Matsey v. Tribley

Filing 19

OPINION and ORDER (1) Denying 1 Petition for Writ of Habeas Corpus, (2) Denying a Certificate of Appealability, and (3) Denying Leave to Proceed In Forma Pauperis on Appeal. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MELVIN MATSEY, #236265,
Petitioner,

Case No. 14-cv-14082
Hon. Matthew F. Leitman

v.
LINDA TRIBLEY,
Respondent.
______________________________________/
OPINION AND ORDER (1) DENYING PETITION FOR A WRIT OF
HABEAS CORPUS (ECF #1), (2) DENYING A CERTIFICATE OF
APPEALABILITY, AND (3) DENYING LEAVE TO PROCEED IN FORMA
PAUPERIS ON APPEAL
I
Petitioner Melvin Matsey is a state prisoner in the custody of the Michigan
Department of Corrections. In 2012, a jury in the Oakland County Circuit Court
convicted Matsey of four counts of breaking and entering a building with intent to
commit a larceny, Mich. Comp. Laws § 750.110. The state court sentenced Matsey
as a fourth habitual offender, Mich. Comp. Laws § 769.12, to concurrent terms of 5
to 40 years imprisonment. On October 31, 2014, Matsey filed a petition for a writ
of habeas corpus in this Court pursuant to 28 U.S.C. § 2254. (See ECF #1.) He then
amended the Petition. (See ECF #18.)

The Petition, as amended, raises claims

related to the admission of other acts evidence at Matsey’s trial and the consolidation
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for trial of the four separate breaking-and-entering charges brought against him. For
the reasons set forth below, the Court DENIES the Petition. The Court also
DENIES Matsey a certificate of appealability and DENIES him leave to proceed in
forma pauperis on appeal.
II
Matsey’s convictions arise from four breaking-and-entering incidents in
Oakland County, Michigan in 2010 and 2011. The Michigan Court of Appeals
described the relevant facts as follows:
Defendant was charged in four separate informations with
breaking and entering a building with intent to commit a
larceny, MCL 750.110, for crimes that occurred on June
15, 2007, in Farmington Hills, on August 8, 2010, in
Madison Heights, on April 16, 2011, in Novi, and on June
20, 2011, in Southfield. The prosecution moved to
consolidate the cases for trial, MCR 6.120, alleging that
defendant was involved in a series of acts constituting
parts of a single scheme or plan. Defendant opposed the
motion for consolidation, alleging that his conduct did not
fall within the scope of the court rule and one trial would
deprive him of due process of law. In a written order, the
trial court granted the motion for the reasons indicated on
the record. Additionally, the prosecution sought to admit
MRE 404(b) evidence, specifically defendant's prior
convictions involving breaking and entering and the
concurrent charged offenses. The prosecution argued that
the evidence was relevant and the probative value was not
substantially outweighed by unfair prejudice. Again, the
defense opposed this motion, contending that the evidence
was irrelevant and prejudicial. In a written order, the trial
court granted the motion for the reasons stated on the
record.

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At trial, it was established that alarm systems for four
businesses were triggered after work hours. When the
police and the business owners arrived on the scene, a
large rock or concrete object was found thrown through a
glass window or door. Laptop computers were stolen from
three of the four businesses. Blood was discovered at all
four locations, and the blood matched a DNA sample
provided by defendant. Defendant's independent expert
concluded that defendant was the donor of the blood found
at the crime scenes. Additionally, at trial, the parties
stipulated to admit six prior convictions for breaking and
entering or attempted breaking and entering. The jury was
advised that the convictions were presented for the limited
purpose of demonstrating that the events did not occur by
accident or mistake, but represented a planned system or
characteristic scheme.
Defendant testified that he did not break and enter into the
four businesses. Rather, at the Madison Heights business,
he entered the building during business hours after he cut
himself changing a tire. Additionally, defendant acted as a
“middle man” for his friends who stole items. He denied
breaking and entering into the Novi and Southfield
locations, but alleged that he entered those premises after
his friends had broken in earlier. Defendant testified that
he believed that he previously pleaded guilty to the
Farmington Hills charge that occurred in 2007, while he
was in prison. Defendant admitted that he committed his
prior convicted offenses, but with regard to the current
crimes, he denied responsibility. Despite this testimony,
defendant was convicted as charged.
People v. Matsey, 2014 WL 1510153, at *1 (Mich. Ct. App. April 15, 2014).
Following his convictions and sentencing, Matsey filed an appeal of right with
the Michigan Court of Appeals in which he asserted that the trial court erred when
it admitted the other acts evidence and when it consolidated his four separate

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breaking-and-entering charges into one trial. The state appellate court denied relief
on those claims and affirmed his convictions and sentences. Id. at ** 2-5. Matsey
then filed an application for leave to appeal with the Michigan Supreme Court raising
the same two claims that he raised in the Court of Appeals, as well as claims that his
appellate counsel was ineffective and that the prosecution failed to present sufficient
evidence to support his convictions. The Michigan Supreme Court denied leave to
appeal in a standard order. See People v. Matsey, 853 N.W.2d 357 (Mich. 2014).
Matsey thereafter filed a federal habeas petition in this Court. (See ECF #1.)
In that Petition, Matsey raised four claims concerning: (1) the effectiveness of his
appellate counsel, (2) the admission of other acts evidence at his trial, (3) the
consolidation of his four breaking-and-entering charges, and (4) the sufficiency of
the evidence. (See id.) Respondent filed an answer to the Petition in which she
argued that the Court should dismiss the Petition because Matsey’s first and fourth
claims were not properly exhausted in the state courts and/or that all of his claims
lack merit. (See ECF #8.) The Court reviewed the Petition and Respondent’s answer
and determined that the first and fourth claims of the Petition were unexhausted.
Instead of dismissing the Petition at that time, the Court entered a written order that
stayed and administratively closed this action so that Matsey could return to the state
courts and fully exhaust his claims. (See ECF #16.) On May 4, 2017, Matsey moved
to re-open this action and to proceed only on the two properly exhausted claims (i.e.

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his claims related to the admission of other acts evidence and the consolidation of
the four breaking-and-entering charges). (See ECF #17.) The Court granted that
motion on June 19, 2017, and re-opened this action for review of Matsey’s two
unexhausted claims. (See ECF #18.)
III
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
codified at 28 U.S.C. § 2241 et seq., sets forth the standard of review that federal
courts must use when considering habeas petitions brought by prisoners challenging
their state court convictions. AEDPA provides in relevant part:
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 -(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.
28 U.S.C. §2254(d) (1996).
“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

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‘confronts a set of facts that are materially indistinguishable from a decision of [the
Supreme] Court and nevertheless arrives at a result different from [that] precedent.’”
Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (quoting Williams v. Taylor, 529
U.S. 362, 405-06 (2000)). “[T]he ‘unreasonable application’ prong of § 2254(d)(1)
permits a federal habeas court to ‘grant the writ if the state court identifies the correct
governing legal principle from [the 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). However, “[i]n order for a federal court
find a state court’s application of [Supreme Court] precedent ‘unreasonable,’ the
state court’s decision must have been more than incorrect or erroneous. The state
court’s application must have been ‘objectively unreasonable.’” Id. at 520-21
(citations omitted); see also Williams, 529 U.S. at 409. “AEDPA thus imposes a
‘highly deferential standard for evaluating state-court rulings,’ and ‘demands that
state-court decisions be given the benefit of the doubt.’” Renico v. Lett, 559 U.S.
766, 773 (2010) (quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997)).
A state court’s factual findings are presumed correct on federal habeas review.
See 28 U.S.C. § 2254(e)(1). A habeas petitioner may rebut this presumption only
with clear and convincing evidence. See Warren v. Smith, 161 F.3d 358, 360-61
(6th Cir. 1998). Moreover, habeas review is “limited to the record that was before
the state court.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

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IV
A
Matsey first asserts that he is entitled to federal habeas relief because the state
trial court erred when it admitted evidence of his prior break-ins. (See ECF #1 at
Pg. ID 4.) The Michigan Court of Appeals considered this claim on Matsey’s direct
appeal and rejected it:
Next, defendant asserts that the trial court abused its
discretion by admitting the MRE 404(b) evidence. We
disagree. “The decision to admit evidence is reviewed for
an abuse of discretion. When the decision regarding the
admission of evidence involves a preliminary question of
law, such as whether a statute or rule of evidence precludes
admissibility of the evidence, the issue is reviewed de
novo.” People v. Washington, 468 Mich. 667, 670–671;
664 NW2d 203 (2003). In Williams, 483 Mich. at 243, our
Supreme Court held that any error in consolidation would
be harmless because the evidence of each charged offense
could have been introduced pursuant to MRE 404(b).
Indeed, “evidence of similar misconduct is logically
relevant to show that the charged act occurred where the
uncharged misconduct and the charged offense are
sufficiently similar to support an inference that they are
manifestations of a common plan, scheme, or system.”
People v. Sabin (After Remand), 463 Mich. 43, 63; 614
NW2d 888 (2000). To establish a common scheme or plan,
the common features should indicate the existence of a
plan rather than a series of similar spontaneous acts. Id. at
65–66.
On this record, we cannot conclude that the trial court
abused its discretion by admitting the MRE 404(b)
evidence. Williams, 483 Mich. at 243. The stipulation
delineating defendant's prior convictions indicated a
history of breaking into businesses after hours in an
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attempt to steal portable electronic equipment, including
laptop computers. The entry would be obtained by
breaking a window or glass door with a large rock or
concrete object. Sabin, 463 Mich. at 63, 65–66.
Matsey, 2014 WL 1510153, at ** 4-5.
To the extent that Matsey’s challenge to the admission of this “other acts”
evidence rests solely upon errors of state law, it is not cognizable on federal habeas
review. See Estelle v. McGuire, 502 U.S. 62, 67–68 (1991) (“[I]t is not the province
of a federal habeas court to reexamine state-court determinations on state-law
questions”); Serra v. Michigan Dep’t of Corrections, 4 F.3d 1348, 1354 (6th Cir.
1993) (“[H]abeas relief cannot be granted simply on the basis of a perceived error
of state law”) (internal quotation marks omitted).
To the extent this claim rests upon an alleged violation of Matsey’s due
process rights, he has not shown that the state appellate court’s decision was contrary
to, or an unreasonable application of, clearly established federal law. Indeed, Matsey
has not cited a single United States Supreme Court decision in which that court held
that the admission of “other acts” evidence violated the Defendants’ due process
rights. Nor has Matsey shown that the admission of the “other acts” evidence here
rendered his trial fundamentally unfair. The other acts evidence was relevant and
admissible on the issue of identity and common plan or scheme. In addition, the risk
of unfair prejudice was mitigated by the fact that the trial court instructed the jury
on the proper consideration of the evidence. (See 11/8/12 Trial Tr. at 55, 62, ECF
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#9-19 at Pg. ID 452, 455.) Matsey is therefore not entitled to habeas relief on this
claim.
B
In Matsey’s second claim, he asserts that he is entitled to federal habeas relief
because the trial court erred when it consolidated his four separate breaking-andentering charges into a single case for trial. The Michigan Court of Appeals
considered this claim on Matsey’s direct appeal and rejected it:
In People v. Williams, 483 Mich. 226, 231; 769 NW2d 605
(2009), our Supreme Court delineated the following
standard of review for addressing MCR 6.120, the separate
trial or joinder rule:
Generally, this Court reviews questions of law de
novo and factual findings for clear error. The
interpretation of a court rule, like matters of
statutory interpretation, is a question of law that we
review de novo. To determine whether joinder is
permissible, a trial court must first find the relevant
facts and then must decide whether those facts
constitute “related” offenses for which joinder is
appropriate. Because this case presents a mixed
question of fact and law, it is subject to both a clear
error and a de novo standard of review.
Additionally, when this Court reviews preserved
nonconstitutional errors, we consider the nature of
the error and assess its effect in light of the weight
and strength of the untainted evidence. [Id. (internal
citations omitted).]
The ultimate ruling on a motion to sever is reviewed for
an abuse of discretion. Williams, 483 Mich. at 226 n6.

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MCR 6.120 governs joinder and provides, in relevant part:
(A) Charging Joinder. The prosecuting attorney
may file an information or indictment that charges
a single defendant with any two or more offenses.
Each offense must be stated in a separate count.
Two or more informations or indictments against a
single defendant may be consolidated for a single
trial.
(B) Postcharging Permissive Joinder or Severance.
On its own initiative, the motion of a party, or the
stipulation of all parties, except as provided in
subrule (C), the court may join offenses charged in
two or more informations or indictments against a
single defendant, or sever offenses charged in a
single information or indictment against a single
defendant, when appropriate to promote fairness to
the parties and a fair determination of the
defendant's guilt or innocence of each offense.
(1) Joinder is appropriate if the offenses are
related. For purposes of this rule, offenses are
related if they are based on
(a) the same conduct or transaction, or
(b) a series of connected acts, or
(c) a series of acts constituting parts of a
single scheme or plan.
(2) Other relevant factors include the
timeliness of the motion, the drain on the
parties' resources, the potential for confusion
or prejudice stemming from either the
number of charges or the complexity or
nature of the evidence, the potential for
harassment, the convenience of witnesses,
and the parties' readiness for trial.
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In Williams, 483 Mich. at 228–229, a search warrant was
executed at a motel on November 4, 2004. When the
police forced entry, the defendant was walking out of the
bathroom where crack cocaine was found caught in the
drain and in the toilet. Cocaine, a scale, razor blades,
baggies, guns, ammunition, and cash were found in the
room. On February 2, 2005, the defendant was observed
walking into a home. The police executed a search warrant
there and found the defendant reaching toward a bag
containing suspected cocaine. Similar drug paraphernalia
located in the motel room was also found in proximity to
the defendant at this home, including guns, cash, baggies,
and drugs. Id. The prosecutor moved to consolidate the
cases pursuant to MCR 6.120 or alternatively to admit the
evidence in the other trial pursuant to MRE 404(b). Id. at
229–230. The trial court granted the motion, holding that
the offenses were related because the acts involved
appeared to be “parts of a single scheme or plan; namely
drug trafficking and therefore they would appear to be
related offenses.” The trial court also concluded that the
evidence would be admissible MRE 404(b) evidence that
would present a greater risk of prejudice. The Court of
Appeals affirmed the trial court's ruling that the offenses
were related. Id. at 230–231.
Our Supreme Court also affirmed, holding that a prior
decision, People v. Tobey, 401 Mich. 141; 257 NW2d 537
(1977), was inconsistent with MCR 6.120. The Court held:
In this case, the record reflects that the trial court correctly
applied the plain language of MCR 6.120 to the facts
presented when it concluded that the offenses charged
were “related.” After hearing arguments from the parties,
the trial court specifically addressed the language of MCR
6.120(A) and (B). The court concluded that the offenses
charged in both cases reflect defendant's “single scheme
or plan” of drug trafficking. MCR 6.120(B)(2).
Consequently, defendant had no right to sever these
“related” offenses. MCR 6.120(B). The trial court noted
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that in light of the relevant facts, a single jury trial was
appropriate and, further, the court stated that it would “be
cautioning the jury that they need to find that both events
have to meet the standard of proof beyond a reasonable
doubt.”
We conclude that the trial court did not violate the
unambiguous language of MCR 6.120. The offenses
charged were plainly “related” under MCR 6.120(B)(2).
In both cases, defendant was engaged in a scheme to break
down cocaine and package it for distribution. Evidence of
acts constituting part of defendant's single scheme was
found in both the motel room and the house at 510 Nevada.
Even if one views defendant's first arrest in November and
his second arrest in February in discrete moments in time,
direct evidence indicated that he as engaging in the same
particular conduct on those dates. The charges stemming
from both arrests were not “related” simply because they
were “of the same or similar character.” Instead, the
offenses charged were related because the evidence
indicated that defendant engaged in ongoing acts
constituting parts of his overall scheme or plan to package
cocaine for distribution. Accordingly, the trial court
complied with what the language of MCR 6.120
unambiguously required. [Id. at 233–235.]
The Williams Court further rejected the assertion that the
offenses had to be in temporal proximity to warrant
consolidation. Id. at 241 (“Moreover the unambiguous
language of MCR 6.120 does not mandate the existence of
temporal proximity between several offenses.”).
Additionally, our Supreme Court held that even if the trial
court erred in joining the cases, any error would be
harmless because “the evidence of each charged offense
could have been introduced in the other trial under MRE
404(b).” Id. at 243.
Applying the Williams decision and the court rule to the
facts of this case, the trial court did not err by allowing the
consolidation of the cases. We reject defendant's
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contention that the similarities in the manner of the
breaking and entering and the objects taken do not show a
common plan. Offenses are related if based on the “same
conduct or transaction,” or “a series of connected acts,” or
“a series of acts constituting parts of a single scheme or
plan.” MCR 6.120(B)(1)(a-c). Here, defendant's crimes
were premised on the same conduct or a series of acts
constituting parts of a single scheme or plan. Defendant
engaged in a scheme to steal portable electronic equipment
from closed businesses. That is, on the weekends when
businesses were not occupied, defendant would use a large
concrete object to smash windows or glass doors to gain
entry into the business premises, grab portable electronic
equipment such as laptop computers, and flee the premises
before police or the business owners could arrive at the
establishments. In the course of committing these acts,
defendant would injure himself and leave DNA evidence.
The experts for both the prosecution and the defense
concluded that defendant was the donor of the DNA
evidence left at the scene of the crimes. In light of the
above, the trial court did not err by allowing the
consolidation. This issue does not entitle defendant to
appellate relief.
Matsey, 2014 WL 1510153, at ** 2-4.
As with Matsey’s first claim for relief, to the extent Matsey’s challenge to the
consolidation of the four charges against him rests solely upon errors of state law, it
is not cognizable on federal habeas review. See Estelle, Serra, supra.
To the extent this claim rests upon an alleged violation of Matsey’s due
process rights, he has not shown that the state appellate court’s decision was contrary
to, or an unreasonable application of, clearly established federal law. Indeed, Matsey
has not identified any Supreme Court decision in which that court held that the

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consolidation of multiple criminal charges against a defendant, alone, violated the
Defendant’s due process rights. And while Matsey does cite United States v. Lane,
474 U.S. 438, 446 n. 8 (1986), in that case, the Supreme Court said that “[i]mproper
joinder does not, in itself, violate the Constitution. Rather, misjoinder [constitutes]
a constitutional violation only if it results in prejudice so great as to deny a defendant
his...right to a fair trial.”
Matsey’s conclusory allegations fail to establish the required prejudice. The
four breaking-and-entering incidents and charges were sufficiently related so as to
be part of a common scheme or plan, and consolidating the cases was an efficient
use of judicial resources. Furthermore, any potential prejudice to Matsey was
mitigated by the fact that the trial court instructed the jury about the proper
consideration of the multiple charges and the evidence presented at trial. (See
11/8/12 Trial Tr. at 54-55, 58-59, 64-68, ECF #9-19 at Pg. ID 451-54, 456-58.)
Matsey is therefore not entitled to habeas relief on this claim.
V
For the reasons stated above, the Court concludes that Matsey’s claims lack
merit and that he is not entitled to federal habeas relief. Accordingly, the Court
DENIES and DISMISSES WITH PREJUDICE the Petition (as amended).
Before Matsey may appeal the Court’s decision, a certificate of appealability
must issue. See 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). A certificate of

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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). When a court denies relief
on the merits, the substantial showing threshold is met if the petitioner demonstrates
that reasonable jurists would find the court’s assessment of the claim debatable or
wrong. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). “A petitioner satisfies
this standard by demonstrating that ... jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537
U.S. 322, 327 (2003).

The Court has conducted the required review and it concludes that Matsey has
failed to demonstrate that jurists could conclude the issues presented here are
adequate to deserve encouragement to proceed further. Accordingly, the Court
DENIES a certificate of appealability. The Court also DENIES leave to proceed in
forma pauperis on appeal as an appeal cannot be taken in good faith. See Fed. R.
App. P. 24(a).
IT IS SO ORDERED.

s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: July 6, 2017

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I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on July 6, 2017, by electronic means and/or ordinary
mail.
s/Holly A. Monda
Case Manager
[phone]

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