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Quinney v. Burton

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

June 29, 2018

JAMES LAWRENCE QUINNEY, Petitioner,
v.
DEWAYNE BURTON, Respondent.

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

          HONORABLE DENISE PAGE HOOD CHIEF UNITED STATES DISTRICT JUDGE

         James Lawrence Quinney, (“Petitioner”), confined at the Richard A. Handlon Correctional Facility in Ionia, Michigan, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for first-degree home invasion, M.C.L.A. § 750.110a(2), assault with a dangerous weapon (felonious assault), M.C.L.A. § 750.82, interfering with a crime report, M.C.L.A. § 750.483a(2)(b), and assault and battery, M.C.L.A. § 750.81. For the reasons that follow, the petition for a writ of habeas corpus is DENIED.

         I. Background

         Sabriah and Hail Al-Chimamlah lived in an apartment in Detroit, on the ninth floor. Helen Deshazer lived a few doors down from the Al-Chimamlahs and would come by occasionally for money or food, which the Al-Chimamlahs would give her. The Al-Chimamlahs have a son who was saving money. He would give them the money which was kept in a bank envelope in a couch cushion.

         On May 15, 2011, Helen Deshazer showed up unannounced to the Al-Chimamlahs' apartment while Hail was counting the money that was stashed in the couch cushion. She walked in the front door, which they always kept unlocked. When Hail saw her, he quickly put the money back. The money totaled over $ 19, 000 in cash, and no one, other than the Al-Chimamlahs and Deshazer, knew where it was kept. (T. 12/7/2011, pp. 59, 65-69, 78, 97-98).

         Petitioner, who sold DVDs, is a friend of Helen Deshazer and came to her apartment two to three times a week. (T. 12/8/2011, pp. 88-89). He was there on May 17, 2011. (Id., at 90). Deshazer testified that she told petitioner, on May 17, 2011, that the Al-Chimamlahs had money and would probably buy some of his DVDs. (Id., at 91-92).

         On May 17, 2011, at 8:30 p.m., two men forced their way into the Al-Chimamlahs' apartment. Sabriah was in the living room and Hail was in the kitchen. The person that Sabriah identified as petitioner went straight to a sofa and took the money which she kept in a bank envelope hidden in a cushion. The other man pushed Hail down in the kitchen, pulled the intercom from the wall, struck Hail with the intercom and stabbed him in the chest and arm with a knife. Petitioner struck Sabriah one time on her cheek with his hand as she struggled to recover the money. Both men exited the apartment with the money. (T. 12/7/2011, pp. 59-65, 68-71, 78, 86-87, 102, T. 12/8/2011, pp. 22-23).

         While struggling with her assailant, Sabriah testified that she was “face-to-face with him” and “got a good look at him.” (T. 12/7/2011, p. 68). She testified that her assailant wore “a black coat and pants, and the hoodie was on him.” Petitioner signed into the apartment complex at 7:25 p.m., indicating that he was there to see Deshazer. (T. 12/12/2011, pp. 43-44). The lobby guard remembered seeing a person, matching Sabriah's description of petitioner, come and sign in as “Que.” The man never signed out. (Id., p. 70-71). Deshazer testified that petitioner and two other men were with her in her apartment that night smoking crack. She further testified that petitioner was there for 15 or 20 minutes, left, and came back a couple of hours later to spend the night with his girlfriend. (T. 12/8/2011, pp. 93-97). Petitioner was found and arrested in Deshazer's apartment the next morning, wearing a black hoodie and black pants.

         Petitioner's conviction was affirmed on appeal. People v. Quinney, No. 308407, 2013 WL 2319479 (Mich. Ct. App. May 28, 2013); lv. den. 495 Mich. 867; 843 N.W.2d 149 (2013).

         Petitioner then filed a post-conviction motion for relief from judgment, which was denied. People v. Quinney, No. 11-005434 (Third Cir. Ct., Criminal Division, Aug. 18, 2014). The Michigan appellate courts denied petitioner leave to appeal. People v. Quinney, No. 324834 (Mich.Ct.App. Jan. 16, 2015); lv. den. 499 Mich. 854; 873 N.W.2d 950 (2016).

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

I. [Petitioner] was denied a fair trial by admission of a photo photographic lineup conducted while he was in custody with no independent basis for the in-court identification.
II. Due process mandates that [petitioner's] convictions for assault with intent to [do] great bodily harm, felonious assault and interfering with a crime report must be vacated, as there was no evidence that he committed these offenses, either as principle or aider and abettor.
III. Mr. Quinney is entitled to a new trial where he was denied state and federal due process rights where his convictions were obtained through the prosecutor using false and/or perjured testimony from Officer Drake[.] Defense and trial counsel was constitutionally ineffective in failing to object.
IV. Mr. Quinney was denied his constitutional right to the effective assistance of counsel because his attorney failed to challenge the misleading testimony concerning the photo line-up and when counsel failed to call an expert witness in violation of the Sixth Amendment of the United States Constitution.
V. Mr. Quinney was denied the effective assistance of appellate counsel in violation of the defendant's Fifth, Sixth, and Fourteenth Amendments of the United States Constitution.
VI. Petitioner's state and federal constitutional rights were violated when he was illegally arrested in a private residence without a warrant and absent any probable cause.

         II. Standard of Review

         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 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; or
(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.

         A 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. at 410-11. “[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)). Therefore, in order 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 any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103. A habeas petitioner should be denied relief as long as it is within the “realm of possibility” that fairminded jurists could find the state court decision to be reasonable. See Woods v. Etherton, 136 S.Ct. 1149, 1152 (2016).

         III. Discussion

         A. Claim # 1. The photographic lineup claim.

         Petitioner alleges that he was denied due process when the trial court admitted a photo from the photographic line-up, which petitioner argues should have been suppressed because he was in custody and available for a corporeal lineup.

         Petitioner argues that improper suggestion and the inaccuracy of eyewitness identification made the photo lineup the least reliable identification procedure.

         The Michigan Court of Appeals, in rejecting petitioner's claim, found:

Generally, photographic identification procedures should not be used when a defendant is in custody. Certain circumstances, however, provide legitimate reasons to use a photographic lineup instead of a corporeal lineup, such as, “where the nature of the case requires immediate identification, ” or “where there are insufficient numbers of persons available with the defendant's physical characteristics[.]”
At the evidentiary hearing, Detroit Police Sergeant Manny Gutierrez testified that a photographic lineup was used because there were “no individuals in the facilities” that they could use for a corporeal lineup “that would at least be comparable to Mr. Quinney.” Detroit Officer Terry Cross-Nelson testified that he called three precincts in his search for persons to participate in a corporeal lineup. Officer Cross-Nelson looked for persons that shared common physical characteristics with defendant, including weight, height, and age, but was unable to find a sample of prisoners to place in a corporeal lineup with defendant. Officer Cross-Nelson and Sergeant Gutierrez also testified that they were working under certain time restraints during that investigation. According to both officers, the Department of Justice mandates that the Detroit Police Department process prisoners within 48 hours of arrest. And as the trial court noted, arraignments do not occur at all times during the day or week, which placed greater temporal limitations on the investigation. Given these circumstances, legitimate reasons existed to use a ...

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