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Ibarra-Perez v. Warren

April 29, 2010

JORGE IBARRA-PEREZ, PETITIONER,
v.
MILLICENT WARREN, RESPONDENT.



The opinion of the court was delivered by: John Corbett O'Meara United States District Judge

HONORABLE JOHN CORBETT O'MEARA

OPINION AND ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY AND LEAVE TO PROCEED ON APPEAL IN FORMA PAUPERIS

I. Introduction

This is a habeas case brought pursuant to 28 U.S.C. § 2254. Michigan prisoner Jorge Ibarra-Perez ("Petitioner") was convicted of two counts of first-degree criminal sexual conduct, Mich. Comp. Laws § 750.520(b), following a jury trial in the Wayne County Circuit Court in 2003 and was sentenced to concurrent terms of 10 to 20 years imprisonment. In his pleadings, Petitioner raises claims concerning the identification procedures, the sufficiency of the evidence, and the effectiveness of trial and appellate counsel. Respondent, through the Michigan Attorney General's office, has filed an answer to the petition contending that it should be denied. For the reasons set forth herein, the Court denies the petition for a writ of habeas corpus. The Court also denies a certificate of appealability and leave to proceed on appeal in forma pauperis.

II. Facts and Procedural History

Petitioner's convictions arise from the sexual assault of a 15-year-old girl in Romulus, Michigan on September 8, 2002. The Court adopts the statement of facts contained in Petitioner's brief on direct appeal in the state courts, insofar as those facts are consistent with the record, as Respondent has done the same and not disputed them. See Dickens v. Jones, 203 F. Supp. 2d 354, 360 (E.D. Mich. 2002); see also Bland v. California Dep't. of Corrections, 20 F.3d 1469, 1474 (9th Cir. 1994). Those facts, as slightly edited by the Court, are as follows: Defendant was charged with two counts of first-degree criminal sexual conduct. Prior to trial, the court denied a motion to suppress the on-the-scene identification, delayed ruling on a request for an independent DNA analysis, and granted a bond reduction.

The following witnesses testified at trial: Charles Cole, Amy Soard, Romulus Police Sergeant Clifford West, Romulus Police Officer Rick St. Andre, Romulus Police Officer Donald Smith, Romulus Police Officer Richard Balzar, William Quinn, Shelley McKay, Romulus Police Sergeant Duane Smith, Romulus Police Officer Darrin Wright, Romulus Police Officer Carolyn Huggins, Heather Spillane, Crystal Ferriss, Romulus Police Lieutenant Jeffrey Keefer.

Mr. Cole testified he was returning home from work at approximately two o'clock in the morning when he saw a half naked girl running down street, that the area is dimly lit, that he stopped to assist her, that he called the police, that he took her to a local gas station, that he was present when the police arrived approximately 10 minutes later, that the girl appeared scared and frightened, that he was present when the officers brought a suspect to the gas station, that the girl identified that person, that he did not see anyone else in the area, and that he was not sure of the time he saw the young woman. (II, 48-40).

Ms. Soard testified she lived in the area, identifying where she lived on a diagram, indicated there were no streetlights in the area, that on the night in question she was outside on her porch when she heard some yelling, but was unable to tell whether it was a male or female voice, that she was able to see a female followed by a male, wearing a light colored shirt, that she did not see anyone else, that she was later interviewed by the police, that she did not inform the officer the man was Hispanic, although it was included in the report, and that she was unable to identify anyone. (II, 41-59).

Sergeant West testified that as he was responding to the location, he came into contact with defendant, dressed in black, who was walking down the road, that the contact occurred within five minutes of receiving the call, that defendant's face appeared to have fresh scratches, that there appeared to be grass and weeds on his clothing, that it appeared he had been drinking, that defendant was transported to the gas station for possible identification, that the complaint started screaming when she saw defendant, that a report was prepared, that there appeared to be hair follicles on his collar, that defendant's clothing was confiscated at the police station. (II, 60-86).

Officer St. Andre testified to transporting defendant to the hospital for the purpose of taking blood and hair samples. (II, 91-93).

Officer Smith, evidence technician, testified he and Officer Blazer responded to the gas station, observed complainant who appeared to be upset, that she was naked from the waist down, that he broadcast information about a possible suspect, that he was present when defendant arrived, that the girl identified defendant as the person, that subsequently he discovered some clothing in the area, he identified various photographs of the area, was present when the scene was processed, the photographs also depicted where the clothing was located, as well as the injuries sustained by the victim, that he also took samples from underneath the victim's fingernails, which was done after she had been examined by the doctor and nurse, that the victim appeared to be intoxicated, that he was unable to locate any footprints at the scene, that the broadcast report included a physical and partial clothing description. (II, 94-130).

Officer Balzar testified to also responding to the location, that he talked to the victim, who appeared frightened and scared, that she also had cuts on her face, that she appeared to have been drinking, that a report was prepared, that the description of the individual included race (Hipsanic) as well as clothing (all black), that when defendant arrived on the scene, she appeared frightened and wanted him to go away, and that a statement was taken from her at the hospital after she had been examined. (II, 130-139).

Mr. Quinn, registered nurse, testified to taking a blood sample as well as hair samples from defendant pursuant to a search warrant (II, 139-141).

Ms. McKay, registered nurse, testified to examining the victim and processing samples pursuant to a standardized 'rape kit', that she noticed there appeared to be dirt under the victim's fingernails, that the victim indicated a bracelet was missing, identified various photographs of the victim, noting that her clothing was dirty and grassy, that a test indicated an alcohol level of .19, that the whole interview process last approximately 45 minutes, and that complainant was not asked to write out a statement (II, 142-153).

Sergeant Smith testified he searched defendant at the police station, removing a bracelet from his pants pocket, that defendant's face appeared to be scratched, and identified various photographs of defendant. (III, 5-12).

Officer Wright testified to securing the possible crime scene, and to taking photographs of clothing at the scene. (III, 13-17).

Officer Huggins testified to responding to the area, locating and securing potential evidence at the scene, and identifying same. (III, 17-25).

Ms. Spillane, an expert in forensic science as well as DNA analysis, testified to performing a DNA test of the material recovered from complainant's fingernails, that it appeared to have degraded, resulting in an incomplete profile, but that the results were sufficient to positively exclude both the victim and defendant as a source material. (III, 26-64).

Ms. Ferriss, 15 years of age, testified that on the night in question she had gone to a party where she was drinking, that she was wearing jewelry, that she had gotten sick and had thrown up, that when she left she thought she would go to a friend's house, but was unfamiliar with the area. As she was walking down a road, she became aware of someone behind her, that she kept telling the person to go away, identified defendant, and said that as she tried to run she was caught and wrestled with the person on a dirt road, that shw was screaming and was able to scratch his face, that her fingernails were short, that her jeans were taken off, identified the clothing she had been wearing, said that he inserted his fingers as well as his penis in her vagina, that she was able to free herself and ran to a house where she knocked in a door. Getting no answer, she continued down a road, where she saw another person who let her into his vehicle and was taken to a gas station. When the police arrived she was able to talk to them, and was then taken to the hospital where she was examined, she indicated the injuries she suffered, that defendant appeared skinnier than he was on that night, admitted she was unable to remember much of what had happened that evening because of her drinking, testified at the preliminary examination that she was unable to see his face, and the first time she discovered her bracelet was missing was at the hospital. (III, 66-108).

Lieutenant Keefer testified that he noticed what looked like fresh scratches on defendant's face shortly after his arrest, that defendant at the present time looked like he had lost a lot of weight, that there was a positive identification of defendant by complainant within minutes of the response, and that defendant was not weighed at the time of his arrest. (III, 108-114).

The prosecution rested. (III, 114). A motion for directed verdict was denied. (III, 115). The ...


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