United States District Court, E.D. Michigan, Southern Division
MEMORANDUM AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY
AVERN COHN, District Judge.
This is a habeas case under 28 U.S.C. § 2254. Petitioner, who is proceeding pro se, is incarcerated at a Michigan correctional facility as a result of his conviction, following a bench trial, of assault with intent to commit murder, M.C.L. § 750.83, felon in possession of a firearm, M.C.L. § 750.224f, and possession of a firearm during the commission of a felony. M.C.L. § 750.227b. Petitioner was sentenced to 25-to-40 years for the assault conviction, a concurrent term of 3-to-5 years for the felon in possession conviction, and a consecutive two years for the felony firearm conviction. Petitioner raises two claims in his petition: (1) there was insufficient evidence to support the scoring of an offense variable in the sentencing guidelines, and (2) Petitioner's trial counsel was ineffective for failing to challenge the admission of the victim's identification testimony because it resulted from an unduly suggestive photographic procedure. For the reasons that follow, the petition will be denied for lack of merit.
Marco Sewell testified that he was seated in his car in a parking lot in Detroit when a man suddenly jumped in his back seat. The man pointed a handgun at this head and demanded Sewell's possessions. Rather than comply, Sewell moved toward the man who pulled the trigger of the handgun; it jammed. His assailant ejected the faulty round and a struggle over the handgun ensued outside the vehicle. During the struggle the assailant's hat fell to the ground. He fired again, and Sewell was shot in the arm. The man then jumped in Sewell's car and drove away.
A surveillance camera from the scene showed two people fall out of Sewell's car. One man was holding the arm of the other man. Police found a hat, a spent casing, and a live round on the ground where Sewell's car had been parked.
DNA analysis was performed on hairs found in the hat. A year later the DNA profile was determined to match Petitioner. A photographic lineup procedure was subsequently conducted, and Sewell identified Petitioner as his assailant.
Petitioner testified in his own defense. He said that he did see Sewell that night, but that he took eighty dollars from a woman in the car to buy crack cocaine and never returned.
In rendering its verdict, the trial court found Sewell's testimony credible and found Petitioner's testimony not to be credible.
Following his conviction and sentence, Petitioner filed a claim of appeal in the Michigan Court of Appeals, raising the following claim:
I. There was insufficient evidence of premeditated intent for Butler to kill the victim to support scoring 50 points for Offense Variable 6. Petitioner filed a pro se supplemental brief, raising the following additional claim:
I. Butler was denied the effective assistance of counsel by his counsel's failure to object or file a motion to suppress the pre-trial photographic array ID used.
The Michigan Court of Appeals affirmed Petitioner's conviction in an unpublished opinion. People v. Butler, No. 304447, 2012 WL 6604713 (Mich. Ct. App. Dec. 18, 2012). Petitioner subsequently filed an application for leave to appeal in the Michigan Supreme Court, raising the same claims as in the Michigan Court of Appeals. The Michigan Supreme Court denied the application because it was not ...