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Johnson v. Bauman

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

October 12, 2016

KENNETH JOHNSON, Petitioner,
v.
CATHERINE BAUMAN, Respondent.

          OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

          ROBERT H. CLELAND UNITED STATES DISTRICT JUDGE.

         Petitioner Kenneth Johnson, incarcerated at the Ryan Correctional Facility in Detroit, 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 of armed robbery, [1] carjacking, [2] felon in possession of a firearm, [3] and possession of a firearm during the commission of a felony.[4] For the reasons that follow, the petition for a writ of habeas corpus will be denied.

         I. BACKGROUND

         Petitioner was convicted of the above offenses following a jury trial in the Wayne County Circuit Court.

         On December 23, 2008, Scott Dallo (the victim) stopped at a gas station between 5:15 and 5:30 p.m. on his way home from work. (Tr. 4/21/09, pp. 72-73, 90). Dallo went into the store to purchase a lighter and was approached by Petitioner who mumbled something to him. (Id., pp. 76-78). Petitioner followed Dallo out of the store and kept mumbling to Dallo. In an attempt to understand what Petitioner was saying, Dallo turned around and was asked by Petitioner “[a]re you straight?” Petitioner had a “pretty deep” voice and “all the words were together.” (Id., p. 80). When Dallo opened the door to his Jeep with the key fob, he found Marieo Sturges inside the Jeep, pointing a semi-automatic handgun at him. (Id., pp. 80-82, 85, 86).

         Once the three men were in the Jeep, Sturges told Dallo to drive, which he did. The men stopped in a location unknown to Dallo, at which point Sturges hit Dallo in the head with a handgun. (Id., pp. 84-87). Petitioner pulled Dallo from the seat of the Jeep and both he and Sturges punched Dallo on the head about twenty to twenty-five times. Petitioner took about eighty dollars in cash, Dallo's Sprint Trio cellphone, and driver's license and passed them to Sturges. The interior light of the car illuminated Johnson and Sturges so that Dallo could clearly see each of the men. (Id., pp. 88-90, 92-94).

         Petitioner threw Dallo to the ground, punched him a few more times and then drove off. Dallo flagged down a truck, borrowed a cell phone and called his father, who accompanied him to the police department to make a report. At the police station, Dallo accessed Sprint's website to utilize the “Family Locator” feature, which located the phone and displayed it on a map. (Id., pp. 102-05). A police car was dispatched to the location where the officers observed a group of four men, including Petitioner, walking out of a house toward Dallo's Jeep. (Id., pp. 221, 229-30, 259-60). Sturges had the key fob in his hand and unlocked the Jeep's doors. (Id., pp. 223-24, 260-61). The officers ordered all four men onto the ground. As Sturges got onto the ground, he pushed an object, which turned out to be Dallo's cell phone, under the snow. (Id., pp. 226, 246-47, 266).

         Dallo participated in a live line-up of eight individuals. Dallo identified Sturges because he had an afro. Mr. Dallo asked the police if he could hear the voices of the men in the line-up because he remembered Petitioner's mumbling voice “pretty well.” Dallo asked to hear the individuals say “get out of the car.” Petitioner had said that as he removed Dallo from the Jeep. Dallo testified that hearing the voices “helped tremendously.” Dallo testified he was “[a]lmost a hundred percent” sure that Petitioner had been one of the two men who had robbed him. (Id., pp. 107-09).

         The officer in charge of the investigation, Sergeant Javaier Chapa, subsequently showed Dallo a photo line-up containing eight photographs, including the other two men arrested with the Jeep that night. (Id., pp. 112-13, 331, 346-351). Mr. Dallo picked two men from the photo line-up. (Id., p. 115). Dallo correctly identified Sturges, but the second individual he selected was not Petitioner. (Id., pp. 146, 351, 353). The “[l]ive line-up was a lot easier for” Dallo because he could see the participants' respective heights and their hair. The photo line-up did not include pictures from the same day; they could have been from years ago. (Id., p. 116). Mr. Dallo also testified that Petitioner wore the same Prada shirt in court that he wore the evening of the carjacking. (Id., p. 134).

         The Michigan Court of Appeals affirmed in part Petitioner's convictions and vacated a conviction for unlawfully driving away an automobile charge. People v. Johnson, No. 292238, 2010 WL 4026105 (Mich. Ct. App. Oct. 14, 2010); reconsideration den. People v. Johnson, No. 292238 (Mich. Ct. App. Dec. 14, 2010), leave to appeal denied at 796 N.W.2d 249 (Mich. 2011).

         Petitioner filed a post-conviction motion for relief from judgment, which was denied. People v. Johnson, No. 09-000732-02-FC (Wayne County Circuit Court, April 5, 2013). The Michigan appellate courts denied Petitioner leave to appeal. People v. Johnson, No. 316798 (Mich.Ct.App. Oct. 25, 2013); leave to appeal denied at 846 N.W.2d 561 (Mich. 2014).

         Petitioner now seeks a writ of habeas corpus on the following grounds:

I. Petitioner was denied his Sixth and Fourteenth Amendment rights to effective assistance of counsel at trial when his attorney failed to seek to suppress the complainant's in-court and voice identification of Mr. Johnson as one of the perpetrators of the offense.
II. Petitioner was denied his Sixth Amendment right to a public trial when the trial court excluded the public from the courtroom during jury selection without taking any reasonable measures to accommodate the public's attendance during this portion of the Petitioner's trial.
III. Petitioner was denied his Fourteenth Amendment right to effective assistance of appellate counsel where appellate counsel failed to raise the issue that Mr. Johnson was denied his Sixth Amendment right to a public trial in the Petitioner's appeal of right.

         II. STANDARD

         Title 28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), imposes the following standard of review for habeas cases:

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 ...

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