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Ozier v. Jackson

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

June 6, 2017

ROGER LEE OZIER, Petitioner,
v.
SHANE JACKSON, Respondent.

          OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS

          HON. MARK A. GOLDSMITH, Judge

         Petitioner Roger Lee Ozier, presently confined at the Brooks Correctional Facility in Muskegon Heights, Michigan, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Dkt. 1), challenging his conviction for bank robbery, Mich. Comp. Laws § 750.531; armed robbery, Mich. Comp. Laws § 750.529; and being a fourth felony habitual offender, Mich. Comp. Laws § 769.12. For the reasons stated below, the Court denies the petition for writ of habeas corpus, declines to issue a certificate of appealability, but grants Petitioner leave to appeal in forma pauperis.

         I. BACKGROUND

         Petitioner's conviction arises out of the robbery of a credit union in Blackman Township, Michigan, on October 8, 2012.

         Laura Hayes was the branch manager at Aeroquip Credit Union on October 8, 2012. 4/29/2013 Trial Tr. at 121 (Dkt. 6-3). During the morning, a person entered the credit union wearing a hoodie, Halloween mask, and sunglasses. The person approached teller Tammy Walker with a hand inside the right-hand pocket of the hoodie and demanded money. Walker gave the robber between four and five thousand dollars. Hayes called the police less than a minute after the robber exited the bank. The police arrived within a minute or two of being called. The bank's video surveillance system was given to the police. Id. at 124-128. Although Hayes could not give any identifying characteristics of the perpetrator - because the robber was completely covered - Hayes did indicate that the perpetrator was between five and six feet tall and 160 to 180 pounds. Id. at 129, 132.

         Walker testified that she worked as a teller at the credit union on the day in question. Id. at 140-141. Shortly after the credit union opened, an individual wearing a mask, gloves, sunglasses, and a hoodie came inside. Based on his voice, Walker believed the perpetrator to be an African-American male. Id. at 146, 155. The person had his hand in his pocket, leading Walker to conclude that the perpetrator was armed. Id. at 142-143, 146, 153. The man told Walker three times to “put [her] hands on the counter” and demanded money. Id. at 144, 158. Scared, Walker turned over credit union funds. The man took out his right hand to retrieve some of the money, the total amount of which Walker believed was $3, 610.00. Id. at 144-145.

         Located two blocks south of the credit union was the Wildwood Auto Wash, where Allen Miracle was an employee. On the morning of the incident, Miracle noticed a car around 9:00 a.m. in one of the bays at the car wash. The person did not use the bay for a car wash, but threw away some trash. Miracle spoke with the police after the robbery and gave them surveillance video, described below, which was played for the jury. Id. at 163-166, 168-169, 176, 180.

         Detective Robert Shrock of the Blackman-Leoni Department of Public Safety testified that he was called in the day after the robbery and viewed the surveillance video of the car wash. Id. at 181-183. Detective Shrock testified that the surveillance video showed the car leaving the car wash and turning toward the credit union. Once the car parked, another surveillance camera captured a man getting out of the passenger side of the vehicle wearing a red tee-shirt with “Real Men Wear Red” written on it. Id. at 190-193.

         Gina Gettel of the Michigan State Police was dispatched to the crime scene. Gettel obtained the video surveillance evidence from the car wash, as well as from Daniel Hattey, whose home was located across the street from the credit union and was equipped with an exterior video surveillance system. Gettel noted that the vehicle at the car wash and in Hattey's video were the same make and model. The car wash video footage showed two subjects exiting the vehicle and throwing away trash. Gettel could not identify the persons from the video tape. Id. at 195-200, 206-211, 222. Gettel later did a trash pull from that container and recovered a piece of paper with an address on it of Shirley Brown, 101 Francis Court, Jackson, Michigan. Id. at 211-212, 221, 228. One of the items recovered was a falsified temporary paper plate from the Secretary of State. Video surveillance showed a person taping a white piece of paper to the back window of the suspect vehicle before the car left the car wash bay. Id. at 213-214. A partial plate was determined from the video surveillance. It was a Michigan handicapped plate with “122” on it, and the vehicle appeared to be a silver Ford. Id. at 220, 232.

         Trooper Scott Watson assisted in the investigation of the bank robbery. Through his investigation, he learned that the name of the person who exited the passenger side of the vehicle was determined to be Roger Ozier. Petitioner's house was searched pursuant to a search warrant. Trooper Watson admitted that Petitioner was not the first suspect in this case. Id. at 235-239.

         Detective Christopher Boulter of the Blackman-Leoni Township Police Department responded to the scene shortly after the robbery occurred. Detective Boulter testified that there had been a number of other bank robberies in the Jackson County area. 4/30/2013 Trial Tr. at 5- 6, 8-9 (Dkt. 6-4). Boulter obtained the surveillance video from Hattey's house and sent officers to retrieve the video from the car wash. Detective Boulter stated that a credit union customer, identified as Mark Wecker, followed the robber out of the building and identified the suspect's vehicle as a “gray or silver vehicle.” Id. at 11, 32. From viewing the car wash video, Detective Boulter saw a suspect wearing a light jacket and an orange or red tee-shirt underneath, blue jeans, and tennis shoes put on a grey hooded sweatshirt. Id. at 13-14. A fake license plate was recovered out of a trash bin, which led to an address and an individual named Otis Brown. Brown's address matched a handicap license plate of “1-2-2-9-E, ” which was assigned to a vehicle that matched the description of the car seen driving away from the credit union. Id. at 16. Further investigation led Detective Boulter to believe that Darius Griffin, Brown's grandson, was the driver of the vehicle. A search warrant was obtained and executed on Brown's residence. Id. at 17, 21.

         A few days later, a detective received a tip that Petitioner was the passenger in the vehicle and the suspected robber of the Aeroquip Credit Union. A search warrant was obtained and executed on Petitioner's residence. A tee-shirt and a pair of gym shoes similar to those worn by one of the car's occupants on the car wash video was recovered from Petitioner's residence. Id. at 22-26.

         Griffin and Petitioner were arrested. In exchange for a plea bargain, Griffin agreed to testify against Petitioner. Griffin told the police that he and Petitioner went to a motel and rented a room using money from the robbery. Detective Boulter testified that documentation was obtained corroborating that Griffin rented a room at the motel on October 8, 2012. Id. at 29-31, 51. A search of the suspect vehicle found no money or masks. A search of Petitioner's residence found no hoodie, no money, and no masks. Id. at 47-48.

         Prior to trial, defense counsel objected to Denise Welhusen, Petitioner's parole officer, giving identification testimony, claiming that it would be more prejudicial than probative. The judge overruled the objection but ruled that Welhusen could not testify about her job or specifically how she knew Petitioner. 4/29/2013 Trial Tr. at 4-7. Welhusen testified that she worked in the Jackson County area and had previous contact with Petitioner through her employment on several occasions. Welhusen was shown video from the car wash and positively identified Petitioner as one of the men who threw trash away. 4/30/2013 Trial Tr. at 67-69.

         During trial, Griffin testified that he lived with his grandparents, and that Brown, his grandfather, owned a silver or grey Ford Fusion, which Griffin had permission to drive. Griffin further testified that Petitioner was a “distant family member.” Id. at 78-79. Griffin testified that he and Petitioner began planning the robbery a week earlier. According to Griffin, the robbery was Petitioner's idea. The men drew a fake temporary license plate that they ended up not using. On the morning of the robbery, Griffin picked up Petitioner from his residence and drove the men to the bank. Griffin stopped the car at a car wash and threw away a bag and the paper license plate. The men made another paper plate and Griffin put it on the vehicle. The actual license plate was sitting on the back. Griffin testified that neither man had a weapon. Griffin put on a hoodie, gloves, and a mask. Griffin remained in the vehicle while Petitioner went into the credit union. Petitioner returned 30 seconds later and Griffin drove the two men to a Motel 6, where Griffin registered with money that Petitioner gave him. Id. at 81-90, 96, 100. In exchange for his testimony against Petitioner, Griffin pled guilty to the lesser crime of unarmed robbery. Id. at 80, 97, 102.

         Petitioner's conviction was affirmed on appeal. People v. Ozier, No. 317217, 2014 WL 6468105 (Mich. Ct. App. Nov. 18, 2014) (per curiam), leave denied, 863 N.W.2d 69 (Mich. 2015). Petitioner then filed a post-conviction motion for relief from judgment (Dkt. 6-8), which was denied. People v. Ozier, No. 12-004931-FH (Jackson Cty. Cir. Ct. Oct. 29, 2015) (Dkt. 6-11). The Michigan appellate courts denied Petitioner's post-conviction appeal. People v. Ozier, No. 330360 (Mich. Ct. App. Jan. 29, 2016) (Dkt. 6-12), leave denied, 499 Mich. 930, 878 N.W.2d 857 (Mich. 2016) (Dkt. 6-13).

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

i. “Roger Lee Ozier is entitled to a writ of habeas corpus because of admission of irrelevant and unduly prejudicial evidence of an uncharged and unrelated act, never shown to have involved Mr. Ozier, deprived him of due process of law under the Michigan Constitution and the Fourteenth Amendment of the United States Constitution.”
ii. “Roger Lee Ozier is entitled to habeas relief because the evidence presented at trial was insufficient under Jackson v. Virginia, 443 U.S. 307 (1979) to sustain Mr. Ozier's convictions for bank robbery and armed robbery.”
iii. “Roger Lee Ozier is entitled to habeas relief because he was denied his Sixth Amendment right to confrontation and defense trial counsel was ineffective in failing to object to the statements made by an eyewitness to police who failed to testify at trial.”
iv. “Roger Lee Ozier is entitled to habeas relief because he was denied his Sixth Amendment right to confrontation, Crawford v. Washington, 124 S.Ct. 1354 (2004) and United States v. Calhoun, 544 F.2d 291 (6th Cir. 1976), when trial attorney could not effectively cross-examine Petitioner's parole agent about possible motives his parole agent might harbor in positively identifying him [on] a surveillance video.”
v. “Roger Lee Ozier is entitled to habeas relief because he was denied his Sixth Amendment right to confrontation and defense trial counsel was ineffective in failing to object to the statements made by Detective Stiles to Task Force Sgt. Chris Boulter regarding an informant's tip accusing petitioner of bank robbery.”
vi. “Roger Lee Ozier is entitled to habeas relief because he was denied his fundamental right to due process protections when the police and prosecution failed to have analyzed crucial evidence which was material to identified and would have exonerated Mr. Ozier.”
vii. “Roger Lee Ozier is entitled to habeas relief because he was denied his Sixth Amendment when trial counsel was constitutionally ineffective for failing to investigate and calling to trial, Mark Wecker, a res gestae witness whose testimony would prove to be exculpatory for [the] defense and appellate counsel [was ineffective] for failing to investigate and raising issue on direct appeal.”
viii. “Roger Lee Ozier is entitled to habeas relief because he was denied his Sixth Amendment right to effective assistance of counsel when trial counsel failed to challenge Mr. Ozier's arrest without probable cause, creating a radical defect rendering the proceeding void and appellate counsel [was ineffective] for failing to raise issue on direct appeal.”

Pet. at 2-3.

         II. STANDARD OF REVIEW

         Title 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, ...


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