United States District Court, E.D. Michigan, Southern Division
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
HONORABLE DENISE PAGE HOOD CHIEF UNITED STATES DISTRICT JUDGE
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.
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
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).
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).
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).
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.
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
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
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
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
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
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.
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.
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).
Claim # 1. The photographic lineup claim.
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.
argues that improper suggestion and the inaccuracy of
eyewitness identification made the photo lineup the least
reliable identification procedure.
Michigan Court of Appeals, in rejecting petitioner's
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 ...