Solomon v. Place
OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus and Denying Certificate of Appealability. Signed by District Judge Avern Cohn. (DTof)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
KEONDRE EARL SOLOMON,
Case No. 16-13635
HON. AVERN COHN
MEMORANDUM AND ORDER
DENYING PETITION FOR WRIT OF HABEAS CORPUS
DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
This is a habeas case under 28 U.S.C. § 2254. Petitioner Keondre Earl
Solomon, (Petitioner), is a state inmate serving sentences of twenty three to forty years
for two counts of assault with intent to commit murder, M.C.L. § 750.83; two and a half
to five years for carrying a weapon with unlawful intent, M.C.L. § 750.226; and two
years for two counts of felony-firearm, M.C.L. § 750.227b. Petitioner has filed a pro se
petition for writ of habeas corpus claiming that he is incarcerated in violation of his
constitutional rights. Respondent, through the Attorney General’s Office, filed a
response contending that Petitioner’s claims lack merit. For the reasons that follow, the
petition will be denied.
The material facts leading to Petitioner’s conviction are recited from the Michigan
Court of Appeals’ opinion affirming his conviction, which are presumed correct on
habeas review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410,
413 (6th Cir. 2009):
This case involves the drive-by shooting of Marcel Wilson and Richard
Fowler. Wilson and Fowler were driving from the west side to the south side
of Saginaw, which was where Fowler lived. At one point they stopped at a
gas station. Fowler went into the store while Wilson stayed in the car. While
waiting, Wilson noticed defendant pumping gas into a white Dodge Charger.
Fowler testified that he went into the store, made a purchase without talking
to anyone, and walked straight out. Videotape surveillance footage from the
store confirmed that Fowler “ma[de] his purchase and walk[ed] out without
any interaction with anyone.” The footage also showed that defendant and
a man named J’ion Parker left the store after Fowler.
Wilson testified that as he and Fowler proceeded toward the south side of
town, he noticed the Charger coming up behind them, eventually pulling up
alongside them. According to Wilson, “that’s when it started shooting.”
Fowler said he and Wilson both tried to duck when the shooting began, but
that “there wasn’t no stopping them.” The emergency room doctor who
attended to Wilson and Fowler testified that Wilson had been shot twice and
Fowler had been shot once. Both men needed hospitalization and surgery.
A witness testified that the car in which Wilson and Fowler had been traveling
hit a tree and the Charger hit a fire hydrant.
Saginaw Police Officer Matthew Gerow interviewed Parker at the police
station. Gerow testified that although Parker was “very reluctant” and
“definitely did not want to be there,” he identified a picture of codefendant
Samuel Jackson as the shooter and indicated on a piece of paper that both
defendant and Jackson were involved. Gerow also testified that there was
a hidden camera and microphone in the interview room, and that at one point
when Parker and his mother were alone, the camera recorded Parker
whispering to her, “I can’t live my life as no snitch, though. I can’t do it. It
would make me want to kill myself if I was a snitch. They gonna kill me if I
snitch.” The trial court provided the following limiting instruction regarding
Parker’s statement: “That’s been offered to explain why the witness may
have been reluctant with the police, and there may be an issue of credibility
as to that witness. And so you may consider the evidence as to the witness
credibility.” The trial court further explained that “[t]here is no evidence of
threats of any kind by either of the defendants here, or of threats or
intimidation of any kind, by them or anybody associated with them.”
Gerow also testified regarding a map of Saginaw that was admitted as a trial
exhibit. The map contained annotations indicating where each of the
involved parties lived, where the gas station was, and the location of the
shooting. Gerow stated that defendant and Parker resided in what would be
considered the east side of Saginaw. Gerow testified that he was aware of
conflicts between individuals from different parts of the city, and that he had
encountered “assaultive-type cases” between individuals from the east and
south sides. Gerow then stated that hand gestures made by Jackson and
Parker in photographs taken from Parker’s Facebook page demonstrated
their association with the east side and Jackson was making gestures
showing disrespect for the south side. Gerow made it clear that none of the
pictures admitted showed defendant displaying hand gestures that would
associate him with a particular side of the city. The trial court stated to the
... there was a reference to some assaultive acts on these different parts of
town or between these different people associated with these different parts
I caution you that there’s nothing in evidence to suggest that these two
defendants were involved in these other acts that were referred to by the
witness, and—or that these two defendants were associated in any way with
those other acts that were referred to by the witness.
People v. Solomon, 2015 WL 1069437, at *1–2.
B. Procedural History
Following his conviction and sentence, Petitioner filed an appeal of right to the
Michigan Court of Appeals which affirmed. People v. Solomon, No. 319248, 2015 WL
1069437 (Mich. Ct. App. Mar. 10, 2015). Petitioner filed an application for leave to
appeal to the Michigan Supreme Court, in which he raised the same claims that he
raised in his appeal of right before the Michigan Court of Appeals. The Michigan
Supreme Court denied leave to appeal. People v. Solomon, 498 Mich. 886 (2015).
Petitioner now seeks habeas relief, presenting the following claims:
I. Petitioner was denied a fair trial by evidence of alleged gang affiliation
that had no relevance to any issue in the trial.
II. Petitioner was denied a fair trial by evidence of alleged witness
intimidation where there was no evidence that anyone had done anything
to threaten or influence the witness.
III. Standard of Review
28 U.S.C. § 2254(d) 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–
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
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, 40506 (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.
“[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, 562 U.S. 86, 101 (2011)(citing Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court emphasized “that even a
strong case for relief does not mean the state court’s contrary conclusion was
unreasonable.” Id. at 102 (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. To obtain habeas relief in federal court, a state prisoner is required to show that the
state court’s rejection of his or her claim “was so lacking in justification that there was
an error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Id. at 103.
A. Petitioner’s Claims and Court of Appeals’ Decision
Petitioner first argues that his right to a fair trial was violated by the admission of
irrelevant and prejudicial evidence that he was a member of a gang.
The Michigan Court of Appeals rejected the claim, reasoning:
The premise of defendant’s argument is inaccurate, rendering it without
merit. Neither Gerow nor any other witness testified that defendant or
any of the involved parties were members of a gang and, unlike in
[People v.] Bynum, id. at 616, there was no testimony that defendant
acted in conformity with the characteristics of a gang or other group.
Rather, Gerow testified that, based on his experience as a Saginaw
police officer, he was aware of “assaultive-type” conduct and animosity
between residents of the city’s east and south sides, and that defendant
and Parker resided in what would be considered the east side of town.
Also, although Gerow opined that Jackson and Parker—but not
defendant—were seen in pictures displaying hand gestures indicating an
association with the east side and disrespect for the south side, he did
not opine that there were gangs in these areas or that defendant,
Jackson, or Parker were members of any gang. Further, the trial court
mitigated any unfairly prejudicial impact of this testimony by instructing
the jury that “there’s nothing in evidence to suggest that these two
defendants were involved in these other acts [i.e., the historically
observed “assaultive-type” conduct] ... or that these two defendants were
associated in any way with those other acts....” “It is well established that
jurors are presumed to follow their instructions.” People v. Graves, 458
Mich. 476, 486; 581 NW2d 229 (1998).
Moreover, defendant fails to explain why evidence of his residence on the
east side of Saginaw was irrelevant. Evidence that defendant resided on
the east side of Saginaw was relevant in explaining why he was willing to
participate in an apparent random act of violence against two people
whom he did not know, but whom he saw traveling toward the south side
of Saginaw. Accordingly, defendant has failed to show that he was
convicted on the basis of evidence that was irrelevant or unfairly
People v. Solomon, 2015 WL 1069437, at * 3.
Petitioner also says that the trial court erred in permitting the prosecutor to
introduce evidence that Parker whispered to his mother, “I can’t live my life as no
snitch, though. I can’t do it. It would make me want to kill myself if I was a snitch. They
gonna kill me if I snitch.” Petitioner suggests that this evidence was unfair because it
suggested that he or other persons threatened or intimidated Parker and was irrelevant
and highly prejudicial.
The Michigan Court of Appeals rejected the claim, explaining:
At trial, certain incriminating statements from Parker’s preliminary
examination were admitted. Parker invoked his right to remain silent
when called as a witness at trial, stating he did not want to testify. The
trial court appointed Parker counsel to advise him regarding his Fifth
Amendment rights, and his appointed counsel thereafter informed the
court that Parker had no memory of what happened and did not want to
testify. The court declared Parker unavailable and permitted his
preliminary examination testimony to be read into the record.
At the preliminary examination, Parker testified that he was traveling in a
car with defendant and Jackson on the night in question, but he denied
that he saw Jackson shoot a gun. Parker testified that when he, Jackson,
and defendant left the gas station, they attempted to pass a
slow-traveling vehicle and crashed when that vehicle bumped their
vehicle. He testified that he did not know whether someone in his car’s
front seat began shooting and that he heard shots only after he got out of
the car following the crash and began running home. Parker admitted,
however, that he had previously told a police detective that Jackson
began shooting at another vehicle while he (Parker) was sitting in the
backseat and defendant was driving.
Given Parker’s conflicting statements, his credibility was highly relevant.
“[T]he credibility of a witness is an issue of the utmost importance in
every case,” and “evidence of a witness’ bias or interest in a case is
highly relevant to his credibility.” People v. Mumford, 183 Mich.App 149,
152; 455 NW2d 51 (1990) (citation and internal quotation marks omitted).
Evidence that Parker stated before his preliminary examination that he
did not want to “snitch” was highly probative regarding this credibility.
Defendant complains that notwithstanding the relevance of Parker’s
reluctance to talk with police, the probative value of the phrase “[t]hey
gonna kill me if I snitch” was substantially outweighed by the danger of
unfair prejudice under MRE 403 because it suggested that Parker had
been threatened. Defendant also argues that reversal is warranted
because the prosecutor did not introduce evidence connecting the threats
As discussed, the phrase “[t]hey gonna kill me if I snitch” was highly
relevant in this case, because it spoke directly to Parker’s potential bias.
Moreover, contrary to defendant’s assertion, the statement did not have
an unfairly prejudicial effect because it did not demonstrate that any
threats were made against Parker. Indeed, Parker did not say that
anyone told him he would be killed if he snitched, let alone that defendant
did. Rather, his statement merely reflected his opinion, however
informed or exaggerated. Moreover, the trial court mitigated any possible
prejudicial impact of Parker’s statements by instructing the jury that
“[t]here is no evidence of threats of any kind by either of the defendants
here, or of threats or intimidation of any kind, by them or anybody
associated with them.” See Graves, 458 Mich. at 486. Accordingly, the
trial court did not err in admitting Parker’s statements.
People v. Solomon, 2015 WL 1069437, at * 3–4.
Petitioner is not entitled to relief on either of his claims. A federal court is limited
in federal habeas review to deciding whether a state court conviction violates the
Constitution, laws, or treaties of the United States. Errors in the application of state
law, especially rulings regarding the admissibility of evidence, are usually not
questioned by a federal habeas court. See Estelle v. McGuire, 502 U.S. 62, 67-68
(1991); Seymour v. Walker, 224 F. 3d 542, 552 (6th Cir. 2000). “[S]tate-court
evidentiary rulings cannot rise to the level of due process violations unless they ‘offend[
] some principle of justice so rooted in the traditions and conscience of our people as to
be ranked as fundamental.’ ” Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000)
(quoting Montana v. Egelhoff, 518 U.S. 37, 43 (1996)).
Here, Petitioner’s first claim that he was denied a fair trial by the admission
evidence regarding gang affiliation cannot form the basis for habeas relief. First, it
involves a state law evidentiary issue upon which habeas relief cannot be granted.
Second, Petitioner’s argument that the evidence should have been excluded under
M.R.E. 403 for being more prejudicial than probative does not entitle him to habeas
relief. The Sixth Circuit indicated that “[t]he Supreme Court has never held (except
perhaps within the capital sentencing context) that a state trial court’s admission of
relevant evidence, no matter how prejudicial, amounted to a violation of due process.”
Blackmon v. Booker, 696 F. 3d 536, 551 (6th Cir. 2012)(emphasis original).
Finally, the Michigan Court of Appeals concluded that evidence that Petitioner
was from the east side of Saginaw was relevant to explain why he would engage in a
violent act against strangers whom he saw driving towards the south side of Saginaw.
The Court must defer to this reasonable determination. Even assuming that this could
be construed as evidence of gang membership, the admission of this evidence did not
render petitioner’s trial fundamentally unfair because such evidence was relevant to
Petitioner’s criminal motive. In short, Petitioner was not deprived of a fair trial by the
admission of this evidence.
As to Petitioner’s second claim, he is not entitled to habeas relief because the
Michigan Court of Appeals reasonably concluded that evidence that Parker feared
being labeled a snitch was relevant and admissible because it explained Parker’s
inconsistent statements and thus dealt with his credibility as a witness. Moreover,
Petitioner cannot show that he was prejudiced by Parker’s remarks that he feared
being labeled a snitch because there was no evidence presented that he had been
threatened by Petitioner or any of his associates. Accordingly, the admission of this
evidence did not deprive Petitioner of a fair trial.
For the reasons stated above, the state courts' rejection of Petitioner’s claims
did not result in decisions that were contrary to Supreme Court precedent, an
unreasonable application of Supreme Court precedent, or an unreasonable
determination of the facts. Accordingly, the petition for a writ of habeas corpus is
Furthermore, reasonable jurists would not debate the Court’s assessment of
Petitioner's claims, nor conclude that the issues deserve encouragement to proceed
further. The Court therefore DECLINES to grant a certificate of appealability under 28
U.S.C. § 2253(c)(2). 1 See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
UNITED STATES DISTRICT JUDGE
Dated: June 30, 2017
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each
attorney or party of record herein by electronic means or first class U.S. mail on June
“The district court must issue or deny a certificate of appealability when it
enters a final order adverse to the applicant.” Rules Governing § 2254 Cases, Rule
11(a), 28 U.S.C. foll. § 2254.
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