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McCray v. Birkett

April 19, 2010

MERRIT DEMON MCCRAY, PETITIONER,
v.
THOMAS BIRKETT, RESPONDENT.



The opinion of the court was delivered by: Avern Cohn United States District Judge

HON. AVERN COHN

MEMORANDUM AND ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY

I. Introduction

This is a habeas case under 28 U.S.C. § 2254. Michigan prisoner Merrit Demon McCray ("Petitioner") was convicted of assault with intent to do great bodily harm less than murder, Mich. Comp. Laws § 750.84, and carrying a weapon with unlawful intent, Mich. Comp. Laws § 750.226, following a jury trial in the Bay County Circuit Court in 2005. He was sentenced as a fourth habitual offender, Mich. Comp. Laws § 769.12, to concurrent terms of 10 to 30 years imprisonment.

Petitioner raises claims regarding: (1) the jury selection process, (2) the lack of victim testimony, (3) the admission of identification testimony and the photographic lineup, (4) the denial of a witness identification expert, and (5) the validity of his sentence. For the reasons that follow, Petitioner is not entitled to habeas relief on any of his claims. Petitioner is also not entitled to a certificate of appealability.

II. Background

Petitioner's convictions arise from his assault upon Antoine Kilgore at a bar in Bay City, Michigan on October 25, 2003. The trial testimony revealed that Kilgore was struck repeatedly from behind with a pool cue. Witnesses reported that the assailant entered the bar through the back door, grabbed a pool cue from near the back of the bar, walked to where the victim was standing, and hit the victim several times with the pool cue before fleeing the bar.

Kilgore suffered life threatening injuries, including bruising to his brain and lacerations to his head. His skull was fractured, and he required surgery to remove a blood clot on the right side of his brain. When Kilgore was initially examined, he was awake but confused. He was unable to speak clearly and was partially paralyzed on the right side of his body. Testimony at trial indicated that he would likely suffer permanent injuries. Kilgore did not testify at trial, but the jury was told that he could not identify his assailant.

Tara Gonzales, a bar patron, described the assailant to the police that night. She told them she recognized the assailant but did not know his name. The police later showed her a photographic lineup containing Petitioner's photograph, and she identified Petitioner as the assailant. Gonzales testified that she was under the impression that the assailant's photograph would be present in the lineup.

Micah Burns, another bar patron, also witnessed the incident. He identified Petitioner as the assailant at trial. When asked how he knew Petitioner, Burns said, "we were all friends, acquaintances . . . and hung out at the bar together." Burns also stated that Petitioner had been to his home.

Bartender Angie Liphard was working that evening and stated that she was behind the bar counter when the assailant entered the bar and attacked Kilgore. She "didn't really get a good look at the assailant," but described him as a black man wearing blue jeans and a blue shirt.

Corey Brown was outside the bar shortly before the incident and saw Petitioner enter the bar from the corner of his eye. Brown noted that he only saw Petitioner "[f]or a quick second." About five minutes later, Brown entered the bar and discovered that Kilgore had been assaulted.

Tara Gonzales and Angie Liphard spoke with the police at the bar the night of the attack. Micah Burns and Corey Brown left the bar without speaking to the police, but later came forward as witnesses.

Petitioner did not testify at trial. At the close of trial, the jury found him guilty of assault with intent to do great bodily harm less than murder, carrying a weapon with unlawful intent, and felonious assault. The trial court vacated the felonious assault conviction on double jeopardy grounds and, as noted above, sentenced Petitioner as a fourth habitual offender to concurrent terms of 10 to 30 years imprisonment on the remaining convictions.

Petitioner filed an appeal as of right with the Michigan Court of Appeals asserting several claims, including those raised in his habeas petition. The Michigan Court of Appeals affirmed his convictions. People v. McCray, No. 261851, 2006 WL 3332925 (Mich. Ct. App. Nov. 16, 2006) (unpublished). The Michigan Supreme Court denied leave to appeal. People v. McCray, 729 N.W.2d 866 (Mich. 2007).

Petitioner thereafter filed the present federal habeas petition, raising the following claims:

I. The trial court erred by using the struck-jury method for jury selection.

II. His Sixth Amendment confrontation clause rights were violated because the victim did not testify at trial.

III. The trial court failed to suppress an in-court identification that was influenced by an unduly suggestive photographic lineup.

IV. The trial court failed to grant him an eyewitness identification expert, and did not conduct a hearing to determine if such an expert was appropriate.

V. He was sentenced in violation of his Sixth and Fourteenth Amendment rights to have a jury determine the facts for sentencing.

Respondent has filed an answer to the petition, asserting that it should be denied because the claims are not cognizable, lack merit, ...


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