United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE HABEAS CORPUS PETITION
AND DECLINING TO ISSUE A CERTIFICATE OF
H. CLELAND UNITED STATES DISTRICT JUDGE
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.
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).
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
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
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.
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).
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.)
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).
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.
STANDARD OF REVIEW
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).
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).
“Other Acts” Evidence
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.)
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
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.
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).
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.
Jerrell's Testimony Regarding his Prior Altercation with
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.
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.
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
Holden, 2013 WL 1165220, at *2-3.
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.”
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