United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF
HABEAS CORPUS, DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY, AND GRANTING PETITIONER LEAVE TO APPEAL IN
HONORABLE VICTORIA A. ROBERTS UNITED STATES DISTRICT JUDGE
Earl McCaskill, (“Petitioner”), confined at the
Macomb Correctional Facility in New Haven, Michigan, filed a
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. Petitioner challenges his conviction for armed
robbery, M.C.L.A. § 750.529; felon in possession of a
firearm, M.C.L.A. § 750.224f; and felony firearm,
M.C.L.A. § 750.227b. The petition for writ of habeas
corpus is DENIED.
was convicted after a jury trial in Wayne County Circuit
Court. This Court recites verbatim the relevant facts relied
upon by the Michigan Court of Appeals, which are presumed
correct on habeas review pursuant to 28 U.S.C. §
2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413
(6th Cir. 2009):
Defendant's convictions arise from the July 21, 2011
robbery of a CVS store located at 2590 W. Grand Boulevard in
Detroit (the Grand Blvd. CVS). At trial, the prosecution
presented evidence that defendant was involved in a similar
robbery on July 13, 2011, at another CVS store located at
18585 E. Warren Avenue in Detroit (the Warren Ave. CVS).
There was evidence identifying defendant as one of the
robbers in both robberies. Defendant maintained that he was
In the Grand Blvd. CVS robbery, defendant's accomplice
ascertained that Myiea Summerour was a manager and then,
after conversing with defendant in another aisle, both men
walked back to her, defendant showed her a gun that he had
tucked in his shorts, and defendant told her to take the
other man back to the safe. Noelle Beasley, who was in the
back, opened the safe and gave the man $5, 373. Meanwhile,
defendant stopped Kenyetta Marshall when she observed what
was happening and told her not to move, showing her the
imprint of the gun on his hip and stating that it was not her
money. After the robbers left, Summerour called 911.
Both Marshall and Beasley were unable to identify defendant
in a photographic lineup, which was not shown to Summerour.
Beasley identified someone else. In a subsequent live lineup,
Beasley could not identify defendant, and Marshall picked
someone else, but Marshall identified defendant at trial as
the person who stopped her. Summerour picked defendant out of
a live lineup and identified him at trial. However, she had
initially indicated that the perpetrator was shorter than
defendant, stockier, and had a lighter complexion, and did
not notice a lack of teeth.
In the Warren Ave. robbery, Carlos Chavez, the manager on
duty, was called from the back room because defendant wanted
to talk to him; defendant inquired whether CVS was hiring
and, while defendant was subsequently filling out paperwork,
he raised up his shirt, revealing a gun, and told Chavez that
when he was done they were going to go to the back room and
Chavez was going to give him money. Defendant also advised
that he was with another man who was with an employee
(Antonio Allen) in the photo department. As they walked to
the office past the photo area, defendant held the gate for
his accomplice and Chavez. Allen said that defendant stayed
with him and showed him a bulge under his shirt. Chavez said
that when he and the other man reached the office, he gave
the other man all the cash he had, that the man left the
office, and that he watched him and defendant leave the
store. Allen then called 911.
Chavez identified defendant in a photographic lineup, but
Allen was unable to do so. Both Chavez and Allen identified
defendant in a live lineup. Chavez indicated that the
perpetrator had a black mustache, did not note any gray, even
though defendant had gray in his goatee at the time of the
photo and live lineup, and said that he had “some
teeth”; at the preliminary examination, he had said
that the perpetrator's teeth were “normal.”
Allen said he did not notice if the person did or did not
People v. McCaskill, No. 318257, 2015 WL 1069400, at
* 1 (Mich. Ct. App. Mar. 10, 2015).
conviction was affirmed. Id., lv. den. 498 Mich.
885, 869 N.W.2d 597 (2015).
seeks a writ of habeas corpus on the following grounds: (1)
Officer Roland Brown impermissibly invaded the province of
the jury by offering opinion testimony that Petitioner was
the person in the surveillance video and photographs of the
video and that Ms. Beasley was wrong when she identified
someone else as the perpetrator; trial counsel was
ineffective for eliciting Officer Brown's damaging
testimony, and (2) Petitioner was prejudiced by the admission
of other acts testimony involving an unrelated robbery.
Standard of Review
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 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 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.
decision of a state court is “contrary to”
clearly established federal law if the state court arrives at
a conclusion opposite to that reached by the Supreme Court on
a question of law or if the state court decides a case
differently than the Supreme Court has on a set of materially
indistinguishable facts. Williams v. Taylor, 529
U.S. 362, 405-06 (2000). An “unreasonable
application” occurs when “a state court decision
unreasonably applies the law of [the Supreme Court] to the
facts of a prisoner's case.” Id. at 409. A
federal habeas court may not “issue the writ simply
because that court concludes in its independent judgment that
the relevant state-court decision applied clearly established
federal law erroneously or incorrectly.” Id.
Supreme Court explained that “[A] federal court's
collateral review of a state-court decision must be
consistent with the respect due state courts in our federal
system.” Miller-El v. Cockrell,537 U.S. 322,
340 (2003). The “AEDPA thus 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. 766, 773 (2010)((quoting Lindh v.
Murphy,521 U.S. 320, 333, n. 7 (1997); Woodford v.
Viscotti,537 U.S. 19, 24 (2002)(per curiam)).
“[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 v. Richter,562 U.S. 86, 101
(2011)(citing Yarborough v. Alvarado,541 U.S. 652,
664 (2004)). To obtain habeas relief in federal court, a
state prisoner is required to show that the state court's
rejection of his or her claim “was so lacking in
justification that there was an error well understood and
comprehended in existing law beyond ...