*3 whom he was familiar because Tucker’s Before: SUTTON, KEITH and Circuit family lived next door Sutliff.1 After Judges; ACKERMAN, District Judge.* fence,
clearing Tucker ran in Sutliffs ACKERMAN, J.,D. delivered the general direction and passed within six opinion court, SUTTON, J., which Sutliff, feet of at which point the two men joined. KEITH, (pp. 661-71), J. delivered made eye contact before Tucker continued a separate dissenting opinion. running without exchanging a word with
Sutliff. OPINION incident, After this Sutliff went into his ACKERMAN, District Judge. yard, back and as he approached his back This case involves the door, of a conviction noticed that it ajar. This fact is man for second-degree home significant invasion because Sutliff remembered * Ackerman, The Honorable Harold A. Senior Apparently, Tucker used to live in the same United Judge States District Sutliff, for the neighborhood District of had but moved out Jersey, New sitting by designation. many years before the 2003 incident. issued Judge Paul J. Komives closed, door, Magistrate the front having locked (“R R”),& and Recommendation Report He remem- locked, door. the back not but the District he recommended completely in which the door closed having bers petition for grant on in conditioning was air his because that there insuf- house, grounds did relief on his Sutliff house. to con- unusual, his for the then left ficient anything notice home. seen Sutliffs they that Tucker entered if clude neighbors house ask 97.) (JA Relatedly, R & R recom- returning to day. After Tucker that find that that his dresser District Court that the house, noticed mended *4 had Tucker it conviction previously where trial court’s of open the state drawer addition, noticed of application an unreasonable been closed. “involved (JA a at two and had left federal law.” clearly where he established dresser, only 2007, the watch 108.) 22, Judge of the District top on March On watch Magis- adopted the remained. P. Zatkoff Lawrence R, as “the entered it Judge’s R & trate 24, September on Tucker Police arrested Court,” of and conclusions this findings the incident in connection 2003 peti- Tucker’s concomitantly granted refused to answer Tucker Sutliffs home. v. corpus. Tucker of habeas a writ tion for arraignment, questions at court’s 869164, at Palmer, 06-10250, 2007 WL No. of plea a the court consequently 2007). (E.D.Mich. Mar.22, Subsequent- *1 Febru- behalf. On Tucker’s guilty on 2007, 16, District Court ly, April on waiv- filing a 3, 2004, signing and after ary Attorney General’s Michigan granted in a Tucker was tried by jury, er of trial pend- stay the release of to request second-degree trial, of convicted bench He re- appeal. this outcome of ing the Michigan invasion, of in violation today. custody mains 750.110a(3). February § On Comp. Laws judge sentenced the trial jurisdiction over District Court imprisonment. years 7 to 15 § 2254. to 28 U.S.C. pursuant this case 22, Opin- 2007 March Court’s The District case, Tucker conviction in After his Magistrate Order, adopting ion & Michigan Court appeal an with the filed order R, a final R & constitutes Judge’s summary order issued a Appeals, which jurisdic- appellate has this Court such that “The appeal: 13, denying May 2005 to 28 U.S.C. pursuant appeal tion over for leave the application Court orders § 1291. for DENIED appeal is delayed a to file presented.” grounds in the
lack merit II. 2005, 95.) 29, (JA November On similarly denied Supreme Court Michigan a district de novo We review Court, “On order appeal: deny habeas or grant decision court’s May appeal for leave application Renico, F.3d 506 v. relief. Parker corpus Appeals 13, of the Court 2005 order Cir.2007) v. (6th (citing Wilson 444, 447 DENIED, we considered, because and it is (6th 491, Cir. Mitchell, 497-98 498 F.3d question-pre- not persuaded are 441, 449 469 F.3d 2007); Joseph Coyle, by this Court.” be reviewed should sented Cir.2006)). the Antiterrorism (6th “Under 96.) (JA at 1996 Penalty ofAct Death and Effective grant (‘AEDPA’), may court a federal 19, 2006, Tucker filed January On only if the state corpus of habeas Dis- writ Eastern in the petition federal habeas to, in- contrary way 2006, ruled courts On December Michigan. trict of 656
volving
of,
an unreasonable application
to determine whether
the record evi-
clearly established federal
law as deter
dence could reasonably support
finding
mined
the United States
Supreme
guilt beyond a
doubt....
Parker,
(cit
Court.”
506
[T]he
F.3d
question whether,
447-48
relevant
after
ing.
2254(d)(1);
§
viewing
U.S.C.
the evidence in
light
Williams v.
most
Taylor,
362, 404-05,
favorable to the
120 S.Ct.
ration-
al trier of fact
(2000);
146 L.Ed.2d
have found
Varner v.
Stovall,
essential
(6th
elements of
crime
494-95
Cir.
2007));
reasonable doubt. This familiar
Tinsley Million,
see also
stan-
gives
dard
play
full
Cir.2005).
to the responsibility
F.3d
“A state-
of the trier of fact fairly to resolve con-
is an
decision
applica
unreasonable
flicts in testimony,
the evi-
weigh
tion
clearly
established federal
if
law it
dence, and to draw reasonable infer-
‘correctly identifies the governing legal
ences from basic facts to ultimate facts.
rule but applies it unreasonably to the
”
*5
facts of a particular prisoner’s case.’ Par
318-19,
443
at
U.S.
99 S.Ct.
(empha
2781
ker, 506 F.3d at
Williams,
448 (quoting
in original).
words,
sis
In other
“[u]nder
407-08,
son,
16,
657 (same). Cir.1994) Indeed, 540, 544 person a dwelling, in the assault ny, or that cir- explained has Supreme permis- without dwelling a who enters “intrinsically no is evidence felony, lar- a cumstantial commit intent to with sion evidence,” and or a dwelling, from testimonial different assault ceny, or to a dwelling point cases “may a in some enters that both breaks who person Holland v. Unit- permission result.” dwelling without incorrect wholly a enters or she is States, he or 75 S.Ct. while and, any time ed (1954). in, exiting ... both [i]n or “Yet present L.Ed. entering, larceny, or felony, weigh the instances, is asked to jury commits dwelling, invasion in correctly points guilty of home is assault chances inaccura- degree. possibility guilt against second 137-38, Id. at ambiguous inference.” 750.110a(3). cy Parsing § Comp. Laws Mich. this, jury “the accomplish To case, 127. S.Ct. fit statutory language people and experience its must use only if was it be found If probabilities. weighing that he: events doubt a reasonable proved beyond beyond a reasonable convinced jury permission; (1) dwelling without more.”2 Id. doubt, no larceny require we can commit intent to S.Ct. that Sutliffs dispute no There therein. dwelling under aas qualifies dispute element, Furthermore, is no District there theOn first
statute. *6 home there put, in Sutliffs “[sjimply presence Tucker’s declared that that Court permission. without [Tucker] been whatsoever that have evidence would was no element, only any there Thus, to the first nor was as [Sutliffs] entered was whether the trier-of-fact an inference for such question from which evidence doubt a reasonable Tucker, proof was 2007 there WL be made.” Sutliffs entered in fact had character Tucker then that Court The District at *5. “merely” of consisting home. ized evidence family “[Tucker], whose testimony that proof, the adduced assessing the who thus and to [Sutliff] next door lived upon based a conviction sustain may Court area, 25-30 in the to be had reason evidence. than circumstantial nothing more door, and sometime [Sutliffs] feet from F.3d Kelley, 461 States United that two noticed Sutliff thereafter Cir.2006) (“Circumstantial evidence Indeed, a charac such missing.” Id. conviction to sustain alone is sufficient (cid:127) to the credence strong lends terization every not remove evidence need and such that Court’s conclusion District except that hypothesis upon Based granted. Peters, petition be States guilt.”); United wild infer- on unsubstantiated "based problem in this suggests that 2. The dissent acknowledge ences”). does the dissent But lacks sufficient the conviction that case is not may be evidence alone "circumstantial that any evidence, it lacks but that circumstantial (See Dis- a conviction.” to sustain (See Dissent whatsoever. evidence Peters, 544)). To F.3d (citing at 670 sent evidence"; totally "finding was ("without any cir- believes dissent extent record”; trial by unsupported the factual by itself insufficient evidence cumstantial “perverted and unsubstantiated judge made conviction, To is otherwise. the law sustain inferences”; support Tuck- "no evidence there believes that the dissent extent facts”)); case, id. "devoid of but case is in this guilt”; this er’s is circumstantial insufficient, evidence”; simply we (“without it is somehow semblance at 671 disagree. whatsoever”; jail is in Tucker "no evidence evidence, reading such the District through the back door because he had explained thereafter “prose- that the locked the front door. testified at cution’s case simply that, rested on the supposi- it being a hot August day, he tion that must have [Tucker] entered the conditioning house, the air inon his ... based on temporal geo- his and thus having remembered closed the graphic proximity.” But Id. this charac- back door before he went outside to mow terization crucial facts yard. omits found Approaching his back door after trier-of-fact, upon which a reasonable in- having seen exiting Sutliffs back can ference be made that Tucker yard, Sutliff observed the back door stand- the home. It entirely clear that ing ajar. This fact alone might make Sut- Michigan law liff, would fact forbid a finding factfinder, or a rational believe that on a charge home-invasion based Sutliff simply mistaken his belief solely on temporal and geographic proxim- that he had closed the door going before ity, did, but even if it But, there was more course, out to mow. this is not a evidence that factored into the trial judge’s Instead, lone fact. it is added previ- than simply conclusion that Tucker was “in ous observations of Tucker jumping over the area.” the fence from yard, Sutliffs back Tucker declining explain such behavior Specifically, the District Court’s recita- when he immediately thereafter saw Sutliff suggests tion perambulat- Tucker was observing him. If Sutliff is believable in ing public down a that placed sidewalk him testimony Tucker, that he observed about 25-30 feet from Sutliffs door. Im- else; and not someone if and Sutliff is also portantly, however, Tucker was not in- so believable in that he had observed, nocently but instead Sutliff saw door, closed the but then found it open jump out of yard, back Sutliffs after observing then these facts which alone would strong suspicion arouse provide combined strong inference that Then, factfinder. Tucker began *7 Tucker entered Sutliffs home. running away from just the fence he scaled, and when he came within six feet of expresses The dissent concern that the standing homeowner yard, his own only the evidence is that of the testimony eye Tucker Sutliff, made contact with but of Sutliff. 666-67, 667-68, Dissent at 0See kept then running without so much as even 668-69.) might While it be true that no trying explain to why just he had come out Michigan case has convicted someone of of the homeowner’s property. fenced This home invasion solely based on the home interaction, thereof, or lack between the (see testimony, owner’s 668), Dissent at perpetrator and the homeowner would dissent pointed has not any to case con heighten a rational suspicion factfinder’s cluding that testimony such alone would be because it is demonstrative of guilty con- Indeed, this Court has long insufficient kind, duct of some if that even conduct is held that the testimony of the victim alone merely Indeed, trespassing. even the dis- is constitutionally to sufficient sustain a appears sent to acknowledge that proximi- conviction. United Terry, States v. 362 plus ty flight would be evidence (6th Cir.1966) (“The F.2d 916 testimo (See 667.) entry. Dissent at ny of the prosecuting witness, if believed
Contrary to the District Court’s charac- jury, is sufficient support a ver terization, Indeed, there is more. after dict guilty.”); see also O’Hara v. Briga seeing scene, Tucker flee the no, (6th Sutliff Cir.2007) (hold then 500 went into his yard back to enter his ing house that victim’s that habeas
659
Tucker,
than
rather
favorable
most
light
her
raped
her
abducted
petitioner
requires
the law
but
prosecution;
convic-
to sustain
constitutionally sufficient
Parker, 506 F.3d
latter,
former.
not the
witness
corroborating
lack of
despite
tion
(“Under Jackson,
corpus
at 448
evidence);
States
United
physical
or
on insufficient
based
Cir.2000)
appropriate
is
relief
(6th
Howard,
565
F.3d
finds,
the court
only
evidence
where
only evidence
if the
after
(holding that even
light
most
evidence in
viewing the
victim, that is sufficient
testimony of
ra
that no
conviction,
physical
even absent
favorable
support
fact
have found
tional trier
corroboration); United
other
evidence
beyond a
crime
elements
essential
Jones,
F.3d
States
added).
doubt.”)
Cir.1996)
there is sufficient
that
(noting
Tucker,
charitably towards
less
Viewed
even if
a conviction
support
evidence
testimony at
showed
Sutliffs
remove
does not
“circumstantial
im
house and did not
Sutliff entered
except that
hypothesis
every reasonable
unusual, so he
anything
mediately notice
omitted).
(internal
marks
quotation
guilt”)
if
neighbors to ask
to his next-door
went
case
Moreover,
not found
we have
day.
area that
Tucker
they had seen
nothing
factfinder,
faced
where
house, Sutliff this
returning- to his
After
testimony, conclud-
the victim’s
more than
First,
unusual.
something
did
time
notice
credible, but
testimony was
such
ed that
left
rings that he had
that two
he observed
short, Sutliffs
to convict.
refused
then
longer
were no
dresser
top
of his
had
the prosecutor
all that
testimony was
top
Second,
noticed
Sutliff
there.3
does not
available,
Constitution
and the
open
the dresser
two drawers of
eye-
than a credible
more
anything
require
way
inches,
is
which
couple
wait,
there more.
But
witness.
The
leaving them.
remembered
Sutliff
and the
dresser
missing
that Sutliff
items
disturbed
District
noted
evi
further
provide
circumstantial
thereafter
“and sometime
drawers
observed
factfinder
a rational
from
miss
dence
which
rings were
two
noticed that
Sutliff
could conclude
at *5. Of
WL
ing.”
home.4
the Sutliffs
course,
characterization
took the
that Tucker
notes,
infer
"[t]o
testified that
dissent
3. As the
*8
watch,
on the
solely based
allegedly
he
owned
which
missing, but his
Sutliff
rings were
house
the
to Sutliff's
rings,
proximity
was
there. To
still
Tucker
to his
averred
left next
(Id.)
can-
suggests that Tucker
But
that this fact
from an inference.”
extent
a fact
is to infer
demonstrates,
not have taken
guilty
he would
because
and the
transcript
not be
the trial
watch,
disagree.
we
rings
not the
just
articulated,
and
the
evidence shows
judge
the
Indeed,
arguably en-
credibility is
Sutliff's
strolling
casually
Tucker
more than
much
trying to
Tucker
by not
accuse
hanced
Instead,
that he
it shows
sidewalk.
the
down
did, notwithstanding
stealing
he
more than
home,”
fleeing
merely
the
but
"near
axe
had
that
an
suggestion
Sutliff
the dissent’s
Moreover,
agree
we need not
yard.
back
the
upon prior inter-
based
grind with Tucker
to
proves
sufficiently
whether the
663.)
(See
at
actions.
Dissent
rings
that
actually
the
stole
Tucker
that
—or
there
conclude that
rings ever existed—to
the
accepts
District Court's
dissent
4. The
finding
support a
that
to
is evidence sufficient
[offered]
that "the evidence
characterization
Indeed,
testi-
the home.
entered
petitioner was
nothing
than that
showed
more
disturbed, com-
were
mony that
drawers
rings
time
about the
the home at
near
yard, is
the back
fleeing
with Tucker
bined
(Dissent
(quoting
missing.”
at
went
Sutliff’s
he entered
that
to
869164,
*6)
conclude
Tucker,
2007 WL
requires
merely
statute
addition,
because
home
added).)
dissent declares
Indeed,
the combination of all these
already found a reason
grant
the habeas
facts—Tucker
over
jumping
petition.
the fence
But the
provides
record
suffi-
yard;
Sutliffs back
failing
cient
support
evidence to
finding
a
that
from
explain
Tucker,
behavior
person
his
having
he knew
entered Sutliffs
had
homeowner;
to be the
Sutliff
the intent to
larceny.
thereafter
commit a
finding
ajar,
the back door
when it had
In a
case,
recent home invasion
closed;
been
Sutliff observing that
two
Michigan
of Appeals explained
missing
dresser;
“
were
from his
and
that
‘[although a presumption
an in
noticing
top
that his
two dresser
tent to steal does not
solely
arise
from the
open,
drawers
they
when
had been proof of breaking and entering,’ the feloni
provides
strong
a
upon
basis
closed—
ous intent for a breaking
entering
and
which to conclude
the prosecution
that
may
crime
be
established
inferences
proved
beyond
its case
a reasonable doubt
from
evidence,
circumstantial
including the
as to the first element of second-degree
nature, time,
place
of the defendant’s
invasion,
namely
Tucker en-
Green,
People
acts.”
v.
886201,
2008 WL
tered Sutliffs home
permission.
without
2008)
at *2 (Mich.App. Apr.1,
(quoting
Stated differently, the above evidence is People
Palmer,
v.
549,
42 Mich.App.
551-
strongly indicative that someone entered
(1972),
As previously noted, to be found Appeals Court of rejected the defendant’s of second-degree home invasion in Michi- argument intent was not proven by gan, prosecution had virtue of the fact that he no had stolen (1) reasonable doubt that Tucker: property in possession at the time of a dwelling permission; without arrest. 2008 WL at *3. The the intent to commit larceny therein. Gn"eencourt explained jury that a 750.110a(3). Mich. Comp. § Laws After reasonably find that the defendant had the addressing the first element regarding en- requisite intent larceny to commit a be try of a dwelling permission, without we cause there was evidence that gone he had next turn to the second element involving drawers, through cupboards, and other the intent to commit larceny therein. *9 containers, in an apparent search for The District Court focused its attention something of to purloin. value Id. almost exclusively on the element of entry of the dwelling. little, It gave any, if Here, Sutliff testified that top two attention to the of element intent to com- drawers to his dresser open, were as mit a larceny, ostensibly because it had though Tucker gone through them. proof entry of dwelling into the per- without permission tered without and that it was done mission, with intent to a larceny, commit not (JA with intent to larceny.” commit a at larceny that a actually occurred. And the added).) 92 judge found that "the address was en-
661 of to factual determinations courts on federal Furthermore, rings that were two courts.”); Dug Parker v. see also missing. These all state of the dresser top 308, 320, 111 112 that S.Ct. ger, evidence 498 U.S. provide facts two Yount, (1991); s 467 innocently entered Sutliff Patton v. L.Ed.2d 812 had not Tucker then 1025, 1040, his own and 81 L.Ed.2d it was 104 S.Ct. thinking house U.S. it he realized out when that even when “the casually (explaining walked 847 s house not, concern,” entered Sutliff but instead a fed arouses some cold record larceny. Fur- a to commit the intent factual may overturn the not eral unreasonable thermore, it review); while is of a state court habeas findings a did in fact commit that Tucker Goode, conclude 104 464 Wainwright v. U.S. enough rings, it taking the larceny by (1983); Van L.Ed.2d 187 S.Ct. intent, as dem- had the simply that Anderson, 411, F.3d Hook drawers. rifling through by the onstrated Cir.2007) (“[W]hen ‘conclu two different rings were never that the irrelevant It is record,’ a in the support fair sions find Indeed, as possession. in Tucker’s found its view may not ‘substitute] federal court out, points Attorney General Michigan [state] that of the the facts for of run- he was seen Sutliff having ”) Wainwright, 464 U.S. (quoting [c]ourt.’ scene, be on would away ning from 378). sum, conclude we 104 S.Ct. at pos- to be found notice not heightened at that, the evidence adduced upon based Ac- larceny. fruits of session have trial, a rational trier fact that there was sufficient cordingly, we find the crime elements of found the essential that to conclude factfinder for the evidence Jackson, See reasonable doubt. a larceny. commit intent to had the 318, 99 S.Ct. finding that erred The District support
there was insufficient IV. point, conviction. On Tucker’s state we some suggests reasons, owe dissent this Court foregoing For the fact “[t]wo grant level deference the District Court’s REVERSES ... reviewed judges different federal petition. habeas Tucker’s conviction, he was finding that (See convicted.” Dissent wrongfully KEITH, Judge, Circuit J. DAMON 671.) de novo a district But review we dissenting. deny grant court’s decision vio- flagrantly opinion majority’s Parker, relief, F.3d at corpus I Amendment. Fourteenth lates us, goes to deference, tells AEDPA It vehemently DISSENT. therefore considered three state courts escape guilty persons ten “[b]etter under the strict Accordingly, matter. 4 William innocent suffer.” than that one petitions, we to habeas applied standards This Blackstone, at 358. Commentaries principles federalism ignore cannot that a reveals wise axiom powerful to the state deference undergird injustice the ultimate court commits terms findings, especially court’s based imprisoning person convicting and witness, difficult which is so credibility of a judicial evidence. Such on insufficient cold record. Sumner to ascertain from impor- most *10 contravenes 764, transgression 547, Mata, 539, 101 449 S.Ct. U.S. ac- affords (“This right tant our Constitution interest L.Ed.2d 722 66 [of Process Clause “the Due cused: in en- Congress by recognized federalism ac- protects Amendment] 2254(d) by Fourteenth deference requires § acting 662 against
cused
except upon proof
case,
conviction
In evaluating
important
this
it is
beyond a
every
reasonable doubt of
fact
remember that “no
deprive
state can
par-
ticular
necessary
persons
or
persons
constitute the crime with
classes of
of
equal
impartial justice
which he is
under the law.”
charged.”
Winship,
In re
State,
692,
Caldwell v.
U.S.
U.S.
90 S.Ct.
25 L.Ed.2d
(1891).
S.Ct.
idence— have “carefully and thoroughly review[ed]” ally in home, [his accuser’s] nor was there the record Yet below. after presenting an evidence which connected [Tucker] unsupported inaccurate and account of the rings that Palmer, were taken.” Tucker v. facts, the majority hides behind the AED- (E.D.Mich. 2007 WL Mar.22, at *5 PA statute and claims that because its 2007) added). The state trial tied, injustice hands are prevail. must It judge’s perverted and in- unsubstantiated truly sad majority that the not feel does ferences “alone cannot constitute sufficient similarly tied to the Constitution and the evidence to prove beyond a reasonable presumption innocence, refusing to rec- doubt that [Tucker] entered the nor ognize speculation guilt must never can Michigan court’s conclusion that trample over rights of the accused. It evidence was sufficient be deemed reason- is inconceivable to me that majority, able.” Id. facts, under these could have reached the accuser, 1. The poor who has vision due to his his home and that he had not seen Tucker in diabetes, concedes that he wearing was not years. glasses allegedly when he saw Tucker near *11 in March paroled Tucker “was a fair that man received that conclusion later,” suggest- and had absconded week proven and was trial impartial and they should be on perhaps too ing that con- Tucker’s doubt. a reasonable (J.A. 76) (emphasis out for Tucker. look affirmation majority’s and the viction added). that he believed said Sutliff egregious an constitute that conviction had correct because he to be information vehemently and I justice. miscarriage using Depart- Tucker “tracking” been DISSENT. vigorously Tracking Offender ment of Corrections’s 74.) (J.A. System. Information I. Tucker, Sutliff seeing allegedly After incom- terse and majority’s Given the back door. through into his house went facts, I it neces- feel of the recitation plete hav- that he remembered testified Sutliff account comprehensive a more sary give door and shut the back ing previously Tucker’s At proceedings. trial court of the Tucker, the that, having seen after claimed August that on trial, testified Sutliff 79.) (J.A. also “ajar.” was He door saw when he mowing his lawn was he his “top [of two drawers claimed that that en- small fence “scale[] a man just couple open about dresser] were into over backyard and [come] [his] closes (J.A. 79.) In is unusual.” inches which 70.) (J.A. said Sutliff [yard].” the front however, of his initial search his is about man scaled fence the that the anything missing. notice did not Sutliff his home. door of from the back feet house, neighbor’s to his He then went 11.) coming to (J.A. that in claimed Sutliff lived, and asked parents where six within passed the man yard, his front neigh- they if had seen Tucker. them man was that the him. He claimed feet of Af- they had not. him that informed bors momentari- down had slowed running, but terward, to his house returned Sutliff However, Sut- him. having passed ly after noticing again, this time searched his man, speak to did not liff, seeing upon placed had allegedly rings two he that recognized he claims him. Sutliff missing. He dresser top of his the son Raymond man as “pinkie was a one of claimed that also him. Sutliff next family living door was a “retirement the other ring” while however, not re- testified, he (J.A. workplace. prior from Sutliff s ring” he had seen last time member rings were 72.) guessed that Sutliff “several been probably it but He testified combined. worth about $500 of his out had moved years,” that Tucker top of his laying on rings were that the years ago, twenty over neighborhood watch, watch that the but with dresser he is because eyes “fluctuate” that his Moreover, said Sutliff not taken. was diabetic, requiring glasses sometimes top.” cluttered on kind “the dresser wearing glasses not clearly. He was see thereafter, (J.A. 73.) Shortly Tucker. he saw he claimed time house into Sutliffs breaking arrested for 81.) Moreover, (J.A. testi- rings. stealing for “looking actually been he had fied that only Sut- a bench trial Following rash of [Tucker],” to a recent response evidence, the (J.A. 75.) testimony submitted liffs neighborhood.2 in his break-ins prosecution found that state recently police told fact, just he had say on the Sutliff, “I can't replied, which Sutliff To counsel asked Specifically, Tucker’s him, accusing I’m other break-ins I’m to his these break-ins you’ve attributed “And 75.) (J.A. correct, a coincidence.” just saying it’s sir?” parole; is that on a release *12 proven beyond its case process reasonable due rights. The state appellate doubt, and convicted Tucker of home inva- application denied Tucker’s “for lack sion in the degree. evaluating second In (J.A. grounds of merit presented.” sufficiency of the evidence submitted 98.) se, Proceeding pro sought by judge the trial stated: appeal leave to Michigan issue to the
Now, obviously you there is no what Supreme court, supreme Court. The in a might call direct evidence about him order, be- standard denied applica- Tucker’s there, ing Mr. but Sutliff indicated that tion for leave to appeal. he had left the back door unlocked but January On Tucker filed an essentially was closed. And after seeing application for writ of corpus. this, obviously prior based on his writ, grounds As for the he claimed insuffi- experience,3 and I think with Mr. Tucker evidence, ciency of the same claim that he would, I guess, cause immediate concern had raised earlier with the state A courts. investigation, do further he noticed magistrate federal judge for the Eastern that ajar, the door was went in. Initial- Michigan District of Report filed a ly just saw that some things had been 15, 2006, Recommendation on December disturbed and went out and came back recommending that application be fairly immediately after that and granted. On March the federal found out there were some items that district court adopted magistrate missing.
were judge’s recommendation, granting Tuck- persuaded I’m that prosecution has petition er’s and ordering that he be re- proven their case beyond a reasonable leased prison. from opinion, its there, doubt that the address was en- district court emphasized: permission tered without and that it was Simply put, there was no evidence what- done with the intent larceny, to commit soever that importantly [Tucker] more the victim’s the witness home, nor was has identified there person [Tucker] as the evidence from which entered the I such an dwelling per- and am inference could be made. suaded merely [Tucker], doubt testified that he identifies this person person as the family whose lived next door to him and and not prior because of some history or area, who thus had reason to be in the vendetta, some kind of but that he is the door, was 25-30 feet from his and some- person that he saw.4 time thereafter Sutliff noticed that two (J.A. 88.) rings missing. There was no evi- Subsequently, the state trial eyewitness dence—either court sentenced Tucker to an indefinite physical presented term imprisonment peti- of seven to fifteen evidence— years. tioner actually Tucker then application filed an Sutliff s nor for leave appeal was there Michigan evidence which pe- Court of connected Appeals. In his application, he titioner to claimed that were taken. that his conviction was based on prosecution’s insuffi- case simply rested cient evidence and therefore violated his supposition petitioner must 3. The "prior experience” nature of Sutliff's outrageous 4. The trial court's and unbelieva- unclear, finding which the trial ble person court referred that Tucker "is the he saw” entering completely explained unsupport- the court house was "prior never what this evidence, ed experience” as Sutliff himself testified was. that he never saw dwelling, Tucker enter the dwelling, inside the dwelling. or exit the *13 prece [that] from at a result different the and stolen the
have entered 362, Taylor, v. 529 U.S. dent.” Williams geo- temporal on rings based 1495, 389 405-06, 146 120 S.Ct. L.Ed.2d This to the crime. proximity graphic unrea (2000). is an A state court decision suffi- constitute cannot alone supposition clearly established of application sonable reason- beyond a cient evidence “correctly identifies the if it federal law the that petitioner able doubt it unrea applies rule but legal governing courts’ con- Michigan can the nor particular prison of a sonably to the facts the evidence was clusion 1495, 407-08, or case,” 120 S.Ct. at er’s id. reasonable. be deemed legal unreasonably extends if it “either 869164, at *5 Palmer, WL 2007 Tucker v. precedent [Supreme Court] from principle 2007) Mar.22, (emphasis add- (E.D.Mich. apply it should to a new context where the federal ed). appealed government The unreasonably refuses to extend or on Subsequently, decision. district court’s should context where it to a new principle an 2007, issued 16, court the district April 407, 120 1495. Under S.Ct. apply,” id. the until Sixth judgment its staying order 2254(e)(1), de a state court’s § 28 U.S.C. appeal. the on case decided Circuit presumed is of a issue termination factual correct, has burden petitioner the the II. by clear and presumption rebutting a district de novo This reviews presumption This convincing evidence. petition deny grant court’s decision findings that to the factual applies v. Burton corpus. of habeas for a writ its re makes after court appellate state Cir.2004). 764, Renico, 770 391 F.3d v. trial record. Sumner state view of the petition his habeas Tucker filed Because 539, 546-47, Mata, 101 S.Ct. 449 U.S. gov- is appeal January on Mitchell, (1981); Mason 722 66 L.Ed.2d Anti-Ter- of the provisions erned (6th Cir.2003). 604, 614 Penalty Act of Death Effective rorism and Garceau, 538 (AEDPA). 1996 Woodford III. L.Ed.2d 155 123 S.Ct. U.S. Here, Michigan appeals State AEDPA, (2003). a federal Under grant decision to court’s federal district corpus may grant writ habeas
court
government
relief
Tucker.
adjudicat-
that was
to a
respect
claim
incor-
court
federal district
claims that
proceedings
court
merits
state
ed on the
court violated
the state
rectly
“con-
found
decision
if
state court’s
only the
insuf-
by convicting
ap-
federal law
to,
an unreasonable
trary
or involved
addition,
govern-
ficient
Federal
evidence.
of, clearly established
plication
decision,
making its
that in
argues
ment
Supreme Court
law,
by the
as determined
view the
failed to
district court
the federal
U.S.C.
the United States.”
favorable
light
most
evidence in
2254(d)(1).
§
all
failed to
and also
draw
contrary to
court
A
decision
state
consistent with
inferences
the state
law “if
clearly
federal
established
verdict.
judge’s
state
that contradicts
rule
applies
Four-
Process
The Due
Clause
Supreme
in [the
law set forth
governing
the accused
“protects
teenth Amendment
court con-
“if the state
cases” or
Court’s]
be-
except upon proof
materially
against conviction
that are
set of
fronts a
facts
nec-
every fact
doubt
yond a reasonable
of [the
a decision
from
indistinguishable
which
crime with
to constitute
essary
arrives
nevertheless
Court and
Supreme]
charged.”
he is
Winship,
In re
who
dwelling
enters a
permis-
without
Thus,
in an
S.Ct. 1068.
insuffi-
sion with
felony,
intent to commit a
lar-
claim,
ciency of evidence habeas
rel-
“[t]he
ceny, or
dwelling,
assault
or a
whether,
question
evant
viewing
after
person who breaks and enters a dwelling
light
the evidence in the
most favorable to
*14
or
dwelling
enters a
permission
without
the
any rational trier of fact
and,
any
time while he or she is
could have found the essential elements of
entering, present
in,
exiting
or
the
the crime
a reasonable doubt.”
dwelling,
felony, larceny,
commits a
or
307, 319,
Virginia,
Jackson v.
guilty
assault is
of home
invasion
the
2781,
(1979)
2783,
S.Ct.
The federal permission, a(i) district below deter- he intended to commit mined that (ii) court unreasonably (iii) state felony, larceny, or there- assault applied the federal requiring in, (b) standard evi- or that the defendant committed dence any sufficient for reasonable trier a(i) of (ii) (iii) felony, larceny, or assault fact to find Tucker of the crime in, while entering, present exiting charged beyond a reasonable doubt. dwelling. determination, making this the federal dis- John, People 263082, v. No. 2006 WL trict court reviewed the statute Tucker 2006) Oct.10, at *1 (Mich.Ct.App. was violating accused of pre- the facts curiam) (per (unpublished); see also Peo sented at trial. charged Tucker was Nutt, ple 469 Mich. 677 N.W.2d violating Michigan’s statute, home invasion (2004). 1, 16 provides which part: relevant A person who presented breaks and enters a dwell- facts at trial consisted ing with intent to felony, commit a solely larce- of alleged vic- ny, or assault in tim, dwelling, person Sutliff.5 Sutliff testified that he saw majority 5. The attempts support purpose its prostitution.); conclu- of Brigano, O’Hara v. sion that Tucker's (6th Cir.2007) (Where conviction was constitu- 499 F.3d 500-01 tionally permissible because this circuit has rape defendant was kidnap- convicted of previously upheld ing, convictions based on testi- the victim testified that the defendant alone, mony citing of the victim four Sixth abducted her parking from a forcibly lot and However, Circuit cases. by raped cases cited by her.); performing her oral sex on majority totally inapplicable. Howard, are In each United States v. 218 F.3d cases, (6th these testimony directly Cir.2000) (Where the victim’s defendant was convict- proved key each of the elements of the aggravated crimes. ed of sexual assault and wanton (6th United Terry, States v. 362 F.2d endangerment, the victim testified that defen- Cir.1966) (Where defendant was convicted of dant "beat forcibly performed her and oral knowingly transporting a woman in interstate sex knife-point.”); on her at United States v. purposes, Jones, commerce for prose- immoral Cir.1996) 806-07 cuting (Where witness testified the defendant had defendant conspira- convicted requisite transport intent cy possess cocaine, her for the with intent to distribute invasion cases have found suf court home backyard, he no- running from there was a entry where “ajar,” two ficient evidence back door that his ticed gave of other evidence on his dresser combination placed he thought he the defendant of his to an inference the drawers rise missing, and were However, home, well as evidence of entered the as slightly open. dresser often that none The other proximity. court found district federal used property, pos facts could be of stolen alleged possession showed these beyond a fact to find gain entry, trier of reasonable session of the used tools entered Sut- that Tucker consciousness-of-guilt, doubt as evidence of well first element Horton, liff s No. flight.6 People See such as above, *15 fed- noted (Mich.Ct. As 3077152, invasion statute. 256740, *2 2005 WL court stated: curiam) eral district 2005) Nov.17, (per (unpub App. eyewit- lished) evidence—either was no sufficient to (finding There the evidence evidence— testimony physical second-degree ness home defendant convict in actually petitioner that was presented because, in addition to evidence invasion home, was there evidence nor Sutliffs presented evi proximity, prosecution rings to the petitioner which connected attempted to use dence that the defendant case prosecution’s were taken. that the victim’s dorm card.stolen from credit supposition simply on the rested the room and stolen from property room the home must have entered petitioner driv in the car defendant was was found tempo- on his rings based and stolen 188014, Quarles, No. ing); People proximity geographic ral and 16, 33347964, (Mich.Ct.App. May at *1 WL alone cannot supposition This crime. 1997) (finding the (unpublished) evidence to constitute sufficient breaking to convict defendant petition- doubt that a reasonable beyond dwelling because entering occupied an and home, Michi- nor can the entered the er presented evidence prosecution that the evidence conclusion gan courts’ only police fled the the defendant reasonable. be deemed was sufficient was home invasion but shortly after the at *5 2007 WL property stolen found both with .from also added). and person, car and on his his type gain used to conclusion, with a screwdriver the U.S. of its support
In
Potts,
home); People v.
No.
entry into
Michigan state
court noted that
district
*2,
Horton,
involved
WL
intent to dis-
attempt
possess cocaine with
to
tribute,
drug
guards
during
security guards where the
flight
and use of a firearm
from
crime,
Drug En-
trafficking
two undercover
stop and includ-
yelling
at defendants
testified
Administration officers
actually
forcement
used
that defendants
ed evidence
negotiated a
they personally met and
property
apprehended with
stolen
been
and
contrast,
defendant.).
Sut-
drug deal with
Here, Tucker,
was
dwelling.
if he
from
inadequate
testimony
woefully
be-
was
liff’s
all,
running
merely
and chose
fleeing at
was
cause,
val-
taking
at face
even
his statements
accusing
greet the man who had been
not to
ue,
directly spoke
testimony
never
tracking
burglary
his movements
and
him of
never
entry
home. He
question of
into his
Offender
Department of Corrections’s
via the
exit the
Tucker enter or
that he saw
testified
System. The
Tracking Information
home.
found,
found in Tuck-
much less
were never
easily
been
he could
have
possession, and
er’s
suggest
proximi-
majority
6. The
seems
house,
parents’
as the
going
fence
to his
sufficient evi-
ty
flight alone would be
parents'
allegedly
borders
"scaled”
However,
he
flight
entry.
evidence of
dence of
cases,
yard.
as that used
invasion
such
in home
(Mich.Ct.
(J.A. 99.)
at *1
WL
who
yard.”
was
his side
Sec-
2004)
curiam)
App.
(per
ond,
June
(unpub
majority
suggests that the federal
lished) (finding the evidence sufficient to
district court did not properly consider the
support defendant’s conviction of first-de
fact that Tucker was seen “fleeing” Sut-
gree
eyewitnesses
home invasion because
yard.
court,
liffs back
The federal district
directly testified that
the defendant en
however, did not consider this “fact” be-
home). Michigan
tered the
courts have
cause Tucker was never seen “fleeing” the
never
guilty
found defendant
of entering
backyard. The state trial court did not
solely
someone’s home
on the
find, nor
testify,
did Sutliff
that Tucker
nothing
home owner and
else.
“fleeing”
was seen
anything.
previous-
As
stated,
ly
allegedly
seen jump-
Given the absence of
evidence that
ing a fence
running.
To conclude that
Tucker entered the
I am compelled
“fleeing”
very
is the
act of
agree
with the federal district court’s
inferring a
inference,
fact from an
ruling that no reasonable fact-finder could
perhaps the act of an
imagination.
active
find
a reasonable doubt that Tuck-
Finally,
majority
give great
seems to
er was
of home invasion. There was
*16
weight
to the fact that Tucker did not
no evidence showing that
damaged
Tucker
speak to
passed
Sutliff as he
him in his
property
Sutliffs
gain
entrance into his
yard.
It
beyond my
is
understanding why
house, there were no fingerprints placing
this is relevant. With Sutliff being so
home,
Tucker in the Sutliffs
there was no
suspicious
it defies reason that
one who
they
claims
saw Tucker in the
himself, upon
Sutliff
seeing
Tucker
his
home,
Sutliffs
there was no one who
backyard,
speak
would not
to Tucker. A
they
claims
exiting
saw Tucker
the Sutliffs
defendant does not
explain
have to
his
home,7
rings
the
Sutliff claims Tucker stole
alleged actions, before, during, or after
found,
were never
and there was no evi-
they
place.
take
Again,
emphasized
dence found on
person
inor
throughout
dissent,
it
govern-
is the
possession that could link him to Sutliffs
ment’s
prove
burden to
guilt,
home.
defendant’s
not the defendant’s
prove
burden to
majority
The
opinion
suggest
seems to
innocence.
that the federal district court reached its
As previously mentioned,
conclusion
by
based on a
noted
mis-appreciation of
the
First,
court,
federal district
facts.
“the
majority
evidence
suggests
[offered]
that the
showed nothing
federal district
mistakenly
more than that
thought
merely
[Tucker]
was near the
saw
home at about
time
“perambulating
sidewalk,”
rings
down a
went
public
missing,” Tucker v.
Palmer,
not jumping
(E.D.Mich.
his fence.
2007 WL
majority’s
The
at *6
2007).
Mar.22,
characterization of the federal
No
district
rational
trier of fact
facts,
find,
court’s view
however,
doubt,
is
wrong.
Report
from such
Recommendation
evidence that Tucker entered
adopted by the federal district court clear- Sutliffs home and
stole
therein. To
ly states that “Sutliff stated he saw
infer that
[Tuck-
Tucker took the rings Sutliff
jump
fence,
er]
over a
coming from
allegedly
solely
owned
based on the
area of
backyard
Sutliffs
towards Sutliff
averred proximity of Tucker to Sutliffs
7. Sutliff testified that he saw the defendant
exiting
defendant
his home.
coming
backyard,
from his
not that he saw
much
ported by evidence
more substantial
from an inference.
to infer a fact
is
house
presented
than what was
here.
Just last
Tuck-
inferred from
judge
The state
Renico,
year-, in Parker v.
he
backyard that
in Sutliffs
presence
er’s
(6th Cir.2007),
example,
for
a federal
and then from
entered Sutliffs
firearm
district court reversed the state
inference,
Tucker stole Sut-
inferred that
conviction of a defendant found
possession
fact,
In
there never
rings.
liffs
sight in a
plain
with a firearm within his
in the first
rings existed
proof
signifi-
car. The evidence in Parker was
impermissible.
speculation
place. Such
cantly
than the
we have
greater
evidence
Ross,
281, 283-
92 U.S.
States
United
Parker, police
here.
officers observed
that ar-
(holding
23 L.Ed.
proximity
in the car in
defendant
close
inferring
of fact
riving at a conclusion
case,
in Tucker’s
weapon.
to the
Just as
not admissi-
generally
inferences is
from
government
argued
also
Parker
ble).
circumstantial
“Whenever
gun
pos-
to the
proximity
proved
Parker’s
fact,
circum-
prove
upon
is relied
Moreover,
the defendant
fled
session.
proved, and not them-
must be
stances
actually
enforcement and was
from law
Ross,
presumed.”
selves
who had
the car with other defendants
Here,
offered no evidence
prosecution
just
conspired to kill and had
shot the
testimony
than
other
Sutliffs
evidence,
on this
the state
victim. Based
house. Sutliffs
was in Sutliffs
jury convicted the defendant. On habeas
alone,
in the
even when viewed
however,
review,
the federal district court
light most favorable
conviction, finding
insufficient
reversed
to find
a rational fact finder
insufficient for
*17
pos-
of
evidence
convict
defendant
to.
beyond a reasonable doubt
the re-
upheld
session. The Sixth Circuit
of home invasion.
versal,
trier of
finding that no reasonable
sum,
government
prove
failed to
any
find that the defendant had
fact could
a
doubt that Tucker
beyond
reasonable
weapon.
over the
Unlike
indicia of control
Although
home invasion.
committed
Parker,
case,
in
there is no
the instant
sets a
“any rational trier of fact” standard
of
of a crucial element
physical evidence
bar,
an insurmountable one
high
it is not
entry into the home.
the crime—Tucker’s
brazenly
sweep
to
that should be used
majority
speculative
finds the
Yet
court
justice aside after a federal district
to
of the accuser sufficient
reverse
claims
wrongful
a
conviction.
has overturned
court.
the federal district
jurisprudence
This
Court’s
rulings
our other
have
A number of
involving insufficiency of evidence
cases
convictions based
upheld reversals of state
repeatedly distinguished between evi-
has
evidence,
physi-
where
on insufficient
even
specula-
that can lead to reasonable
dence
e.g.,
available. See
cal evidence has been
(6th
guilt
of
and evidence
Palmer,
tion
Brown v.
F.3d
guilt beyond
Cir.2006)
a reasonable doubt.
prove
court’s
(affirming the district
evidence,
Here,
government’s sparse
corpus
when the
grant of a writ of habeas
best,
provided speculation that
scene of a
presence at
defendant’s
relationship
gun-
This
is to
with the
committed the crime.
crime and brief
beyond a
when convictions are
to establish
grant habeas relief
man were insufficient
inmate aided
specu-
doubt that
solely upon
based
mere reasonable
reasonable
Fuller
gunman);
and abetted
lation instead of evidence sufficient
Cir.1981)
Anderson,
420, 424
a reasonable doubt.
prove guilt beyond
of a
grant
district court’s
so,
fact,
(affirming the
sup-
in cases
And it has done
corpus
guilt
the defendant
er’s
a reasonable doubt as a
writ of habeas
when
was at the scene with the individuals who matter of law.
that resulted in the death
committed arson
Lastly,
majority
seems confused as
victim).
of
This Court has been clear
“problem”
to what I view to be the
in this
that, although “the
viewed in the
facts
again,
put
case.
it
simply,
Once
more
may
to the
...
light most favorable
state
my
absolutely
view is
there was
no
”
speculation,’
‘reasonable
create[ ]
presented
sufficiently
evidence
sup-
government’s
evidence must
its case
ported
finding that Tucker entered Sut-
beyond a reasonable doubt.
Id. If the
liff s home. This view should be familiar
majority
unwilling
distinguish
be-
majority
as it is the exact
view
same
type
speculation
tween the
that forms
court,
of the federal district
and is thus the
case,
requirement
and the
the basis
being
previous-
issue that is
appealed. As
that evidence be sufficient to convict be-
mentioned,
ly
the federal district court em-
doubt,
yond a
I
imagine
cannot
phasized, “[s]imply put, there was no evi-
in which it would.
scenario
petitioner
dence whatsoever that
however,
The government,
claims that
the victim’s
nor was there
evi-
sup-
if we find that insufficient evidence
from which
dence
such an inference could
conviction,
ported Tucker’s
we will essen-
be made.”
WL
*5
tially
eliminating
possibility
be
added).
Clearly, there was evi-
convicting a defendant on circumstantial
case,
dence
submitted
but the fed-
Nothing
evidence.
could be further from
eral
district
found that there was no
truth,
government’s
and the
position
presented
particular
as to this
simply
absurd. The Supreme Court
question
Court,
element. The
before this
questioned
“has never
adequacy
[the]
[of
therefore,
is whether there was evidence
cases,
circumstantial
in criminal
evidence]
presented
sufficiently
supports a find-
though proof beyond
even
a reasonable
ing that Tucker committed all
the ele-
Palace,
required,”
doubt is
Desert
Inc. v.
charged beyond
ments
the offense
Costa,
123 S.Ct.
*18
doubt, namely
reasonable
that he entered
(2003),
would be that the circum- finding such a that Tucker entered Sutliff s presented stantial evidence in the instant (emphasis added), id. the state trial matter, alone, standing was insufficient to summarily court concluded that he did. It conviction, support a not that a conviction so, however, did pointing without can never be based on circumstantial evi- evidence whatsoever that could be used to Peters, dence. See United States v. guilt beyond show Tucker’s (6th Cir.1994) F.3d (holding that saying doubt. Just it was so does not may circumstantial evidence alone be suf- such, conviction). make it so. As Tucker’s conviction ficient to sustain a This is should be overturned. not a close case in which circumstantial tips evidence the balance in favor of Rather,
guilt. the lack proof of here is IV. beyond pale so of what is constitu- saddened, tionally required I I am outraged, can come to but and in fact presented judicial system one conclusion: the evidence embarrassed for our woefully insufficient to Tuck- point. this case has reached this That this conclude, again I like judge quote s To would trial affirm state Court sage words that ten “[b]etter of to fifteen sentence seven and conviction guilty persons escape of than that one inno- without a semblance prison years Blackstone, pathetic is a cent suffer.” 4 William Com- wrongdoing of judicial system. perfect of our mentaries at 358. This case is a dismal reflection that af- the state courts judge, provocative pro- The trial illustration of the conviction, and indeed justice firmed his need for under law. equal found (and likely justice ruined Tucker’s life mean Equal have under law does not well). family we, court, This case so that of his as a should condone and justice. that Tucker should nev- miscarriage of evidence in the participate devoid much less con- prosecuted, have been ignores er Where a state court abus- require- victed. es the fundamental constitutional meaning proof ment and a rea- feder- judges federal Two different —the doubt, responsibility sonable it is the magistrate judge and the al district this Court to restore that constitutional conviction, find- judge —reviewed guarantee. majority eye The turns a blind wrongfully convicted based ing that he was responsibility constitutional to this basic According to insufficient evidence. concept equal jus- and undermines the under Michigan’s home invasion statute vigorously I tice under law. DISSENT. Comp. charged, Tucker was Mich. which 750.110a(3), first, and most § Laws (a)
basic, is “that the defendant element (b) dwelling, en- and entered
broke permission.” dwelling
tered a without John, v. No. 2006 WL
People 2006) Oct.10, (Mich.Ct.App. at *1 curiam) Peo- (unpublished); see also
(per Nutt, 469 Mich. 677 N.W.2d ple Kosinski, Timothy KOSINSKI; Barbara (2004). however, Petitioners-Appellants, evidence whatsoever presented no principal element Tucker satisfied Tucker entered home invasion—that of INTERNAL COMMISSIONER re- judge The federal district who home. REVENUE, Respondent- found in petition
viewed Tucker’s habeas Appellee. *19 was no no uncertain terms “[t]here No. 07-2136. ... presented [Tucker] home” and that actually accuser’s] in [his Appeals, States Court United were in- judge’s the trial inferences alone Sixth Circuit. a matter of law—“to sufficient—as that” Tucker beyond a reasonable doubt July 2008. Argued: Tticker, 2007 home invasion. Aug. and Filed: Decided added). By at *5 WL stand, allowing this conviction to through ripple effect
conviction creates allowing justice system, criminal
our entire jail people languish
innocent based
unsubstantiated and wild inferences.