United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER (1) DENYING THE PETITION FOR A WRIT
OF HABEAS CORPUS, (2) DENYING A CERTIFICATE OF APPEALABILITY,
AND (3) DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
D. BORMAN UNITED STATES DISTRICT JUDGE.
Larry Price, (“Petitioner”), confined at the
Bellamy Creek Correctional Facility in Ionia, Michigan, filed
a petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. In his application, filed pro se,
petitioner challenges his conviction and sentence, in LC No.
12-005923-FC, for armed robbery, Mich. Comp. Laws §
750.529, carrying a concealed weapon (CCW), Mich. Comp. Laws
§ 750.227, felonious assault, Mich. Comp. Laws §
750.82, and possession of a firearm during the commission of
a felony (felony-firearm), Mich. Comp. Laws § 750.227b.
Petitioner also challenges his conviction and sentence in LC
No. 13-000023-FC for two counts of armed robbery, Mich. Comp.
Laws § 750.529. For the reasons stated below, the
petition for a writ of habeas corpus is DENIED WITH
was convicted following a bench trial in the Wayne County
No. 12-005923-FC, April 19, 2011, Armed Robbery.
Brazzle used Mocospace, an online site, to sell iPhones. (Tr.
5/13/2013, pp. 10-11.). He found a potential buyer, exchanged
text messages and phone calls, and arranged a meeting to take
place on April 19, 2011, to facilitate a sale. (Id.
at 11-13). The meeting was to take place in Highland Park at
5:30, when Dequain got off of work, but then the person he
was to meet said that he could not get a ride and changed the
location to Eight and Southfield, on Fenmore Street, with a
meeting time of 10:00 p.m. (Id. at 12-13, 48-49).
Dequain and his nephew, Deagerald Brazzle, drove to the
intersection of Fenmore and Trojan. (Id. at 13-14).
The potential buyer was petitioner (as Dequain and Deagerald
both identified him in court). (Id. at 19-20, 86).
Dequain also recognized petitioner from the picture on the
Mocospace website. (Id. at 20).
petitioner asked if he could see the phone, to determine if
it worked, Dequain took the phone out of the box and handed
it to petitioner. (Id. at 22). Upon taking the
phone, petitioner said “thank you, ” which
confused Dequain, until he saw petitioner pull a black
revolver partially out of his pocket, which he showed to
Dequain. (Id. at 22-24).
backed away from petitioner, went around to the other side of
the car and attempted to get in, as petitioner pulled the gun
all the way out of his pocket and then aimed it down, but
toward Dequain. (Id. at 23-24, 30). As Dequain got
into the car, he heard shots fired from behind him.
(Id. at 25-27). Dequain heard “three
max” shots; none hit him, but one pierced the back
driver's-side tire. (Id. at 27-28, 30).
and his nephew then drove to a nearby gas station where they
called the police. (Id. at 35). About a week later,
on April 26, 2011, Dequain spoke with Officer Roland Brown,
giving him a description of the perpetrator and immediately
picking petitioner out from a photographic array.
(Id. at 36-40). On April 29, 2011, Deagerald Brazzle
picked petitioner from a photographic array and testified at
trial that he “instantly knew who it was.”
(Id. at 94).
No. 13-000023-FC, May 28, 2011, Two Counts Armed
Jones bought phones which he would sell to Arthur Shamayev to
be refurbished and resold. (Id. at 119-120). Arthur
Shamayev and Alexander Dembitsky were friends. (Id.
at 119). Jones called Shamayev on May 28, 2011, and told him
he knew someone who was selling iPhones. So, Shamayev went
with Dembitsky to pick up Jones and go and meet with the
person selling the phones. (Id. at 120-121). They
met three men on a street in Detroit. (Id. at
123-125). One of the three individuals asked Shamayev and
Jones to pull their shirts up. (Id. at 125). They
pulled their shirts up and walked up to the three men.
Shamayev and Jones walked up to the men, petitioner pulled up
his waistband, showed the handle of a gun and asked
“where is the money at?” (Id. at 127).
Shamayev told petitioner that the money was “in the
car.” He and Jones walked to the car, while petitioner
and the two others followed. (Id. at 128). Shamayev
opened the car door and told petitioner that the money was on
the door pocket. Petitioner took money totaling $1, 700 out
of the door. (Id. at 128-130). Petitioner and his
cohorts also took Shamayev's and Jones's phones.
(Id. at 131). Petitioner tried to take
Dembitsky's phone, but he refused to give up his phone
when he determined that the gun he saw in petitioner's
waistband was fake. (Id. at 138, 177). Petitioner
then said, “Let's pop him” before they all
ran across the street and through the backyards.
(Id. at 177, 179). Shamayev and his companions got
in the car and called the police from Dembitsky's phone.
(Id. at 179).
Police Officer Roland Brown investigated both robberies. (Tr.
5/14/2013, p. 75). He found that the cell phone number used
by the perpetrator in both robberies was the same number that
belonged to a woman. Brown then obtained a list of names
associated with her address and found one individual whose
physical characteristics matched the robber's appearance
in both cases. He then got that man's picture and used it
for the photographic arrays. (Id. at 75-79).
identified petitioner in a photographic array as the person
who robbed him, saying petitioner “looks like the guy
who robbed me.” (Tr. 5/13/2011 pp. 135-136, 153).
Dembitsky also identified petitioner in that lineup, saying
“Number two kind of looks like him.”
(Id. at 174-175). Jones also identified petitioner
in a photographic lineup. (Tr. 5/15/2011, pp. 34-35).
also identified petitioner in court by saying “I think
so” when asked if petitioner was the one who robbed
him. Shamayev later testified “Honestly, that's the
guy who took my money right there, ” referring to
petitioner. (Tr. 5/13/2013, pp. 125, 162). Dembitsky
testified that petitioner “kind of looks” like
the man who reached into the car, but that the person at the
time had a reddish-looking beard, and “now he
doesn't, so it's kind of hard for me to judge.”
(Id. at 170). Dembitsky further testified that on
May 31, 2011, he was shown a photographic lineup and
identified petitioner as the man who took money from the car
door. (Id. at 174-176).
conviction was affirmed on appeal. People v. Price,
Nos. 12-005923-FC, 13-000023-FC 3197444, 2014 WL 6068393
(Mich. Ct. App. Nov. 13, 2014); ...