Tucker v. Palmer

ACKERMAN, D. J., delivered the opinion of the court, in which SUTTON, J., joined. KEITH, J. (pp. 661-71), delivered a separate dissenting opinion.

OPINION

ACKERMAN, District Judge.

This case involves the conviction of a man for second-degree home invasion based exclusively upon the testimony of the homeowner, who saw the defendant climbing over the back yard fence and running away from the house. Here, we face the sobering issue of whether a man was unconstitutionally deprived of his liberty. We recognize that such an issue should never be addressed lightly, and so we have endeavored to carefully and thoroughly review, with the appropriate level of deference, the evidence adduced at trial. Having engaged in such review, we conclude that the state court conviction of Raymond Tucker for second-degree home invasion is supported by sufficient evidence, albeit circumstantial. For the following reasons, we will reverse the District Court’s grant of Tucker’s habeas petition.

I.

At trial, the prosecution’s only witness, Nicholas Sutliff, testified to the following facts. On August 18, 2003, Sutliff was mowing his yard in Dearborn Heights, Michigan when he saw a man jump over a low fence out of Sutliffs back yard and into Sutliffs side yard where Sutliff was located. Sutliff recognized the man as Defendant Raymond Tucker, someone with whom he was familiar because Tucker’s family lived next door to Sutliff.1 After clearing the fence, Tucker ran in Sutliffs general direction and passed within six feet of Sutliff, at which point the two men made eye contact before Tucker continued running without exchanging a word with Sutliff.

After this incident, Sutliff went into his back yard, and as he approached his back door, noticed that it was ajar. This fact is significant because Sutliff remembered *655having locked the front door, and closed, but not locked, the back door. He remembers having closed the door completely because his air conditioning was on in the house. Sutliff entered his house, did not notice anything unusual, then left his house to ask his neighbors if they had seen Tucker that day. After returning to his house, Sutliff noticed that his dresser drawer was open where previously it had been closed. In addition, Sutliff noticed that where he had left two rings and a watch on top of the dresser, only the watch remained.

Police arrested Tucker on September 24, 2003 in connection with the incident at Sutliffs home. Tucker refused to answer the court’s questions at arraignment, and consequently the court entered a plea of not guilty on Tucker’s behalf. On February 3, 2004, after signing and filing a waiver of trial by jury, Tucker was tried in a bench trial, and convicted of second-degree home invasion, in violation of Michigan Comp. Laws § 750.110a(3). On February 26, 2004, the trial judge sentenced Tucker to 7 to 15 years imprisonment.

After his conviction in this case, Tucker filed an appeal with the Michigan Court of Appeals, which issued a summary order on May 13, 2005 denying his appeal: “The Court orders that the application for leave to file a delayed appeal is DENIED for lack of merit in the grounds presented.” (JA at 95.) On November 29, 2005, the Michigan Supreme Court similarly denied Tucker’s appeal: “On order of the Court, the application for leave to appeal the May 13, 2005 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question-presented should be reviewed by this Court.” (JA at 96.)

On January 19, 2006, Tucker filed his federal habeas petition in the Eastern District of Michigan. On December 15, 2006, Magistrate Judge Paul J. Komives issued a Report and Recommendation (“R & R”), in which he recommended that the District Court grant Tucker’s petition for habeas relief on the grounds that there was insufficient evidence for the trial court to conclude that Tucker entered Sutliffs home. (JA at 97.) Relatedly, the R & R recommended that the District Court find that the state trial court’s conviction of Tucker “involved an unreasonable application of clearly established federal law.” (JA at 108.) On March 22, 2007, District Judge Lawrence P. Zatkoff adopted the Magistrate Judge’s R & R, entered it as “the findings and conclusions of this Court,” and concomitantly granted Tucker’s petition for a writ of habeas corpus. Tucker v. Palmer, No. 06-10250, 2007 WL 869164, at *1 (E.D.Mich. Mar.22, 2007). Subsequently, on April 16, 2007, the District Court granted the Michigan Attorney General’s request to stay the release of Tucker pending the outcome of this appeal. He remains in custody today.

The District Court had jurisdiction over this case pursuant to 28 U.S.C. § 2254. The District Court’s March 22, 2007 Opinion & Order, adopting the Magistrate Judge’s R & R, constitutes a final order such that this Court has appellate jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.

II.

We review de novo a district court’s decision to grant or deny habeas corpus relief. Parker v. Renico, 506 F.3d 444, 447 (6th Cir.2007) (citing Wilson v. Mitchell, 498 F.3d 491, 497-98 (6th Cir.2007); Joseph v. Coyle, 469 F.3d 441, 449 (6th Cir.2006)). “Under the Antiterrorism and Effective Death Penalty Act of 1996 (‘AEDPA’), a federal court may grant a writ of habeas corpus only if the state courts ruled in a way contrary to, or in*656volving an unreasonable application of, clearly established federal law as determined by the United States Supreme Court.” Parker, 506 F.3d 444, 447-48 (citing. 28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 404-05, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Varner v. Stovall, 500 F.3d 491, 494-95 (6th Cir.2007)); see also Tinsley v. Million, 399 F.3d 796, 801 (6th Cir.2005). “A state-court decision is an unreasonable application of clearly established federal law if it ‘correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner’s case.’ ” Parker, 506 F.3d at 448 (quoting Williams, 529 U.S. at 407-08, 120 S.Ct. 1495). “When assessing unreasonableness, ‘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.’ ” Id. (quoting Williams, 529 U.S. at 411, 120 S.Ct. 1495). Furthermore, “[f]indings of fact made by the state court are presumed correct, and this presumption may be rebutted only by ‘clear and convincing evidence.’ ” Tinsley, 399 F.3d at 801-02 (citing 28 U.S.C. § 2254(e)(1); Mitchell v. Mason, 325 F.3d 732, 737-38 (6th Cir.2003)); see also Eady v. Morgan, 515 F.3d 587, 595 (6th Cir.2008).

As framed by AEDPA, the issue before this Court is whether, the District Court erred in concluding that the state court unreasonably applied Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Parker, 506 F.3d at 448. “Jackson v. Virginia established the test for challenges based on sufficiency of the evidence.” Eady, 515 F.3d at 595. It held that a reviewing court’s task is

to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.... [T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.

443 U.S. at 318-19, 99 S.Ct. 2781 (emphasis in original). In other words, “[u]nder Jackson, habeas corpus relief is appropriate based on insufficient evidence only where the court finds, after viewing the evidence in the light most favorable to the prosecution, that no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Parker, 506 F.3d at 448. Accordingly, the law commands deference at two levels in this case: First, deference should be given to the trier-of-fact’s verdict, as contemplated by Jackson; second, deference should be given to the Michigan Court of Appeals’ consideration of the trier-of-fact’s verdict, as dictated by AEDPA. Id. “Where we consider the [trier-of-fact’s] verdict, we do so ‘with explicit reference to the substantive elements of the criminal offense as defined by state law.’ ” Id. (quoting Jackson, 443 U.S. at 324 n. 16, 99 S.Ct. 2781; Brown v. Palmer, 441 F.3d 347, 351 (6th Cir.2006)).

III.

Tucker was charged with, and convicted of, second-degree home invasion, which is defined by the statute in the following terms:

A person who breaks and enters a dwelling with intent to commit a felony, larce*657ny, or assault in the dwelling, a person who enters a dwelling without permission with intent to commit a felony, larceny, or assault in the dwelling, or a person who breaks and enters a dwelling or enters a dwelling without permission and, at any time while he or she is entering, present in, or exiting the dwelling, commits a felony, larceny, or assault is guilty of home invasion in the second degree.

Mich. Comp. Laws § 750.110a(3). Parsing the statutory language to fit this case, Tucker could be found guilty only if it was proved beyond a reasonable doubt that he: (1) entered a dwelling without permission; and (2) had the intent to commit a larceny therein. There is no dispute that Sutliffs home qualifies as a dwelling under the statute. Furthermore, there is no dispute that Tucker’s presence in Sutliffs home would have been without permission. Thus, as to the first element, the only question for the trier-of-fact was whether there was proof beyond a reasonable doubt that Tucker in fact had entered Sutliffs home.

In assessing the adduced proof, the Court may sustain a conviction based upon nothing more than circumstantial evidence. United States v. Kelley, 461 F.3d 817, 825 (6th Cir.2006) (“Circumstantial evidence alone is sufficient to sustain a conviction and such evidence need not remove every reasonable hypothesis except that of guilt.”); United States v. Peters, 15 F.3d 540, 544 (6th Cir.1994) (same). Indeed, the Supreme Court has explained that circumstantial evidence is “intrinsically no different from testimonial evidence,” and that both “may in some cases point to a wholly incorrect result.” Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 99 L.Ed. 150 (1954). “Yet ... [i]n both instances, a jury is asked to weigh the chances that the evidence correctly points to guilt against the possibility of inaccuracy or ambiguous inference.” Id. at 137-38, 75 S.Ct. 127. To accomplish this, “the jury must use its experience with people and events in weighing the probabilities. If the jury is convinced beyond a reasonable doubt, we can require no more.”2 Id. at 138, 75 S.Ct. 127.

On the first element, the District Court declared that “[sjimply put, there was no evidence whatsoever that [Tucker] entered [Sutliffs] home, nor was there any evidence from which such an inference could be made.” Tucker, 2007 WL 869164, at *5. The District Court then characterized the evidence as consisting “merely” of testimony that “[Tucker], whose family lived next door to [Sutliff] and who thus had reason to be in the area, was 25-30 feet from [Sutliffs] door, and sometime thereafter Sutliff noticed that two rings were missing.” Id. Indeed, such a characterization lends • strong credence to the District Court’s conclusion that Tucker’s habeas petition be granted. Based upon *658such reading of the evidence, the District Court thereafter explained that the “prosecution’s case rested simply on the supposition that [Tucker] must have entered the home ... based on his temporal and geographic proximity.” Id. But this characterization omits crucial facts found by the trier-of-fact, upon which a reasonable inference can be made that Tucker entered the home. It is not entirely clear that Michigan law would in fact forbid a finding of guilty on a home-invasion charge based solely on temporal and geographic proximity, but even if it did, there was more evidence that factored into the trial judge’s conclusion than simply that Tucker was “in the area.”

Specifically, the District Court’s recitation suggests that Tucker was perambulating down a public sidewalk that placed him about 25-30 feet from Sutliffs door. Importantly, however, Tucker was not so innocently observed, but instead Sutliff saw Tucker jump out of Sutliffs back yard, which alone would arouse strong suspicion in any factfinder. Then, Tucker began running away from the fence he just scaled, and when he came within six feet of the homeowner standing in his own yard, Tucker made eye contact with Sutliff, but then kept running without so much as even trying to explain why he had just come out of the homeowner’s fenced property. This interaction, or lack thereof, between the perpetrator and the homeowner would heighten a rational factfinder’s suspicion because it is demonstrative of guilty conduct of some kind, even if that conduct is merely trespassing. Indeed, even the dissent appears to acknowledge that proximity plus flight would be sufficient evidence of entry. (See Dissent at 667.)

Contrary to the District Court’s characterization, there is more. Indeed, after seeing Tucker flee the scene, Sutliff then went into his back yard to enter his house through the back door because he had locked the front door. Sutliff testified at trial that, it being a hot August day, he had the air conditioning on in his house, and thus remembered having closed the back door before he went outside to mow the yard. Approaching his back door after having seen Tucker exiting Sutliffs back yard, Sutliff observed the back door standing ajar. This fact alone might make Sut-liff, or a rational factfinder, believe that Sutliff was simply mistaken in his belief that he had closed the door before going out to mow. But, of course, this is not a lone fact. Instead, it is added to the previous observations of Tucker jumping over the fence from Sutliffs back yard, and Tucker declining to explain such behavior when he immediately thereafter saw Sutliff observing him. If Sutliff is believable in his testimony that he observed Tucker, and not someone else; and if Sutliff is also believable in his testimony that he had closed the door, but then found it open after observing Tucker, then these facts combined provide a strong inference that Tucker entered Sutliffs home.

The dissent expresses concern that the only evidence is that of the testimony of Sutliff. 0See Dissent at 666-67, 667-68, 668-69.) While it might be true that no Michigan case has convicted someone of home invasion based solely on the homeowner’s testimony, (see Dissent at 668), the dissent has not pointed to any case concluding that such testimony alone would be insufficient Indeed, this Court has long held that the testimony of the victim alone is constitutionally sufficient to sustain a conviction. United States v. Terry, 362 F.2d 914, 916 (6th Cir.1966) (“The testimony of the prosecuting witness, if believed by the jury, is sufficient to support a verdict of guilty.”); see also O’Hara v. Brigano, 499 F.3d 492, 500 (6th Cir.2007) (holding that victim’s testimony that habeas *659petitioner abducted her and raped her was constitutionally sufficient to sustain conviction despite lack of corroborating witness or physical evidence); United States v. Howard, 218 F.3d 556, 565 (6th Cir.2000) (holding that even if the only evidence was testimony of the victim, that is sufficient to support a conviction, even absent physical evidence or other corroboration); United States v. Jones, 102 F.3d 804, 807 (6th Cir.1996) (noting that there is sufficient evidence to support a conviction even if the “circumstantial evidence does not remove every reasonable hypothesis except that of guilt”) (internal quotation marks omitted). Moreover, we have not found any case where the factfinder, faced with nothing more than the victim’s testimony, concluded that such testimony was credible, but then refused to convict. In short, Sutliffs testimony was all that the prosecutor had available, and the Constitution does not require anything more than a credible eyewitness. But wait, there is more.

The District Court noted that Sutliff observed Tucker “and sometime thereafter Sutliff noticed that two rings were missing.” Tucker, 2007 WL 869164, at *5. Of course, that is a characterization in the light most favorable to Tucker, rather than the prosecution; but the law requires the latter, not the former. Parker, 506 F.3d at 448 (“Under Jackson, habeas corpus relief is appropriate based on insufficient evidence only where the court finds, after viewing the evidence in the light most favorable to the prosecution, that no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”) (emphasis added). Viewed less charitably towards Tucker, Sutliffs testimony at trial showed that Sutliff entered his house and did not immediately notice anything unusual, so he went to his next-door neighbors to ask if they had seen Tucker in the area that day. After returning- to his house, Sutliff this time did notice something unusual. First, he observed that two rings that he had left on top of his dresser were no longer there.3 Second, Sutliff noticed that the top two drawers of the dresser were open a couple of inches, which is not the way Sutliff remembered leaving them. The missing items and the disturbed dresser drawers provide further circumstantial evidence from which a rational factfinder could conclude that Tucker had entered Sutliffs home.4

*660Indeed, the combination of all these facts — Tucker jumping over the fence from Sutliffs back yard; Tucker failing to explain his behavior to the person he knew to be the homeowner; Sutliff thereafter finding the back door ajar, when it had been closed; Sutliff observing that two rings were missing from his dresser; and Sutliff noticing that his top two dresser drawers were open, when they had been closed — provides a strong basis upon which to conclude that the prosecution proved its case beyond a reasonable doubt as to the first element of second-degree home invasion, namely that Tucker entered Sutliffs home without permission. Stated differently, the above evidence is strongly indicative that someone entered Sutliffs home without permission that day, and that the only person observed leaving the property was Tucker, and that he left at a rapid pace. Thus, it was not unreasonable for the trier-of-fact to link all these facts together to conclude that Tucker had entered Sutliffs home that day without permission.

As previously noted, to be found guilty of second-degree home invasion in Michigan, the prosecution had to prove beyond a reasonable doubt that Tucker: (1) entered a dwelling without permission; and (2) had the intent to commit a larceny therein. Mich. Comp. Laws § 750.110a(3). After addressing the first element regarding entry of a dwelling without permission, we next turn to the second element involving the intent to commit a larceny therein. The District Court focused its attention almost exclusively on the element of entry of the dwelling. It gave little, if any, attention to the element of intent to commit a larceny, ostensibly because it had already found a reason to grant the habeas petition. But the record provides sufficient evidence to support a finding that Tucker, having entered Sutliffs home, had the intent to commit a larceny.

In a recent home invasion case, the Michigan Court of Appeals explained that “ ‘[although a presumption of an intent to steal does not arise solely from the proof of breaking and entering,’ the felonious intent for a breaking and entering crime may be established by inferences from circumstantial evidence, including the nature, time, and place of the defendant’s acts.” People v. Green, 2008 WL 886201, at *2 (Mich.App. Apr.1, 2008) (quoting People v. Palmer, 42 Mich.App. 549, 551-552, 202 N.W.2d 536 (1972), and citing People v. Uhl, 169 Mich.App. 217, 220, 425 N.W.2d 519 (1988); People v. Riemersma, 104 Mich.App. 773, 780, 306 N.W.2d 340 (1981)). Furthermore, “[bjecause it is difficult to prove a defendant’s state of mind, minimal circumstantial evidence is sufficient.” Id. (citing People v. Fetterley, 229 Mich.App. 511, 518, 583 N.W.2d 199 (1998)). In People v. Green, the Michigan Court of Appeals rejected the defendant’s argument that intent was not proven by virtue of the fact that he had no stolen property in his possession at the time of his arrest. 2008 WL 886201, at *3. The Gn"een court explained that a jury could reasonably find that the defendant had the requisite intent to commit a larceny because there was evidence that he had gone through drawers, cupboards, and other containers, in an apparent search for something of value to purloin. Id.

Here, Sutliff testified that the top two drawers to his dresser were open, as though Tucker had gone through them. *661Furthermore, the two rings that were on top of the dresser were missing. These two facts provide sufficient evidence that Tucker had not innocently entered Sutliff s house thinking it was his own and then casually walked out when he realized it was not, but instead entered Sutliff s house with the intent to commit a larceny. Furthermore, while it is not unreasonable to conclude that Tucker in fact did commit a larceny by taking the rings, it is enough that Tucker simply had the intent, as demonstrated by the rifling through drawers. It is irrelevant that the rings were never found in Tucker’s possession. Indeed, as the Michigan Attorney General points out, Tucker, having seen Sutliff as he was running away from the scene, would be on heightened notice not to be found in possession of the fruits of his larceny. Accordingly, we find that there was sufficient evidence for the factfinder to conclude that Tucker had the intent to commit a larceny.

The District Court erred in finding that there was insufficient evidence to support Tucker’s state conviction. On this point, the dissent suggests that we owe some level of deference to the fact that “[t]wo different federal judges ... reviewed Tucker’s conviction, finding that he was wrongfully convicted.” (See Dissent at 671.) But we review de novo a district court’s decision to grant or deny habeas corpus relief, Parker, 506 F.3d at 447, and deference, AEDPA tells us, goes to the three state courts that considered this matter. Accordingly, under the strict standards applied to habeas petitions, we cannot ignore the principles of federalism that undergird deference to the state court’s findings, especially in terms of credibility of a witness, which is so difficult to ascertain from a cold record. Sumner v. Mata, 449 U.S. 539, 547, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981) (“This interest in federalism recognized by Congress in enacting § 2254(d) requires deference by federal courts to factual determinations of all state courts.”); see also Parker v. Dugger, 498 U.S. 308, 320, 111 S.Ct. 731, 112 L.Ed.2d 812 (1991); Patton v. Yount, 467 U.S. 1025, 1040, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984) (explaining that even when “the cold record arouses some concern,” a federal court may not overturn the factual findings of a state court on habeas review); Wainwright v. Goode, 464 U.S. 78, 85, 104 S.Ct. 378, 78 L.Ed.2d 187 (1983); Van Hook v. Anderson, 488 F.3d 411, 425 (6th Cir.2007) (“[W]hen two different ‘conclusions find fair support in the record,’ a federal court may not ‘substitute] its view of the facts for that of the [state] [c]ourt.’ ”) (quoting Wainwright, 464 U.S. at 85, 104 S.Ct. 378). In sum, we conclude that, based upon the evidence adduced at trial, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson, 443 U.S. at 318, 99 S.Ct. 2781.

IV.

For the foregoing reasons, this Court REVERSES the District Court’s grant of Tucker’s habeas petition.

. Apparently, Tucker used to live in the same neighborhood as Sutliff, but had moved out many years before the 2003 incident.

. The dissent suggests that the problem in this case is not that the conviction lacks sufficient circumstantial evidence, but that it lacks any evidence whatsoever. (See Dissent at 662 ("without any evidence"; "finding was totally unsupported by the factual record”; trial judge made “perverted and unsubstantiated inferences”; "no evidence to support Tucker’s guilt”; this case is "devoid of facts”)); id. at 671 (“without a semblance of evidence”; "no evidence whatsoever”; Tucker is in jail "based on unsubstantiated and wild inferences”). But the dissent does acknowledge that "circumstantial evidence alone may be sufficient to sustain a conviction.” (See Dissent at 670 (citing Peters, 15 F.3d at 544)). To the extent that the dissent believes that circumstantial evidence is insufficient by itself to sustain a conviction, the law is otherwise. To the extent that the dissent believes that there is circumstantial evidence in this case, but that it is somehow insufficient, we simply disagree.

. As the dissent notes, Sutliff testified that his rings were missing, but his watch, which he left next to his rings, was still there. To the extent that this fact suggests that Tucker cannot be guilty because he would not have taken just the rings and not the watch, we disagree. Indeed, Sutliff's credibility is arguably enhanced by not trying to accuse Tucker of stealing more than he did, notwithstanding the dissent’s suggestion that Sutliff had an axe to grind with Tucker based upon prior interactions. (See Dissent at 663.)

. The dissent accepts the District Court's characterization that "the evidence [offered] showed nothing more than that petitioner was near the home at about the time the rings went missing.” (Dissent at 668 (quoting Tucker, 2007 WL 869164, at *6) (emphasis added).) In addition, the dissent declares that "[t]o infer that Tucker took the rings Sutliff allegedly owned solely based on the averred proximity of Tucker to Sutliff's house is to infer a fact from an inference.” (Id.) But as the trial transcript demonstrates, and the trial judge articulated, the evidence shows much more than Tucker casually strolling down the sidewalk. Instead, it shows that he was not merely "near the home,” but fleeing the back yard. Moreover, we need not agree on whether the evidence sufficiently proves that Tucker actually stole the rings — or that the rings ever existed — to conclude that there is evidence sufficient to support a finding that Tucker entered the home. Indeed, the testimony that the drawers were disturbed, combined with Tucker fleeing the back yard, is sufficient to conclude that he entered Sutliff’s home because the statute merely requires *660proof of entry into the dwelling without permission, with intent to commit a larceny, not that a larceny actually occurred. And the trial judge found that "the address was entered without permission and that it was done with the intent to commit a larceny.” (JA at 92 (emphasis added).)