United States District Court, E.D. Michigan, Southern Division
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
PAUL D. BORMAN, District Judge.
Djuan Jamar Cousins, ("petitioner"), presently confined at the Alger Correctional Facility in Munising, 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 armed robbery, M.C.L.A. § 750.529, felon in possession of a firearm, M.C.L.A. § 750.2224f, and felony-firearm, M.C.L.A. § 750.227b. For the reasons stated below, the petition for writ of habeas corpus is DENIED.
Petitioner was charged with one count each of armed robbery, assault with intent to rob while armed, assault with a dangerous weapon (felonious assault), felon in possession of a firearm, and felony-firearm. Following a jury trial, petitioner was convicted of one count of armed robbery, one count of felon in possession of a firearm, and felony-firearm. Petitioner was acquitted of the remaining charges.
Kevin Boyd testified that while walking south on Gratiot, near Peter Hunt Street, five men approached him. One man wore a tan jogging suit and the other four men wore dark clothing. The man in the tan jogging suit asked, "What you got, what you got?" Boyd asked the man to repeat himself. He again said, "What you got, what you got?" (Tr. 9/14/10, pp. 155-158.).
Another man, who Boyd identified at trial as petitioner, then lifted his black hooded sweatshirt and showed Boyd a gun in his waistband. Boyd testified that he responded, "I ain't got anything, I ain't got anything." Boyd walked through the group of men to cross Gratiot, passing by petitioner who again flashed the gun at him. Boyd tried to distract the men by claiming the police had arrived, and ran past the group of men. Boyd then called the police. ( Id., pp. 156, 158-166.).
At this time, Dewone Hudson was waiting at the bus stop at Gratiot and Harper. He saw two men approach. One man, whom he identified at trial as petitioner, wore a black hooded sweatshirt and another man wore a brown shirt and light brown pants. ( Id., pp. 102-103, 119.). When they were about two feet from Hudson, the man in the brown clothing asked Hudson what he had in his pocket. ( Id., pp. 120-121, 102-104.). Hudson testified that petitioner then pulled a silver gun with a black handle halfway out of the right side of his waistband. ( Id., pp. 104, 106.). Afraid that petitioner would shoot him, Hudson gave the men his hat, shoes, phone, phone charger, and wallet containing cash. The men then told Hudson to turn around and walk in the opposite direction, as they ran back across Gratiot. ( Id., pp. 106-107.).
Maxine Burney pulled into a grocery store parking lot at Gratiot and Harper at about 7:45 p.m. and observed five young men. Four of the men wore dark clothing and one wore cream or tan. Burney watched as two of the men separated from the group to cross the street to the bus stop. ( Id., pp. 139-143.). When Burney saw Hudson, she drove toward him and learned he had been robbed. ( Id., p. 150.). She called the police. The police interviewed Hudson, Burney, and Boyd, who was in the parking lot of the grocery store. ( Id., pp. 108-109, 112, 151, 164-165.). The police pursued the men and later found petitioner wearing a baseball cap that matched the description of the stolen cap. (Tr. 9/15/10, pp. 8-10.).
At trial, Boyd described petitioner as "dark-complected" or "dark to me." (Tr. 9/14/10, p. 170.). Similarly, Hudson had described petitioner as "very dark" and "black, " but at trial, Hudson testified that petitioner did not have a dark complexion. ( Id., pp. 125-126; 134-135.). Furthermore, neither Boyd nor Hudson recalled that petitioner had facial hair, a "unibrow, " or a scar on his face, which he had at trial. ( Id., pp. 170-171.).
Petitioner's trial counsel called Officer Scott Spencer to testify about his recollection of petitioner's appearance at the time of the robbery. Initially, Spencer could not recall petitioner's appearance. Trial counsel asked if Spencer completed a form identifying petitioner's characteristics. (Tr. 9/15/10, pp. 56-57.). The trial court instructed the attorneys to approach the bench for a conference off the record, at which point trial counsel was presented with a photograph which was then utilized to refresh Spencer's memory. (Id. ). After reviewing the photograph provided to defense counsel, Spencer's recollection of petitioner's appearance at the time of the robbery was refreshed. He recalled that petitioner had a beard and mustache. He also described petitioner as medium-complected. ( Id., pp. 58-89.). Spencer could not see petitioner's scar in the photograph and he testified that petitioner's eyebrows were more separated at the time of the robbery than at trial. Spencer opined that petitioner's face looked slightly different at trial than it had when he first saw petitioner. ( Id., pp. 60-61.).
In addition to these facts, this Court recites verbatim the relevant facts regarding petitioner's conviction from the Michigan Court of Appeals' opinion affirming his conviction, which are presumed correct on habeas review. See Long v. Stovall, 450 F.Supp.2d 746, 749 (E.D. Mich. 2006):
Defense counsel did not review the arrest photograph before trial, and counsel admitted that if he had reviewed it, he would not have called Sergeant Scott Spencer as a defense witness. Spencer's testimony in some ways undermined defendant's theme at trial that the victims' identifications of defendant were unreliable. Although the reasons for counsel's failure to review the arrest photograph are unclear, we will assume, arguendo, that the failure to review it fell below an objective standard of reasonableness.
In this case, however, defense counsel used Spencer's testimony and the arrest photograph to support his closing argument, during which he argued extensively that defendant was misidentified. For example, counsel emphasized that in the photograph, the perpetrator had a full beard, whereas two witnesses did not mention a beard in their descriptions of the perpetrator. Defense counsel's actions or inactions did not deprive defendant of his theory of defense that the victims' identifications of defendant were unreliable.
However, Spencer did not provide the only substantive evidence of defendant's guilt. Kevin Boyd was 100 percent sure of his in-court identification of defendant and Dewone Hudson was 65 to 75 percent sure of his in-court identification, and Boyd and Hudson each identified the same handgun as the gun defendant used during the criminal incidents. Moreover, defendant was wearing Hudson's hat and he possessed Hudson's cellular telephone during a police chase, and he demonstrated consciousness of guilt by running from the police and by disposing of a gun and Hudson's items during the chase. Under all the circumstances, defendant has not shown a reasonable probability ...