Hill #250110 v. Palmer
OPINION; Judgment and Order to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
BIRL LEILOKIE HILL,
Case No. 1:18-cv-216
Honorable Janet T. Neff
This is a habeas corpus action brought by a state prisoner under 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 Birl Leilokie Hill is incarcerated with the Michigan Department of
Corrections at the Michigan Reformatory (RMI) in Ionia County, Michigan. In 2014, a Saginaw
County Circuit Court jury found Petitioner guilty of a variety of offenses, including first-degree
premeditated murder, Mich. Comp. Laws § 750.316, first-degree felony murder, Mich. Comp.
Laws § 750.316(1)(b), carrying a dangerous weapon with unlawful intent, Mich. Comp. Laws
§ 750.226, felon in possession of a firearm, Mich. Comp. Laws § 750.224f, and five related counts
of possession of a firearm during the commission of a felony (felony-firearm), Mich. Comp. Laws
The trial court sentenced Petitioner as a second-offense habitual offender, Mich.
Comp. Laws § 769.10, to concurrent prison terms of life for the first-degree murder conviction, 47
months to 90 months for the carrying-of-a-dangerous-weapon conviction, and 47 months to 90
months for the felon-in-possession conviction. He also received concurrent sentences for his other
convictions, which are not described because they are not relevant here. In addition, he was
sentenced to five terms of 24 months for his felony-firearm convictions, to be served concurrently
with each other but consecutively to the underlying felonies.
He appealed the judgment to the Michigan Court of Appeals. The court of appeals
affirmed the judgment of conviction and sentence in an opinion entered on June 16, 2016. He also
appealed to the Michigan Supreme Court, which denied leave to appeal on November 30, 2016,
because it was not persuaded that the questions presented should be reviewed by that court.
Petitioner timely filed his habeas corpus petition with this Court on February 28,
2018. Under Sixth Circuit precedent, the application is deemed filed when handed to prison
authorities for mailing to the federal court. Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002).
Petitioner placed his petition in the prison mailing system on February 28, 2018, on the last day of
the one-year deadline in 28 U.S.C. § 2244(d)(1)(A). (Pet., ECF No. 1, PageID.9.)
The petition raises two grounds for relief, as follows:
PETITIONER IS ENTITLED TO A WRIT OF HABEAS CORPUS
BECAUSE THE TESTIMONY OF TROOPER NEIL SOMERS AND HIS
MAPS AND DIAGRAMS WERE INADMISSIBLE UNDER MRE 702 AND
THE PETITIONER AS A RESULT WAS DENIED A FAIR TRIAL.
PETITIONER IS ENTITLED TO A WRIT OF HABEAS CORPUS
BECAUSE THE PETITIONER WAS DENIED A FAIR TRIAL BY
ADMISSION OF EVIDENCE THAT HE HAD A GUN ON A DATE
DIFFERENT THAN THE DAY OF THE HOMICIDE BECAUSE THE
PROSECUTOR FAILED TO GIVE THE PETITIONER NOTICE OF AN
INTENT TO INTRODUCE SIMILAR ACTS EVIDENCE.
(Pet., ECF No.1, PageID.5.) Petitioner asserts that he fully exhausted these claims by raising
them on appeal.
This action is governed by the Antiterrorism and Effective Death Penalty Act of
1996, Pub. L. 104-132, 110 Stat. 1214 (AEDPA). 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). 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 omitted).
The AEDPA limits the source of law to cases decided by the United States Supreme
Court. 28 U.S.C. § 2254(d). This Court may consider only the “clearly established” holdings, and
not the dicta, of the Supreme Court. Williams v. Taylor, 529 U.S. 362, 412 (2000); Bailey v.
Mitchell, 271 F.3d 652, 655 (6th Cir. 2001). In determining whether federal law is clearly
established, the Court may not consider the decisions of lower federal courts. Lopez v. Smith, 135
S. Ct. 1, 3 (2014); Bailey, 271 F.3d at 655. Moreover, “clearly established Federal law” does not
include decisions of the Supreme Court announced after the last adjudication of the merits in state
court. Greene v. Fisher, 565 U.S. 34 (2011). Thus, the inquiry is limited to an examination of the
legal landscape as it would have appeared to the Michigan state courts in light of Supreme Court
precedent at the time of the state-court adjudication on the merits. Miller v. Stovall, 742 F.3d 642,
644 (6th Cir. 2014) (citing Greene, 565 U.S. at 38).
A federal habeas court may issue the writ under the “contrary to” clause if the state
court applies a rule different from the governing law set forth in the Supreme Court’s cases, or if
it decides a case differently than the Supreme Court has done on a set of materially
indistinguishable facts. Bell, 535 U.S. at 694 (citing Williams, 529 U.S. at 405-06). “To satisfy
this high bar, a habeas petitioner is required to ‘show that the state court’s ruling on the claim being
presented in federal court was so lacking in justification that there was an error well understood
and comprehended in existing law beyond any possibility for fairminded disagreement.’” Woods,
135 S. Ct at 1376 (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)). In other words,
“[w]here the precise contours of the right remain unclear, state courts enjoy broad discretion in
their adjudication of a prisoner’s claims.” White v. Woodall, 572 U.S. ___, 134 S. Ct. 1697, 1705
(2014) (internal quotations omitted).
The AEDPA requires heightened respect for state factual findings. Herbert v. Billy,
160 F.3d 1131, 1134 (6th Cir. 1998). A determination of a factual issue made by a state court is
presumed to be correct, and the petitioner has the burden of rebutting the presumption by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1); Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir.
2003); Bailey, 271 F.3d at 656. This presumption of correctness is accorded to findings of state
appellate courts, as well as the trial court. See Sumner v. Mata, 449 U.S. 539, 546 (1981); Smith
v. Jago, 888 F.2d 399, 407 n.4 (6th Cir. 1989).
Admission of Evidence under Rule 702 (Habeas Ground I)
According to the Michigan Court of Appeals opinion, Petitioner’s conviction for
murder stems from the shooting death of 23-year-old Jessica Callahan, who was found dead in a
cemetery with a single gunshot wound to the head. Petitioner apparently met Callahan on the day
of the murder, drove her to the home of an acquaintance, retrieved a handgun, and then drove off
with Callahan and returned without her. Petitioner argues that the trial court improperly admitted
the testimony and supporting exhibits of Trooper Neil Somers, who provided expert testimony
regarding the whereabouts of Petitioner’s and the victim’s cell phones on the date of the offense,
using data from cell phone records and the location of cell phone towers.
Applying “plain error” review, the Michigan Court of Appeals rejected Petitioner’s
claim that the trial court improperly admitted Somers’ testimony under Rule 702 of the Michigan
Rules of Evidence:
MRE 702 provides as follows:
If the court determines that scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by knowledge,
skill, experience, training, or education may testify thereto in the form of an
opinion or otherwise if (1) the testimony is based on sufficient facts or data,
(2) the testimony is the product of reliable principles and methods, and
(3) the witness has applied the principles and methods reliably to the facts
of the case.
The underpinning of MRE 702 is that the “trial court must ensure that all expert
opinion testimony, regardless of whether it is based on novel science, is reliable.”
People v Steele, 283 Mich App 472, 481; 769 NW2d 256 (2009).
The court recognized Somers as an expert in the area of cell phone data
analysis. Somers testified regarding his qualifications and training as follows:
Initially in 2008 I took training from a company called Public Agency
Training Council in cell phone, forensics of cell phone records. Again in
two-thousand—I have to review, but I believe in 2012, I took a similar
refreshing course from that company. I’ve also been down to the Secret
Service’s school down in Birmingham, Alabama, in basic cell phone
Somers testified that since 2008, he had been involved in almost 100 cases where
he assisted the Michigan State Police and other agencies “in looking at cell phone
records to determine calls that were made and where those calls possibly have been
The court’s determination that Somers was qualified to give expert
testimony in the area of cell phone data analysis was not erroneous. He testified to
continuing training in the area and a considerable amount of experience in applying
the principles he had learned. In other words, he demonstrated he possessed the
“knowledge, skill, experience, training, [and] education” necessary to be
recognized as an expert in the area.
Somers’ expert opinion on the locations of the two cell phones was
“rationally derived from a sound foundation.” Id. Somers’ methodology was
logical, albeit somewhat inexact. However, Somers explained to the jury that
locations of the cell phones he identified were not exact, but an approximation. And
the jury was instructed that it should decide whether it believed any of the expert
testimony given “and how important you think it is.”
And the evidence was relevant to determining a fact in issue as it mapped
out the movement of the phones on the night of the murder, including placing
defendant’s cell phone in the vicinity of the cemetery where the victim’s body was
discovered. From this evidence it can be reasonably inferred that defendant was
also present at the scene. Thus, no plain error has been shown.
People v. Hill, No 326550, 2016 WL 3365256, at *2-3 (Mich. Ct. App. June 16, 2016.)
Petitioner’s claim rests upon a violation of Rule 702 of the Michigan Rules of
Evidence. 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
(6th Cir. 2000).
When asserting that he was denied a fair trial, Petitioner implies that the state
court’s ruling deprived him of due process. Even if that is the case, this Court may only grant
relief if Petitioner is able to show that the state court’s ruling on appeal was in conflict with a
decision reached by the Supreme Court on a question of law or if the state court decided the
evidentiary issue differently than the Supreme Court did on a set of materially indistinguishable
facts. Sanders v. Freeman, 221 F.3d 846, 860 (6th Cir. 2000). Petitioner has not met this difficult
standard. Thus, his claim is meritless.
Notice of “Other Acts” Evidence (Habeas Ground II)
Next, Petitioner contends that he was denied a fair trial when the trial court admitted
evidence that he possessed a gun on the day before the offense. He contends that the prosecutor
did not give adequate notice to Petitioner that the prosecutor intended to introduce evidence of
“similar acts.” The Michigan Court of Appeals rejected this claim:
The admission of other acts evidence reflecting on a defendant’s character is limited
by MRE 404(b) to avoid the danger of conviction based on a defendant’s history of
other misconduct rather than on the evidence of his conduct in the case in issue.
People v. Starr, 457 Mich. 490, 495; 577 NW2d 673 (1998). Evidence of other
crimes or acts is admissible under MRE 404(b) if such evidence: (1) is offered for
a proper purpose and not to prove the defendant’s character or propensity to commit
the crime; (2) is relevant to an issue or fact of consequence at trial; and (3) the
probative value of the evidence is not substantially outweighed by the danger of
unfair prejudice. People v. VanderVliet, 444 Mich. 52, 74-75; 508 NW2d 111
(1993), amended on other grounds 445 Mich. 1205 (1994). Generally, under MRE
404(b)(2), the prosecution must provide reasonable pretrial notice of the nature of
other acts evidence it intends to introduce and the rationale for admitting the
evidence. People v. Hawkins, 245 Mich. App 439, 454; 628 NW2d 105 (2001).
Defendant was charged with several crimes that involve the possession of a firearm.
There was testimony that defendant retrieved a .38 handgun from a garage before
driving off with the victim. The victim died from a gunshot wound to her head. The
gun was never recovered. The challenged evidence helped to establish that
defendant was in possession of a gun during the relevant timeframe, a fact of
consequence to several of the charges filed. The prosecutor made it clear at trial
that the evidence went to the issue of defendant’s access to a gun, i.e., “specific
evidence related to the crime.” It was not being offered as other acts evidence, and
the prosecutor did not argue it that way during closing argument. The court did not
abuse its discretion in admitting the challenged testimony.
Hill, 2016 WL 3365256, at *3-4.
Although this Court cannot evaluate the reasonableness of the state court’s
determination of the facts, the Court can determine whether the state court’s decision is contrary
to, or an unreasonable application of, clearly established law.
The requirement to provide pre-trial notice of evidence of other acts is a
requirement of state law. See Mich. R. Evid. 404(b)(2). This Court, however, may grant relief
only if Petitioner “is in custody in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. §§ 2241(c)(3) and 2254(a). Petitioner implies that the admission of evidence
that he possessed a gun on the day prior to the offense violated his right to Due Process, but there
is no clearly established Supreme Court precedent that holds that a state court violates the Due
Process Clause by permitting evidence in the form of other bad acts. See Estelle, 502 U.S. at 75
n.5 (“[W]e express no opinion on whether a state law would violate the Due Process Clause if it
permitted the use of ‘prior crimes’ evidence to show propensity to commit a charged crime.”);
Bugh, 329 F.3d at 512 (“There 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.”). Likewise, there is no clearly established Supreme Court precedent requiring a
prosecutor to provide notice of such evidence before presenting it at trial. Consequently, the
Michigan Court of Appeals’ opinion was not contrary to, or an unreasonable application of, clearly
Appointment of Counsel
Petitioner has asked for appointment of counsel. Indigent habeas petitioners have
no constitutional right to a court-appointed attorney. Johnson v. Avery, 393 U.S. 483, 488 (1969);
Barker v. Ohio, 330 F.2d 594, 594-95 (6th Cir. 1964); see also Lovado v. Keohane, 992 F.2d 601,
604-05 (6th Cir. 1993). Considering the complexity of the issues and their lack of merit, the
assistance of counsel does not appear necessary to the proper presentation of Petitioner’s position.
Thus, Petitioner’s request for a court-appointed attorney will be denied.
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
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 of appealability.
A Judgment and Order consistent with this Opinion will be entered.
Dated: March 21, 2018
/s/ Janet T. Neff
Janet T. Neff
United States District Judge
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