Smith v. Berghuis

Filing 28

Memorandum and Order Denying Petition for Writ of Habeas Corpus and Declining to Issue a Certificate of Appealability Signed by District Judge Avern Cohn. (SCha)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JACK EDWARD SMITH,
Petitioner,

Case Number 12-11527
HON. AVERN COHN

v.
MARY BERGHUIS,
Respondent.
________________________________/
MEMORANDUM AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
I. Introduction
This is a habeas case under 28 U.S.C. § 2254. Petitioner Jack Edward Smith
(Petitioner) is a state inmate at the Earnest C. Brooks Correctional Facility in Muskegon,
Michigan. Petitioner filed a pro se petition for a writ of habeas corpus challenging his
convictions for arson of real property, MICH. COMP. LAWS § 750.73, and possession of a
Moltov cocktail. MICH. COMP. LAWS § 750.211a(1)(a)(b). Respondent, through the
Jackson County Prosecutor’s Office, filed a response, arguing that Petitioner's claims
are without merit. For the reasons which follow, the petition will be denied.
II. Background
A. Facts
The following facts were revealed at Petitioner’s trial:
The charges against Petitioner arose when Petitioner used containers of gasoline
to start a fire at the Odyssey Show Bar, an entertainment establishment near Jackson,
Michigan.

At trial, Johnny Seales testified that he was a manager at the Sudsy Coin Wash,
a laundry mat located near the Odyssey Show Bar. On May 21, 2007, Petitioner came
in and asked for a towel. Seales gave him a towel. Seales and other patrons then
smelled gasoline and saw Petitioner leave the laundry mat. Two patrons chased after
Petitioner. Donnita Hickox testified that she, Heidi McNally, and Matt Thayer were at
the Sudsy Coin. Petitioner came in and was running around frantically looking for
something. He was carrying a half-gallon jug with a yellow substance in it. He took
McNally’s son’s plastic water bottle, poured some of the substance into it, and stuffed a
rag in it. Petitioner left, and Hickox and Thayer followed him toward the Odyssey.
Hickox went into the Odyssey behind Petitioner and she saw that areas of the carpet
and walls were burning. Hickox helped put the fire out. After the fire was out, she went
outside and saw Petitioner chase Thayer and punch him in the head. Petitioner then sat
down and waited in the parking lot for police to arrive.
Jennifer Delazzer testified that Petitioner was her ex-boyfriend. After the
relationship ended, Petitioner continued to contact her by phone and harass her. On
the date of the fire, Delazzer was working at the Odyssey. Petitioner called her at 7:00
or 8:00 p.m. and threatened to kill her. Petitioner came into the store a little after 9:00
p.m. She heard a liquid hitting the floor and saw Petitioner coming down the stairs. She
saw that an area near the wall was on fire. Petitioner appeared to be pouring gasoline
out of a milk jug. Petitioner also had a water bottle in his other hand.
Using photographs, Delazzer pointed to the areas of the wall and carpet that
caught fire. Delazzer followed Petitioner out of the Odyssey after he exited. He
threatened to kill her and started to move toward her, but a man interfered and
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Petitioner hit him. Police soon arrived and arrested Petitioner.
Stewart Szczepanski testified that he was talking to Delazzer in the Odyssey
when he heard a liquid hitting the floor and smelled gasoline. He looked over and saw
Petitioner holding a jug and pouring liquid on the floor. He saw Petitioner ignite a lighter
and throw it down, and then he saw flames erupt. Szczepanski grabbed a fire
extinguisher and put out the fire.
Sergeant Elmer Hitt testified that he went to the Odyssey on an fire call. Behind
the building, he saw Petitioner and Thayer fighting. Hitt arrested Petitioner, who yelled
at a woman that he was going to kill her.
Officer Joseph Merritt testified that he took custody of Petitioner from another
officer. He found a blue Bic lighter in Petitioner's pants pocket. Petitioner kept
repeating, "'I'm gonna kill the fucking bitch," directed at a woman who was outside. A
breath test of Petitioner at the hospital showed a blood alcohol content of .248.
Officer Patrick Boulter testified that the fire was out when he arrived. He took
photographs showing a milk container, a plastic water bottle, and charring on a rug and
wall. The water bottle had charring around its lip. Delazzer gave him a videotape that
showed Petitioner, Delazzer, Szczepanski, fire, and smoke. He observed charring on a
rug in the entertainment area and the area where Delazzer and Szczepanski had been.
Petitioner testified in his own defense. He testified that after he and Delazzer
ended their relationship, he tried to kill himself with an overdose. At the time of the
incident, he was facing jail time for drinking and driving. He went to a gas station and
put gas in a milk jug. He testified that he went to the Odyssey and dumped the gas out
and was going to set it on fire. He claimed, however, that he never lit the gas on fire.
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He denied that he ever said he was going to kill Delazzer until he was in the police car
and he saw her outside. Nothing was burning when he left the building. He claimed
that he was angry that he was going to jail for one year, and he wanted to go to prison
instead.
In light of this evidence, the jury convicted Petitioner of arson of real property and
possession of a Moltov cocktail. Petitioner was acquitted him of the assault with intent
to commit murder charge as to Jennifer Delazzer and Stewart Szczepanski. Petitioner
was sentenced to 20-to-60 years for his convictions.
B. Procedural History
Following his conviction, Petitioner filed a direct appeal, raising two claims: (1)
the trial court erred in failing to instruct the jury on attempted arson, and (2) there was
insufficient evidence presented at trial to sustain Petitioner’s conviction for possessing a
Moltov cocktail. The Michigan Court of Appeals affirmed Petitioner’s convictions in an
unpublished opinion. People v. Smith, No. 282505 (Mich. Ct. App January 8, 2009).
Petitioner filed an application for leave to appeal in the Michigan Supreme Court that
raised the same claims, but it was denied by standard order. People v. Smith, No.
138354 (Mich. Sup. Ct. June 23, 2009).
Petitioner then filed a motion for relief from judgment in the trial court, asserting
that he was denied the effective assistance of trial and appellate counsel. The trial
court denied the motion in an opinion dated December 30, 2009, finding that Petitioner
had failed to demonstrate good cause or actual prejudice under Michigan Court Rule
6.508(D)(3) for failing to raise these claims during his direct appeal. Petitioner appealed
this decision to the state appellate courts, but they both denied relief under Rule
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6.508(D). People v. Smith, No. 297737 (Mich. Ct. App. August 2, 2010); People v.
Smith, No. 141643 (Mich. Sup. Ct. February 7, 2011).
Petitioner then filed a second motion for relief from judgment in the trial court.
Petitioner alleged that a surveillance tape from the Odyssey taken during the incident
does not show him in the store and does not show any fire damage. He claimed that
this tape showed that he is actually innocent of the crimes. The trial court denied the
motion in an opinion dated December 6, 2011. Petitioner appealed this decision to the
state appellate courts, but both found that Petitioner was barred under Michigan Court
Rule 6.502(G) from filing a second post-conviction review proceeding. People v. Smith,
No. 307815 (Mich. Ct. App. March 2, 2012); People v. Smith, No. 144992 (Mich. Sup.
Ct. September 24, 2012).
Petitioner then filed the instant application for habeas corpus relief. From what
can be gleaned, Petitioner appears to allege that the fact that a surveillance video tape
taken at the time of the incident does not show him present proves that he is actually
innocent. Petitioner has also attached copies of photographs taken after the incident at
the Odyssey which he claims shows that there was never a fire.
III. Standard of Review
28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), imposes the following standard of review for habeas
cases:
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect
to any claim that was adjudicated on the merits in State court proceedings
unless the adjudication of the claim–
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(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
A decision of a state court is "contrary to" clearly established federal law if the
state court arrives at a conclusion opposite to that reached by the Supreme Court on a
question of law or if the state court decides a case differently than the Supreme Court
has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362,
405-06 (2000). An "unreasonable application" occurs when "a state court decision
unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case."
Id. at 409. 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." Id. at 410-11.
The Supreme Court has explained that "[A] federal court's collateral review of a
state-court decision must be consistent with the respect due state courts in our federal
system." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The "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, 130 S. Ct. 1855,
1862 (2010)((quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v.
Viscotti, 537 U.S. 19, 24 (2002)(per curiam)). "[A] state court's determination that a
claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could
disagree' on the correctness of the state court's decision." Harrington v. Richter, 131 S.
Ct. 770, 786 (2011)(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The
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Supreme Court has emphasized "that even a strong case for relief does not mean the
state court's contrary conclusion was unreasonable." Id. (citing Lockyer v. Andrade, 538
U.S. 63, 75 (2003). Furthermore, pursuant to § 2254(d), "a habeas court must
determine what arguments or theories supported or...could have supported, the state
court's decision; and then it must ask whether it is possible fairminded jurists could
disagree that those arguments or theories are inconsistent with the holding in a prior
decision" of the Supreme Court. Id.
"[I]f this standard is difficult to meet, that is because it was meant to be."
Harrington, 131 S. Ct. at 786. Although 28 U.S.C. § 2254(d), as amended by the
AEDPA, does not completely bar federal courts from relitigating claims that have
previously been rejected in the state courts, it preserves the authority for a federal court
to grant habeas relief only "in cases where there is no possibility fairminded jurists could
disagree that the state court's decision conflicts with" the Supreme Court's precedents.
Id. Indeed, "Section 2254(d) reflects the view that habeas corpus is a 'guard against
extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary
error correction through appeal." Id. (citing Jackson v. Virginia, 443 U.S. 307, 332, n. 5
(1979))(Stevens, J., concurring in judgment)). Thus, a "readiness to attribute error [to a
state court] is inconsistent with the presumption that state courts know and follow the
law." Woodford, 537 U.S. at 24. Therefore, in order to obtain habeas relief in federal
court, a state prisoner is required to show that the state court's rejection of his claim
"was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement."
Harrington, 131 S. Ct. at 786-87.
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IV. Analysis
Petitioner says that he is actually innocent and is therefore entitled to habeas
relief. He asserts that a surveillance videotape from the Odyssey taken at the time of
the incident does not show him to be present, and he claims that photographs he
attached to his petition show that there was never a fire at the establishment.
Actual innocence claims are relevant in federal habeas proceedings not as an
independent claim for relief, however, but only as a justification to overcome procedural
obstacles to consideration of other federal constitutional violations that rendered a trial
unfair. Sitto v. Bock, 207 F. Supp. 2d 668, 673-674 ( E.D. Mich. 2002) (citing Schlup v.
Delo, 513 U.S. 298 (1995)). According to well-established Sixth Circuit precedent,
Petitioner faces an insurmountable obstacle in attempting to advance his claim of actual
innocence as a substantive claim seeking habeas relief. See Cress v. Palmer, 484 F.3d
844, 853-55 (6th Cir. 2007). The Supreme Court has stated that "[claims of actual
innocence based on newly discovered evidence have never been held to state a ground
for federal habeas relief absent an independent constitutional violation occurring in the
underlying state criminal proceeding. . . . [Federal habeas courts sit to ensure that
individuals are not imprisoned in violation of the Constitution — not to correct errors of
fact." Harare v. Collins, 506 U.S. 390, 400 (1993).
Even assuming this claim is cognizable, Petitioner has not shown that he is
actually innocent. First, Petitioner testified at trial and admitted that he went into the
Odyssey with the containers of gasoline and sprayed them on the floor. His defense
was that he never ignited the gasoline. Likewise the two employees of the Odyssey
testified that Petitioner was in the establishment, and the patrons of the laundry mat
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followed Petitioner to the store. Finally, Petitioner was arrested sitting outside the
Odyssey. Petitioner’s claim that he cannot be seen on a particular videotape hardly
proves that he was not, in fact, there in light of the evidence presented at trial.
Moreover, at the request of both parties, the Court has reviewed the video
recording. It is of very poor quality. It depicts a three-way split-screen shot showing the
parking lot and two interior locations of the Odyssey. At 3:07 into the video one can
discern a sudden brief flash followed by smoke emanating from the spot where an
individual is standing. At 3:40 the recording shows what appear to be two other
individuals walking towards the location of the flash, and perhaps extinguishing a fire.
Due to the very poor quality, it is impossible to determine how many people are present,
let alone their identity. Simply stated, the recording does not show in anyway that
Petitioner did not commit the offense. Rather, it tends to support that there was a fire,
and that it was occurred while people were present in the store.
Petitioner also claims that photographs of the scene show that there was not a
fire at all. The Court has reviewed the photographs. Certainly, there was not a great
deal of damage. Rather, the photographs show what appear to be scorch marks or
smoke damage to a part of a wall and some dark discoloration on the carpeting.
Photographs of the two plastic bottles show them to be largely intact, with perhaps
some minor deformation or melting at the openings of the bottles. These photographs
do not show that there was not a fire.
The standard for demonstrating actual innocence in a habeas action is exacting.
It requires a Petitioner to show that in light of his new evidence "it is more likely than not
that no reasonable juror would have convicted [Petitioner]." Schlup v. Delo, 513 U.S.
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298 (1995). Petitioner’s new evidence does not come close to meeting this standard.
Given the eyewitness accounts and Petitioner’s own trial testimony, the tape and
photographs do not make it more likely than not that no reasonable juror would have
convicted him. Accordingly, Petitioner’s claim is without merit, and he is not entitled to
any relief.
V. Certificate of Appealability
Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of
appealability should be granted. A certificate should issue if Petitioner has
demonstrated a "substantial showing of a denial of a constitutional right." 28 U.S.C. §
2253(c)(2). To warrant a grant of the certificate, "[the petitioner must demonstrate that
reasonable jurists would find the district court's assessment of the constitutional claims
debatable or wrong." Slack v. McDaniel, 529 U.S. 473 (2000). Reasonable jurists could
not conclude that dismissal of Petitioner's claims was debatable or wrong. Therefore,
Petitioner is not entitled to a certificate of appealability.
VI. Conclusion
Accordingly, for the reasons stated above, the petition is DENIED. A certificate
of appealability is also DENIED.
SO ORDERED.

S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE

Dated: September 27, 2013
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12-11527 Jack Edward Smith v. Mary Berghuis
I hereby certify that a copy of the foregoing document was mailed to the attorneys of
record on this date, September 27, 2013, by electronic and/or ordinary mail.

S/Sakne Chami
Case Manager, [phone]

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