Petition for Writ of Certiorari — Kahri Smith, Petitioner v. Bonita J. Hoffner, Warden

t1

1I

NO.

IN THE SUPREME COURT OF THE UNITED STATES

KAT-IRI SMITH, Petitioner,

H

BONITA HOFFNER,

Respondent.

PETITION FOR WRIT OF CERTIORARI

On Appeal from the United States Court of Appeals for the Sixth Circuit

FILED

JUL 172018

OFFICE OF THE CLERK

SUPREME COUR1 U. S.

RC1EVi.D

JUL

2018

OFFICE OF THE CLERK

SUPR E MF-

STATEMENT OF QUESTIONS PRESENTED

I

IS CERTIORARI APPROPRIATE WHERE THE SIXTH CIRCUIT COURT

OF APPEALS DECIDED THE MERITS OF PETITIONER'S SELF

DEFENSE CLAIM WITHOUT JURISDICTION AND IS IT DEBATABLE

AMONG REASONABLE JURISTS WHETHER THE COMMISSION OF A

FELONY PRECLUDES A SELF DEFENSE INSTRUCTION UNDER

MICHIGAN LAW?

PARTIES TO THE PROCEEDINGS

Petitioner, KAHRI SMITH, is an individual and has no corporate affiliations. Petitioner is

proceeding in pro per with the aid of a Michigan Department of Corrections Legal Writer.

Respondent, Bonita Hoffner is the warden of Lakeland Correctional facility and is represented

by the Michigan Attorney General's Office

TABLE OF CONTENTS

TABLEOF AUTHORITIES ............................................................................................................

QUESTIONPRESENTED FOR REVIEW ...................................................................................iv

PARTIESTO THE PROCEEDINGS .............................................................................................. V

OPINIONSBELOW .......................................................................................................................vi

STATEMENTOF JURISDICTION .................................................................................................v

CONSTITUTIONAL, STATUTORY PROVISIONS, COURT RULES INVOLVED ...................v

STATEMENTOF THE CASE .........................................................................................................1

REASONS FOR GRANTING THE WRIT:

CERTIORARI IS APPROPRIATE BECAUSE THE SIXTH CIRCUIT COURT

OF APPEALS DECIDED THE MERITS OF PETITIONER'S SELF DEFENSE

CLAIM WITHOUT JURISDICTION AND IT IS DEBATABLE AMONG

JURISTS WHETHER THE COMMISSION OF A FELONY PRECLUDES A

SELF DEFENSE INSTRUCTION UNDER MICHIGAN LAW ............................ 2

.

CONCLUSION................................................................................................................................ 8

APPENDIX A:

United States Court of Appeals Opinion, No. 18-1035 ..................................la

APPENDIX B:

United States District Court Opinion, No. 15-cv-11648 ................................la

APPENDIX C:

.

2a

People v. Smith, No. 11-000477 (Wayne Co. CirCt.) ...................................

APPENDIX D:

People v. Smith, 2013 Mich App 2053 (Sept.20, 2013)...................................a

TABLE OF AUTHORITIES

CASES

Barnes v Commonweal/h, 214 Va 24; 197 SE2d 189 (1973)

.4

Chambers v. Mississippi, 410 U.S. 284 (1973).........................................................4

Crane v. Kentucky, 476 U.S. 683, 690 (1986)..........................................................6

Evans v United States, 277 F2d 354; 107 App DC 324 (1959):.......................................4

Matthews v United Stales, 485 U.S. 58, 63 (1988).....................................................7

Miller-El v. Cockrell, 537 U.S. 322 (2003)...........................................................2,3

People v Goree, 296 Mich. App. 293, 302, 305 (2012)................................................6

People V. Dupree, 486 Mich. 693, 697 (2010)..........................................................6

People v. Harris, 458 Mich. 310, 318-319 (1998)......................................................5

People v. Triplett, 499 Mich 52, 57(2016)................................................................6

Stale v Grffin, 19 Ore App 822;529 P2d 399, 404-405 (1974)..........................................4

STATUTES

28 U.S.C. § 2253(c)..........................................................................................2

Mich. Comp. Laws 750.317 ................................................................................1

Mich. Comp. Laws, 780.971 ...............................................................................6

RELIEFREQUESTED ....................................................................................

IN THE SUPREME COURT OF THE UNITED STATES

No.

KAHRI SMITH

PETITIONER,

V.

BONITA HOFFNER

RESPONDENT

ON PETITION FOR A WRIT OF CER TIORA RI

TO THE UNITED STA TES COURT OF APPEALS FOR THE SIXTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

KAHRI SMITH, respectfully petitions for a Writ of Certiorari to review

the final order of the Michigan Supreme Court in this case.

OPINIONS BELOW

On November 28, 2017, the United States District Court for the Eastern District had

issued an opinion and order denying Mr. Smith's petition for a writ of habeas corpus and

declining to issue a certificate of appealability. (Appendix B).

On May 25, 2018, the United States Court of Appeals for the Sixth Circuit issued an

order denying Petitioner's request for a certificate of appealability. (Appendix A, pgs. 1-5).

STATEMENT OF JURISDICTION

Petitioner seeks review of the May 25, 2018, opinion of the Michigan Supreme Court.

This Court has jurisdiction pursuant to 28 U.S.C. § 1257.

CONSTITUTIONAL AND STATUTORY PROVISIONS, AND COURT RULES INVOLVED

Constitutional Provision

U.S. Const., Amend. XIV: "All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens of the United States and

of the State wherein they reside. No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty, or properly, without due

process of law; nor deny to any person within its jurisdiction the equal protection

of the laws."

Statutory Provisions

Mich. Comp. Laws, 780.971 provides:

"Sec. I: "This act shall be known and may be cited as the "self-defense

act". Sec. 2: (1) An individual who has not or is not engaged in the

commission of a crime at the time he Or she uses deadly force may use

deadly force against another individual anywhere he or she has the legal

right to be with no duty to retreat if. either of the following applies: (a)

The individual honestly and reasonably believes that the use of deadly

force is necessary to prevent the imminent death of or imminent great

bodily harm to himself or herself or to another individual. (b) The

individual honestly and reasonably believes that the use of deadly force

is necessary to prevent the imminent sexual assault of himself or herself

or of another individual. Sec 3: Except as provided in section 2, this act

does not modify the common law of this state in existence on October 1,

2006 regarding the duty to retreat before using deadly force or force

other than deadly force. Sec 4: This act does not diminish an individual's

right to use deadly force or force other than deadly force in self-defense

or defense of another individual as provided by the common law of this

state in existence on October 1, 2006."

STATEMENT OF THE CASE

Petitioner Mr. Smith was convicted in state court of second-degree murder Mich. Comp.

Laws 750.317. The convictions arose from the beating death of Mr. Smith's uncle on August 4,

2010. Mr. Smith asserts that he had a torn ligament in his leg and could not have attempted to

kick in his uncle's door but was given access to the house and a subsequent fight had caused

damage to the window and the door. Mr. Smith attempted to rely upon a claim of self-defense but

this request was denied since it was alleged that Mr. Smith was committing a felony at the time

of the beating death of his uncle. It is noteworthy that Mr. Smith was not convicted of any crime

but second-degree murder.

Petitioner respectfully submits that the testimony pertaining to Eric Smith not wanting the

Petitioner in his house and Petitioner kicking in a door in order to enter Eric Smith's home is

contradictory in nature. (Trial Trans. Vol. II pgs. 36-37). Edith Smith testified that "Eric wasn't

inside the house." The trial court, realizing the significance of that statement interjected, "she just

said he Was outside." id. It is the Petitioner's position that the broken window that was blamed

on him at trial was actually broken long before this incident and that Edith and Irving fabricated

testimony against him in efforts to secure a tainted conviction.

Irving and Edith Smith's testimony is conflicting as one witness testified that Petitioner

kicked the door in to gain entry into Eric's house and the other testified that Petitioner kicked the

window in. (Preliminary Exam [PE] pgs. 25-26 & Trial Trans. [TI] Vol II p 63- to II Vol, il, p

35). Irving testified that the window was broken after the door was kicked in, but this testimony

is belied by common sense. Why would someone break a window to get in after they kicked the

door?

The inconsistencies concerning the alleged break in deprived Petitioner of a valid defense

to the charges. The jury concluded that Mr. Smith's beating of his uncle did establish all of the

elements of second-degree murder and returned a verdict of guilty. Mr. Smith was sentenced to

20-40 years imprisonment. After exhausting his direct appeals Mr. Smith sought habeas relief in

the United States District Court, Eastern District of Michigan, Southern Division, presenting a

single claim for relief:

REASONS FOR GRANTING THE WRIT

CERTIORARI IS APPROPRIATE BECAUSE THE SIXTH CIRCUIT COURT

OF APPEALS DECIDED THE MERITS OF PETITIONER'S SELF DEFENSE

CLAIM WITHOUT JURISDICTION AND IT IS DEBATABLE AMONG

JURISTS WHETHER THE COMMISSION OF A FELONY PRECLUDES A

SELF DEFENSE INSTRUCTION UNDER MICHIGAN LAW

ANAl ysic

If the district court denied relief to the petitioner, an appeal cannot proceed until the

district court or the Sixth Circuit grants a COA. This requirement is set forth in 28 U.S.C. §

2253(c) which provides in pertinent part:

"(I) Unless a circuit justice or judge issues a certificate of appealability,

an appeal may not be taken to the court of appeals from—

(A) the final order in a habeas corpus proceeding in which the detention

complained of arises out of process issued by a State court. .

(2) A certificate of appealability may issue under paragraph (I) only if

the applicant has made a substantial showing of the denial of a

constitutional right ..."

In Miller-El v. Cockrell, 537 U.S. 322 (2003), the court held that in deciding whether to

grant a COA, "[t]he Court of Appeals should limit its examination to a threshold inquiry into the

underlying merit of petitioner's claims rather than ruling on the merit of the prisoner's claims..

Id. 537 US at 327, citing Slack v. McDaniel,529 U.S. 473, 481, 146 L. Ed. 2d. 542, 120 S. Ct.

1595 (2000).A COA will issue only if the requirements of §2253 have been satisfied. Al. 537

U.S. at 336. The Court further elaborated: "Under the controlling standard, 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." Id. citation omitted.

In seeking a COA the petitioner need not demonstrate that his/her appeal will succeed.

Miller-El, supra, 537 U.S. at 337.

The Sixth Circuit issued a four page opinion which went beyond a cursory review of the

merits and concluded that:

The evidence at trial did not support this defense. Rather, undisputed

evidence established that Eric locked Smith out of his house; Smith kicked in a

window and a door of Eric's house in order to gain entry; Eric called his mother

and his son asking for help when Smith broke into his home; there was no

evidence that Eric had a weapon or threatened Smith; Smith weighed

approximately seventy-five pounds more than Eric; and Eric had defensive

injuries on his wrists and was found unconscious near a side door of his home.

Smith 2013 WL 66708997, at *12 Given that the testimony from Smith's

grandmother did not contradict this evidence and, in fact, refuted the allegation

that Eric was the aggressive, there is no indication that any further testimony on

her part would have been sufficient for Smith to assert a self-defense claim.

Reasonable jurists would not therefore debate that Smith's right to present a

defense was not infringed by any limitation on his grandmother's testimony.

Although the Sixth Circuit used the magic words "reasonable jurists would not therefore

debate..." it essentially concluded that Petitioner could not establish self-defense. See May 25,

2018, Order pgs. 3-4. Petitioner asserts that this was a clear legal error.

In an analogous case where the defendant was mentally ill, the Court concluded that

evidence revealing what kind of man the decedent was would be highly relevant to corroborate

the defense theory and help the jury to determine whether appellants story was truthful, and

ii

would therefore serve the interests of justice. See Evans v United States, 277 F2d 354; 107 App

DC 324 (1959), the defendant claimed she killed the deceased, a stranger, in defending herself

from sexual attack. Her conviction for second-degree murder was reversed because of the trial

court's rejection of proffered testimony by the deceased's wife that the deceased was ill mentally,

not insane a lost soul who wanted to be with people, get along with the rest, and did not know

how to do it; that at times, that he would like to drink and at times of drinking and otherwise he

would even go to the extent of being psychotic, perhaps, and with her at least she would know

--

acted belligerent and in a really bellicose type of manner. Id. at 355.

In Barnes v Commonwealth, 214 Va 24; 197 SE2d 189 (1973), the defendant claimed he

acted in self-defense in killing an intoxicated man who attacked him. The Virginia Supreme

Court held it was reversible error to exclude testimony of the decedent's ex-wife that five years

earlier, the decedent showed aggressive tendencies when intoxicated; as well as other testimony

to show that shortly before the decedent's death, he had been hospitalized for excessive drinking.

This was properly admissible, with no requirement that it be known to the defendant, because if

admitted, the jury might have found the defendant's version of events more credible.

In Stale v Griffin, 19 Ore App 822; 529 P2d 399, 404-405 (1974), the Court held it was

reversible error to exclude proffered testimony of a bouncer that the deceased would "flip out"

and get into fights when intoxicated, despite the prosecutor's "specific act" objection. The Court

held that the proffered evidence was erroneously excluded, since it was evidence of the character

of the deceased for turbulence when intoxicated. Reversal was required, because the jury "may

have been more inclined to believe defendant's version of the events

.

.

.

including his claim that

[the deceased] initiated an unprovoked attack," had it heard the excluded testimony.

11

These cases support Petitioner's position that evidence of the deceased's past pattern of

violence was admissible as character evidence. The purpose of the testimony was two-fold: to

show that the decedent was the aggressor, and to establish Petitioner's reasonable apprehension

of harm to himself by the decedent. When the evidence is used to establish reasonable

apprehension of harm, character or a character trait is made an essential element of the claim of

self-defense. See People v. Harris, 458 Mich. 310, 318-319 (1998). Therefore, reasonable jurists

could disagree regarding whether Petitioner was denied his fundamental constitutional right to

present a defense.

Michigan Laws Governing Claims of Self-Defense

At the time of Mr. Smith's trial, Michigan law recognized the "stand-your-ground"

defense which applies where the accused reasonably believes that his/her life is in imminent

danger. See e.g. Mich. Comp. Laws, 780.971, effective October 1, 2006, created the right to

stand one ground and not retreat in circumstances in which duty to retreat existed at common

law

The Act provides:

Sec. 1: "This act shall be known and may be cited as the "selfdefense act': Sec. 2: (1) An individual who has not or is not engaged in

the commission of a crime at the time he or she uses deadly force may

use deadly force against another individual anywhere he or she has the

legal right to be with no duty to retreat if either of the following applies:

(a) The individual honestly and reasonably believes that the use of

deadly force is necessary to prevent the imminent death of or imminent

great bodily harm to himself or herself or to another individual. (b) The

individual honestly and reasonably believes that the use of deadly force

is necessary to prevent the imminent sexual assault of himself or herself

or of another individual. Sec 3: Except as provided in section 2, this act

does not modify the common law of this state in existence on October 1,

2006 regarding the duty to retreat before using deadly •force or force

other than deadly force. Sec 4: This act does not diminish an individual's

5

right to use deadly force or force other than deadly force in self-defense

or defense of another individual as provided by the common law of this

state in existence on October 1, 2006."

Despite the statutory language precluding a claim of self-defense during the commission

of crime, the Michigan Supreme Court has not construed the self-defense statute Mich. Comp.

Laws 780.971 to impose a categorical ban on claims of self-defense every time the accused is

alleged to have killed during the commission of a felony.

For example in People v Dupree, 486 Mich. 693, 697 (2010), the court held that the

claim of common law self-defense is generally available for a felon-in-possession charge. The

court reasoned in Dupree, that the cnmon law claim of self-defense was available to a

defendant in a felon in possesion of a fireari1. nrosecution. The court concluded that absent some

clear indication that the legislature abrogated or modified the common law, we presume the

defense of self-defense was available to defendant if supported by the evidence.

In People v.Tripleii, 499 Mich. 52, 57 (2016)

,

the court found that it was error for the,

trial court to deprive the defendant of the right to present the affirmative defense of self-defense

during his trial on charges of domestic violence, carrying a concealed weapon and felonious

assault. See also People v Goree, 296 Mich. App. 293, 302, 305 (2012), holding that the

defendant had a right to assert the affirmative defense of self-defense in his trial for charges of

assault and felony firearm. Mr. Smith respectfully submits that the state court's application of

federal law was contrary to clearly established United States Supreme Court law. The denial of

the right to present a defense based solely upon the fact that Mr. Smith may have been

committing another felony at the time of the beating death of his uncle is inconsistent with due

process.

6

Federal Laws Governing The Right To Present A Defense

Clearly established federal law entitles a defendant the right to present a defense. See

e.g., Chambers v. Mississippi, 410 U.S. 284 (1973), Crane v. Kentucky, 476 U.S. 683, 690

(1986). This includes the right to a jury instruction on inconsistent defenses so long as there is

sufficient evidence to support a verdict based upon the requested instruction. See e.g., Matthews

v United Stales, 485 U.S. 58, 63(1988), ("A defendant is entitled to an instruction as to any

recognized defense for which there exists evidence sufficient for a reasonable jury to find in his

favor." Citing Stevenson v United Slates, 162 U.S. 313 (1896), which reversed a murder

conviction arising out of a gunfight in the Indian Territory. The principle holding of the Court

was that the evidence was sufficient to entitle the defendant to a manslaughter instruction and to

have the jury instructed on self-defense. Id. pgs. 63-64).

Thus, Mr. Smith asserts that he has demonstrated that reasonable jurists can debate as to

whether a defendant should be categorically denied the right to assert the affirmative defense of

self-defense solely because he or she may have been committing a felony at the time of the death

in issue. Here, Mr. Smith was not convicted of any other felonies and thus, he should have been

allowed to assert self-defense in his second-degree murder case. The deprivation of the right to

7

present a defense is a deprivation of a fundamental constitutional right. The district court abused

its discretion in denying a COA under the facts of this case.

WHEREFORE, Petitioner prays that this Honorable Court grant his petition for a writ of

certiorari for the reasons stated herein.

Date: July 12, 2018

/ )2\

Respectfully submitted,

Kahn Smith #438692

G. Robert Cotton Correctional Facility

Petitioner, in Pro Per

3510 North Elm Road

Jackson, MI 49221

NOTICE

This document was prepared with the assistance of a non-attorney inmate

with the Michigan Department of Corrections Legal Writer Program.