The opinion of the court was delivered by: Denise Page Hood United States District Judge
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Craig David Erving ("Petitioner") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently incarcerated at the Carson City Correctional Facility in Carson City, Michigan for convictions on two counts of unarmed robbery. Petitioner challenges his convictions on the following grounds: (i) the giving of an unarmed robbery jury instruction denied Petitioner a fair trial; (ii) counsel's failure to object to the unarmed robbery instruction constituted ineffective assistance of counsel; and (iii) the trial judge erred in scoring Petitioner's offense variables during sentencing. Because the unarmed jury instruction is supported by the record and counsel's failure to object to the instruction was an instrument of sound trial strategy, and because Petitioner's sentencing claim is non-cognizable on habeas corpus review, this Court will deny the petition.
Petitioner's convictions arise from the robbery of two individuals during the early morning hours of August 1, 2004, in the City of Detroit. Three teenagers, Anthony Franks, Molly Tierney, and Heather Elliott, were walking to Franks' home, when they were approached by a man who demanded that they turn over all their money to him. Franks and Elliott gave the man their money, the third teenager, Tierney, did not, because she had no money.
At trial, Franks identified Petitioner as the individual who demanded his money. Franks testified that, after Franks and Elliott gave Petitioner their money, Petitioner ordered him and Tierney to continue walking and Elliott to accompany Petitioner. As Franks and Tierney were walking away, Franks looked back and saw Petitioner walking behind Elliott, holding a gun to her head. Franks and Tierney walked to a liquor store where they called police. Police took Franks and Tierney to the location where the incident occurred. After approximately one-and-a-half hours, Petitioner was brought to the location. Franks testified that, initially, he was not certain that Petitioner was the individual who robbed him, but, after a few minutes, he was able to positively identify Petitioner.
Molly Tierney testified that a man she identified at trial to be Petitioner approached her, Franks, and Elliott as they were walking home and demanded money. She had no money to give him. At some point, when he was standing about two feet from her, he pulled out a black handgun. Tierney testified that he told her and Franks to leave. He then grabbed hold of Elliott. He held the gun toward Elliott's head as he led her away. Tierney further testified that she and Franks were taken to the location where the robbery occurred. Petitioner was brought to the location, and Tierney identified him as the man who had robbed her.
Heather Elliott testified that a man she identified as Petitioner demanded money from her and her two friends. She gave him $25.00. He then pulled out a gun, and told Franks and Tierney to step back, and told Elliott she must come with him. He kept the gun to the back of her head and led her down a side street. Elliott testified that he pushed her into an abandoned building and sexually assaulted her. When a car drove by and a helicopter flew overhead, Petitioner ran. Elliott was taken to the hospital by her father. She testified that she was later taken to the police station, where she identified Petitioner in a lineup.
Detroit Police Officer Ryan Connor testified that, sometime between 2:00 and 3:00 a.m., on August 1, 2004, he and his partner, Greg Gilinski, were dispatched to look for a robbery suspect in a certain Detroit neighborhood. They were given the following description of the suspect: black male, 150 pounds, thin build, wearing a white tank top underneath a blue button-up shirt, and blue jean shorts. They saw a man matching this description. Officer Connor stopped the squad car, exited the vehicle, and ordered Petitioner to stop. Petitioner did not stop. Instead, he walked briskly to a residence. As Petitioner was walking up the steps of the home, he tossed something under a patio chair. Officer Connor drew his weapon and ordered Petitioner to exit the house. Petitioner did so and was apprehended. Officer Connor looked under the patio chair and found a blue flannel shirt and a baseball hat. Officer Connor testified that he then took Petitioner to the location of the robbery for a show up.
Detroit Police Sergeant Erik Decker testified that he was present for the show up. Molly Tierney positively identified Petitioner as the robber within a second or two. Anthony Franks thought the suspect looked like the robber, but was not certain.
Detroit Police Sergeant Otha Craighead testified that he conducted a live lineup for Heather Elliott to view on August 1, 2004. He testified that Elliott immediately picked Petitioner out of the lineup.
Petitioner stood trial on seven counts: two counts of criminal sexual conduct in the first degree, two counts of armed robbery, one count of assault with intent to rob, one count of felon in possession of a firearm, and one felony firearm count. Following a jury trial in Wayne County Circuit Court, Petitioner was convicted of two counts of unarmed robbery and acquitted on all other counts. Petitioner was sentenced as a fourth habitual offender to twelve to twenty years in prison for each count of unarmed robbery, to be served concurrently.
Petitioner filed an appeal as of right in the Michigan Court of Appeals raising six claims for relief: (i) the trial court erred in giving an unarmed robbery jury instruction; (ii) trial counsel was ineffective for failing to object to the unarmed robbery instruction; (iii) offense variables were incorrectly scored; (iv) sentence violated Blakely v. Washington, 542 U.S. 296 (2004); (v) trial counsel was ineffective for failing to object at sentencing; and (vi) remand was necessary to correct pre-sentence information report.
In an unpublished, per curiam decision, the Michigan Court of Appeals affirmed Petitioner's convictions, but remanded to the trial court to strike from the pre-sentence information report references to the sexual assault that the trial court had determined were not substantiated. People v. Erving, No. 261899, 2006 WL 2918917 (Mich. Ct. App. Oct. 12, 2006).
Petitioner then sought leave to appeal to the Michigan Supreme Court, raising the same claims raised in the Michigan Court of Appeals. In a brief order dated February 27, 2007, the Michigan Supreme Court denied Petitioner's leave to ...