United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF
HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF
H. CLELAND UNITED STATES DISTRICT JUDGE.
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,  carjacking,  felon in
possession of a firearm,  and possession of a firearm during the
commission of a felony. For the reasons that follow, the
petition for a writ of habeas corpus will be denied.
was convicted of the above offenses following a jury trial in
the Wayne County Circuit Court.
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).
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).
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).
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).
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).
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).
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).
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.
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 ...