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Price v. Trierweiler

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

May 29, 2018

WILLIAM LARRY PRICE, Petitioner,
v.
TONY TRIERWEILER, [1] Respondent.

          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

          PAUL D. BORMAN UNITED STATES DISTRICT JUDGE.

         William 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 PREJUDICE.

         I. BACKGROUND

         Petitioner was convicted following a bench trial in the Wayne County Circuit Court.

         A. No. 12-005923-FC, April 19, 2011, Armed Robbery.

         Dequain 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).

         When 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).

         Dequain 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).

         Dequain 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).

         B. No. 13-000023-FC, May 28, 2011, Two Counts Armed Robbery.

         Martell 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. (Id.).

         When 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).

         Detroit 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).

         Shamayev 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).

         Shamayev 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).

         Petitioner's 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); ...


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