1 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

MELVIN MATSEY, #236265, 

 Petitioner, Case No. 14-cv-14082 

Hon. Matthew F. Leitman 

v. 

LINDA TRIBLEY, 

 Respondent. 

______________________________________/ 

OPINION AND ORDER (1) DENYING PETITION FOR A WRIT OF 

HABEAS CORPUS (ECF #1), (2) DENYING A CERTIFICATE OF 

APPEALABILITY, AND (3) DENYING LEAVE TO PROCEED IN FORMA 

PAUPERIS ON APPEAL 

I

 Petitioner Melvin Matsey is a state prisoner in the custody of the Michigan 

Department of Corrections. In 2012, a jury in the Oakland County Circuit Court 

convicted Matsey of four counts of breaking and entering a building with intent to 

commit a larceny, Mich. Comp. Laws § 750.110. The state court sentenced Matsey 

as a fourth habitual offender, Mich. Comp. Laws § 769.12, to concurrent terms of 5 

to 40 years imprisonment. On October 31, 2014, Matsey filed a petition for a writ 

of habeas corpus in this Court pursuant to 28 U.S.C. § 2254. (See ECF #1.) He then 

amended the Petition. (See ECF #18.) The Petition, as amended, raises claims 

related to the admission of other acts evidence at Matsey’s trial and the consolidation 
2 

for trial of the four separate breaking-and-entering charges brought against him. For 

the reasons set forth below, the Court DENIES the Petition. The Court also 

DENIES Matsey a certificate of appealability and DENIES him leave to proceed in 

forma pauperis on appeal. 

II

 Matsey’s convictions arise from four breaking-and-entering incidents in 

Oakland County, Michigan in 2010 and 2011. The Michigan Court of Appeals 

described the relevant facts as follows: 

Defendant was charged in four separate informations with 

breaking and entering a building with intent to commit a 

larceny, MCL 750.110, for crimes that occurred on June 

15, 2007, in Farmington Hills, on August 8, 2010, in 

Madison Heights, on April 16, 2011, in Novi, and on June 

20, 2011, in Southfield. The prosecution moved to 

consolidate the cases for trial, MCR 6.120, alleging that 

defendant was involved in a series of acts constituting 

parts of a single scheme or plan. Defendant opposed the 

motion for consolidation, alleging that his conduct did not 

fall within the scope of the court rule and one trial would 

deprive him of due process of law. In a written order, the 

trial court granted the motion for the reasons indicated on 

the record. Additionally, the prosecution sought to admit 

MRE 404(b) evidence, specifically defendant's prior 

convictions involving breaking and entering and the 

concurrent charged offenses. The prosecution argued that 

the evidence was relevant and the probative value was not 

substantially outweighed by unfair prejudice. Again, the 

defense opposed this motion, contending that the evidence 

was irrelevant and prejudicial. In a written order, the trial 

court granted the motion for the reasons stated on the 

record. 
3 

At trial, it was established that alarm systems for four 

businesses were triggered after work hours. When the 

police and the business owners arrived on the scene, a 

large rock or concrete object was found thrown through a 

glass window or door. Laptop computers were stolen from 

three of the four businesses. Blood was discovered at all 

four locations, and the blood matched a DNA sample 

provided by defendant. Defendant's independent expert 

concluded that defendant was the donor of the blood found 

at the crime scenes. Additionally, at trial, the parties 

stipulated to admit six prior convictions for breaking and 

entering or attempted breaking and entering. The jury was 

advised that the convictions were presented for the limited 

purpose of demonstrating that the events did not occur by 

accident or mistake, but represented a planned system or 

characteristic scheme. 

Defendant testified that he did not break and enter into the 

four businesses. Rather, at the Madison Heights business, 

he entered the building during business hours after he cut 

himself changing a tire. Additionally, defendant acted as a 

“middle man” for his friends who stole items. He denied 

breaking and entering into the Novi and Southfield 

locations, but alleged that he entered those premises after 

his friends had broken in earlier. Defendant testified that 

he believed that he previously pleaded guilty to the 

Farmington Hills charge that occurred in 2007, while he 

was in prison. Defendant admitted that he committed his 

prior convicted offenses, but with regard to the current 

crimes, he denied responsibility. Despite this testimony, 

defendant was convicted as charged. 

People v. Matsey, 2014 WL 1510153, at *1 (Mich. Ct. App. April 15, 2014). 

 Following his convictions and sentencing, Matsey filed an appeal of right with 

the Michigan Court of Appeals in which he asserted that the trial court erred when 

it admitted the other acts evidence and when it consolidated his four separate 
4 

breaking-and-entering charges into one trial. The state appellate court denied relief 

on those claims and affirmed his convictions and sentences. Id. at ** 2-5. Matsey 

then filed an application for leave to appeal with the Michigan Supreme Court raising 

the same two claims that he raised in the Court of Appeals, as well as claims that his 

appellate counsel was ineffective and that the prosecution failed to present sufficient 

evidence to support his convictions. The Michigan Supreme Court denied leave to 

appeal in a standard order. See People v. Matsey, 853 N.W.2d 357 (Mich. 2014). 

 Matsey thereafter filed a federal habeas petition in this Court. (See ECF #1.) 

In that Petition, Matsey raised four claims concerning: (1) the effectiveness of his 

appellate counsel, (2) the admission of other acts evidence at his trial, (3) the 

consolidation of his four breaking-and-entering charges, and (4) the sufficiency of 

the evidence. (See id.) Respondent filed an answer to the Petition in which she 

argued that the Court should dismiss the Petition because Matsey’s first and fourth 

claims were not properly exhausted in the state courts and/or that all of his claims 

lack merit. (See ECF #8.) The Court reviewed the Petition and Respondent’s answer 

and determined that the first and fourth claims of the Petition were unexhausted. 

Instead of dismissing the Petition at that time, the Court entered a written order that 

stayed and administratively closed this action so that Matsey could return to the state 

courts and fully exhaust his claims. (See ECF #16.) On May 4, 2017, Matsey moved 

to re-open this action and to proceed only on the two properly exhausted claims (i.e. 
5 

his claims related to the admission of other acts evidence and the consolidation of 

the four breaking-and-entering charges). (See ECF #17.) The Court granted that 

motion on June 19, 2017, and re-opened this action for review of Matsey’s two 

unexhausted claims. (See ECF #18.) 

III

 The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 

codified at 28 U.S.C. § 2241 et seq., sets forth the standard of review that federal 

courts must use when considering habeas petitions brought by prisoners challenging 

their state court convictions. AEDPA provides in relevant part: 

An application for a writ of habeas corpus on behalf of a 

person in custody pursuant to the judgment of a State court 

shall not be granted with respect to any claim that was 

adjudicated on the merits in State court proceedings unless 

the adjudication of the claim -- 

(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 on an 

unreasonable determination of the facts in light of 

the evidence presented in the State court 

proceeding. 

28 U.S.C. §2254(d) (1996). 

 “A state court’s decision is ‘contrary to’ ... clearly established law if it ‘applies 

a rule that contradicts the governing law set forth in [Supreme Court cases]’ or if it 
6 

‘confronts a set of facts that are materially indistinguishable from a decision of [the 

Supreme] Court and nevertheless arrives at a result different from [that] precedent.’” 

Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (quoting Williams v. Taylor, 529 

U.S. 362, 405-06 (2000)). “[T]he ‘unreasonable application’ prong of § 2254(d)(1) 

permits a federal habeas court to ‘grant the writ if the state court identifies the correct 

governing legal principle from [the Supreme] Court but unreasonably applies that 

principle to the facts of petitioner’s case.” Wiggins v. Smith, 539 U.S. 510, 520 

(2003) (quoting Williams, 529 U.S. at 413). However, “[i]n order for a federal court 

find a state court’s application of [Supreme Court] precedent ‘unreasonable,’ the 

state court’s decision must have been more than incorrect or erroneous. The state 

court’s application must have been ‘objectively unreasonable.’” Id. at 520-21 

(citations omitted); see also Williams, 529 U.S. at 409. “AEDPA thus imposes a 

‘highly deferential standard for evaluating state-court rulings,’ and ‘demands that 

state-court decisions be given the benefit of the doubt.’” Renico v. Lett, 559 U.S. 

766, 773 (2010) (quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997)). 

 A state court’s factual findings are presumed correct on federal habeas review. 

See 28 U.S.C. § 2254(e)(1). A habeas petitioner may rebut this presumption only 

with clear and convincing evidence. See Warren v. Smith, 161 F.3d 358, 360-61 

(6th Cir. 1998). Moreover, habeas review is “limited to the record that was before 

the state court.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011). 
7 

IV 

A

 Matsey first asserts that he is entitled to federal habeas relief because the state 

trial court erred when it admitted evidence of his prior break-ins. (See ECF #1 at 

Pg. ID 4.) The Michigan Court of Appeals considered this claim on Matsey’s direct 

appeal and rejected it: 

Next, defendant asserts that the trial court abused its 

discretion by admitting the MRE 404(b) evidence. We 

disagree. “The decision to admit evidence is reviewed for 

an abuse of discretion. When the decision regarding the 

admission of evidence involves a preliminary question of 

law, such as whether a statute or rule of evidence precludes 

admissibility of the evidence, the issue is reviewed de 

novo.” People v. Washington, 468 Mich. 667, 670–671; 

664 NW2d 203 (2003). In Williams, 483 Mich. at 243, our 

Supreme Court held that any error in consolidation would 

be harmless because the evidence of each charged offense 

could have been introduced pursuant to MRE 404(b). 

Indeed, “evidence of similar misconduct is logically 

relevant to show that the charged act occurred where the 

uncharged misconduct and the charged offense are 

sufficiently similar to support an inference that they are 

manifestations of a common plan, scheme, or system.” 

People v. Sabin (After Remand), 463 Mich. 43, 63; 614 

NW2d 888 (2000). To establish a common scheme or plan, 

the common features should indicate the existence of a 

plan rather than a series of similar spontaneous acts. Id. at 

65–66. 

On this record, we cannot conclude that the trial court 

abused its discretion by admitting the MRE 404(b) 

evidence. Williams, 483 Mich. at 243. The stipulation 

delineating defendant's prior convictions indicated a 

history of breaking into businesses after hours in an 
8 

attempt to steal portable electronic equipment, including 

laptop computers. The entry would be obtained by 

breaking a window or glass door with a large rock or 

concrete object. Sabin, 463 Mich. at 63, 65–66. 

Matsey, 2014 WL 1510153, at ** 4-5. 

To the extent that Matsey’s challenge to the admission of this “other acts” 

evidence rests solely upon errors of state law, it is not cognizable on federal habeas 

review. See Estelle v. McGuire, 502 U.S. 62, 67–68 (1991) (“[I]t is not the province 

of a federal habeas court to reexamine state-court determinations on state-law 

questions”); Serra v. Michigan Dep’t of Corrections, 4 F.3d 1348, 1354 (6th Cir. 

1993) (“[H]abeas relief cannot be granted simply on the basis of a perceived error 

of state law”) (internal quotation marks omitted). 

To the extent this claim rests upon an alleged violation of Matsey’s due 

process rights, he has not shown that the state appellate court’s decision was contrary 

to, or an unreasonable application of, clearly established federal law. Indeed, Matsey 

has not cited a single United States Supreme Court decision in which that court held 

that the admission of “other acts” evidence violated the Defendants’ due process 

rights. Nor has Matsey shown that the admission of the “other acts” evidence here 

rendered his trial fundamentally unfair. The other acts evidence was relevant and 

admissible on the issue of identity and common plan or scheme. In addition, the risk 

of unfair prejudice was mitigated by the fact that the trial court instructed the jury 

on the proper consideration of the evidence. (See 11/8/12 Trial Tr. at 55, 62, ECF 
9 

#9-19 at Pg. ID 452, 455.) Matsey is therefore not entitled to habeas relief on this 

claim. 

B

In Matsey’s second claim, he asserts that he is entitled to federal habeas relief 

because the trial court erred when it consolidated his four separate breaking-andentering charges into a single case for trial. The Michigan Court of Appeals 

considered this claim on Matsey’s direct appeal and rejected it: 

In People v. Williams, 483 Mich. 226, 231; 769 NW2d 605 

(2009), our Supreme Court delineated the following 

standard of review for addressing MCR 6.120, the separate 

trial or joinder rule: 

Generally, this Court reviews questions of law de 

novo and factual findings for clear error. The 

interpretation of a court rule, like matters of 

statutory interpretation, is a question of law that we 

review de novo. To determine whether joinder is 

permissible, a trial court must first find the relevant 

facts and then must decide whether those facts 

constitute “related” offenses for which joinder is 

appropriate. Because this case presents a mixed 

question of fact and law, it is subject to both a clear 

error and a de novo standard of review. 

Additionally, when this Court reviews preserved 

nonconstitutional errors, we consider the nature of 

the error and assess its effect in light of the weight 

and strength of the untainted evidence. [Id. (internal 

citations omitted).] 

The ultimate ruling on a motion to sever is reviewed for 

an abuse of discretion. Williams, 483 Mich. at 226 n6. 
10 

MCR 6.120 governs joinder and provides, in relevant part: 

(A) Charging Joinder. The prosecuting attorney 

may file an information or indictment that charges 

a single defendant with any two or more offenses. 

Each offense must be stated in a separate count. 

Two or more informations or indictments against a 

single defendant may be consolidated for a single 

trial. 

(B) Postcharging Permissive Joinder or Severance. 

On its own initiative, the motion of a party, or the 

stipulation of all parties, except as provided in 

subrule (C), the court may join offenses charged in 

two or more informations or indictments against a 

single defendant, or sever offenses charged in a 

single information or indictment against a single 

defendant, when appropriate to promote fairness to 

the parties and a fair determination of the 

defendant's guilt or innocence of each offense. 

(1) Joinder is appropriate if the offenses are 

related. For purposes of this rule, offenses are 

related if they are based on 

(a) the same conduct or transaction, or 

 

(b) a series of connected acts, or 

 

(c) a series of acts constituting parts of a 

single scheme or plan. 

(2) Other relevant factors include the 

timeliness of the motion, the drain on the 

parties' resources, the potential for confusion 

or prejudice stemming from either the 

number of charges or the complexity or 

nature of the evidence, the potential for 

harassment, the convenience of witnesses, 

and the parties' readiness for trial. 
11 

In Williams, 483 Mich. at 228–229, a search warrant was 

executed at a motel on November 4, 2004. When the 

police forced entry, the defendant was walking out of the 

bathroom where crack cocaine was found caught in the 

drain and in the toilet. Cocaine, a scale, razor blades, 

baggies, guns, ammunition, and cash were found in the 

room. On February 2, 2005, the defendant was observed 

walking into a home. The police executed a search warrant 

there and found the defendant reaching toward a bag 

containing suspected cocaine. Similar drug paraphernalia 

located in the motel room was also found in proximity to 

the defendant at this home, including guns, cash, baggies, 

and drugs. Id. The prosecutor moved to consolidate the 

cases pursuant to MCR 6.120 or alternatively to admit the 

evidence in the other trial pursuant to MRE 404(b). Id. at 

229–230. The trial court granted the motion, holding that 

the offenses were related because the acts involved 

appeared to be “parts of a single scheme or plan; namely 

drug trafficking and therefore they would appear to be 

related offenses.” The trial court also concluded that the 

evidence would be admissible MRE 404(b) evidence that 

would present a greater risk of prejudice. The Court of 

Appeals affirmed the trial court's ruling that the offenses 

were related. Id. at 230–231. 

Our Supreme Court also affirmed, holding that a prior 

decision, People v. Tobey, 401 Mich. 141; 257 NW2d 537 

(1977), was inconsistent with MCR 6.120. The Court held: 

In this case, the record reflects that the trial court correctly 

applied the plain language of MCR 6.120 to the facts 

presented when it concluded that the offenses charged 

were “related.” After hearing arguments from the parties, 

the trial court specifically addressed the language of MCR 

6.120(A) and (B). The court concluded that the offenses 

charged in both cases reflect defendant's “single scheme 

or plan” of drug trafficking. MCR 6.120(B)(2). 

Consequently, defendant had no right to sever these 

“related” offenses. MCR 6.120(B). The trial court noted 
12 

that in light of the relevant facts, a single jury trial was 

appropriate and, further, the court stated that it would “be 

cautioning the jury that they need to find that both events 

have to meet the standard of proof beyond a reasonable 

doubt.” 

We conclude that the trial court did not violate the 

unambiguous language of MCR 6.120. The offenses 

charged were plainly “related” under MCR 6.120(B)(2). 

In both cases, defendant was engaged in a scheme to break 

down cocaine and package it for distribution. Evidence of 

acts constituting part of defendant's single scheme was 

found in both the motel room and the house at 510 Nevada. 

Even if one views defendant's first arrest in November and 

his second arrest in February in discrete moments in time, 

direct evidence indicated that he as engaging in the same 

particular conduct on those dates. The charges stemming 

from both arrests were not “related” simply because they 

were “of the same or similar character.” Instead, the 

offenses charged were related because the evidence 

indicated that defendant engaged in ongoing acts 

constituting parts of his overall scheme or plan to package 

cocaine for distribution. Accordingly, the trial court 

complied with what the language of MCR 6.120 

unambiguously required. [Id. at 233–235.] 

The Williams Court further rejected the assertion that the 

offenses had to be in temporal proximity to warrant 

consolidation. Id. at 241 (“Moreover the unambiguous 

language of MCR 6.120 does not mandate the existence of 

temporal proximity between several offenses.”). 

Additionally, our Supreme Court held that even if the trial 

court erred in joining the cases, any error would be 

harmless because “the evidence of each charged offense 

could have been introduced in the other trial under MRE 

404(b).” Id. at 243. 

Applying the Williams decision and the court rule to the 

facts of this case, the trial court did not err by allowing the 

consolidation of the cases. We reject defendant's 
13 

contention that the similarities in the manner of the 

breaking and entering and the objects taken do not show a 

common plan. Offenses are related if based on the “same 

conduct or transaction,” or “a series of connected acts,” or 

“a series of acts constituting parts of a single scheme or 

plan.” MCR 6.120(B)(1)(a-c). Here, defendant's crimes 

were premised on the same conduct or a series of acts 

constituting parts of a single scheme or plan. Defendant 

engaged in a scheme to steal portable electronic equipment 

from closed businesses. That is, on the weekends when 

businesses were not occupied, defendant would use a large 

concrete object to smash windows or glass doors to gain 

entry into the business premises, grab portable electronic 

equipment such as laptop computers, and flee the premises 

before police or the business owners could arrive at the 

establishments. In the course of committing these acts, 

defendant would injure himself and leave DNA evidence. 

The experts for both the prosecution and the defense 

concluded that defendant was the donor of the DNA 

evidence left at the scene of the crimes. In light of the 

above, the trial court did not err by allowing the 

consolidation. This issue does not entitle defendant to 

appellate relief. 

Matsey, 2014 WL 1510153, at ** 2-4. 

As with Matsey’s first claim for relief, to the extent Matsey’s challenge to the 

consolidation of the four charges against him rests solely upon errors of state law, it 

is not cognizable on federal habeas review. See Estelle, Serra, supra. 

To the extent this claim rests upon an alleged violation of Matsey’s due 

process rights, he has not shown that the state appellate court’s decision was contrary 

to, or an unreasonable application of, clearly established federal law. Indeed, Matsey 

has not identified any Supreme Court decision in which that court held that the 
14 

consolidation of multiple criminal charges against a defendant, alone, violated the 

Defendant’s due process rights. And while Matsey does cite United States v. Lane, 

474 U.S. 438, 446 n. 8 (1986), in that case, the Supreme Court said that “[i]mproper 

joinder does not, in itself, violate the Constitution. Rather, misjoinder [constitutes] 

a constitutional violation only if it results in prejudice so great as to deny a defendant 

his...right to a fair trial.” 

Matsey’s conclusory allegations fail to establish the required prejudice. The 

four breaking-and-entering incidents and charges were sufficiently related so as to 

be part of a common scheme or plan, and consolidating the cases was an efficient 

use of judicial resources. Furthermore, any potential prejudice to Matsey was 

mitigated by the fact that the trial court instructed the jury about the proper 

consideration of the multiple charges and the evidence presented at trial. (See

11/8/12 Trial Tr. at 54-55, 58-59, 64-68, ECF #9-19 at Pg. ID 451-54, 456-58.) 

Matsey is therefore not entitled to habeas relief on this claim. 

V

For the reasons stated above, the Court concludes that Matsey’s claims lack 

merit and that he is not entitled to federal habeas relief. Accordingly, the Court 

DENIES and DISMISSES WITH PREJUDICE the Petition (as amended). 

Before Matsey may appeal the Court’s decision, a certificate of appealability 

must issue. See 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). A certificate of 
15 

appealability may issue “only if the applicant has made a substantial showing of the 

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When a court denies relief 

on the merits, the substantial showing threshold is met if the petitioner demonstrates 

that reasonable jurists would find the court’s assessment of the claim debatable or 

wrong. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). “A petitioner satisfies 

this standard by demonstrating that ... jurists could conclude the issues presented are 

adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 

U.S. 322, 327 (2003). 

The Court has conducted the required review and it concludes that Matsey has 

failed to demonstrate that jurists could conclude the issues presented here are 

adequate to deserve encouragement to proceed further. Accordingly, the Court 

DENIES a certificate of appealability. The Court also DENIES leave to proceed in 

forma pauperis on appeal as an appeal cannot be taken in good faith. See Fed. R. 

App. P. 24(a). 

IT IS SO ORDERED. 

s/Matthew F. Leitman 

 MATTHEW F. LEITMAN 

UNITED STATES DISTRICT JUDGE 

Dated: July 6, 2017 
16 

 I hereby certify that a copy of the foregoing document was served upon the 

parties and/or counsel of record on July 6, 2017, by electronic means and/or ordinary 

mail. 

 s/Holly A. Monda 

 Case Manager 

 (810) 341-9764