Tomas #277167 v. Burt
OPINION; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
JAMES ALLEN TOMAS,
Case No. 1:16-cv-269
Honorable Paul L. Maloney
This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C.
§ 2254. Promptly after the filing of a petition for habeas corpus, the Court must undertake a
preliminary review of the petition to determine whether “it plainly appears from the face of the
petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court.”
Rule 4, RULES GOVERNING § 2254 CASES; see 28 U.S.C. § 2243. If so, the petition must be
summarily dismissed. Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court
has the duty to “screen out” petitions that lack merit on their face). A dismissal under Rule 4
includes those petitions which raise legally frivolous claims, as well as those containing factual
allegations that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir.
1999). After undertaking the review required by Rule 4, the Court concludes that the petition must
be dismissed because it fails to raise a meritorious federal claim.
Petitioner James Allen Tomas presently is incarcerated at the Muskegon Correctional
Facility. Following a jury trial in the Muskegon County Circuit Court, Petitioner was convicted of
assault with intent to commit murder, MICH. COMP. LAWS § 750.83. On April 29, 2013, Petitioner
was sentenced as a fourth-offense felony offender, MICH. COMP. LAWS § 769.12, to a prison term
of 20 to 30 years.
Petitioner appealed his conviction to the Michigan Court of Appeals and the Michigan
Supreme Court, raising the same two issues he presents in his habeas petition:
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
ALLOWING THE PROSECUTOR TO BRING WITNESSES TO TESTIFY
ABOUT FIGHTS [PETITIONER] HAD BEEN IN ON PRIOR OCCASIONS
IN WHICH A KNIFE WAS USED.
THE TRIAL COURT VIOLATED APPELLANT’S DUE PROCESS
RIGHTS BY OVERRULING [PETITIONER]’S OBJECTION TO USE
EXTRINSIC HEARSAY EVIDENCE TO IMPEACH [PETITIONER]’S
VERACITY ON A COLLATERAL MATTER.
(Pet., ECF No. 1, PageID.2, 6, 8.) In an unpublished opinion issued on October 21, 2014, the court
of appeals rejected both appellate grounds and affirmed the conviction. The supreme court denied
leave to appeal on March 31, 2015.
Petitioner filed his habeas application on or about March 11, 2016.
This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996,
PUB. L. 104-132, 110 STAT. 1214 (AEDPA). See Penry v. Johnson, 532 U.S. 782, 792 (2001). The
AEDPA “prevents federal habeas ‘retrials’” and ensures that state court convictions are given effect
to the extent possible under the law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). The AEDPA has
“drastically changed” the nature of habeas review. Bailey v. Mitchell, 271 F.3d 652, 655 (6th Cir.
2001). An application for writ of habeas corpus on behalf of a person who is incarcerated pursuant
to a state conviction cannot be granted with respect to any claim that was adjudicated on the merits
in state court unless the adjudication: “(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 upon an unreasonable determination
of the facts in light of the evidence presented in the state court proceeding.” 28 U.S.C. § 2254(d).
This standard is “intentionally difficult to meet.” Woods v. Donald, 575 U.S. __, 135 S. Ct. 1372,
1376 (2015) (internal quotation marks omitted).
Evidence of Other Bad Acts
The facts at trial showed that Petitioner was involved in an altercation with the victim,
during which Petitioner stabbed the victim in the stomach, inflicting a potentially fatal wound.
Petitioner contended that he did not intentionally stab the victim, but that the victim had fallen on
the knife. The prosecutor introduced evidence that Petitioner had used a knife in two prior incidents,
in 1986 and 2008. Petitioner contends that the trial court erred in permitting the prosecutor to
introduce evidence of other bad acts, which he contends violated MICH. R. EVID. 404(b)(1).
To the extent that Plaintiff challenges the state court’s application of its own
evidentiary rules, his claim is not cognizable on habeas review. The extraordinary remedy of habeas
corpus lies only for a violation of the Constitution. 28 U.S.C. § 2254(a). As the Supreme Court
explained in Estelle v. McGuire, 502 U.S. 62 (1991), an inquiry whether evidence was properly
admitted or improperly excluded under state law “is no part of the federal court’s habeas review of
a state conviction [for] it is not the province of a federal habeas court to re-examine state-court
determinations on state-law questions.” Id. at 67-68. Rather, “[i]n conducting habeas review, a
federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties
of the United States.” Id. at 68. State-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) (quotation omitted); accord Coleman v. Mitchell, 268 F.3d 417, 439 (6th Cir. 2001); Bugh
v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003). This approach accords the state courts wide latitude
in ruling on evidentiary matters. Seymour, 224 F.3d at 552.
There is no clearly established Supreme Court precedent that holds that a state court
violates the Due Process Clause by permitting propensity evidence in the form of other bad acts
evidence. In Estelle, the Supreme Court declined to hold that the admission of prior acts evidence
violated due process. Estelle, 502 U.S. at 75. The Court stated in a footnote that, because it need not
reach the issue, it expressed no opinion as to whether a state law would violate due process if it
permitted the use of prior crimes evidence to show propensity to commit a charged crime. Id. at 75
n.5. While the Supreme Court has addressed whether prior acts testimony is permissible under the
Federal Rules of Evidence, see Old Chief v. United States, 519 U.S. 172 (1997); Huddleston v.
United States, 485 U.S. 681 (1988), it has not explicitly addressed the issue in constitutional terms.
The Sixth Circuit has found that “[t]here is no clearly established Supreme Court precedent which
holds that a state violates due process by permitting propensity evidence in the form of other bad acts
evidence.” Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003).
Because there was no constitutional violation in the admission of “bad acts” evidence,
the state court’s rejection of Petitioner’s first ground for habeas relief was “far from” an
unreasonable determination of the facts in light of the evidence presented. Clark v. O’Dea, 257 F.3d
498, 502 (6th Cir. 2001); see also Bugh, 329 F.3d at 512.
In his second ground for habeas relief, Petitioner contends that the trial court erred
in admitting Petitioner’s own statements made in 2008, in which Petitioner gave conflicting versions
of a prior stabbing incident in which he had been involved. Petitioner contends that the evidence
was both improper evidence of a prior bad act under MICH. R. EVID. 404(b) and improper hearsay
evidence under MICH. R. EVID. 801(d)(2).
As discussed supra, Petitioner’s challenge to the admissibility of “bad acts” evidence
does not rise to the level of constitutional error. Similarly, Petitioner’s challenge to the admissibility
of the challenged evidence as hearsay fails to implicate the constitution.
Although in some circumstances, the Confrontation Clause may be implicated by the
admission of hearsay testimony, see Bugh, 329 F.3d at 506 (discussing Maryland v. Craig, 497 U.S.
836, 846 (1990); Idaho v. Wright, 497 U.S. 805, 817-23 (1990); United States v. Owens, 484 U.S.
554 (1988); Ohio v. Roberts, 448 U.S. 56, 65 (1980)), the use of Petitioner’s own past statements
cannot deprive Petitioner the opportunity to confront the witnesses against him. Moreover, as the
Sixth Circuit has recently held, the Supreme Court has never recognized that the constitution is
violated by the admission of unreliable hearsay evidence. Desai v. Booker, 732 F.3d 628, 630-31
(6th Cir. 2013). Instead, the Supreme Court has merely “h[e]ld out the possibility that ‘the
introduction’ of ‘evidence’ in general could be ‘so extremely unfair that its admission violates
fundamental conceptions of justice.’” Id. at 631 (citing Dowling v. United States, 493 U.S. 342, 352
(1990) (quotation omitted)). Such a standard is highly general. Id. “‘The more general the rule, the
more leeway courts have in reaching outcomes in case-by-case determinations,’—and, it follows,
the less likely a state court’s application of the rule will be unreasonable.” Id. (quoting Yarborough
v. Alvarado, 541 U.S. 652, 664 (2004). Here, as in Desai, the state court held that the admission of
Petitioner’s 2008 statements “fell within an established hearsay exception,” in this case for
admissions by a party-opponent. See MICH. R. EVID. 801(d)(2). Id. “Where, as here, a state court
reasonably rejects a rule urged by the claimant but yet to be adopted by the Supreme Court, it does
not unreasonably apply established federal law.” Id. at 632 (citing Knowles v. Mirzayance, 556 U.S.
111, 122 (2009).
In light of the foregoing, the Court will summarily dismiss Petitioner’s application
pursuant to Rule 4 because it fails to raise a meritorious federal claim.
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). This Court’s
dismissal of Petitioner’s action under Rule 4 of the Rules Governing § 2254 Cases is a determination
that the habeas action, on its face, lacks sufficient merit to warrant service. It would be highly
unlikely for this Court to grant a certificate, thus indicating to the Sixth Circuit Court of Appeals that
an issue merits review, when the Court has already determined that the action is so lacking in merit
that service is not warranted. See Love v. Butler, 952 F.2d 10 (1st Cir. 1991) (it is “somewhat
anomalous” for the court to summarily dismiss under Rule 4 and grant a certificate); Hendricks v.
Vasquez, 908 F.2d 490 (9th Cir. 1990) (requiring reversal where court summarily dismissed under
Rule 4 but granted certificate); Dory v. Comm’r of Corr. of New York, 865 F.2d 44, 46 (2d Cir. 1989)
(it was “intrinsically contradictory” to grant a certificate when habeas action does not warrant service
under Rule 4); Williams v. Kullman, 722 F.2d 1048, 1050 n.1 (2d Cir. 1983) (issuing certificate
would be inconsistent with a summary dismissal).
The Sixth Circuit Court of Appeals has disapproved issuance of blanket denials of
a certificate of appealability. Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001). Rather, the district
court must “engage in a reasoned assessment of each claim” to determine whether a certificate is
warranted. Id. at 467. Each issue must be considered under the standards set forth by the Supreme
Court in Slack v. McDaniel, 529 U.S. 473 (2000). Murphy, 263 F.3d at 467. Consequently, this
Court has examined each of Petitioner’s claims under the Slack standard. Under Slack, 529 U.S. at
484, to warrant a grant of the certificate, “[t]he petitioner must demonstrate that reasonable jurists
would find the district court’s assessment of the constitutional claims debatable or wrong.” Id. “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). In applying this standard, the Court may not conduct a full merits review, but must limit its
examination to a threshold inquiry into the underlying merit of Petitioner’s claims. Id.
The Court finds that reasonable jurists could not conclude that this Court’s dismissal
of Petitioner’s claims was debatable or wrong. Therefore, the Court will deny Petitioner a certificate
A Judgment and Order consistent with this Opinion will be entered.
Dated: June 1, 2016
/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge
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