Thomas v. McKee, Case No. 2:11-CV-10653

Decision Date19 January 2016
Docket NumberCase No. 2:11-CV-10653
PartiesHAROLD THOMAS, Petitioner, v. KENNETH MCKEE, et al., Respondent.
CourtUnited States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)

HAROLD THOMAS, Petitioner,
v.
KENNETH MCKEE, et al., Respondent.

Case No. 2:11-CV-10653

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

January 19, 2016


HON. R. ALLAN EDGAR

OPINION AND ORDER

Petitioner filed this § 2254 petition for writ of habeas corpus challenging the validity of his state court conviction for violations of his Fifth, Sixth, and Fourteenth Amendment rights. In 2008, after a bench trial, Petitioner was convicted of armed robbery (MICH. COMP. LAWS § 750.529) and resisting and obstructing (MICH. COMP. LAWS § 750.81d(1)). Petitioner was sentenced as a fourth habitual offender to fifteen to forty years for the armed robbery conviction and five to fifteen years for the resisting and obstructing conviction. Petitioner remains in the custody of the Michigan Department of Corrections.

After his conviction, Petitioner filed an application for leave to appeal in the Michigan Court of Appeals, claiming that "the prosecution abused its discretion by charging defendant in the alternative with both robbery and bank robbery." ECF No. 8 at 5. The Court of Appeals denied Petitioner's application and affirmed his convictions on October 6, 2009. ECF No. 8 at 5; ECF No. 18-18. Petitioner then filed an application for leave to appeal in the Michigan Supreme Court, raising the same claim. The Michigan Supreme Court denied his

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application on February 26, 2010. ECF No. 8 at 5; ECF No. 18-19.

Petitioner filed a habeas petition in this Court on February 17, 2011 (ECF No. 1), along with a motion to stay the habeas proceedings since he had an outstanding motion in the trial court that raised claims not yet exhausted for purposes of the habeas proceedings (ECF No. 2). The habeas court granted the motion to stay. ECF No. 4. Petitioner filed an amended habeas application in federal court on September 7, 2012 (ECF No. 8), which the habeas court granted by re-opening his case on January 17, 2013 (ECF No. 10). After re-opening his habeas case, Petitioner filed a motion for relief from judgment in the trial court on May 2, 2013. ECF No. 18-13. On October 22, 2013, Petitioner filed a supplemental motion for relief from judgment. ECF No. 18-14 at 1. On March 28, 2014, the trial court denied Petitioner's motion and supplemental motion for relief from judgment.1 ECF No. 18-16. At no time did Petitioner file an appeal in the United States Supreme Court.

Petitioner maintains that his convictions were based on violation of his federal rights. Petitioner sets forth the following claims for relief in his habeas application:

I. The prosecution abused its discretion by charging defendant in the alternative with both bank robbery and armed robbery.

II. Petitioner Harold Thomas was denied a fair trial and due process of law, in violation of the United States Constitution VI, XIV Amendments and the legal principle of the US Supreme Court's myriad stare decisis when Petitioner Thomas' bench trial, conviction and sentence was conducted by a bias trial judge, whose impartiality might reasonably be called into question, because the trial judge necessarily had a prejudgment or preconceived notion of Petitioner Thomas' guilt of the charged offense due to his prior participation as a fact finder and initial decision maker, and because his mental

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impartiality was negated by a barrage of evidence relating to alleged similar acts, uncharged crimes and bad man character testimony to the degree that any possible impartiality was nullified.

III. Petitioner Harold Thomas was denied a fair trial and due process of law, in violation of United States Constitution VI, XIV Amendments and the legal principle of the US Supreme Court in Santobello v. New York, 404 US 257; 92 S Ct 495 (1971), the prosecution and defense counsel breached the legal contract agreement that Petitioner Thomas would not be impeached with any reference to his prior record, imprisonment or current parole status if he testified for the defense, then proceeded to repeatedly impeach Petitioner Thomas with references to his imprisonment, current parole status and prior record.

IV. Petitioner Harold Thomas was denied a fair trial and due process of the law, in violation of the United States Constitution VI, XIV Amendments and the legal principle of stare decisis when the trial court repeatedly considered uncharged similar act crimes as substantive proof or constructive evidence of Petitioner Harold Thomas' guilt of the charged offenses of armed robbery or bank robbery without affording Petitioner Thomas the required Huddleston v. United States, 486 US 681; 108 S Ct 1496 (1988)/People v. Vandervliet, 444 Mich 52, 89 (1993) evidentiary hearing.

V. Petitioner Thomas was denied a fair trial, due process of law, the right to effectively confront, cross-examine or impeach Detective Litteracki [sic] and the Westland Police, in violation of the United States Constitution VI, XIV Amendments and the legal principle of the US Supreme Court in Crawford v. Washington, 541 US 36; 124 S Ct 1354 (2004) when Detective James Dziedzic's testimonial hearsay was used to interpret at length Detective Litterack's [sic] report and the Westland Police's 11/24/07 accident report.

VI. Michigan's application of MCL 767.39 [aiding and abetting statute] an unconstitutional application that resulted in inherent prejudices to Petitioner Harold Thomas, thereby denying Harold Thomas Due Process of law, in violation of the V, VI, XIV Amendment of the United States Constitution when Michigan's application of MCL 767.39: (1) disregards the plain unambiguous language of MCL 767.39 and the doctrine of statutory construction; (2) usurps and ignores previous Michigan stare decisis deemed to have been the final authority; (3) deprives any Petitioner subject to

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Michigan's misapplication of MCL 767.39 of the right to know the nature of the charge; (4) precludes the Petitioner from presenting the defense of merely present.

VII. Petitioner Harold Thomas was denied a fair trial and due process of law, in violation of the United States Constitution VI, XIV Amendments and the legal principle of the US Supreme Court in Strickland v. Washington, 466 US 668; 104 S Ct 2052 (1984) and/or United States v. Cronic, 466 US 648; 104 S Ct 2039 (1984) due to trial counsel's cumulative incompetent errors (whether by commission or omission) as alphabetized below when those incompetent errors were prejudicial to the defense when trial counsel:

A. Coerced Petitioner Thomas to waive a jury trial and take a bench trial before a bias[ed] judge, who prejudged the case and had obvious preconceived notions of Petitioner Thomas' guilt to the charged offenses due to his prior participation as an [sic] factfinder or initial decision maker.

B. Failed to file a motion for the biased judge to recuse on the ground that under the circumstances of the case the trial judge's impartiality might reasonably be questioned.

C. Failed to object to the prosecution's and trial court's breaching the contractual agreement made between the parties that Petitioner Thomas would not be impeached by any reference to his prior record, imprisonment or current parole status, but was the first one to breach the agreement. See TT 1, p. 12, LL 12-3.

D. Failed to file a motion for a People v. Vandervliet, 444 Mich 52 (1993)/Huddleston v. United States, 485 US 681; 108 S Ct 1496 (1988) evidentiary hearing to preclude bad man character, uncharged crimes, similar act crimes evidence from pervading and prejudicing the trial proceedings.

E. Failed to object to multiple or cumulative instances of prosecutorial misconduct as set forth in habeas ground seven.

F. Failed to conduct numerous types of pre-trial investigations, including potential defense favorable witnesses and statutes revolving or relevant to the defense.

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G. Failed to endorse a defense favorable expert witness [a chirographer (handwriting expert)] who would have rebutted (if not exposed perjury by the state's key witness Keyana Pettus) the state's key witness and alleged co-defendant's testimony when she testified Petitioner Thomas wrote the robbery notes she gave the tellers in the uncharged similar act [of] Farmington Hi[ll]s and the current conviction [of the] Southfield bank robberies.

H. Failed to impeach the state's key witness (Keyana Pet[t]us) with her conflicting (if not irreconcilable) extrajudicial, custodial interrogation statements, and with her obvious motive, interest, bias to testify to the satisfaction of the prosecution and to lie about Petitioner Thomas' involvement in any bank robberies.

I. Failed to object to the state's deliberate, perjurious and fraudulent misrepresentation of the date of the Farmington Hi[ll]s bank robbery.

K.2 Failed to call parole officer Hughes (a favorable defense witness) as a rebuttal witness to establish the fact that on the actual date [11/8/07 instead of 11/7/07] and time of the Farmington Hi[ll]s bank robbery [that] Pettus testified Petitioner Thomas was involved in with her [despite the fact that] Petitioner Thomas was in an interview conducted by his parole officer at the parole office.

L. Failed to present defense supporting DVDs of the custodial interrogation of Pettus and documents so damaging to the prosecution's theory of the charged offenses of armed robbery, bank robbery and aiding and abetting that those charges against Petitioner Thomas would have been dismissed or acquittal would have resulted.

M. On cross-examination elicited testimony from a state witness that equated to a Miranda-less (TT, 11, p. 88, LL 7-8), Edwards v. Arizona, 451 US 477, 101 S Ct 1880 (1981) violation confession of Petitioner Thomas being used to establish every element of the charged offenses.

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N. Provided (thus introduced) the highly prejudicial and irrelevant nude or sexual photographs of Petitioner Thomas and Keyana Pettus thereby establishing Petitioner Thomas was at least guilty of CSC 4th degree or 1st degree.

O. Failed to know the laws
...

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