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White v. Burt

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

July 26, 2018

Marquel Carlos White, Petitioner,
v.
S.L. Burt, Respondent.

          PATRICIA T. MORRIS MAG. JUDGE.

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

          JUDITH E. LEVY UNITED STATES DISTRICT JUDGE.

         Marquel Carlos White (“Petitioner”), incarcerated at the Muskegon Correctional Facility in Muskegon, Michigan, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his convictions for carjacking, Mich. Comp. Laws § 750.529a; armed robbery, Mich. Comp. Laws § 750.529; receiving and concealing stolen property, Mich. Comp. Laws § 750.535(7); and felony-firearm, Mich. Comp. Laws § 750.227b. For the reasons stated below, the petition for writ of habeas corpus is DENIED.

         I. Factual Background

         Petitioner was convicted following a jury trial in the Wayne County Circuit Court, in which he was tried jointly with co-defendant Antonio Carlos Hubbard. This Court recites verbatim the relevant facts relied on by the Michigan Court of Appeals, which are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):

This case arises from multiple criminal acts that occurred throughout Detroit, Michigan, over the course of two days. First, two men armed with a pistol carjacked a victim in northwest Detroit, taking her Chrysler Sebring as well as her cellular phone. Another car was stolen on the eastside of Detroit shortly thereafter. Subsequently, a third carjacking was attempted, which appeared to be related to the other two incidents. Police officers later observed both stolen vehicles at a Detroit apartment complex, and defendant was seen with both cars. Police arrested defendant and another suspect soon afterward.
The next evening, the victim of the first carjacking and cell phone robbery participated in a live lineup at the Detroit Detention Center. She positively identified defendant as the man who held a gun to her head while taking her Sebring, but she also identified two other “fillers”[1] as being possibilities for the second suspect.
On June 20, 2014, defendant's trial counsel filed a motion to compel discovery of evidence related to the victim's identification of defendant in the live lineup. In the alternative, defendant requested the exclusion of the victim's identification of defendant in the live lineup and her identification of him at the preliminary examination, arguing that the evidence was tainted because the lineup was unduly suggestive. The trial court scheduled a hearing on defendant's motion on July 18, 2014, during which witnesses were to testify regarding the lineup, but defense counsel failed to appear at the scheduled hearing. Due to counsel's absence, the trial court dismissed the motion. Defense counsel subsequently refiled the motion, but the trial court did not receive notice of his intent to refile early enough to reschedule a hearing on August 1, 2014, as the defense had requested.
On August 4, 2014, the first day of the jury trial, the trial court refused to consider defendant's refiled motion, stating that it would have been unable to hold a hearing on the motion on August 1 due to the lack of notice and concluding that it would not have an opportunity to rule on the pretrial motion before the trial began. However, it also noted that identification is always an issue at trial. The jury convicted defendant on all charges.

People v. White, No. 323465, 2016 WL 370033, at * 1 (Mich. Ct. App. Jan. 26, 2016).

         Petitioner's conviction was affirmed on appeal. Id., lv. den. 500 Mich. 887, 886 N.W.2d 639 (2016).

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

         Defendant-Appellant is entitled to a new trial where he was denied the effective assistance of counsel.[2]

         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 ...

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