UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

TIMOTHY THOMAS, 

Plaintiff, 

 Case No. 15-12015 

v. HON. TERRENCE G. BERG 

RANDY HAAS, 

Defendant. 

 / 

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

HABEAS CORPUS; (2) A CERTIFICATE OF APPEALABILITY; AND (3) 

LEAVE TO APPEAL IN FORMA PAUPERIS

Timothy Thomas, (“Petitioner”), confined at the Gus Harrison Correctional 

Facility in Adrian, Michigan, seeks the issuance of a writ of habeas corpus pursuant 

to 28 U.S.C. § 2254. In his pro se application, petitioner challenges his conviction 

for assault with intent to do great bodily harm less than murder, Mich. Comp. Laws 

§ 750.84; possession of a firearm during the commission of a felony, second offense, 

Mich. Comp. Laws § 750.227b; and felon in possession of a firearm, Mich. Comp. 

Laws § 750.224f. For the reasons stated below, the application for a writ of habeas 

corpus is DENIED WITH PREJUDICE. 

I. FACTUAL BACKGROUND 

 Petitioner was charged with armed robbery, assault with intent to commit 

murder, and the two firearm offenses. Petitioner was found guilty of the lesser 

offense of assault with intent to do great bodily harm less than murder and the two 

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firearms offenses following a jury trial in the Wayne County Circuit Court. 

Petitioner was acquitted of the armed robbery charge. 

The relevant facts regarding petitioner’s conviction, as stated in the Michigan 

Court of Appeals’ opinion affirming his conviction, are presumed correct on habeas 

review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F. 3d 410, 413 

(6th Cir. 2009): 

Defendant’s convictions stem from a shooting that occurred 

during an attempted drug transaction. According to Mark Atty 

and Yousef Hemana, they went to defendant's Detroit home to 

purchase Vicodin. An argument ensued, and defendant fired two 

gunshots toward Hemana, striking him once in his upper left leg. 

Hemana jumped through a window to escape, and a neighbor 

assisted him and called the police. 

*** 

Defendant admitted that he fired two shots toward Hemana. One 

shot missed, and the other struck Hemana in the leg. Both 

Hemana and Atty testified that defendant ordered another man, 

“Marlow,” to kill Hemana and Atty. According to Atty, defendant 

stated that he wanted to see Hemana bleed. 

*** 

Here, defendant fired two shots toward Hemana from a weapon 

described as an “Uzi” or “Tech–9” at a distance of approximately 

four feet. 

People v. Thomas, No. 312483, 2013 WL 6670824, at *1 (Mich. Ct. App. Dec. 17, 

2013). 

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 Petitioner’s conviction was affirmed on appeal. Id., appeal denied in part and 

rev’d in part on other grounds, 495 Mich. 1002, 846 N.W.2d 52 (2014).1

 Petitioner seeks a writ of habeas corpus on the following ground: 

There was insufficient evidence that he had the requisite intent 

to commit great bodily harm less than murder because Thomas’s 

actions were taken in self defense. 

II. LEGAL STANDARD 

 28 U.S.C. § 2254(d) provides that: 

 

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. 

 

 A decision of a state court is “contrary to” clearly established federal law if 

the state court arrives at a conclusion opposite to that reached by the Supreme 

Court on a question of law or if the state court decides a case differently than the 

Supreme Court has on a set of materially indistinguishable facts. Williams v. 

Taylor, 529 U.S. 362, 405-06 (2000). An “unreasonable application” occurs when “a 

state court decision unreasonably applies the law of [the Supreme Court] to the 

 

1 The Michigan Supreme Court reversed the trial court’s restitution order and remanded the matter 

to the trial court to conduct an evidentiary hearing on the issue of restitution. The issue of 

restitution is not before this Court. 

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facts of a prisoner’s case.” Id. at 409. 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.” Id. at 410-11.

The Supreme Court explained that “a federal court’s collateral review of a 

state-court decision must be consistent with the respect due state courts in our 

federal system.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The “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); Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)). “[A] state court’s 

determination that a claim lacks merit precludes federal habeas relief so long as 

‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” 

Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 

U.S. 652, 664 (2004)). In order to obtain habeas relief in federal court, a state 

prisoner is required to show that the state court’s rejection of his claim “was so 

lacking in justification that there was an error well understood and comprehended 

in existing law beyond any possibility for fairminded disagreement.” Id., at 103. 

III. DISCUSSION 

Petitioner claims that there was insufficient evidence to sustain his 

conviction for assault with intent to do great bodily harm less than murder. 

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 It is beyond question that “the Due Process Clause protects the accused 

against conviction except upon proof beyond a reasonable doubt of every fact 

necessary to constitute the crime with which he is charged.” In Re Winship, 397 

U.S. 358, 364 (1970). But the critical inquiry on review of the sufficiency of the 

evidence to support a criminal conviction is, “whether the record evidence could 

reasonably support a finding of guilt beyond a reasonable doubt.” Jackson v. 

Virginia, 443 U.S. 307, 318 (1979). This inquiry, however, does not require a court 

to “ask itself whether it believes that the evidence at the trial established guilt 

beyond a reasonable doubt.” Id. at 318-19 (internal citation and footnote omitted) 

(emphasis in the original). Instead, the 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. Id.

 More importantly, a federal habeas court may not overturn a state court 

decision that rejects a sufficiency of the evidence claim simply because the federal 

court disagrees with the state court’s resolution of that claim. Instead, a federal 

court may grant habeas relief only if the state court decision was an objectively 

unreasonable application of the Jackson standard. See Cavazos v. Smith, 132 S. Ct. 

2, 4 (2011). “Because rational people can sometimes disagree, the inevitable 

consequence of this settled law is that judges will sometimes encounter convictions 

that they believe to be mistaken, but that they must nonetheless uphold.” Id. In 

fact, the Jackson standard “is so demanding that ‘[a] defendant who challenges the 

sufficiency of the evidence to sustain his conviction faces a nearly insurmountable 

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hurdle.’” Davis v. Lafler, 658 F. 3d 525, 534 (6th Cir. 2011) (quoting United States 

v. Oros, 578 F.3d 703, 710 (7th Cir. 2009) (internal quotation marks omitted)). 

Therefore, for a federal habeas court reviewing the sufficiency of evidence for a state 

court conviction, “the only question under Jackson is whether that finding was so 

insupportable as to fall below the threshold of bare rationality.” Coleman v. 

Johnson, 132 S.Ct. 2060, 2065 (2012). 

 Finally, on habeas review, a federal court does not reweigh the evidence or redetermine the credibility of the witnesses whose demeanor was observed at trial. 

Marshall v. Lonberger, 459 U.S. 422, 434 (1983). It is the province of the fact finder 

to weigh the probative value of the evidence and resolve any conflicts in testimony. 

Neal v. Morris, 972 F.2d 675, 679 (6th Cir. 1992). A habeas court therefore must 

defer to the fact finder for its assessment of the credibility of witnesses. Matthews 

v. Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003). 

 Petitioner first argues that there was insufficient evidence that he acted with 

the specific intent to do great bodily harm, as required to support his conviction for 

assault with intent to do great bodily harm. 

 Under Michigan law, the elements of assault with intent to do great bodily 

harm less than murder are: (1) an attempt or threat with force or violence to do 

corporal harm to another (an assault), and (2) an intent to do great bodily harm less 

than murder. Lovely v. Jackson, 337 F. Supp. 2d 969, 977 (E.D. Mich. 2004) (citing 

People v. Mitchell, 149 Mich. App. 36, 38; 385 N.W. 2d 717 (1986)). The term “intent 

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to do great bodily harm less than murder” has been defined as an intent to do 

serious injury of an aggravated nature. Mitchell, 149 Mich. App. at 39. 

 The evidence, when viewed in a light most favorable to the prosecution, 

established that petitioner fired two gunshots towards Hermana with an Uzi or a 

Tech-9 weapon from a distance of four feet. Petitioner also ordered a man with him 

to kill Hermana and Atty. Both Petitioner’s statement and his act of firing two 

gunshots at Hermana at close range support the conclusion that he had the specific 

intent to do great bodily harm to Hermana, sufficient to support his conviction. See

People v. Parcha, 227 Mich. App 236, 239; 575 N.W. 2d 316 (1998). 

 Petitioner further claims that the evidence was insufficient to rebut his selfdefense claim. This claim fails for two reasons. 

 First, this portion of petitioner’s claim is not cognizable on habeas review. 

Under Michigan law, self-defense is an affirmative defense. See People v. Dupree, 

486 Mich. 693, 704, 712; 788 N.W. 2d 399 (2010). “An affirmative defense, like selfdefense, ‘admits the crime but seeks to excuse or justify its commission. It does not 

negate specific elements of the crime.’” People v. Reese, 491 Mich. 127, 155, n. 76; 

815 N.W.2d 85 (2012) (quoting Dupree, 486 Mich. at 704, n. 11). Although under 

Michigan law the prosecutor is required to disprove a claim of self-defense, see 

People v. Watts, 61 Mich. App. 309, 311, 232 N.W.2d 396, 398 (1975), “[p]roof of the 

nonexistence of all affirmative defenses has never been constitutionally required[.]” 

See Smith v. United States,133 S. Ct. 714, 719 (2013) (quoting Patterson v. New 

York, 432 U.S. 197, 210 (1977)). The Supreme Court and the Sixth Circuit have 

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rejected the argument that the Constitution requires the prosecution to disprove 

self-defense beyond a reasonable doubt. See Gilmore v. Taylor, 508 U.S. 333, 359 

(1993) (Blackmun, J., dissenting) (“In those States in which self-defense is an 

affirmative defense to murder, the Constitution does not require that the 

prosecution disprove self-defense beyond a reasonable doubt”); Martin v. Ohio, 480 

U.S. 228, 233-36 (1987); see also Allen v. Redman, 858 F. 2d 1194, 1197 (6th 

Cir.1988) (explaining that habeas review of sufficiency-of-the-evidence claims is 

limited to elements of the crimes as defined by state law and citing Engle v. Isaac, 

456 U.S. 107 (1982), and Duffy v. Foltz, 804 F. 2d 50 (6th Cir. 1986)). Therefore, 

“the due process ‘sufficient evidence’ guarantee does not implicate affirmative 

defenses, because proof supportive of an affirmative defense cannot detract from 

proof beyond a reasonable doubt that the accused had committed the requisite 

elements of the crime.” Caldwell v. Russell, 181 F. 3d 731, 740 (6th Cir. 1999). This 

portion of petitioner’s claim does not amount to a challenge to the sufficiency of the 

evidence in support of the essential state law elements of assault with intent to do 

great bodily harm; rather, petitioner “only faulted the jury’s refusal to credit his 

proffered affirmative excuse or justification” for the shooting. Id. Consequently, 

petitioner’s claim that the prosecutor failed to disprove his affirmative defense is 

non-cognizable on habeas review. Id.; Allen v. Redman, 858 F. 2d at 1200. 

 Secondly, petitioner’s claim that the prosecution failed to disprove his selfdefense claim basically involves a challenge to the credibility of the witnesses. 

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Under Michigan law, one acts lawfully in self-defense if he honestly and 

reasonably believes that he is in danger of serious bodily harm or death, as judged 

by the circumstances as they appeared to the defendant at the time of the act. 

Blanton v. Elo, 186 F. 3d 712, 713, n. 1 (6th Cir. 1999) (citing People v. Heflin, 434 

Mich. 482; 456 N.W. 2d 10 (1990)). Although petitioner testified that he shot at 

Hemana and Atty because he felt threatened by the men, Hemana and Atty 

testified that petitioner shot at them after Hemana and petitioner got into an 

argument. Petitioner told another person to kill Hemana and Atty. Petitioner also 

said he wanted to see Hemana bleed. Hemana and Atty tried to get away, with 

Hemana escaping out of a window as petitioner fired his gun at him twice, hitting 

him in the leg. If believed, as it was by the jury here, the victims’ testimony refutes 

petitioner’s self-defense claim. 

 A federal court reviewing a state court conviction on habeas review that is 

“faced with a record of historical facts that supports conflicting inferences must 

presume—even if it does not affirmatively appear in the record—that the trier of 

fact resolved any such conflicts in favor of the prosecution, and must defer to that 

resolution.” Cavazos, 132 S. Ct. at 6 (quoting Jackson, 443 U.S. at 326). Although 

petitioner presented some evidence in support of self-defense, and petitioner’s 

interpretation of the evidence differs from that of the state court, “in light of the 

deference to be accorded to state-court factfinding under § 2254(e), as well as the 

traditional deference accorded to the jury’s resolution of disputed factual issues,” 

petitioner is unable to show that the Michigan Court of Appeals unreasonably 

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determined that the prosecutor disproved petitioner’s self-defense claim. See 

Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000). Because the jury essentially 

chose to reject petitioner’s testimony that he acted in self-defense, which is a 

credibility determination to which this Court must defer, petitioner is not entitled 

to habeas relief on his sufficiency of evidence claim. See Johnson v. Hofbauer, 159 F. 

Supp. 2d 582, 597-98 (E.D. Mich. 2001). 

 Finally, to the extent that petitioner challenges the credibility of the 

prosecution’s witnesses, he would not be entitled to relief. Attacks on witness 

credibility are simply challenges to the quality of the prosecution’s evidence, and 

not to the sufficiency of the evidence. Martin v. Mitchell, 280 F. 3d 594, 618 (6th 

Cir. 2002). An assessment of the credibility of witnesses is generally beyond the 

scope of federal habeas review for sufficiency of evidence. Gall v. Parker, 231 F. 3d 

265, 286 (6th Cir. 2000). The existence of sufficient evidence to convict defeats a 

petitioner’s claim based on credibility of witnesses. Id. Any insufficiency of 

evidence claim that rests on an allegation of the witnesses’ credibility, which is the 

province of the finder of fact, does not entitle a habeas petitioner to relief. See Tyler 

v. Mitchell, 416 F. 3d 500, 505 (6th Cir. 2005). 

IV. CONCLUSION

 The Court will deny the petition for writ of habeas corpus. The Court will 

also deny a certificate of appealability to petitioner. In order to obtain a certificate 

of appealability, a prisoner must make a substantial showing of the denial of a 

constitutional right. 28 U.S.C. § 2253(c)(2). To demonstrate this denial, the 

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applicant is required to show that reasonable jurists could debate whether, or 

agree that, the petition should have been resolved in a different manner, or that 

the issues presented were adequate to deserve encouragement to proceed further. 

Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). When a district court rejects a 

habeas petitioner’s constitutional claims on the merits, the petitioner must 

demonstrate that reasonable jurists would find the district court’s assessment of 

the constitutional claims to be debatable or wrong. Id. at 484. “The district court 

must issue or deny a certificate of appealability when it enters a final order 

adverse to the applicant.” Rules Governing § 2254 Cases, Rule 11(a), see also 

Strayhorn v. Booker, 718 F. Supp. 2d 846, 875 (E.D. Mich. 2010). 

For the reasons stated in this opinion, the Court will deny petitioner a 

certificate of appealability because he has failed to make a substantial showing of 

the denial of a federal constitutional right. See Millender v. Adams, 187 F. Supp. 

2d at 880. The Court will also deny petitioner leave to appeal in forma pauperis, 

because the appeal would be frivolous. See Allen v. Stovall, 156 F. Supp. 2d at 798. 

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V. ORDER

 Based upon the foregoing, the Petition for a Writ of Habeas Corpus is

DENIED WITH PREJUDICE.

 IT IS FURTHER ORDERED that a Certificate of Appealability is DENIED. 

IT IS FURTHER ORDERED that Petitioner will be DENIED leave to appeal 

in forma pauperis. 

SO ORDERED. 

Dated: April 28, 2016 s/Terrence G. Berg 

TERRENCE G. BERG 

UNITED STATES DISTRICT JUDGE 

Certificate of Service 

I hereby certify that this Order was electronically submitted on April 28, 

2016, using the CM/ECF system, which will send notification to all parties. A copy 

of this Order was also mailed to the Macomb Correctional Facility 34625 26 Mile 

Road, New Haven, Michigan 48048 directed to Petitioner’s attention. 

 s/A. Chubb 

Case Manager 

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