Thompson v. Morrison, Case No. 1:19-cv-937

• Decision Date: 17 February 2021
• Docket Number: Case No. 1:19-cv-937
• Parties: ROY M. THOMPSON, Petitioner, v. BRYAN MORRISON, Respondent.
• Court: U.S. District Court — Western District of Michigan

ROY M. THOMPSON, Petitioner, v. BRYAN MORRISON, Respondent.

Case No. 1:19-cv-937

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

February 17, 2021

Honorable Robert J. Jonker

REPORT AND RECOMMENDATION

This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. Petitioner Roy M. Thompson is incarcerated with the Michigan Department of Corrections at the Lakeland Correctional Facility (LCF) in Coldwater, Branch County, Michigan. Following an eight-day jury trial in the Berrien County Circuit Court, Petitioner was convicted of second-degree murder, in violation of Mich. Comp. Laws § 750.317;¹ felon in possession of a firearm (felon-in-possession), in violation of Mich. Comp. Laws § 750.224f; carrying a concealed weapon (CCW), in violation of Mich. Comp. Laws § 750.227; and use of a firearm during commission of a felony (felony-firearm), in violation of Mich. Comp. Laws § 750.227b.² On August 8, 2016, the court sentenced Petitioner as a third habitual offender, Mich. Comp. Laws § 769.11, to concurrent prison terms of 4 years, 9 months to 10 years on the CCW and felon-in-possession convictions and 35 to60 years on the second-degree murder conviction. Petitioner was ordered to serve those sentences consecutively to a sentence of 2 years for felony-firearm.

On October 29, 2019, Petitioner timely filed his habeas corpus petition raising two grounds for relief, as follows:

I. Petitioner's constitutional right to due process of law . . . was in fact violated when the prosecution failed to exclude the sheer possibility of self-defense beyond a reasonable doubt, the state court's conclusion to the contrary, amounted to an objectively unreasonable determination, hence habeas relief is appropriate.

II. Trial counsel was constitutionally ineffective for (A) failing to admit documents, and (B) failing to object to the jury instructions.

(Pet'r's Br., ECF No. 2, PageID.22, 30.) On August 18, 2020, Respondent filed an answer to the petition (ECF No. 11) stating that the grounds lacked merit. Upon review and applying the standards of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (AEDPA), I find that the grounds are without merit. Accordingly, I recommend that the petition be denied.

Discussion

I. Factual allegations

The Michigan Court of Appeals outlined the facts underlying Petitioner's conviction, as well as the evidence introduced at his trial, as follows:

Defendant's convictions arise out of the shooting death of David Krieger on December 11, 2015. David and his brother, Stephen Krieger, both worked at their family's business, Michiana Supply, Inc., an industrial hose and rubber supply company located on Milton Street in Benton Harbor. Defendant lived in a nearby residential neighborhood. Each day, on his way to a nearby shopping plaza where he sold DVDs, defendant would walk by a house belonging to Tammicia Johnson and he would then cut across a grassy area next to Michiana's parking lot.

At approximately 9:00 a.m. on the day in question, defendant walked his usual route. David was outside, in Michiana's fenced-in backyard, and David yelled at defendant, ordering him to stop kicking Johnson's dog. David then went inside Michiana and out the front door to confront defendant. David again yelled atdefendant about the dog, telling defendant to stay off Michiana's property because "[w]e don't allow dog abusers on our property." Stephen, who witnessed the confrontation, testified that David put both his hands out and said "[d]on't come on our property." Stephen testified that after David put his hands out, defendant immediately "stepped back"; defendant then reached into his right pocket, pulled out a gun, raised it, and "fired a bullet right into [David's] chest." Samuel Shade, a Michiana employee, and Joseph Williams, who was driving by on Milton, saw David push defendant and then saw defendant shoot David. David died at the scene. After defendant shot David, Stephen and defendant exchanged gunfire, but none of the shots hit anyone. Defendant then fled the scene.

Shade called 911, and used racial slurs when reporting the incident, telling the dispatcher that a "n-----shot my friend" and that if he returned to the area, "we'll hang him up." When paramedics and police arrived, paramedics cut off David's shirt, revealing that David, who had a concealed carry permit, had a gun under his clothing, "snug" in a hip holster.

Shortly after the shooting, police identified defendant as a suspect. Police located defendant hiding underneath a sofa in the basement of a home. Police later found a semi-automatic handgun in a plastic bag behind a sewer pipe in the basement.

After his arrest, defendant gave a statement to police and this recorded interview was played for the jury at trial. In the interview, defendant stated that he kicked the dog. Defendant indicated that there were five men at Michiana and that they yelled at him about the dog, threatening him and using racial slurs. Defendant stated a man came and pushed him. Defendant claimed that he then heard gunshots. But, defendant made conflicting statements as to whether David had a gun. Defendant stated that "the guy had a gun," then stated, "I don't know" if "he had a gun," but "somebody had a gun." By his own admission, defendant then shot David. Defendant proceeded to state that "he pushed me and reached" "either to swing" or to "grab something." Defendant stated that he did not know what the man had on him to hit him with, but he stated that it "looked like he had something on him," either "a gun or a knife or something." Defendant stated that he saw a "bulge like on the side" of the man's body. After defendant stated that it looked like the man had a weapon, one of the detectives asked him, whether on "the first confrontation, you did not see a gun?" Defendant responded, "no, I heard one," and he claimed that the guy's "buddy" came out with a gun "before" defendant killed David. But, defendant then conceded that no one appeared with a gun until after he killed David. When asked about his gun, defendant told police that he threw the gun away.

Defendant testified in his own defense at trial. Defendant acknowledged that he encountered Johnson's dog. According to defendant, the dog was outside of the yard, so defendant "shooed" him to get him back into his yard. Defendant denied kicking the dog. Defendant stated that, after he got the dog back in the yard, David started yelling at him from the fenced-in area near Michiana. According to defendant, David stated, "[y]ou f------n-----, why did you kick that f------dog like that?" Stephen then came outside and also yelled at defendant about the dog. Asdefendant continued walking, David and Shade came out the front door, and David confronted defendant using racial slurs and stating, "don't put your foot on my f------property no further or I'm gonna beat your ass." Defendant testified that he tried to ask David, "[I]s this your property?" David then pushed him in the chest with both hands. Defendant testified that David's "gun was made visible to me" and that David reached "both hands" for the gun. According to defendant, he thought that David "was gonna kill" him. Defendant admitted that he killed David. He testified that he shot David because he was "scared" and "in fear of [his] life." Defendant admitted that he told police that he heard gunshots before he shot David, and he acknowledged that this was not true. He also conceded that he lied to police when he told them that he threw his gun away. In addition to testifying in his own defense, defendant called numerous character witnesses all of whom testified that defendant had a peaceful character.

(Mich. Ct. App. Op., ECF No. 12-14, PageID.2229-2231.) The facts outlined by the Michigan appellate court are generally consistent with the "Relevant Facts" identified by Petitioner in his brief, although Petitioner provides significantly more detail. (Pet'r's Br., ECF No. 2, PageID.8-18.)

Petitioner appealed his convictions and sentences. He filed a brief with the assistance of counsel as well as a pro per brief. Petitioner's first habeas issue was raised in counsel's brief. (Pet'r's Appeal Br., ECF No. 12-14, PageID.2268.) Petitioner raised the second habeas issue in his pro per brief. (Pet'r's Pro Per Supp. Br., ECF No. 12-14, PageID.2332.) By unpublished opinion issued March 15, 2018, the Michigan Court of Appeals denied relief on all issues and affirmed the trial court. (Mich. Ct. App. Op., ECF No. 12-14, PageID.2229-2237.)

Petitioner filed a pro per application for leave to appeal in the Michigan Supreme Court raising his two habeas issues and other issues. (Pet'r's Appl. for Leave to Appeal, ECF No. 12-15, PageID.2405-2410.) By order entered September 12, 2018, the supreme court denied leave. (Mich. Order, ECF No. 12-15, PageID.2402.) On October 29, 2019, Petitioner timely filed his habeas corpus petition.

II. AEDPA standard

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. 312, 316 (2...