Petition for Writ of Certiorari — Ronald Bishop Thompson, Petitioner v. Noah Nagy, Warden
Supreme Court briefJan 18, 2019
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NO.
IN THE
SUPREME COURT OF THE UNITED STATES
RONALD BISHOP THOMPSON
--
PETITIONER
VS.
NOAH NAGY
--
RESPONDENT
ON PETITION FOR A WRIT OF CERTIORARI TO
THE SIXTH CIRCUIT FEDERAL COURT OF APPEALS
COURT OPINIONS AND RULE 5 MATERIAL
INDEX TO APPENDICES
Appendix I, pages 1 through 10 is the ORDER of the United States Court of Appeals for the
Sixth Circuit;
pages 11 through 30 is the Opinion and Order of the United States District Court, Eastern
District of Michigan, Southern Division;
pages 31 through 39 is the Opinion of the State of Michigan Third Circuit Court, Criminal
division,
page 40 is the Order of the Michigan Court of Appeals, dated November 19th, 2015, Docket
No. 328944, denying application for leave to appeal the denial of the Motion for Relief from
Judgment;
page 41 is Order of the Michigan Supreme Court, Docket No. 152921, dated October 26, 2016,
denying leave to appeal the Michigan Court of Appeals' Order;
page 42 if the Order of the Michigan Supreme Court, dated July 30, 2013, Docket No. 146842,
denying leave to appeal the January 24, 2013 judgment of the Michigan Court of Appeals on
Petitioner's Appeal of Right.
These Court Opinions are supplemented by the Rule 5 Material which was served
upon the Clerk of the United States District Court for the Eastern District of Michigan, Southern
Division, as set forth as follows in the Index of Record:
Index of Record 216-cv-13998
Wayne County Register of Actions 10-008679-01 -FC
08-17-2010 Preliminary Examination Transcript I
08-18-2010 Preliminary Examination Transcript II
11-19-2010 Decision on Motion to Quash Bindover
Transcript
02-17-2011 Jury Trial Transcript (Excerpt -79 pages)
02-17-2011 Jury Trial Transcript (Excerpt -96 pages)
02-23-2011 Jury Trial Transcript (Excerpt -123 pages)
02-23-2011 Jury Trial Transcript (Excerpt 145 pages)
-
02-24-2011 Jury Trial Transcript (Excerpt 18 pages)
-
02-24-2011 Jury Trial Transcript (Excerpt 48 pages)
-
06-29-2011 Jury Trial Transcript I
06-30-2011 Jury Trial Transcript II
07-05-2011 Jury Trial Transcript Ill
07-06-2011 Jury Trial Transcript IV
07-21-2011 Sentence Transcript
Michigan Court of Appeals 305760
Michigan Supreme Court 146842
10-15-2014 Motion for Relief from Judgment
03-11-2015 Opinion and Order denying MRJ
Michigan Court of Appeals 328944
Michigan Supreme Court 152921
No. 18-1747
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
RONALD BISHOP THOMPSON,
Petitioner-Appellant,
V.
NOAH NAGY, Warden,
Respondent-Appellee.
)
)
)
)
FILED
Nov 20, 2018
DEBORAH S. HUNT, Clerk
ORDER
)
)
)
)
ner, appeals the district court's
Ronald Bishop Thompson, a pro se Michigan priso
s filed under 28 U.S.C. § 2254. He has
judgment denying his petition for a writ of habeas corpu
Fed. R. App. P. 22(b)(1).
applied for a certificate of appealability ("COA"). See
ted murder and possession of a
A jury convicted Thompson of first-degree premedita
sentenced Thompson to consecutive
firearm during the commission of a felony. The trial court
parole and two years, respectively. The
terms of life imprisonment without the possibility of
pson, No. 305760, 2013 WL 276042
Michigan Court of Appeals affirmed, People v. Thom
Michigan Supreme Court denied leave to
(Mich. Ct. App. Jan. 24, 2013) (per curiam), and the
from judgment, which the trial court
appeal. Thompson subsequently filed a motion for relief
le v. Thompson, No. 328944 (Mich. Ct.
denied. The Michigan Court of Appeals affirmed, Peop
denied leave to appeal.
App. Nov. 19, 2015), and the Michigan Supreme Court
e grounds for relief. In his first
Thompson then filed this § 2254 petition, raising twelv
pson argued that: (1) the trial court
four grounds, which he raised in his direct appeal, Thom
ds, the victim's written identification
erred in denying his motion to suppress, on hearsay groun
nt to bind him over at his preliminary
of him as the shooter; (2) the evidence was insufficie
RBTSCCert, Appendix
page i 6tn Gr. OpnOr,
Thomn V. Nagy. datad
November 2O 2018
No. 18-1747
-2logist to offer opinion
examination; (3) the trial court erred in allowing a forensic patho
conviction for first-degree
testimony; and (4) the evidence was insufficient to support his
evidence. In his fifth through
murder, and this conviction was against the manifest weight of the
ent, Thompson argued that:
twelfth grounds, which he raised in his motion for relief from judgm
raised in his motion for relief
(5 & 12) appellate counsel was ineffective for omitting the issues
of his cellphone records
from judgment; (6) the state magistrate judge ordered production
unications Act, .18 U.S.C. §
without an adequate factual basis, in violation of the Stored Comm
because it is ambiguous and
2703(d); (7) the Stored Communications Act is unconstitutional
his confrontation rights by
fails to provide a suppression remedy; (8) the trial court violated
(9) the trial court violated his
admitting the victim's written identification of him as the shooter;
testimony; (10) the trial
confrontation rights by admitting the victim's autopsy report and related
first-degree murder charge;
court improperly instructed the jury as to the causation element of his
the warden filed an answer
and (11) trial counsel was ineffective on numerous grounds. After
four grounds on the merits
and Thompson filed a reply, the district court denied Thompson's first
defaulted. The district court
and denied his fifth through twelfth grounds as procedurally
declined to issue a COA.
s denial of his fifth
In his COA application, Thompson challenges the district court'
ing claims by failing to
through twelfth grounds for relief. He has forfeited review of his remain
205 F.3d 882, 886 (6th Cir. 2000);
argue them in his COA application. See Elzy v. United States,
Jackson v. United States, 45 F. App'x 382, 385 (6th Cir. 2002).
ng of the denial of a
A COA may issue only if a petitioner makes "a substantial showi
constitutional right." 28 U.S.C. § 2253(c)(2). To satisfy this
standard when a district court has
denied a habeas petition for procedural reasons, "the petitioner must
show, 'at least, that jurists
claim of the denial of a
of reason would find it debatable whether the petition states a valid
ble whether the district court
constitutional right and that jurists of reason would find it debata
F.3d 248, 253 (6th Cir. 2017)
was correct in its procedural ruling." Dufresne v. Palmer, 876
).
(per curiam) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)
I
RBTSCCert, Appendix I
page 2, 6th Cir. Opinion,
Thompson v. Nagy. dated
November 20, 2018
No. 18-1747
-3A federal habeas court ordinarily will not review a petitioner's claims if he "has defaulted
his federal claims in state court pursuant to an independent and adequate state procedural rule."
Coleman v. Thompson, 501 U.S. 722, 750 (1991). "To determine whether the state court rejected
a petitioner's claim on procedural grounds, we must look to 'the last reasoned state court opinion
to determine the basis for the state court's rejection of [the petitioner's] claim." Amos v. Renico,
683 F.3d 720, 726 (6th Cir. 2012) (alteration in original) (quoting.Guilmette v. Howes, 624 F.3d
286, 291 (6th Cir. 2010) (en banc)). This court presumes that, "[w]here there has been one
reasoned state judgment rejecting a federal claim, later unexplained orders upholding that
judgment or rejecting the same claim rest upon the same ground." Guilmette, 624 F.3d at 291-92
(quoting Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)).
The Michigan Court of Appeals' order denying Thompson leave to appeal the denial of
his motion for relief from judgment was the last reasoned state court opinion to reject his
preserved grounds—that is, his fifth through twelfth grounds. The state appellate court rejected
these claims under Michigan Court Rule 6.508(D)(3), which requires that claims like this be
raised on direct appeal, and which is an independent and adequate state ground sufficient for
procedural default. Amos, 683 F.3d at 733. Reasonable jurists could not debate the district
court's conclusion that Thompson procedurally defaulted his fifth through twelfth grounds.
If a petitioner has procedurally defaulted his claims, "federal habeas review of the claims
is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result
of the alleged violation of federal law, or demonstrate that failure to consider the claims will
result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750. A petitioner carries
the burden of establishing cause and prejudice. Lucas v. O'Dea, 179 F.3d 412, 418 (6th Cir.
1999).
As cause to excuse his procedural default, Thompson argues—in his fifth and twelfth
grounds—that he received ineffective assistance of appellate counsel. To establish an
ineffective-assistance claim, a habeas petitioner must demonstrate that counsel's representation
"fell below an objective standard of reasonableness" and that he suffered prejudice as a result.
RBTSCCert, Appendi x
pae 3, 6th Cr. Opron,
Thompson e. Nsgy. dated
November 20. 2018
No. 18-1747
-4Strickland v. Washington, 466 U.S. 668, 687-88 (1984). There is "a strong presumption that
counsel's conduct [fell] within the wide range of reasonable professional assistance." Id. at 689.
To establish deficient performance in the appellate context, a petitioner "must demonstrate
his
appellate counsel made an objectively unreasonable decision by choosing to raise other issues
instead of [the challenged] issue, meaning that issue 'was clearly stronger than issues
that
counsel did present." Webb v. Mitchell, 586 F.3d 383, 399 (6th Cir. 2009) (quoting Smith v.
Robbins, 528 U.S. 259, 285, 288 (2000)). The "process of 'winnowing out weaker arguments on
is
appeal and focusing on' those more likely to prevail, far from being evidence of incompetence,
the hallmark of effective appellate advocacy." Smith v. Murray, 477 U.S. 527, 536 (1986)
(quoting Jones v. Barnes, 463 U.S. 745, 751-52 (1983)). To establish prejudice in the appellate
's
context, a petitioner "must demonstrate 'a reasonable probability that, but for his counsel
d."
unreasonable failure to' raise [the challenged] issue on appeal, 'he would have prevaile
Webb, 586 F.3d at 399 (quoting Robbins, 528 U.S. at 285).
In his sixth ground, Thompson argues that the state magistrate judge ordered production
of his cell-site location information without an adequate factual basis, in violation of the Stored
Communications Act, 18 U.S.C. § 2703(d). The district court concluded that this claim is
"not
'clearly stronger' than the ones appellate counsel raised" because, "[e]ven if it were true that
government violated the [Stored Communications Act],
.
.
.
the
such a violation does not provide a
basis for suppressing the [cell phone] records." Reasonable jurists could not disagree
that
Thompson's suppression argument based on the Stored Communications Act was not clearly
stronger than the claims he made.
After the district court issued its decision, the Supreme Court held in Carpenter v. United
States, 138 S. Ct. 2206 (2018), that the government's acquisition of a defendant's
cell-site
a
location information is a search for purposes of the Fourth Amendment. Id. at 2220. Such
search, the Court held, generally requires a warrant, and the standard articulated in §
2703(d)
that
"falls well short of the probable cause required for a warrant." Id. at 2221. To the extent
his
Thompson argues that the State acquired his cell-site location information in violation of
RBI SCCert, Appendix
page 4, 6th Gr. Opinion,
Thompson v. Nagy. dated
November 20, 2018
No. 18-1747
-5rights under the Fourth Amendment, this claim does not deserve encouragement to proceed
further because, at the time of Thompson's direct appeal, counsel did not have the benefit of the
Court's holding in Carpenter, and therefore was not ineffective for failing to raise an argument
based on Carpenter. See Thompson v. Warden, Belmont Corr. Inst., 598 F.3d 281, 288 (6th Cir.
2010) ("[A]ppellate counsel is not ineffective for failing to predict the development of the law.").
In his seventh ground, Thompson argues that the Stored Communications Act is
unconstitutional because it is ambiguous and fails to provide a suppression remedy. He is
unable, however, to cite any authority supporting a facial challenge to the Act, nor does he
explain how a statute's lack of a suppression remedy would render it unconstitutional. Under
these circumstances, reasonable jurists could not debate the district court's determination that
Thompson's seventh ground is not "clearly stronger than issues that counsel did present" on
direct appeal. Webb, 586 F.3d at 399 (quoting Robbins, 528 U.S. at 285, 288).
In his eighth ground, Thompson argues that the trial court violated his confrontation
rights by admitting the victim's written identification of him as the shooter. This statement,
which the trial court admitted under the dying-declaration exception to the hearsay rule, was
obtained from the victim at the scene of the crime after he had been shot in the throat. See
Thompson, 2013 WL 276042, at *1-2 (citing Mich. R. Evid. 804(b)(2)).1 The Confrontation
Clause prohibits admission of out-of-court testimonial statements by a non-testifying witness
unless the witness is unavailable and the defendant had a prior opportunity for crossexamination. Davis v. Washington, 547 U.S. 813, 821 (2006). "[T]he Supreme Court has
refrained," however, "from ruling on the status of dying declarations under the Confrontation
Clause" and has "hinted that dying declarations may fall within an exception to the constitutional
bar against testimonial hearsay." Walker v. Harry, 462 F. App'x 543, 545 (6th Cir. 2012) (citing
Giles v. California, 554 U.S. 353, 358 (2008); Crawford v. Washington, 541 U.S 36, 56 n.6
To the extent that Thompson challenges the trial court's ruling that the victim's
statement was a dying declaration, this claim does not deserve encouragement to proceed further
because "[fjederal courts are obligated to accept as valid a state court's interpretation of state law
and rules of practice of that state." Vroman v. Brigano, 346 F.3d 598, 604 (6th Cir. 2003).
1
RBTSCCert, Appendix
page 5, 6th Cir. Opinion,
Thompson v. Nagy. dated
November 20, 2018
No. 18-1747
-6(2004)). The Michigan Court of Appeals has likewise concluded that, "under Crawford, dying
declarations are admissible as an historical exception to the Confrontation Clause." People v.
Taylor, 737 N.W.2d 790, 795 (Mich. 2007). Under these circumstances, reasonable jurists could
not debate the district court's determination that Thompson's eighth ground is not "clearly
stronger than issues that counsel did present" on direct appeal. Webb, 586 F.3d at 399 (quoting
Robbins, 528 U.S. at 285, 288).
In his ninth ground, Thompson argues that the trial court violated his confrontation rights
by admitting the victim's autopsy report, which was authored by a non-testifying analyst, and
related testimony. In Bulicoming v. New Mexico, 564 U.S. 647, 663-65 (2011), and MelendezDiaz v. Massachusetts, 557 U.S. 305, 310-11 (2009), the Supreme Court held that forensic
reports were testimonial evidence subject to the Confrontation Clause. But even assuming that
the holdings in Bulicoming and Melendez-Diaz apply to the autopsy report at issue here,
confrontation violations are subject to harmless-error review under Brecht v. Abrahamson, 507
U.S. 619, 623 (1993). Brecht held that a Confrontation Clause error is not harmless if it "had
substantial and injurious effect or influence in determining the jury's verdict."
Id. at 637
(quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). Thompson concedes that the
testimony at issue "did not have a substantial and injurious effect on the verdict." Under these
circumstances, reasonable jurists could not debate the district court's determination that
Thompson's ninth ground is not "clearly stronger than issues that counsel did present" on direct
appeal. Webb, 586 F.3d at 399 (quoting Robbins, 528 U.S. at 285, 288).
In his tenth ground, Thompson argues that the trial court improperly instructed the jury as
to the causation element of his first-degree murder charge. As the district court explained, "[t]he
trial court instructed the jury that in order to find Petitioner guilty, it was required to find that
'the defendant caused the death of [the victim]. That is that [the victim] died as a result of a
gunshot wound." In his motion for relief from judgment, Thompson argued that "the instruction
effectively told the jury that, if [the victim] died as a result of gunshot wounds, which he
reportedly did, then Mr. Thompson caused his death and this [causation] element of the murder
RBTSCCert. Appendix
page 6, 6th Cr. Oprion,
Thompson v. Nagy. dated
November 20, 21011111
No. 18-1747
-7charge was established." The district court noted, however, that "[i]n the immediately preceding
sentence the trial court instructed the jury that it was required to determine whether 'the
defendant caused the death of [the victim]." The district court concluded that Thompson's
"strained interpretation of the instruction does not present a clearly stronger claim than the ones
presented by appellate counsel on appeal." Reasonable jurists could not disagree.
In his eleventh ground, Thompson argues that trial counsel was ineffective for failing to
object to the violations alleged in his sixth through tenth grounds for relief. The district court
determined that, because Thompson's "underlying claims are without merit for the reasons
already discussed, neither trial nor appellate counsel were ineffective for failing to raise the
claims." Reasonable jurists could not disagree.
Thompson also faults trial counsel for failing to investigate and present evidence of thirdparty guilt. In his motion for relief from judgment, Thompson argued that public documents
revealed that the victim was an FBI informant, men mentioned in the victim's writing had been
threatened and moved to a secret location, and the victim and his "confederates" were under
indictment for "multiple crimes of violence and racketeering." Thompson has failed, however,
to identify any evidence in the record that meaningfully supports his theory. See Watkins v.
Lafler, 517 F. App'x 488, 496 (6th Cir. 2013) ("Without a showing of prejudice, [a petitioner]
cannot prove ineffective assistance of counsel through a failure to conduct an independent
investigation of the facts."); see also Tinsley v. Million, 399 F.3d 796, 810 (6th Cir. 2005)
(holding that, "[i]n the absence of any evidence showing that [the uncalled witnesses] would
have offered specific favorable testimony," a habeas petitioner cannot establish Strickland
prejudice). Under these circumstances, reasonable jurists could not debate the district court's
determination that Thompson's eleventh ground is not "clearly stronger than issues that counsel
did present" on direct appeal. Webb, 586 F.3d at 399 (quoting Robbins, 528 U.S. at 285, 288).
RBTSCCert. Appendix 1.
page 7, 6th Cir. Opi ni on,
Thompson v. Nagy,
November20, 2018
No. 18-1747
-8Accordingly, the COA application is DENIED.
ENTERED BY ORDER OF THE COURT
Deborah S. Hunt, Clerk
RBTSCCert, Appenthx L
page 8, 6th Cf r. Opinion,
Thompson v Nay. dat€d
November 20. 2018
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540
POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988
Deborah S. Hunt
Clerk
Tel. (513) 564-7000
www.ca6.uscourts.gov
Filed: November 20, 2018
Mr. Bruce H. Edwards
Mr. John S. Pallas
Office of the Attorney General of Michigan
P.O. Box 30217
Lansing, MI 48116
Mr. Ronald Bishop Thompson
Lakeland Correctional Facility
141 First Street
Coldwater, MI 49036
Re: Case No. 18-1747, Ronald Thompson v. Noah Nagy
Originating Case No. : 2:16-cv-13998
Dear Mr. Thompson and Counsel,
The Court issued the enclosed Order today in this case.
Sincerely yours,
•
s/Jennifer Earl
Case Manager
Direct Dial No. 513-564-7066
cc: Mr. David J. Weaver
Enclosure
No mandate to issue
RBTSCCert. Appendix
6th Cii. Opinion,
page
,
Thom.pon v. Nagy, dated
November 20, 2018
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2:16-cv-13998-VAR-DRG Doc # 8 Filed 05/15/18 Pg
1 of 19 Pg ID 2238
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RONALD B. THOMPSON,
Case No. 2:1 6-cv- 13998
Hon. Victoria A. Roberts
Petitioner,
LIM
BONITA HOFFNER,
Respondent.
I
HABEAS CORPUS,
OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF
GRANTING
(2) DENYING CERTIFICATE OF APPEALABILITY, AND (3)
ERIS
PERMISSION TO APPEAL IN FORMA PAUP
This is a habeas case filed by a Michigan prisoner under 28 U.S.C. § 2254.
B. Thompson was convicted after ajury trial in the Wayne Circuit Court
Petitioner Ronald
of first-degree premeditated
murder, MICH. Cow. LAWS § 750.3 16(1)(a), and possession of a firearm
during the commission of
felony, MICH. Cow. LAWS § 750.227b. Petitioner was sentenced
to life imprisonment for the
murder conviction, and a mandatory 2-year consecutive term for the
firearm conviction.
The petition raises twelve claims: (1) the trial court erred in allowing
written by the victim naming his shooter, (2) insufficient evidence was
presented at the preliminary
ously
examination to warrant a bind-over for trial, (3) the trial court errone
testimony of the pathologist regarding the victim's labored breath
admission of a note
admitted the opinion
ing during a 9-1-1 call, (4)
tions, (5) the state court
insufficient evidence was admitted at trial to sustain Petitioner's convic
tion review claims where
erroneously failed to address the merits of Petitioner's post-convic
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
phone records, (7) the police failed to comply with the SCA with
respect to Petitioner's cell
respect to cell tower location
RBTSCCERT, App&dix 1,
page 11, USDCEDMSD,
Opinion, Thompson v.
Hoffner, Dated May 15, 2018
2:16-cv-13998-VAR-DRG Doc # 8 Filed 05/15/18 Pg 2 of 19 Pg ID 2239
tation
evidence, (8) admission of the note naming Petitioner as the shooter violated the Confron
Clause, (9) the trial court erroneously admitted hearsay testimony regarding the autopsy report,
the trial court erroneously instructed the jury on the element of causation, (11) Petitioner
(10)
was denied
ce of
the effective assistance of trial counsel, and (12) Petitioner was denied the effective assistan
appellate counsel.
The Court finds that Petitioner's claims are without merit or barred by his state court
te of
procedural defaults. Therefore, the petition will be denied. The Court will also deny a certifica
appealability, but it will grant permission to appeal in forma pauperis.
I. Background
At 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
minute 9-1-1 call, the victim managed to tell the operator that he was shot and repeatedly
ten-
asked for
help, but he did not name the shooter when asked.
Detroit 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
around 1:00 a.m., about ten minutes after the victim called 9-1-1. The officers were met
arrived
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 days later.
2
RBTSCCERT, Appedx 1
page 12, USDCEDMSD,
Cpriion. Thompson v.
Hoifner, Dated My 115, 2018
2:16-cv-13998-VAR-DRG Doc # 8 Filed 05/15/18 Pg 3 of 19 Pg ID 2240
Kevin 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.
Sara Nail, 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. Nail 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 victim.
Detroit 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.
Dr. 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
e
Dr. Loewe as a single gunshot wound to the neck complicated by adult respiratory distress syndrom
3
RBTSCGERT, Appedx 1,
page 13, USDCEDMSD,
Opinion, Thompson v,
Hoffner, Dated May 15. 2018
2:16-cv-13998-VAR-DRG Doc # 8 Filed 05/15/18 Pg 4 of 19 Pg ID 2241
y regarding
and sepsis, and the manner of death was homicide. Dr. Somerset gave opinion testimon
Petitioner's labored breathing and difficulty speaking during the 9-1-1 call.
Aaron 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
to Petitioner by that name. Evidence was admitted that years before the shooting the FBI
referred
warned the
victim that a "hit" was put out on him.
s
Following arguments and instructions, the jury found Petitioner guilty of the offense
indicated above, and Petitioner was sentenced to life imprisonment plus two-years.
Petitioner filed an appeal of right. His appellate counsel filed a brief on appeal, raising what
er's
now form his first four habeas claims. The Michigan Court of Appeals affirmed Petition
App. Jan.
convictions in an unpublished opinion. People v. Thompson, 2013 WL 276042 (Mich. Ct.
n Supreme
24, 2013). Petitioner subsequently filed an application for leave to appeal in the Michiga
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).
Petitioner returned to the trial court and filed a motion for relief fromjudgment, 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.
Petitioner 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
cause for failing to previously raise the issues, and has not established that good cause
good
should be
4
RBTSCCERT. Appdtx 1,
page 14, USDCEDMSD,
Opinion, Thompson v.
I-{offner, Dated May 15, 21018
2242
2:16-cv-13998-VAR-DRG Doc # 8 Filed 05/15/18 Pg 5 of 19 Pg ID
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)
(Table).
II. Standard of Review
28 U.S.C. § 2254(d)(1) curtails a federal court's review of constitutional claims raised
a state prisoner in a habeas action if the claims were adjudicated on the merits by the state
Relief is barred under this section unless the state court adjudication was "contrary to"
by
courts.
or resulted
in an "unreasonable application of' clearly established Supreme Court law.
"A 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).
"[T]he 'unreasonable application' prong of the statute permits a federal habeas court
'grant the writ if the state court identifies the correct governing legal principle from [the
to
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.
"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."
v. Richter, 562 U.S. 86, 101 (2011), quoting Yarborough v. Alvarado, 541
Harrington
U.S. 652, 664 (2004).
tions in the
"Section 2254(d) reflects the view that habeas corpus is a guard against extreme malfunc
state criminal justice systems, not a substitute for ordinary error correction through appeal.
a condition for obtaining habeas corpus from a federal court, a state prisoner must show that
5
. . .
As
the state
RBTSCCERT, Appedx 1.
page 15, USDCEDMSD,
Opnion, Thompson v.
Hoffoer, Dated May 15, 2018
2:16-cv-13998-VAR-DRG Doc # 8 Filed 05/15/18
Pg 6 of 19 Pg ID 2243
that there
court's ruling on the claim being presented in federal court was so lacking in justification
lity for
was an error well understood and comprehended in existing law beyond any possibi
fairminded disagreement." Richter, 562 U.S. at 103 (internal quotation omitted).
III. Analysis
A. Admission of Victim's Dying Declaration
Petitioner's 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 victin
the 9-1-1
did not name the shooter. Petitioner asserts that at no time during the conversation with
operator did the victim indicate a belief that he was dying. On direct review, Petitioner argued
the trial court erred under Michigan Rule of Evidence 804(b)(2) admitting the note
that
as a dying
the note
declaration. During state post-conviction review, Petitioner asserted that admission of
violated his rights under the Sixth Amendment's Confrontation Clause.
First, the argument that the trial court erred under Rule 804(b)(2) by admitting the victim's
note does not present a cognizable claim on federal habeas review. The alleged failure
to comply
with state law does not amount to an actionable claim on habeas review. See, e.g., Pulley
465 U.S. 37, 41(1984). The Court may grant a writ of habeas corpus only on the
v. Harris,
ground that a
petitioner "is in custody in violation of the Constitution or laws or treaties of the United
States." 28
U.S.C. § 2254(a).
d
In any event, the Michigan Court of Appeals decision that the note was properly admitte
under Rule 804(b)(2) was reasonable. After reciting the applicable standard for the admissi
on of a
er's claim
dying declaration under the Michigan Rules of Evidence, the state court rejected Petition
6
RBTSCCERT, Appedx 1,
page 16, USDCEDMSD,
Opi nion, Thompson V.
Hcn.r D&d My 15, 2018
2:16-cv-13998-VAR-DRG Doc # 8 Filed 05/15/18 Pg 7 of 19 Pg ID 2244
as follows:
After reviewing the record, we find that the trial court could reasonably infer
from the circumstances surrounding the making of the statement that the victim
clearly believed his death was imminent. See id. The "apparent fatal quality" of the
victim's gunshot wound is evident given its nature and location in the middle of his
throat. Id. This is especially so in light of the victim's progressively worsening
condition over the duration of the 911 call, as evidenced by his increased difficulty
speaking and breathing, and also his heightened desperation for assistance, as
indicated by the increased frequency of his pleas for help, his apparent concern if and
when help would arrive, and the 911 operator's comments clearly attempting to calm
him down.'
From these circumstances surrounding the statement, the court could
reasonably infer that the victim feared for his life and believed his death was
imminent when he identified defendant as the assailant, despite his apparent mobility
and consciousness and the lack of "gushing" blood from his throat. See MRE
804(b)(2); Stamper, 480 Mich. at 3-4. Additionally, although there was no evidence
indicating that the victim was actually informed of his critical condition or that he
made any specific statements signifying his belief that his death was imminent, "it
is not necessary for the declarant to have actually stated that he knew he was dying
in order for the statement to be admissible as a dying declaration." Suer, 171 Mich.
App. at 251. Further, the victim's failure to identify defendant as the assailant during
the 911 call does not necessarily indicate a belief that his death was not imminent.
To the contrary, it was also reasonable to infer from the victim's numerous, continual
pleas for help during the 911 call that he was solely focused on obtaining assistance
because he feared for his life. Accordingly, we find no error in the trial court's ruling
that the victim's handwritten statement identifying defendant as the assailant was
admissible under IvIRE 804(b)(2) as a dying declaration and no abuse of discretion
in the court's admission of the statement as substantive evidence.
*
*
*
1 Testimony by a medical examiner who listened to the 911 call indicated that in the
beginning of the call the victim could not speak a sentence, his words were in "short
bursts," he had to pause to force more air through, and his breathing was labored;
after four minutes, the victim's labored breathing and bursts were more pronounced;
and after nine minutes, as the victim became weaker, it became "a lot more difficult"
for him to speak and he had "trouble" with labored breathing: The court in
considering defendant's motion to suppress the statement also reviewed the 911
tapes and found it "very clear" that the victim found it "very difficult" to breathe.
Thompson, 2013 WL 276042, *1..2.
Petitioner also asserts that the admission of the note violated his rights under
Confrontation Clause. The Confrontation Clause provides: "In all criminal prosecutions, the
the
accused
RBTSCCERT, Appedix 1,
page 17, USDCEDMSD,
Opi nion, Thompson v.
Hoffner, Dated May 15. 2018
2:16-cv-13998-VAR-DRG Doc # 8 Piled 05/15/18 Pg 8 of 19 Pg ID 2245
shall enjoy the right.
.
.
to be confronted with the witnesses against him." U.S. Const. amend. VI.
ial in
Among other things, the Confrontation Clause bars out-of-court statements that are testimon
amine
nature unless the witness is unavailable and the defendant had a prior opportunity to cross-ex
e Court
the witness. Crawford v. Washington, 541 U.S. 36, 68 (2004). In Crawford, the Suprem
noted that the dying declaration rule provides an historical exception to the Confrontation
Clause's
g other
bar on testimonial hearsay. After explaining that none of the Court's prior cases involvin
hearsay exceptions resulted in admission of testimonial hearsay, the Court observed:
The one deviation we have found involves dying declarations. The existence of that
exception as a general rule of criminal hearsay law cannot be disputed. Although
many dying declarations may not be testimonial, there is authority for admitting even
those that clearly are. We need not decide in this case whether the Sixth Amendment
incorporates an exception for testimonial dying declarations. If this exception must
be accepted on historical grounds, it is sui generis.
Crawford, 541 U.S. at 56 n.6 (citations omitted).
In Michigan v. Bryant, 562 U.S. 344, 351, n. 1 (2011), the Court declined to resolve whether
testimonial dying declarations are admissible as an exception to the Confrontation Clause.
The Sixth
Circuit subsequently held in Walker v. Harry, 462 F. App'x. 543, 545 (6th Cir. 2012),
Supreme Court has "refrained from ruling on the status of dying declarations
that the
under the
tes testimonial
Confrontation Clause." Id. at 545. Accordingly, even if the victim's note constitu
er's
hearsay, the statements admission under the dying declaration rule did not implicate Petition
er's first
Confrontation Clause rights as set-forth by clearly established Supreme Court law. Petition
and eighth claims are therefore without merit.
B. Sufficiency of Evidence at Preliminary Examination
Petitioner's second habeas claim asserts that there was insufficient evidence presented
the prosecution at the preliminary examination to bind Petitioner over for trial. Petitioner
by
asserts that
rRBTsccERT, Appedx 1,
page 13, USDCEDMSD,
I Opinion,Thornpor v
Hoffnr. Dated May 15, 2018
-
o
U
.
2:16-cv-13998-VAR-DRG Doc # 8 Filed 05/15/18 Pg 9 of 19 Pg ID 2246
y
the only evidence offered at the examination amounted to the inadmissible note, unconstitutionall
obtained cell-phone records, and the doubtful testimony that Petitioner's wife engaged in an affair
with the victim.
Under Michigan law the preliminary examination is statutory procedure used to determine
whether there is probable cause that the accused committed the charged crime. See MICH.
LAWS §§ 766.1-766.18. There is no federal constitutional requirement for this
COMP.
type of pre-trial
probable cause determination. Gerstein v. Pugh, 420 U.S. 103, 119 (1975) ("[A] judicial hearing
is
not prerequisite to prosecution by information... [A]lthough a suspect who is presently detained
.
may challenge the probable cause for that confinement, a conviction will not be vacated on
the
ground that the defendant was detained pending trial without a determination of probable cause.");
Dillard v. Bomar, 342 F.2d 789, 790-91 (6th Cir. 1965) ("We do not find that the Supreme
Court
, we
has ever held that an accused has a constitutional right to a preliminary hearing. On the contrary
construe the [Supreme Court's] opinions.
.
.
as saying that an accused has no such constitutional
right. This Court has held that no such constitutional right exists."). Accordingly, Petitioner's claim
that there was an insufficient evidence presented to bind him over for trial is not cognizable
on
habeas review.
C. Opinion Evidence Regarding Victim's Labored Breathing
Petitioner's third claim asserts that the trial court erred in allowing the medical examiner to
give opinion testimony regarding the victim's physical condition during the 9-1-1 call. Petitione
r
asserts that the evidence in question went beyond the witness's area of expertise.
After discussing the admissibility of expert witness opinion testimony under Michigan Rule
of Evidence 702 and 703, the Michigan Court of Appeals rejected the claim as follows:
The trial court qualified Dr. Somerset as a forensic pathologist; thus, he could
9
RBTSCCERT, Appedx 1,
page 19, USDCEDMSD,
Opinion. Thompson v.
Hoffner. Dated May 15. 2018
ID 2247
2:16-cv-13998-VAR-DRG Doc # 8 Filed 05/15/18 Pg 10 of 19 Pg
properly offer an opinion on the cause and manner of the victim's death. See Unger,
278 Mich. App. at 251-252. During his testimony at issue, Dr. Somerset explained
how the gunshot wound to the victim's throat physically impeded his ability to
breathe and speak. This testimony concerned the victim's wounds and suffering,
matters within the expertise of a forensic pathologist. Id. at 252. The effect of the
gunshot wound on the victim's ability to breathe was also related to the cause of
death, i.e., "respiratory distress syndrome," which was within a forensic pathologist's
area of expertise. Id. at 251-252. Regardless, in light of the strong evidence
establishing defendant's guilt, we cannot say that the admission of Dr. Somerset's
testimony concerning the effect of the gunshot wound on the victim's ability to
breathe was outcome determinative. See Cannes, 460 Mich. at 763-764.
We disagree with defendant's contention that, without the victim's medical
records in evidence, there were no facts to form the basis of Dr. Somerset's opinion
that the blood from the wound aspirated into the victim's lungs causing him to
experience difficulty breathing. Defendant correctly asserts that MRE 703 requires
that the "facts or data in the particular case upon which an expert bases an opinion
or inference shall be in evidence." Here, the evidence contained actual facts to
establish that the victim was, in fact, bleeding from the gunshot wound to his throat.
The officer who responded to the 911 call testified that every time the victim
breathed or attempted to speak blood would "dribble out" of the wound, and the
victim's girlfriend detailed the spots of blood throughout the victim's home. In
accordance with MRE 703, from these facts Dr. Somerset could opine, in light of his
general training and experience as a medical doctor and experience with injuries to
the throat, that the victim's impeded breathing was caused by blood aspirating in his
lungs. See People v. Yost, 278 Mich. App. 341, 395 (2008).
We likewise find no merit to defendant's claim that defense counsel was
ineffective for failing to object to Dr. Somerset's testimony. Because Dr. Somerset's
expert testimony concerning the victim's wound was properly allowed under MIRE
702, any objection by defense counsel to its admission would have been futile;
therefore, defense counsel could not have been ineffective on that basis. See People
v. Thomas, 260 Mich. App. 450, 457 (2004). Moreover, in light of the strong
evidence establishing defendant's guilt, defendant failed to establish a reasonable
probability that the jury would not have convicted him if the challenged testimony
had been excluded. See Unger, 278 Mich. App. at 242. Accordingly, defendant has
not established his claim of ineffective assistance of counsel.
Thompson, 2013 WL 276042, *3..4
This decision was reasonable. But in any event, habeas courts "must defer to a state court's
interpretation of its own rules of evidence and procedure' when assessing a habeas petition."
v. Karnes, 397 F.3d 446, 453 (6th Cir. 2005) (quoting Allen v. Morris, 845 F.2d 610,
10
Miskel
614 (6th Cir.
RBTSCCERT Appdix 1,
page 20, USDCEDMSD,
Opinion. Thompson v.
Hoffner. Dated May 15,210 8
2:16-cv-13998-VAR-DRG Doc # 8 Filed 05/15/18 Pg 11 of 19 Pg ID 2248
1988)). The Michigan Court of Appeals found that the medical examiner's testimony regarding the
aspiration of blood by the victim and his labored breathing was properly admitted under the
Michigan Rules of Evidence. Contrary to Petitioner's argument these matters pertained to cause of
death and therefore fell within the witness's area of expertise. This Court will not second-guess the
state court's application of its own evidentiary rules.
Nor was Petitioner's due process right to a fundamentally fair trial implicated by the
introduction of this evidence. Petitioner has not demonstrated that the evidence was erroneously
admitted under state law, let alone that an error occurred that was so "egregious that it results in a
denial of fundamental fairness." See Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003).
Petitioner's third claim is therefore without merit.
D. Sufficiency of Evidence
Petitioner's fourth claim challenges the sufficiency of the evidence presented at trial to
sustain his conviction. He argues the prosecutor's case hinged on phone records and conjecture, and
that while the records showed that Petitioner was in the general vicinity at the time of the crime,
there was no definitive proof that he was at the victim's house at the time of the shooting. Petitioner
relies on the testimony of the victim's brother who testified that Petitioner lived only about a
quarter-mile away from the victim's house at the time of the shooting, rendering the cell-phone
tower evidence irrelevant. See Dkt. 6-12, at 46.
After reciting the applicable constitutional standard for determining the constitutional
sufficiency of the evidence, the Michigan Court of Appeals rejected Petitioner's claim as follows:
[T}here was sufficient evidence from which the jury could reasonably infer that the
killing was intentional, including testimony regarding the life-threatening nature and
location of the wound, testimony regarding the nonverbal gestures that the victim
made to the responding police officers indicating that he opened the door and that the
assailant pointed a gun at his throat and shot him, and the medical examiner's
11
IRBTSCCERTAppex1,
p9 1 ULUWiLOpnon, Thompson V.
Hoffner, Dated May 15, 2018
2:16-cv-13998-VAR-DRG Doc # 8 Filed 05/15/18 Pg 12 of 19 Pg ID 2249
characterization of the manner of death as homicide. There was also sufficient
evidence linking defendant directly to the shooting from which the jury could
reasonably conclude that defendant was responsible for the homicide beyond a
reasonable doubt. See Ortiz, 249 Mich. App. at 302. More specifically, the victim's
handwritten statement identifying defendant as the assailant, properly admitted as a
dying declaration, demonstrated that defendant committed the homicide.
Furthermore, additional evidence corroborated the identification evidence.
Specifically, a forensic cellular-telephone analysis led to the reasonable inference
that defendant called the victim minutes before the shooting, went to his home and
shot him, and then fled the crime scene, which supports an inference of
"consciousness of guilt." See Unger, 278 Mich. App. at 226. Further, defendant's
noticeable absence during the victim's two week hospital stay and his visitation and
funeral services in light of the overwhelming testimony about the extremely close
relationship between defendant and the victim leads to the reasonable inference that
defendant was avoiding the hospital and funeral out of consciousness of guilt.
We also conclude that the evidence, viewed in the light most favorable to the
prosecution, supports a reasonable inference that defendant premeditated and
In this case, testimony indicated that, merely two
deliberated to kill the victim.
weeks before the shooting, defendant accused his wife of sleeping with the victim,
which provided a clear motive for defendant to kill the victim. "Although motive is
not an essential element of the crime, evidence of motive in a prosecution for murder
is always relevant," Unger, 278 Mich. App. at 223, and supports an inference of
premeditation and deliberation, People v. Youngblood, 165 Mich. App. 381, 387
(1988); People v. Waters, 118 Mich. App. 176,186-187 (1982). Further, viewing the
cellular telephone records in the light most favorable to the prosecution, the jury
could reasonably infer that defendant called the victim in advance in an attempt to
determine if he was home and then proceeded to go to his home with a deadly
weapon to kill him, which reasonably points to the existence of a premeditated plan.
See Youngblood, 165 Mich. App. at 387 (premeditation and deliberation may be
inferred from the circumstances surrounding the killing). There was sufficient time
between the time defendant called the victim and the time he arrived at the victim's
home for defendant to take a "second look." Plummer, 229 Mich. App. at 300. The
victim's hand gestures to the responding officers, indicating that when he answered
the door the assailant pointed a gun at his throat and shot him, and the lack of any
forced entry or "sudden affray" in the victim's home, to indicate that the shooting
occurred suddenly or was impulsive, support an inference that defendant acted with
premeditation, especially in light of the existence of a motive to kill the victim.
People v. Tilley, 405 Mich. 38, 44-45 (1979); see also People v. Morrin, 31 Mich.
App. 301, 331 (1971).
.
.
.
Accordingly, we conclude that the evidence at trial, when viewed in a light
most favorable to the prosecution, was sufficient for a rational trier of fact to
reasonably conclude beyond a reasonable doubt that defendant committed
first-degree murder.
12
RBTSCcERT, Aopedx 1,
pa 22, USDGEDMSD,
Opinion. Thompson v.
Noffner, Dated May 15, 2018
2:16-cv-13998-VAR-DRG Doc # 8 Filed 05/15/18 Pg 13 of 19 Pg ID 2250
Thompson, 2013 WL 276042, *5.6.
This decision did not unreasonably apply clearly established Supreme Court law. "[T]he Due
Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt
of every fact necessary to constitute the crime with which he is charged." In Re Winship, 397 U.S.
358, 364 (1970). The critical inquiry on a sufficiency of the evidence review is "whether the record
evidence could reasonably support a finding of guilt beyond a reasonable doubt." Jackson v.
Virginia, 443 U.S. 307, 318 (1979). This inquiry, however, does not require a court to "ask itself
whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Id. at
334. "Instead, the relevant question is whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt." Id. at 318-19.
The Court may not vacate a state court decision rejecting a sufficiency of the evidence claim
merely because it disagrees with the decision. Instead, it may grant habeas relief only if the state
court decision was an objectively unreasonable application of Jackson. Cavazos v. Smith, 565 U.S.
1, 2 (2011). For the Court, "the only question under Jackson is whether that finding was so
insupportable as to fall below the threshold of bare rationality." Coleman v. Johnson, 566 U.S. 650,
656 (2012).
Viewed most favorably to the prosecution, the evidence indicated that minutes before the
shooting, Petitioner called the victim on his cell phone. Then within minutes after the shooting, the
victim indicated that Petitioner was the person who shot him by writing his assumed name on a
piece of paper. The jury was free to accept as true the representations of the police officers regarding
the dire circumstances under which the victim identified Petitioner as the shooter. The jury was also
free to infer consciousness of guilt from Petitioner's absence at the hospital and the funeral where
13
Apped ix
USDCEDMSD,
Opinion, Thompson v.
Hotfner, Dated May 15, 20418
2:16-cv-13998-VAR-DRG Doc # 8 Filed 05/15/18 Pg 14 of 19 Pg ID 2251
the evidence indicated that the two were best friends. At a bare minimum, the state appellate court's
rejection of this claim in light of the evidence presented at trial did not fall below the threshold of
bare rationality. Petitioner's fourth claim is therefore without merit
E. Procedural Default
Petitioner's remaining claims were presented to the state courts in Petitioner's motion for
relief from judgment and the appeal that followed it. The trial court denied Petitioner's motion in
part because it found that Petitioner failed to demonstrate good cause for failing to raise the claims
on direct appeal. The Michigan Court of Appeals then denied relief 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).
A federal habeas court ordinarily will not review a petitioner's claims if he "has defaulted
his federal claims in state court pursuant to an independent and adequate state procedural rule."
Coleman v. Thompson, 501 U.S. 722, 750 (1991). "To determine whether the state court rejected
a petitioner's claim on procedural grounds, a court looks to 'the last reasoned state court opinion to
determine the basis for the state court's rejection of the petitioner's claim." Amos v. Renico, 683
F.3d 720, 733 (6th Cir. 2012) (quoting Guilmette v. Howes, 624 F.3d 286, 291 (6th Cir. 2010) (en
bane)). Furthermore, the court must presume that, "[where there has been one reasoned state
judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting
the same claim rest upon the same ground." Guilmette; 624 F.3d at 291-92 (quoting Ylst v.
Nunnemaker, 501 U.S. 797, 803 (1991)).
Here, the Michigan Court of Appeals' order denying Petitioner leave to appeal was the last
reasoned state court opinion to reject Petitioner's post-conviction claims. The state appellate court
14
RBTSCCERT. Appdx 1
,
page 24, USDCEDMSD.
Opi ni on, Thompson v.
Hoffner, Datad May15, 2018
2:16-cv-13998-VAR-DRG Doc # 8 Filed 05/15/18 Pg 15 of 19 Pg ID 2252
rejected the claims under Michigan Court Rule 6.508(D)(3), "which is an independent and adequate
state ground sufficient for procedural default that required [Petitioner] to raise these claims during
his direct appeal." Amos, 683 F.3d at 733.
Where, as here, a petitioner has procedurally defaulted his claims, "federal habeas review
of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice
as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims
will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750.
Petitioner's fifth and twelfth habeas claims assert that his appellate counsel was ineffective
for failing to raise his post-conviction review claims during his appeal of right, and they constitute
his argument for why cause exists for review of his defaulted claims. Appellate counsel, however,
is not required "to raise every non-frivolous issue on appeal." Gayer v. Straub, 349 F.3d 340, 348
(6th Cir. 2003). Indeed, "winnowing out weaker arguments on appeal and focusing on' those more
likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate
advocacy." Smith v. Murray, 477 U.S. 527, 536 (1986) (quoting Jones v. Barnes, 463 U.S. 745,
751-52 (1983)). Where appellate counsel "presents one argument on appeal rather than another..
the petitioner must demonstrate that the issue not presented 'was clearly stronger than issues that
counsel did present" to establish ineffective assistance of counsel. Gayer, 349 F.3d at 348 (quoting
Smith v. Robbins, 528 U.S. 259, 289 (2000)).
Here, appellate counsel was not ineffective during Petitioner's direct appeal because the
claims Petitioner raised on post-conviction review are not "clearly stronger" than the ones raised by
appellate counsel on direct review. Petitioner therefore cannot demonstrate cause to excuse his
default.
RBTSCCERT, A pdix 1.
page 25, USDCEDMSD
1
I
5
OpflOfl, Thompbvfl V.
Hottner, Dated May 15:20101
2:16-cv-13998-VAR-DRG Doc # 8 Filed 05/15/18 Pg 16 of 19 Pg ID 2253
Violation of the Stored Communications Act
Petitioner's sixth habeas claim asserts that the state magistrate judge ordering production of
Petitioner's cell phone records violated the Stored Communications Act ("SCA"), 18 U.S.C. § 2701
et seq., because the government did not articulate specific facts showing that there was reasonable
grounds to believe that the contents of the records were relevant to an ongoing criminal
investigation. Petitioner's related seventh claim asserts that the SCA was violated by disclosure of
cell phone tower location information. Even if it were true that the government violated the SCA,
however, such a violation does not provide a basis for suppressing the records. The SCA provides
for civil damages, see 18 U.S.C. § 2702, and criminal punishment, see 18 U.S.C. § 2701(b), but
specifically excludes other potential remedies. see 18 U.S.C. § 2708. Petitioner's omitted SCA
claims are therefore not "clearly stronger" than the ones raised by appellate counsel on direct review,
and appellate counsel's failure to raise them did not constitute ineffective assistance of counsel.
Confrontation Clause
Petitioner's eighth claim concerns the admission of the victim's note, raising the claim under
the Confrontation Clause as opposed to the Michigan Rules of Evidence. But as discussed above,
the Confrontation Clause is not implicated by the admission of a dying declaration. This claim is
likewise not "clearly stronger" than the ones raised by appellate counsel on direct appeal.
Admission of Contents of Autopsy Report
Petitioner's ninth claim asserts that the trial court erroneously admitted testimony regarding
the victim's autopsy report on Confrontation Clause grounds because the testifying medical
examiner was not the person who performed the autopsy. This claim is also not clearly stronger than
the ones raised by appellate counsel on direct review. There is no clearly established Supreme Court
precedent holding that autopsy reports are testimonial in nature, and thus subject to the
16
RBTSCGERT, Appedx 1,
page 26, USDCEDMSD,
opini on, Thompson V.
Holiner Dated Mey 15, 2018
2:16-cv-13998-VAR-DRG Doc # 8 Filed 05/15/18 Pg 17 of 19 Pg ID 2254
Confrontation Clause's prohibition against the admission of testimonial hearsay. Mitchell v. Kelly,
520 F. App'x 329, 331 (6th Cir. 2013) ("[T]he decision of the Ohio Court of Appeals was not an
unreasonable application of Crawford given the lack of Supreme Court precedent establishing that
an autopsy report is testimonial."); see also Cato v. Prelesnik, No. 1:08-cv-1 146, 2012 U.S. Dist.
LEXIS 99909, 2012 WL 2952183 at *3 (W.D. Mich. July 18, 2012). Appellate counsel was not
ineffective for failing to raise this claim on direct review.
Jury Instruction on Causation
Petitioner's tenth claim asserts that the jury was erroneously instructed on the element of
causation. The trial court instructed the jury that in order to find Petitioner guilty, it was required
to find that "the defendant caused the death of Dennis VanHulle. That is that Dennis VanHulle died
as a result of a gunshot wound." Dkt. 6-14, at 68. Petitioner asserts that in light of the working of
the second sentence, the jury might have believed that it was required to find Petitioner guilty if it
found that VanHulle died as a result of a gunshot wound whether or not Petitioner was the one who
shot him. This strained interpretation of the instruction does not present a clearly stronger claim than
the ones presented by appellate counsel on direct appeal. In the immediately preceding sentence the
trial court instructed that jury that it was required to determine whether "the defendant caused the
death of Dennis VanHulle." It is not enough that there is some "slight possibility" that the jury
misapplied the instruction. Weeks v. Angelone, 528 U.S. 225, 236(2000). Appellate counsel was not
ineffective for failing to raise this claim on direct appeal.
Ineffective Assistance of Trial Counsel
Petitioner's eleventh claim asserts that his trial counsel was ineffective for failing to preserve
his other claims at trial. But because the underlying claims are without merit for the reasons already
discussed, neither trial nor appellate counsel were ineffective for failing to raise the claims. Greer
17
RBTSCCERT. Appedx 1,
page 27, USDCEDMSD,
0pinon, Thompson v.
f-foffner, Dated May 5. 208
2:16-cv-13998-VAR-DRG Doc # 8 Filed 05/15/18
Pg 18 of 19 Pg ID 2255
v. Mitchell, 264 F.3d 663, 676 (6th Cir. 2001).
Petitioner also asserts that his trial counsel was ineffective for failing to investigate and
present a defense that a third party murdered the victim. Petitioner proffered no evidence in the state
courts and he proffers no evidence here in support of such a defense. Nor does Petitioner proffer any
evidence that leads existed regarding such a defense that went ignored by defense counsel. "It should
go without saying that the absence of evidence cannot overcome the 'strong presumption that
counsel's conduct [fell] within the wide range of reasonable professional assistance." Burt v. Titlow,
571 U.S. 12, 23 (2013)(quoting Strickland, 466 U.S. at 689). Appellate counsel was not ineffective
for omitting this baseless claim.
Accordingly, Petitioner's state post-conviction review claims are barred from review by
Petitioner's state court procedural default and Petitioner's failure to demonstrate cause to excuse the
default. As all of Petitioner's claim are without merit or barred from review, the petition will be
denied.
IV. Certificate of Appealability
Federal Rule of Appellate Procedure 22 provides that an appeal may not proceed unless a
certificate of appealability issued. A certificate of appealability may issue "only if the applicant has
made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Courts
must either issue a certificate of appealability indicating which issues satisfy the required showing
or provide reasons why such a certificate should not issue. 28 U.S.C. § 2253(c)(3); Fed. R. App. P.
22(b); In re Certificates of Appealability, 106 F.3d 1306, 1307 (6th Cir. 1997).
To receive a certificate of appealability, "a petitioner must show that reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve encouragement to proceed further."
18
RBISCCERT, Appedx 1.
page 28, USDCEDMSD,
Opinion, Thompson v.
Koffner. Dated May 15. 2018
2:16-cv-13998-VAR-DRG Doc # 8 Filed 05/15/18
Pg 19 of 19 Pg ID 2256
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal quotes and citations omitted). Here, jurists
of reason would not debate the Court's conclusion that Petitioner is not entitled to habeas relief with
respect to any of his claims, and so a certificate will be denied.
The Court will, however, grant permission to appeal in forma pauperis because any appeal
of this decision could be taken in good faith. 28 U.S.C. § 1915(a)(3).
V. Conclusion
Accordingly, the Court 1) DENIES WITH PREJUDICE the petition for a writ of habeas
corpus, 2) DENIESa certificate of appealability, and 3) GRANTS permission to appeal in forma
pauperis.
SO ORDERED.
S/Victoria A. Roberts
Honorable Victoria A. Roberts
United States District Judge
Dated: May 15, 2018
0
RBTSCCERT, Appedx 1,
page 29, U-SDGEDMSD,
Opncn, Thompson v.
Hoffner, Dated May 152018
2:16-cv-13998-VAR-DRG Doc # 9 Filed 05/15/18
Pg 1 of 1 Pg ID 2257
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RONALD B. THOMPSON,
Petitioner,
Case No. 2:1 6-cv- 13998
Hon. Victoria A. Roberts
V.
BONITA HOFFNER;
Respondent.
/
JUDGMENT
The above entitled case came before the Court on a Petition for Writ of Habeas Corpus. In
accordance with the Opinion and Order entered on May 15, 2018:
The Petition for Writ of Habeas Corpus is DENIED.
A Certificate of Appealability is DENIED.
Permission to Proceed on Appeal is GRANTED.
Dated at Detroit, Michigan, this 15th day of May, 2018.
DAVID J. WEAVER
CLERK OF THE COURT
APPROVED:
BY: S/Carol A. Pinegar
DEPUTY CLERK
S/Victoria A. Roberts
Hon. Victoria A. Roberts
United States District Judge
RBTSCCERT, Appthx 1,
paga 30, USDCEDMSD,
Opinion, Thompson
Hoffner, Dated May 15, 2018
Additional material
f rom this filing is
i the
a vaiIablen
Clerk's Off ice.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.