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Garrett v. Curtin

United States District Court, W.D. Michigan, Southern Division

October 7, 2016

CINDI CURTIN, Respondent.


          RAY KENT United States Magistrate Judge.

         Petitioner 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.

         I. Background

         On May 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 firearm. Id.

         The 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.


         After 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).

         Petitioner, 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 identification procedure?
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 insufficient?
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?

         Appellant's 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 Issue V).

         II. Standard of review under 28 U.S.C. § 2254

         Petitioner 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.

         Where 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:

         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-

(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; or
(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).

         “Section 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).

         Under 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.

         Finally, 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).

         III. Discussion

         A. In-court identification of petitioner (Issue I)

         In his 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 identification procedure.
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.

         Order (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.” Id.
“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 (1977).
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.

         To the 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).

         To the 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 police station:

(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.

         The 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 this claim.

         B. Invalid waiver of jury trial (Issue II)

         Next, 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 ...

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