Henry v. Balcarel, Case No. 17-cv-13362

• Court: United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
• Writing for the Court: Judith E. Levy United States District Judge
• Parties: Travis James Henry, Petitioner, v. Erik Balcarel, Respondent.
• Docket Number: Case No. 17-cv-13362
• Decision Date: 05 November 2020

Travis James Henry, Petitioner,
v.
Erik Balcarel, Respondent.

Case No. 17-cv-13362

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

November 5, 2020

Judith E. Levy United States District Judge

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS [1], DENYING CERTIFICATE OF APPEALABILITY AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

Petitioner Travis James Henry filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254. (ECF No. 1.) Petitioner is confined at the Thumb Correctional Facility in Lapeer, Michigan pursuant to a 2014 armed robbery conviction by a jury. (Id.) He raises four claims for habeas relief: (1) the sufficiency of the evidence; (2) the admission of other acts evidence; (3) the admission of allegedly irrelevant evidence; and (4) the conduct of the prosecutor. (Id.) The Court denies the petition, denies a certificate of appealability and denies permission to proceed in forma

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pauperis on appeal.

I. Background

Petitioner's conviction arises from the robbery of a Halo Burger restaurant in Genesee County, Michigan in 2013. The Michigan Court of Appeals described the relevant facts, which are presumed correct on habeas review, 28 U.S.C. § 2254(e)(1); Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009), as follows:

On Sunday, March 17, 2013, defendant entered a Halo Burger in Genesee County where Jennifer Thomas was working as a shift manager and Elizabeth Murphy was working as a crew member. At approximately 11:10 a.m., defendant approached Thomas at the counter and demanded all the money that was in the till. Thomas asked defendant whether he was "f* * *ing serious" and defendant said, "Yes, I am, don't move, don't push a button, give me all the money in your till." Thomas observed that defendant had strawberry blond/reddish facial hair. He was wearing a dark-blue zip-up hooded sweatshirt (hoodie) that had an insignia on the left side. Defendant's hands were in his pockets, but the pockets, as she described them, "bulged forward." Thomas demonstrated for the jury how defendant held his hands in his pockets. She was not sure whether defendant actually had a weapon, but she did not take any chances. Thomas turned over the contents of the register: three $10 bills, six $5 bills, and thirty-five $1 bills.

Murphy also indicated that she observed defendant. He had strawberry-blond facial hair and had his hands in the pockets

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of his hoodie "bulging forward." Like Thomas, Murphy testified that she assumed defendant had a weapon. She activated the alarm button after defendant left.

The prosecutor presented a witness who placed defendant in the area of the Halo Burger near the time of the robbery. Kuldip Singh testified that he worked at the Shell gas station in Burton and that an individual matching defendant's description was in his store at approximately 10:45 a.m. that day. The Shell station maintained surveillance cameras and Singh cooperated in finding an image of the individual, which was later shown to Thomas and Murphy at the Halo Burger. Both Thomas and Murphy separately identified the man in the surveillance photo as the robber. They both also separately (and immediately) chose defendant's image from a photo array shown to them several days later.

An officer on patrol heard about the robbery from dispatch. The alert was accompanied by a description of the robber. The officer proceeded to a common drug location because in his experience, robbers tended to use the proceeds of their crimes for drugs. The officer pulled up near a maroon Grand Prix and noted that the driver's appearance matched the description of the robber. He pulled defendant over and while defendant was looking for his license, insurance, and registration, the officer observed "quite a bit of money on the front floorboard under the driver's feet ... up towards the center console." There was also a blue hooded sweatshirt in the back seat. Defendant was arrested. Defendant told officers that he lived in Fenton and that he was coming from his girlfriend's house in Burton and going to his friend's house around the corner. Officers found $75 under the front driver's seat. There was one $10 bill, six

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$5 bills, and thirty-five $1 bills. There was a screwdriver under the hooded sweatshirt in the middle of the backseat. An officer returned to Halo Burger where Thomas confirmed that the hoodie taken from the vehicle defendant was driving was the same hoodie the robber had been wearing.

The jury was instructed on armed robbery, unarmed robbery and larceny from a person. It convicted defendant of armed robbery. Defendant was sentenced as a fourth-offense habitual offender to 240 to 480 months imprisonment.

People v. Henry, 315 Mich. App. 130, 133-35 (2016).

Following his conviction and sentencing, Petitioner filed an appeal of right with the Michigan Court of Appeals raising several claims of error, including those raised on habeas review. The court denied relief on those claims and affirmed Petitioner's conviction and sentence. Id. at 135-50. Petitioner filed an application for leave to appeal with the Michigan Supreme Court, which was denied in a standard order. People v. Henry, 500 Mich. 931 (2017). The court also denied reconsideration. People v. Henry, 500 Mich. 1004, 895 N.W.2d 524 (2017).

Petitioner then filed his federal habeas petition raising the following claims:

1.) Insufficient Evidence to Sustain conviction of Armed Robbery 2.) The Court erred in allowing improper 404(b)

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evidence. 3.) Admission of irrelevant evidence. 4.) Improperly shifting burden of proof.

(ECF No. 1, PageID.2.)

Respondent has filed an answer to the petition contending that it should be denied because the last claim is procedurally defaulted and all claims lack merit. (ECF No. 8.)

II. Legal Standard

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

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(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 '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) (per curiam) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)); see also Bell v. Cone, 535 U.S. 685, 694 (2002). "[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); see also Bell, 535 U.S. at 694. 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

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incorrect or erroneous. The state court's application must have been 'objectively unreasonable.'" Wiggins, 539 U.S. at 520-21 (citations omitted); see also Williams, 529 U.S. at 409. 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, 559 U.S. 766, 773 (2010) (quoting Lindh, 521 U.S. at 333, n. 7); 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 'fair[-]minded 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 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)). 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 fair[-]minded jurists could disagree that those arguments or theories are inconsistent with the

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holding in a prior decision" of the Supreme Court. Id. Thus, in order to obtain habeas relief in federal court, a state prisoner must 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 fair[-]minded disagreement." Id; see also White v. Woodall, 572 U.S. 415, 419-20 (2014). Federal judges "are required to afford state courts due respect by overturning their decisions only when there could be no reasonable dispute that they were wrong." Woods v. Donald, 575 U.S. 312, 316 (2015). A habeas petitioner cannot prevail if it is within the "realm of possibility" that fair[-]minded jurists could find the state-court decision to be reasonable. Woods v. Etherton, 136 S. Ct. 1149, 1152 (2016).

Section 2254(d)(1) limits a federal habeas...