United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY
JOHN CORBETT O'MEARA, District Judge.
Petitioner Demarcus Quamaine Curry has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is incarcerated at the G. Robert Cotton Correctional Facility in Jackson, Michigan. He challenges his convictions for armed robbery, assault with intent to do great bodily harm less than murder, possession of a firearm by a felon, and three counts of possession of a firearm during the commission of a felony, on the grounds that he was denied a fair trial by the admission of identification testimony that was tainted by an impermissibly suggestive photographic lineup, other acts evidence was improperly admitted, and offense variables were incorrectly scored. It is apparent from the face of the petition that habeas relief is not warranted. Therefore, the Court summarily dismisses the petition.
Following a jury trial in Oakland County Circuit Court, Petitioner was found guilty as set forth above. The Michigan Court of Appeals summarized the testimony adduced at trial as follows:
Defendant's convictions arise from the robbery and nonfatal shooting of Fred Fink outside an apartment complex in Pontiac, Michigan. The prosecution presented the testimony of Fink, a self-described Vicodin addict, who had arranged over the telephone to purchase Vicodin from a man named "Jesse." Fink later identified defendant as "Jesse." On September 7, 2011, after exchanging some telephone calls, defendant told Fink to meet him at the Newman Apartments in Pontiac to complete the transaction. A friend drove Fink from his residence in Rochester, Michigan, to the Newman Apartments. When Fink arrived, defendant was standing on the sidewalk. After greeting one another, defendant told Fink to follow him to the back of the apartments to complete the transaction. As they walked, defendant shook something in his pocket that sounded like pills in a bottle. While the men were between two buildings, defendant stopped, brandished a firearm, and demanded Fink's money. When Fink refused, defendant shot him in the leg twice. Fink then reached for the gun and defendant shot him in the leg a third time. Fink tried to run, but he fell to the ground and defendant demanded that Fink give him the "money or else." Fink gave defendant his money, and defendant fled. Two independent witnesses, who heard gunshots and observed defendant fleeing the area, directed the police to an apartment that belonged to defendant's girlfriend. An undercover police officer who was conducting surveillance on an unrelated case observed defendant enter the apartment. Defendant barricaded himself in the apartment before eventually surrendering. A firearm was recovered from the bushes outside the apartment's sliding door. Witnesses linked defendant to the firearm, and clothing consistent with the witnesses' description of the perpetrator was found inside the apartment where defendant was apprehended. The defense argued misidentification and attacked the credibility of the trial witnesses.
People v. Curry, No. 308027, 2013 WL 5663133, *1 (Mich. Ct. App. Oct. 17, 2013).
On January 3, 2012, Petitioner was sentenced as a fourth habitual offender to 30 to 80 years' imprisonment for the armed robbery conviction, 12 to 80 years' imprisonment for the assault with intent to do great bodily harm less than murder conviction, and 6 to 80 years' imprisonment for the felon in possession conviction, all to be served concurrently with one another and consecutively to concurrent terms of five years' imprisonment for the felony-firearm convictions.
Petitioner filed an appeal of right in the Michigan Court of Appeals raising these claims: (i) identification testimony tainted by impermissibly suggestive pretrial photographic lineup; (ii) admission of other act evidence denied him a fair trial; and (iii) offense variables were incorrectly scored. The Michigan Court of Appeals affirmed Petitioner's convictions and sentences. People v. Curry, No. 308027, 2013 WL 5663133 (Mich. Ct. App. Oct. 17, 2013). Petitioner raised the same claims in an application for leave to appeal in the Michigan Supreme Court. The Michigan Supreme Court denied leave to appeal. People v. Curry, 495 Mich. 978 (Mich. 2014).
Petitioner then filed the pending habeas petition. He raises the same claims raised in state court.
Upon the filing of a habeas corpus petition, the court must promptly examine the petition to determine "if it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief." Rule 4, Rules Governing Section 2254 cases. If the court determines that the petitioner is not entitled to relief, the court shall summarily dismiss the petition. McFarland v. Scott, 512 U.S. 849, 856 (1994) ("Federal courts are authorized to dismiss summarily any habeas petition that appears legally insufficient on its face"). The habeas petition does not present grounds which may establish the violation of a federal constitutional right. The petition will be dismissed.
Petitioner's claims are reviewed against the standards established by the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (AEDPA). The AEDPA provides:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the ...