United States District Court, W.D. Michigan, Southern Division
REPORT AND RECOMMENDATION
KENT United States Magistrate Judge.
Jonathan Garrett, a prisoner currently incarcerated at a
Michigan correctional facility, has filed a petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254.
27, 2009, following a bench trial, petitioner was convicted
of two counts of armed robbery, M.C.L. § 750.529;
first-degree home invasion, M.C.L. § 750.110a(2); and
possession of a firearm during the commission of a felony,
M.C.L. § 750.227b. People v. Garrett, No.
293248, 2011 WL 15335 at *1 (Mich.App. Jan. 4, 2011). The
court sentenced petitioner to a term of 10 to 17 years for
each count of armed robbery, 7 to 20 years for the home
invasion, with these sentences to be served concurrently with
each other and consecutive to a two-year sentence for felony
Michigan Court of Appeals (sometimes referred to as the
“state appellate court”) summarized the
underlying facts of petitioner's convictions as follows:
Defendant's convictions arise from his participation in a
robbery at a residential house where three individuals were
working on October 7, 2008. One of the complainants, Steve
Hess, knew defendant from a juvenile detention center that
they both attended and identified him before trial as one of
the robbers. However, the police were not successful in
locating Hess to testify at trial. The two other
complainants, Billy Cash and Meho Basic, testified at trial
and identified defendant as one of the two robbers. The
defense theory at trial was misidentification. Defendant
argued at trial that the complainants' identification was
not credible and inconsistent.
his convictions, petitioner moved for a new trial and the
court held an evidentiary hearing. See Motion Trans.
(March 12, 2010) (docket no. 27). Witnesses included
petitioner, his trial counsel, his mother, and his cousin.
Id. The trial court denied the motion for a new
trial in a rather extensive 19-page order. Order (April 6,
2010) (docket no. 30).
through counsel, raised five issues in his direct appeal to
the Michigan Court of Appeals:
I. Whether the court improperly refused to rule inadmissible
an identification acquired through a suggestive
II. Whether defendant's conviction was unconstitutional
and unlawful because of an invalid waiver of jury trial?
III. Whether there was sufficient evidence of home invasion
because the building entered was not proven to be a dwelling,
and the findings of fact and conclusions of law were
IV. Whether defendant was prejudiced by ineffective
assistance of counsel?
V. Whether defendant should be re-sentenced because the court
considered and scored him for psychological injury where no
evidence of this was presented?
Brief at p. vi (docket no. 28). The Michigan Court of Appeals
affirmed the conviction and sentences on January 4, 2011.
Garrett, No. 2011 WL 15335. Petitioner filed an
application for leave to appeal the same five issues, which
the Michigan Supreme Court denied on May 24, 2011.
See Application (docket no. 1-1, PageID.22-32, 40
and docket no. 29); People v. Garrett, 489 Mich. 936
(May 24, 2011). Petitioner raised the same five issues in
this habeas petition, which is now pending before the Court.
Petition at PageID.7-14 (Issues I, II, III and IV);
Memorandum (docket no. 1-1, PageID.18) (appendix containing
Standard of review under 28 U.S.C. § 2254
seeks relief under 28 U.S.C. § 2254, which provides that
“a district judge shall entertain an application for a
writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court only on the ground
that he is in custody in violation of the Constitution or
laws or treaties of the United States.” Before
petitioner may seek such relief in federal court, he must
first fairly present the substance of his claims to all
available state courts, thereby exhausting all state
remedies. Picard v. Connor, 404 U.S. 270, 277-78
(1981); Clemmons v. Sowders, 34 F.3d 352, 354 (6th
Cir. 1994); see 28 U.S.C. §2254(b)(1)(A). In
the present case, petitioner has exhausted his state remedies
with respect to his habeas claims.
the state court has adjudicated a claim on its merits, the
federal district court's habeas corpus review is limited
by the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), which provides in pertinent part that:
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
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
28 U.S.C. § 2254(d).
2254(d) reflects the view that habeas corpus is a
‘guard against extreme malfunctions in the state
criminal justice systems, ' not a substitute for ordinary
error correction through appeal.” Harrington v.
Richter, 562 U.S. 86, 101-102 (2011). See McFarland
v. Scott, 512 U.S. 849, 859 (1994) (“A criminal
trial is the main event at which a defendant's rights are
to be determined, and the Great Writ is an extraordinary
remedy that should not be employed to relitigate state
trials.”). The AEDPA “imposes a highly
deferential standard for evaluating state-court rulings, and
demands that state-court decisions be given the benefit of
the doubt.” Renico v. Lett, 559 U.S. 776, 773
(2010) (internal quotation marks and citations omitted). This
deferential standard “requires Petitioner to show
‘the state court's ruling on the claim being
presented in federal court was so lacking in justification
that there was an error well understood and comprehended in
existing [Supreme Court precedent] beyond any possibility for
fairminded disagreement.'” Blackmon v.
Booker, 696 F.3d 536, 538 (6th Cir. 2012), quoting
Harrington, 562 U.S. at 103. Thus, “[a] state
court's determination that a claim lacks merit precludes
federal habeas relief so long as fairminded jurists could
disagree on the correctness of the state court's
decision.” Harrington, 562 U.S. at 101
(internal quotation marks omitted).
the “contrary to” clause of § 2254(d)(1),
“a federal habeas court may grant the writ only if the
state court arrived at a conclusion opposite to that reached
by the Supreme Court on a question of law, or if the state
court decided the case differently than the Supreme Court has
on a set of materially indistinguishable facts.”
Jalowiec v. Bradshaw, 657 F.3d 293, 301 (6th Cir.
2011), citing Williams v. Taylor, 529 U.S. 362,
412-13 (2000). Under the “unreasonable
application” clause of § 2254(d)(1), “a
federal court may grant the writ only if the state court
identified the correct governing legal principle from the
Supreme Court's decisions but unreasonably applied that
principle to the facts of the petitioner's case.”
Id. A court may not issue a writ of habeas corpus
“simply because that court concludes in its independent
judgment that the relevant state-court decision applied
clearly established federal law erroneously or
incorrectly.” Williams, 529 U.S. at 411.
a determination of a factual issue by a state court is
presumed to be correct. 28 U.S.C. § 2254(e)(1). A habeas
petitioner has the burden of rebutting the presumption of
correctness by clear and convincing evidence that the state
court's determination was erroneous. Magana v.
Hofbauer, 263 F.3d 542, 546-47 (6th Cir. 2001). The
presumption of correctness accorded to a state court's
findings of fact on federal habeas review also applies to the
factual findings of a state appellate court based on the
state trial record. Brumley v. Winegard, 269 F.3d
629 (6th Cir. 2001).
In-court identification of petitioner (Issue I)
first ground for habeas relief, petitioner contends that the
trial court erred in permitting complainant Cash's
in-court identification of him as one of the robbers. The
trial court addressed this claim in denying the motion for a
new trial as follows:
The court conducted a hearing prior to the trial on the issue
of identification of the defendant as one of the robbers. The
United States Supreme Court held in Untied States v
Wade, 388 U.S. 218; 87 S.Ct. 1926; 18 L.Ed.2d 1149
(1967) that if pretrial identification procedures were
unnecessarily suggestive or conducive to irreparable
misidentification the trial court must hold an evidentiary
hearing at which the people must show by clear and convincing
evidence that the in-court identification had a basis
independent of the prior identification procedure prior to an
in-court identification at trial. After taking testimony on
the issue of identification the court found that this was a
simple case of an eyewitness who identified the defendant at
the preliminary examination. There was no lineup or photo
show up conducted or any prior misidentification by the
witnesses. There was nothing improper about the
The defendant cites several U.S. Supreme Court and Michigan
cases that condemn suggestive identification procedures
involving lineups, single photo show ups and other improper
identification procedures. He argues that allowing the
witness to identify the defendant in court is the same as a
one-person lineup. The cases relied on by the defendant all
involve a challenge to various pretrial identification
procedures which did not even occur in this case. There is no
case law that prohibits an eyewitness from appearing in court
at a preliminary examination or trial and that they believe
that the accused was the person who committed the charged
offense. Identification of the offender by eyewitnesses under
sworn testimony and subject to cross examination is one of
the fundamental purposes of a preliminary examination and a
trial. To say that a preliminary examination or trial
procedure where the witness identifies the defendant as the
offender is somehow improper turns the law on its ear. The
defendant's claim that he was prejudiced by a suggestive
identification procedure is meritless.
(April 6, 2010), slip op. at p. 10.
The Michigan Court of Appeals found petitioner's claim to
be without merit:
Defendant first argues that the trial court erred in
permitting Cash's in-court identification of him as one
of the robbers. “The trial court's decision to
admit identification evidence will not be reversed unless it
is clearly erroneous.” People v. Harris, 261
Mich.App. 44, 51; 680 N.W.2d 17 (2004). “Clear error
exists if the reviewing court is left with a definite and
firm conviction that a mistake has been made.”
“An identification procedure that is unnecessarily
suggestive and conducive to irreparable misidentification
constitutes a denial of due process.” People v.
Williams, 244 Mich.App. 533, 542; 624 N.W.2d 575 (2001).
If an identification procedure is impermissibly suggestive,
evidence concerning the identification is inadmissible at
trial unless an independent basis for the in-court
identification can be established. Id. at 542-543.
The fairness or suggestiveness of an identification procedure
is evaluated in light of the totality of the circumstances to
determine whether the procedure was so impermissibly
suggestive that it led to a substantial likelihood of
misidentification. People v. Kurylczyk, 443 Mich.
289, 302; 505 N.W.2d 528 (1993); People v. Hornsby,
251 Mich.App. 462, 466; 650 N.W.2d 700 (2002). “The
need to establish an independent basis for an in-court
identification arises [only] where the pretrial
identification is tainted by improper procedure or is unduly
suggestive.” People v. Barclay, 208 Mich.App.
670, 675; 528 N.W.2d 842 (1995).
Here, defendant does not argue that a pretrial identification
procedure was improper or unduly suggestive. Rather,
defendant's argument is premised on the fact that no
pretrial lineup was ever conducted, and that Cash first
identified him in a courtroom setting. A defendant has no
constitutional or statutory right to a pretrial
identification. People v. Farley, 75 Mich.App. 236,
238; 254 N.W.2d 853 (1977). Because there was no pretrial
identification procedure that was unduly suggestive, it is
not necessary to determine whether there is an independent
basis for Cash's in-court identification. Nonetheless,
the record establishes that there was an independent basis
for Cash's in-court identification. The following factors
are considered in determining whether an independent basis
exists for the admission of an in-court identification:
(1) [P]rior relationship with or knowledge of the defendant;
(2) opportunity to observe the offense, including length of
time, lighting, and proximity to the criminal act; (3) length
of time between the offense and the disputed identification;
(4) accuracy of description compared to the defendant's
actual appearance; (5) previous proper identification or
failure to identify the defendant; (6) any pre-lineup
identification lineup of another person as the perpetrator;
(7) the nature of the offense and the victim's age,
intelligence, and psychological state; and (8) any
idiosyncratic or special features of the defendant.
[People v. Thomas Davis, 241 Mich.App. 697, 702-703;
617 N.W.2d 381 (2000).]
It is not necessary that all factors be given equal weight.
People v. Kachar, 400 Mich. 78, 97; 252 N.W.2d 807
In this case, Cash testified that he had an opportunity to
view defendant a few hours before the robbery, and again
during the robbery. The first visit occurred during a normal
setting, when defendant came to the house to inquire about
its availability and engaged in a business conversation with
Cash. It was daylight and defendant stood approximately four
feet from Cash. When defendant returned to the house the
second time, Cash engaged in further conversation with him
before he committed the robbery, telling him not to stand on
the new tile. Cash testified that he observed the tattoo
markings on defendant's neck and left hand, which were
special identifying characteristics that were noticeable.
Moreover, Cash testified that he was certain of his
identification of defendant, and he never identified anyone
other than defendant. Considering Cash's prior encounter
with defendant and the nature and circumstances of that
encounter, that Cash again had ample opportunity to observe
defendant immediately before and during the offense,
Cash's ability to identify distinguishing marks on
defendant, the level of certainty in Cash's
identification of defendant, and that there was no evidence
that Cash had ever identified anyone else, the record clearly
establishes that there was an independent basis for
Cash's in-court identification. Accordingly, the trial
court did not err in allowing Cash's in-court
identification at trial.
Garrett, 2011 WL 15335 at *1-2.
extent petitioner contends that he had a constitutional right
to a pre-trial lineup, his contention is without merit.
“An accused has no absolute or constitutional right to
a lineup.” United States v. Robertson, 606
F.2d 853, 857 (9th Cir. 1979). See Branch v.
Estelle, 631 F.2d 1229, 1234 (5th Cir. 1980) (“the
law is settled that a defendant has no Constitutional right
to a line-up”); Paris v. Rivard, 105 F.Supp.3d
701, 726 (E.D. Mich. 2015) (“[a]n accused has no
constitutional right to a pretrial lineup”). See
also, United States v. Hill, 967 F.2d 226, 233
(6th Cir. 1992) (the government was not required to conduct a
lineup prior to a witness' in-court identification).
extent petitioner contends that his in-court identification
violated a constitutional right, his contention fails.
“[D]ue process protects the accused against the
introduction of evidence of, or tainted by, unreliable
pretrial identifications obtained through unnecessarily
suggestive procedures.” Moore v. Illinois, 434
U.S. 220, 227 (1977). The Supreme Court has established a
two-step analysis for determining the admissibility of
identification evidence. “First, a defendant bears the
burden of proving the identification procedure was
impermissibly suggestive. Second, if the defendant proves
that the identification procedures were impermissibly
suggestive, the trial court must determine whether, under the
totality of the circumstances, the testimony was nevertheless
reliable.” Hill, 967 F.2d at 230. In Neil
v. Biggers, 409 U.S. 188 (1972), the Supreme Court set
forth five factors that must be considered when evaluating
the reliability of an identification procedure performed at a
(1) the witness's opportunity to view the criminal at the
time of the crime; (2) the witness's degree of attention
at the time of the crime; (3) the accuracy of the
witness's prior description of the defendant; (4) the
witness's level of certainty when identifying the suspect
at the confrontation; and (5) the length of time that has
elapsed between the crime and the confrontation.
Hill, 967 F.2d at 230, citing Biggers, 409
U.S. at 199-200. “All of the concerns that underlie the
Biggers analysis, including the degree of
suggestiveness, the chance of mistake, and the threat to due
process are no less applicable when the identification takes
place for the first time at trial.” Hill, 967
F.2d at 232. Here, the state appellate court addressed the
relevant considerations under Biggers and determined
that the identification was sufficiently reliable. See
Garrett, 2011 WL 15335 at *1-2.
Michigan Court of Appeals' decision was neither contrary
to, nor an unreasonable application of, clearly established
Federal law as determined by the Supreme Court; nor was the
decision based on an unreasonable determination of the facts
in light of the evidence presented. 28 U.S.C. § 2254
(d). Accordingly, petitioner is not entitled to relief on
Invalid waiver of jury trial (Issue II)
petitioner contends that his jury waiver was invalid because
it was not knowingly or voluntarily made. The Michigan Court
of Appeals denied this claim:
A trial court's determination that a defendant validly
waived his right to a jury trial is reviewed for clear error.
People v. Leonard, 224 Mich.App 569, 595; 569 N.W.2d
663 (1997). “The adequacy of jury trial waiver is a
mixed question of fact and law.” People v.
Cook, 285 Mich.App 420, 422; 776 N.W.2d 164 (2009). In
order for a waiver of the constitutional right to a jury
trial to be valid, it must be both knowingly and voluntarily
made. Id. MCR 6.402(B) sets forth the procedure for
securing a proper jury trial waiver:
Before accepting a waiver, the court must advise the
defendant in open court of the constitutional right to trial
by jury. The court must also ascertain, by addressing
defendant personally, that the defendant understands the
right and that the defendant voluntarily chooses to give up
that right and to be tried by the court. A verbatim record
must be made of the waiver proceeding.
“By complying with the requirements of MCR 6.402(B), a
trial court ensures that a defendant's waiver is knowing
and voluntary.” Cook, 285 Mich.App at 422.
The record shows that defendant's jury waiver complied
with MCR 6.402(B). Further, the colloquy between defendant
and the trial court clearly indicates that defendant
understood his right to jury trial and voluntarily waived
that right. Defendant does not argue that he was not informed
of his right to a jury trial, but rather complains that the
trial court failed to explain various aspects of that right,
such as that he could participate in jury selection, that a
jury is composed of 12 members of the community, that a jury
verdict must be unanimous, or how various evidentiary rules
might apply at a jury trial. However, a court is not required
to provide such advice. See Leonard, 224 Mich.App at
595-596; People v. James (After Remand), 192
Mich.App 568, 570-571; 481 N.W.2d 715 (1992). Further, the
trial court ascertained that defendant understood what it
meant to have a trial by jury by ...