Thompson v. McCullick

• Decision Date: 28 June 2019
• Docket Number: CASE NO. 2:16-cv-14353
• Parties: COREY LARON THOMPSON, Petitioner, v. MARK McCULLICK, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

COREY LARON THOMPSON, Petitioner, v. MARK McCULLICK, Respondent.

CASE NO. 2:16-cv-14353

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

June 28, 2019

HONORABLE DENISE PAGE HOOD

OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS, GRANTING IN PART A CERTIFICATE OF APPEALABILITY, AND GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

This matter has come before the Court on Corey Laron Thompson's pro se habeas corpus petition under 28 U.S.C. § 2254. Petitioner challenges his convictions for four drug offenses and four weapon offenses. He alleges that the trial judge deprived him of a fair trial by disclosing unfavorable evidence and failing to excuse three jurors for cause, the police delayed his arrest to increase his sentence, the prosecutor admitted unauthenticated photocopies in evidence, his trial attorney was ineffective for failing to make certain objections and raise a claim about the delay in Petitioner's arrest, and there was insufficient evidence supporting his convictions for possessing a gun. Having reviewed the record, the Court finds that these claims do not warrant habeas corpus relief. The petition will be denied.

I. Background

Petitioner was charged with drug and firearm offenses in Huron County, Michigan. In case number 13-305653, he was charged with delivery of less than 50 grams of heroin, Mich. Comp. Laws § 333.7401(2)(a)(iv). This charge arose from a controlled drug buy in Bad Axe, Michigan on January 9, 2013.

In case number 13-305652, Petitioner was charged with seven crimes: delivery of less than 50 grams of heroin, Mich. Comp. Laws § 333.7401(2)(a)(iv); possession with intent to deliver less than 50 grams of heroin, Mich. Comp. Laws § 333.7401(2)(a)(iv); possession with intent to deliver less than 50 grams of cocaine, Mich. Comp. Laws § 333.7401(2)(a)(iv); felon in possession of a firearm, Mich. Comp. Laws § 750.224f; and three counts of possessing a firearm during the commission of a felony, third offense, Mich. Comp. Laws § 750.227b. Those seven charges arose from a controlled drug buy in Bad Axe on January 13, 2013.

Petitioner was tried before a jury in Huron County Circuit Court. The Michigan Court of Appeals summarized the evidence as follows:

Defendant was arrested after Bad Axe police officers conducted two controlled drug buys from defendant, using an informant who had prior contact with defendant. After the later of the two drug buys, police obtained a warrant to search the apartment where the informant said she had purchased the drugs. The informant said she knew defendant would be at the apartment on those evenings because he would call her and tell her when he was making trips from Detroit to sell drugs.

The officers returned that night to execute the warrant, and spotted defendant driving away with another person in an SUV. The officers pulled defendant's vehicle over and placed him under arrest. The officers found multiple bags of heroin and cocaine in defendant's vehicle, and within reach of the driver's seat. A subsequent inspection of the vehicle later that evening revealed a loaded handgun underneath the seat behind the driver's seat. The officer who discovered the gun said it was not in plain view, and that he discovered it beneath a covering when he folded up the second row seats to gain access to the vehicle's third row of seats. Defendant's fingerprints were not found on the gun, and the vehicle was not registered in his name.

People v. Thompson, No. 318694, 2015 WL 213299, at *1 (Mich. Ct. App. Jan. 15, 2015) (unpublished).

Petitioner did not testify or present any witnesses. His defense was that the prosecution had not proved its case. Defense counsel argued to the jury that the informant was a liar, that there was no evidence Petitioner possessed the gun seized by the police, and that Petitioner happened to have the "buy money" on him because the informant gave the money to her boyfriend who handed the money to Petitioner to pay a debt.

On July 3, 2013, the jury found Petitioner guilty of all the charges. The trial court sentenced Petitioner as a fourth habitual offender to three years, two months to twenty years for the drug crimes, a concurrent sentence of one year, ten months to twenty years for the felon-in-possession conviction, and a consecutive term of ten years for the felony-firearm convictions.

In an appeal filed through counsel, Petitioner raised two sentencing claims and a challenge to the sufficiency of the evidence supporting the firearm convictions. In a pro se supplemental brief, Petitioner made six additional arguments, claiming that:

(1) the trial court deprived him of a fair trial when the court disclosed to the jury panel that Petitioner was previously convicted of armed robbery or possession of a controlled substance, and defense counsel was ineffective for failing to object;

(2) the trial court deprived him of his right to a fair trial by not excusing three jurors for cause during voir dire, and defense counsel was ineffective for failing to object;

(3) law enforcement officers delayed his arrest for the conduct committed on January 9, 2013, to escalate his sentencing liability, and defense counsel was ineffective for failing to raise this issue in a pretrial motion to dismiss the charges arising from the incident on January 13, 2013;

(4) he was denied his right to present a defense of actual innocence when the prosecutor admitted unauthenticated photocopies of the money used in the drug transactions, and defense counsel was ineffective for failing to object to the admission of the photocopies;

(5) The cumulative effect of defense counsel's errors, including his conflicts of interest and failure to (a) object to the disclosure of Petitioner's prior bad acts, (b) object to three jurors not being excused for cause, (c) raise a claim about the delay in Petitioner's arrest, and (d) object to the unauthenticated admission of photocopies, amounted to ineffective assistance of counsel; and

(6) his right to due process was violated by insufficient evidence that he possessed the gun found in the vehicle he was driving at his arrest.

The Michigan Court of Appeals rejected Petitioner's challenge to the sufficiency of the evidence, but remanded the case to the trial court so that the court could articulate the reasons for its scoring of the sentencing guidelines. Thompson, 2015 WL 213299, at *1, *4-*5. The Court of Appeals determined that Petitioner's pro se arguments were "meritless and without support in the record." Id. at *5.

Petitioner raised the same issues, minus the sentencing claims, in an application for leave to appeal in the Michigan Supreme Court. On September 9, 2015, the Michigan Supreme Court denied leave to appeal because it was not persuaded to review the issues. See People v. Thompson, 498 Mich. 872; 868 N.W.2d 899 (2015).

On December 6, 2016, Petitioner signed his habeas petition, and on December 14, 2016, the Clerk of the Court filed the petition. Petitioner alleges as grounds for relief that:

(1) the trial court deprived him of his Sixth Amendment right to a fair trial by disclosing to the jury panel that he had been convicted of armed robbery or possession of a controlled substance;

(2) the trial court deprived him of a fair trial by not excusing three jurors for cause during voir dire;

(3) law enforcement officials deprived him of his constitutional right to due process of law by delaying his arrest for the purpose of escalating his sentencing liability;

(4) the prosecutor deprived him of his Sixth Amendment right to present a defense of actual innocence to the delivery charge byadmitting in evidence unauthenticated photocopies of the drug-buy money as proof of the delivery element;

(5) trial counsel deprived him of his Sixth Amendment right to effective assistance of counsel; and

(6) there was insufficient evidence that he possessed the gun found beneath the car's back seat.

The Court has looked to Petitioner's state appellate briefs for a fuller discussion of these claims.

The State argues that: Petitioner's evidentiary claims are not cognizable on habeas corpus review and that the evidence was admissible in any event; the United States Supreme Court has never established a claim of sentencing-entrapment; and the state appellate court's rejection of Petitioner's other claims was not contrary to, or an unreasonable application of, Supreme Court precedent. Petitioner replies that his claims are reviewable, meritorious, and supported by the record. He also continues to maintain that there was insufficient evidence he possessed a gun and that the police intentionally delayed his arrest until after the second controlled buy to increase his sentence.

II. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") requires habeas petitioners who challenge "a matter 'adjudicated on the merits in State court' to show that the relevant state court 'decision' (1) 'was contrary to, or involved an unreasonable application of, clearly established Federal law,' or (2) 'wasbased on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.' " Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018) (quoting 28 U.S.C. § 2254(d)). "[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. Rather, that application must also be unreasonable." Williams v. Taylor, 529 U.S. 362, 411 (2000). "AEDPA thus imposes a 'highly deferential standard for evaluating state-court rulings,' Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997), and 'demands that state-court decisions be given the benefit of the doubt,' Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)." Renico v. Lett, 559 U.S. 766, 773 (2010).

"A state court's determination that a claim lacks merit precludes federal habeas relief so long...