commit murder, assault with a dangerous weapon, felon in possession of a firearm, and felony-firearm, second offense. The charges arose from an altercation between Holden and his stepfather, Dwight McCree (“Dwight”), in Detroit, Michigan on April 13, 2011. Holden was tried in Wayne County Circuit Court. The Michigan Court of Appeals accurately summarized the evidence at trial as follows:

Jerrell McCree testified that, on April 13, 2011, he was waiting for a ride outside of his father's house when defendant, his half-brother, approached him “ready to fight.” After Jerrell stepped back, defendant threatened him saying, “When I catch you I'm beating your ass.” Jerrell then went back into the house and his father, Dwight McCree, walked outside and exchanged words with defendant, Dwight's step-son. About ten minutes later, there was a knock on the door and Dwight walked to the door. Jerrell then heard about six shots fired outside the house. Next, he saw Dwight on the floor. Dwight said that he was hit on his shoulder and was bleeding. Jerrell testified that less than a week before this incident, he was driving defendant somewhere when a “heated argument” occurred and defendant “swung on me, ” hitting Jerrell in the face. Jerrell got out of the vehicle and ran to a gas station. Defendant chased him driving the vehicle. At the gas station, defendant got out of the vehicle, approached Jerrell, struck him, and then tried to drag him out of the gas station. Jerrell “pulled back and that was it.” Jerrell had not seen defendant again until the day of this shooting.

Dwight testified that, on April 13, 2011, he was home when Jerrell came into the house and looked upset. Dwight looked out the front door and saw defendant. Defendant told Dwight he “was on my last leg and then he said he had one of those too.” Dwight believed that defendant was referring to the fact that Dwight was “getting old” and that defendant also had a gun. Dwight had a gun in the house and defendant knew where the gun was located. Defendant told Dwight that he would be right back and left in his car. About ten minutes later, Dwight heard shots being fired outside and a window in his house breaking. Dwight got his shotgun, ran to the front of the house, and began opening the front door. While he was opening the door, he then heard another shot, which penetrated the door and caused the door to open.

After the door opened, Dwight saw defendant on the front porch and he was holding a gun in his right hand. No. one else was seen. Dwight fired a shot through the closed screen door hoping to scare defendant away. Dwight then moved to the right side of the door, and two more shots were fired into Dwight's house through a window on the side of the door where Dwight was standing. Those two shots struck Dwight in his upper right shoulder. He slid down the wall and then looked out the window and saw defendant drive off in his car. Dwight identified defendant as the shooter to the police. Dwight testified that he had had problems “off and on” with defendant; it was a “bad relationship.” Detroit Police Officer Donald Covington testified that he responded to a shooting and arrived at the house to find bullet holes in the front door and window of the house, as well as a victim who had been shot in the shoulder. The victim was Dwight and he identified defendant as the shooter.

People v. Holden, No. 308164, 2013 WL 1165220, at *1 (Mich. Ct. App. Mar. 21, 2013).

         At trial, Holden did not testify or present any witnesses, and the parties stipulated, for purposes of the felon-in-possession count, that Holden had a prior felony conviction and was ineligible to possess a gun on the day in question. Holden's defense was that he was not the shooter and was not present during the shooting. In the alternative, Holden argues that even if the jury believed the witnesses' testimony, he had no intent to kill or wound anyone.

         The trial court merged the two assault counts in its charge to the jury and instructed the jurors that they could find Holden not guilty, guilty as charged of assault with intent to commit murder, or guilty of one of two lesser offenses: assault with intent to do great bodily harm less than murder or assault with a dangerous weapon. The court also instructed the jurors that they could find Holden “not guilty” or “guilty” of the two firearm charges.

         On December 9, 2011, the jury found Holden guilty of assault with intent to commit murder, felon in possession of a firearm, and felony-firearm. On December 22, 2011, the trial court sentenced Holden as a habitual offender to a term of 20 to 30 years in prison for the assault conviction, 10 to 20 years for the felon-in-possession conviction, and 5 years for the felony-firearm conviction.

         Holden appealed to the Michigan Court of Appeals, arguing through counsel that: (1) the trial court deprived him of his right to a fair trial by admitting irrelevant evidence of an unrelated assault, and the prosecutor exacerbated the error during closing arguments; and (2) the trial court mis-scored offense variable six of the Michigan sentencing guidelines. The Michigan Court of Appeals rejected Holden's claims and affirmed his convictions and sentence in an unpublished, per curiam decision. See Holden, 2013 WL 1165220 (Mich Ct. App. 2013). On July 30, 2013, the Michigan Supreme Court denied Holden leave to appeal because it was not persuaded to review the issues. See People v. Holden, 834 N.W.2d 494 (Mich. 2013).

         On September 23, 2014, Holden filed his habeas corpus petition, which raised the same two claims that he presented to the state court on direct review. After the State filed an answer to the petition, Holden moved for a stay of the federal proceeding while he pursued additional state remedies for new claims regarding his trial and appellate attorneys. (ECF No. 12.) The court granted Holden's motion to stay and closed this case for administrative purposes. (ECF No. 14.)

         Holden then filed a pro se motion for relief from judgment in the state trial court, arguing that his trial and appellate attorneys were ineffective. The state trial court found no merit in Holden's claims about trial counsel and denied his motion because he failed to raise his claims on appeal. See People v. Holden, No. 11-8368-01 (Wayne Cty. Cir. Ct. Mar. 25, 2015) (unpublished). Holden appealed the trial court's decision, but the Michigan Court of Appeals denied leave to appeal because Holden failed to establish that the trial court erred in denying his motion for relief from judgment. See People v. Holden, No. 332824 (Mich. Ct. App. July 6, 2016) (unpublished). On January 31, 2017, the Michigan Supreme Court denied leave to appeal because Holden failed to establish entitlement to relief under Michigan Court Rule 6.508(D). See People v. Holden, 889 N.W.2d 265 (Mich. 2017).

         Holden then filed a motion to re-open this case and an amended brief in support of his habeas claims. (ECF No. 16.) The amended brief raises the claims that Holden presented to the state court on direct review and on state collateral review. The court granted Holden's motion and re-opened this case. (ECF No. 17.) The amended petition has been fully briefed.

         II. STANDARD OF REVIEW

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) requires habeas petitioners who challenge “a matter ‘adjudicated on the merits in State court' to show that the relevant state court ‘decision' (1) ‘was contrary to, or involved an unreasonable application of, clearly established Federal law,' or (2) ‘was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.'” Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018) (quoting 28 U.S.C. § 2254(d)). “[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Williams v. Taylor, 529 U.S. 362, 411 (2000). “AEDPA thus imposes a highly deferential standard for evaluating state-court rulings and demands that [state-court decisions] be given the benefit of the doubt.” Renico v. Lett, 559 U.S. 766, 773 (2010) (internal citations and quotations omitted).

         “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)). To obtain a writ of habeas corpus from a federal court, a state prisoner must show that the state court's ruling on his or her claim “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103. Thus, “[o]nly an ‘objectively unreasonable' mistake, one ‘so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement,' slips through the needle's eye of § 2254.” Saulsberry v. Lee, 937 F.3d 644, 648 (6th Cir. 2019) (quoting Richter, 562 U.S. at 103) (internal citation omitted). A state-court's factual determinations, moreover, are presumed correct on federal habeas review, 28 U.S.C. § 2254(e)(1), and review is “limited to the record that was before the state court.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

         III. ANALYSIS

         A. “Other Acts” Evidence

         In his first claim, Holden alleges that the trial court deprived him of a fair trial by admitting irrelevant and unfairly prejudicial evidence of an unrelated assault. The disputed evidence consisted of Jerrell McCree's testimony that, about a week before Holden's assault on Dwight, Holden asked Jerrell to drive him somewhere, and when Jerrell apparently did not take the route that Holden wanted him to take, Holden swung at Jerrell and hit him on the face. Jerrell then exited the vehicle and ran to the nearest gas station. Holden followed Jerrell in the vehicle, got out of the car at the gas station, and hit Jerrell again. The altercation ended after Holden dragged Jerrell out of the gas station. (ECF No. 11-5, PageID.261-63.)

         Holden argues in his habeas petition that this evidence was improperly admitted at his trial because it had no relationship to the incident for which he was on trial and because the evidence neither proved, nor disproved, the two main issues: the identity of the shooter and the shooter's intent. Holden also alleges that the prosecutor violated the Michigan Rules of Evidence by failing to (1) give proper notice of her intent to use the evidence and (2) offer a non-propensity rationale for the evidence. Holden further alleges that the prosecutor exacerbated the error during closing arguments by using the “other acts” evidence to argue that Holden was a violent individual. Finally, Holden argues that the cumulative effect of the errors deprived him of his constitutional right to a fair trial.

         The Michigan Court of Appeals reviewed Holden's claim for “plain error” because he objected at trial on the basis of relevance, but on appeal, he argued for the first time that the evidence was inadmissible under Michigan Rule of Evidence 404(b). The Court of Appeals analyzed Holden's claim and concluded that the disputed evidence was admissible under either Michigan Rule of Evidence 404(b) or under the res gestae exception to Rule 404(b). The Court of Appeals also rejected Holden's argument that the prosecutor's failure to give notice of her intent to use the evidence was reversible error. Finally, the Court of Appeals stated that, although the prosecutor's closing argument about Holden being a violent individual was improper, the error was harmless.

         The State argues that the first part of Holden's claim is procedurally defaulted because Holden failed to make a proper objection at trial. In the habeas context, a procedural default is “a critical failure to comply with state procedural law.” Trest v. Cain, 522 U.S. 87, 89 (1997). Under the related doctrine, “a federal court will not review the merits of [a state prisoner's] claims, including constitutional claims, that a state court declined to hear because the prisoner failed to abide by a state procedural rule.” Martinez v. Ryan, 566 U.S. 1, 9 (2012).

         A procedural default, however, is not a jurisdictional bar to review of the merits of a claim, Howard v. Bouchard, 405 F.3d 459, 476 (6th Cir. 2005), and “federal courts are not required to address a procedural-default issue before deciding against the petitioner on the merits.” Hudson v. Jones, 351 F.3d 212, 215 (6th Cir. 2003) (citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997)). Because Holden's claim regarding the admission of “other acts” evidence and the prosecutor's closing argument does not warrant habeas relief, the court bypasses the procedural-default analysis and directly proceeds to the merits of Holden's first claim.

         1. Jerrell's Testimony Regarding his Prior Altercation with Holden

         Holden's claim that the admission of “other acts” evidence violated the Michigan Rules of Evidence is not cognizable on federal habeas review. Hall v. Vasbinder, 563 F.3d 222, 239 (6th Cir. 2009) (“To the extent that any testimony and comments violated Michigan's rules of evidence, such errors are not cognizable on federal habeas review.”). Furthermore, Holden's claim is not cognizable on habeas review because “[t]here is no clearly established Supreme Court precedent which holds that a state violates due process by permitting propensity evidence in the form of other bad acts evidence.” Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003). Consequently, the state courts' rulings on the “other acts” evidence were not “contrary to” any Supreme Court decision under AEDPA. Id.

         Of course, “[i]f a ruling is especially egregious and ‘results in a denial of fundamental fairness, it may violate due process and thus warrant habeas relief.'” Wilson v. Sheldon, 874 F.3d 470, 475 (6th Cir. 2017) (citations omitted). But “states have wide latitude with regard to evidentiary matters under the Due Process Clause, ” and state-court evidentiary rulings do not rise to the level of a due process violation unless they offend a fundamental principle of justice. Id. at 475-76.

         In the present case, the disputed evidence was admitted for a proper purpose. In the words of the Michigan Court of Appeals,

Jerrell's testimony regarding the violent nature of defendant's actions toward him less than a week before the shooting gave context to the events that occurred on the day of the shooting, explaining the background circumstances of this crime. The testimony explained why, when he saw Jerrell for the first time since that altercation, defendant approached Jerrell “ready to fight.” The testimony also explained why Jerrell immediately retreated and appeared upset to his father, Dwight, who then went to the front door of his house to investigate the cause. The jury could infer from this evidence that a continuing and unresolved “family feud” led to defendant firing several gunshots at his mother and stepfather's house. . . .

There was no other evidence of record which would explain why defendant, without reason or provocation, would fire several gunshots at the house. And without Jerrell's contested testimony, the jury would have been deprived “an intelligible presentation of the full context in which the disputed events took place, ” i.e., the “complete story.”

Holden, 2013 WL 1165220, at *2-3.

         The evidence also was relevant because Holden's “defense was that he did not commit the charged crimes, ” and “[i]dentity is always an essential element in a criminal case.” Id. at *4. “The evidence tended to establish that, because of an on-going family dispute, defendant was the person who fired several gunshots at the house, two of which struck Dwight.” Id. Finally, the evidence was not unfairly prejudicial. In the state court's words, the evidence, “was more than marginally probative and was unlikely to be given undue weight by the jury because the prior incident involved Jerrell, did not involve a gun or shooting, and the charged crimes were not committed against Jerrell.” Id.

         The court concludes that Jerrell's testimony regarding the altercation with Holden about a week before the shooting was not so fundamentally unfair as to deprive Holden of due ...