United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE AMENDED HABEAS CORPUS
PETITION , DENYING THE MOTIONS FOR APPOINTMENT OF COUNSEL
, FOR AN EVIDENTIARY HEARING , AND ORAL ARGUMENT
, DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING
LEAVE TO APPEAL IN FORMA PAUPERIS
BERNARD A. FRIEDMAN SENIOR UNITED STATES DISTRICT JUDGE
Fredrick Martez Martin filed a pro se amended
petition for a writ of habeas corpus, which challenges his
convictions for armed robbery, Mich. Comp. Laws §
750.529, felon in possession of a firearm, Mich. Comp. Laws
§ 750.224f, and possession of a firearm during the
commission of a felony (“felony firearm”), Mich.
Comp. Laws § 750.227b. Petitioner alleges as grounds for
relief that his pre-trial identification was unnecessarily
suggestive, that the police and prosecutor engaged in
misconduct, and that his trial and appellate attorneys were
ineffective. None of these claims warrant habeas corpus
relief. Accordingly, the Court shall deny the amended
petition and the pending motions for appointment of counsel,
an evidentiary hearing, and oral argument.
charges against petitioner arose from the robbery of an
individual at Harding's Market near East Warren Avenue
and St. Clair Street in Detroit, Michigan, on August 24,
2009, shortly after 10:00 a.m. The complaining witness,
William Freeman, testified at petitioner's jury trial in
Wayne County Circuit Court that a man dressed in black
clothing robbed him of $575 at gunpoint after he cashed his
paycheck at the market. Following the robbery, the robber
instructed him to walk to the corner and go straight down the
that day, at approximately 2:20 p.m., police officers Gregory
Robson, Lawrence Mitchell, and Richard Whitehead heard three
gunshots on St. Clair Street near Mack Avenue in Detroit.
Shortly afterward, they noticed petitioner riding a bicycle
at a fast pace in front of them. One of the officers observed
the handle of a gun in petitioner's pants pocket. The
officers drove ahead of petitioner and blocked his path. When
one of the officers jumped out of the squad car, petitioner
hit the door of the vehicle and fell off his bicycle. The gun
fell out of petitioner's pocket, and after he admitted
that he was on parole and did not have a permit for a
concealed weapon, he was arrested. At the police station, the
police found narcotics and $555 in cash on
Freeman walked home from Harding's Market. He later
returned to the market to obtain a videotape of the robbery.
He then went to the police station to report the robbery. One
of the officers at the station approached him and stated that
he (the officer) had recently arrested a person in the area
where the robbery occurred. The officer wondered whether
Freeman would be able to identify the person. When Freeman
indicated that he would be able to identify the robber, the
officer went to the prisoner processing area where petitioner
was seated on a bench. The officer asked petitioner to stand
up and take a few steps. Freeman identified petitioner as the
man who had robbed him. Freeman also identified petitioner at
a photographic show-up several days after the robbery, at the
preliminary examination, and at trial.
testified at trial and admitted that he possessed a gun,
narcotics, and $555 when he was arrested. He claimed,
however, that he carried a gun for protection, that he sold
narcotics for a living, and that he had received the money
from family and friends for his birthday. He denied
committing the armed robbery and maintained that he was on
his way to a rehabilitation facility at the time of the
robbery. His trial attorney reinforced the alibi defense by
arguing to the jury that the person in the videotape
resembled petitioner, but was not him.
October 21, 2010, the jury found petitioner guilty, as
charged, of armed robbery, felon in possession of a firearm,
and felony firearm. The trial court sentenced petitioner as a
habitual offender to twenty to forty years in prison for the
robbery conviction, a concurrent term of three to ten years
in prison for the felon-in-possession conviction, and a
consecutive term of two years for the felony-firearm
appealed his convictions as of right, arguing through counsel
that the trial court erred by failing to suppress
Freeman's identification of him. In a pro se
supplemental brief, petitioner argued that the trial court
erred by denying his motion to consolidate his two cases,
making biased remarks at a pretrial hearing, and shifting the
burden of proof in its jury instruction on the alibi defense.
He also argued that his trial attorney was ineffective for
failing to investigate and call certain witnesses. The
Michigan Court of Appeals rejected these claims and affirmed
petitioner's convictions in an unpublished, per
curiam opinion. See People v. Martin, No.
302405 (Mich. Ct. App. July 19, 2012). The Michigan Supreme
Court denied leave to appeal because it was not persuaded to
review the questions presented to it. See People v.
Martin, 493 Mich. 919; 823 N.W.2d 583 (2012).
December 12, 2013, petitioner commenced this action by filing
a pro se habeas corpus petition under 28 U.S.C.
§ 2254 (docket entry 1) and a motion to stay the federal
proceeding while he pursued additional state remedies (docket
entry 3). On February 6, 2014, the Court granted
petitioner's motion for a stay and closed this case for
administrative purposes (docket entry 6).
subsequently returned to state court and filed a motion for
relief from judgment which raised issues about his trial and
appellate attorneys, the police, the trial judge, the
prosecutor, and the cumulative effect of individual errors.
The state trial court denied petitioner's motion on the
grounds that the court was precluded from adjudicating the
claims that petitioner raised on appeal and that
petitioner's remaining claims were not supported by the
record or an affidavit and lacked merit. The trial court also
stated that petitioner's trial and appellate
attorneys' representation was not deficient, that
petitioner had failed to show “good cause” under
Michigan Court Rule 6.508(D)(3) for not having raised the
issues earlier, and that there was no error meriting reversal
of the jury's verdict. See People v. Martin, No.
09-023095-01-FC (Wayne Cty. Cir. Ct. June 6, 2014).
Petitioner appealed the trial court's decision, but the
Michigan Court of Appeals denied leave to appeal for failure
to establish entitlement to relief under Michigan Court Rule
6.508(D). See People v. Martin, No. 325070 (Mich.
Ct. App. June 22, 2015). On June 28, 2016, the Michigan
Supreme Court likewise denied leave to appeal for failure to
establish entitlement to relief under Rule 6.508(D). See
People v. Martin, 499 Mich. 967; 880 N.W.2d 568 (2016).
September 15, 2016, petitioner returned to this Court and
filed his amended habeas corpus petition (docket entry 9) and
a motion to lift the stay (docket entry 8). The amended
petition raises five claims regarding the pretrial
identification procedure, trial counsel, the police
officers' conduct, the prosecutor's conduct, and
appellate counsel. The Court granted petitioner's motion
to re-open this case (docket entry 10), and the State filed
an answer to the amended petition (docket entry 13).
Petitioner filed a reply to the State's answer (docket
entry 15), a supplemental petition (docket entry 16), a
motion for appointment of counsel (docket entry 17), a motion
for an evidentiary hearing (docket entry 18), and a motion
for oral argument (docket entry 19).
motion for appointment of counsel, petitioner states that he
is unable to retain counsel and that he has become
overwhelmed with the Court's procedures and requirements.
In his motion for an evidentiary hearing, petitioner alleges
that the state court prevented him from developing a factual
record for his claims. Finally, petitioner alleges that oral
argument would assist the Court in deciding the questions
presented in his petition.
State urges the Court to deny the petition and any other
relief requested by petitioner. According to the State,
petitioner's claims about the police and the
prosecutor's conduct are procedurally defaulted, and the
state courts' rejection of petitioner's claims did
not result in decisions that were contrary to federal law,
unreasonable applications of federal law, or unreasonable
determinations of the facts.
habeas context, a procedural default is “a critical
failure to comply with state procedural law.” Trest
v. Cain, 522 U.S. 87, 89 (1997). Ordinarily, it is not a
jurisdictional matter, Johnson v. Lee, 136 S.Ct.
1802, 1806 (2016) (citing Trest, 522 U.S. at 89),
and “‘[j]udicial economy might counsel'
bypassing a procedural-default question if the merits
‘were easily resolvable against the habeas
petitioner.'” Id. (quoting Lambrix v.
Singletary, 520 U.S. 518, 525 (1997)). Here, none of
petitioner's claims warrant habeas relief, and the Court
finds it more efficient to address the substantive merits of
petitioner's claims than to determine whether any of the
claims are procedurally defaulted. The Court, therefore,
bypasses the procedural-default analysis and proceeds to
address petitioner's claims on the merits.
Standard of Review
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) requires habeas petitioners who
challenge “a matter ‘adjudicated on the merits in
State court' to show that the relevant state court
‘decision' (1) ‘was contrary to, or involved
an unreasonable application of, clearly established Federal
law,' or (2) ‘was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceedings.'” Wilson v.
Sellers, 138 S.Ct. 1188, 1192 (2018) (quoting 28 U.S.C.
§ 2254(d)). “[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. Rather, that application must also be
unreasonable.” Williams v. Taylor, 529 U.S.
362, 411 (2000). “AEDPA thus imposes a ‘highly
deferential standard for evaluating state-court rulings,'
Lindh v. Murphy, 521 U.S. 320, 333, n.7 (1997), and
‘demands that state-court decisions be given the
benefit of the doubt,' Woodford v. Visciotti,
537 U.S. 19, 24 (2002) (per curiam).”
Renico v. Lett, 559 U.S. 766, 773 (2010).
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) (quoting Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)). To obtain a writ of
habeas corpus from a federal court, a state prisoner must
show that the state court's ruling on 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.”
Id. at 103. A state court's factual
determinations are presumed correct on federal habeas review,
28 U.S.C. § 2254(e)(1), and review is “limited to
the record that was before the state court.” Cullen
v. Pinholster, 563 U.S. 170, 181 (2011).
The Pretrial Identification
alleges that he was denied his right to due process because
the police used an unnecessarily suggestive pretrial
identification procedure that was conducive to irreparable
misidentification. As noted, the initial identification
occurred at the police station where petitioner was being
held following his arrest for the gun and drug charges.
Freeman also identified petitioner at a photographic show-up
several days later, at the preliminary examination, and at
trial. Petitioner claims that the initial pretrial
identification procedure at the police station was
unnecessarily suggestive because he was confined in a
detention cell, surrounded by police officers, and singled
out by an officer. He also points out that no attorney was
moved to suppress the pretrial identification before trial.
At an evidentiary hearing on the motion, Freeman testified
that when he went to the police station to report the
robbery, an officer approached him and said that he had
recently arrested somebody in the area where Freeman had been
robbed. The officer wanted to know whether Freeman could
identity the person. (10/18/10 Trial Tr., at 17-18.) Freeman
was sitting by the front desk at the time, but he could see
prisoners sitting on a bench in the lock-up area about forty
feet away. Id. at 18-20. The officer then went to
the lock-up area and asked the person to stand up and walk
toward Freeman. Id. at 19-21. At that point, Freeman
looked at the person and said, “Yes, that's
him.” Id. at 21.
trial court denied petitioner's motion to suppress the
pretrial identification after concluding that, although the
pretrial procedure was improper, there was an independent
basis for the identification. Id. at 45-46.
Petitioner raised the issue again on direct appeal. The
Michigan Court of Appeals held that the trial court did not
clearly err in finding that the initial identification of
petitioner was not unduly suggestive and that there was an
independent basis for the suggestive initial identification.
Clearly Established Federal Law
Constitution . . . protects a defendant against a conviction
based on evidence of questionable reliability . . . .”
Perry v. New Hampshire, 565 U.S. 228, 237 (2012).
“Most eyewitness identifications involve some element
of suggestion, ” id. at 244, but an
identification procedure violates due process of law only if
the confrontation was “‘unnecessarily suggestive
and conducive to irreparable mistaken
identification.'” Neil v. Biggers, 409
U.S. 188, 196 (1972) (quoting Stovall v. Denno, 388
U.S. 293, 302 (1967)). The Supreme Court has held that
[a]n identification infected by improper police influence . .
. is not automatically excluded. Instead, the trial judge
must screen the evidence for reliability pretrial. If there
is “a very substantial likelihood of irreparable
misidentification, ” Simmons v. United States,
390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), the
judge must disallow presentation of the evidence at trial.
But if the indicia of reliability are strong enough to
outweigh the corrupting effect of the police-arranged
suggestive circumstances, the identification evidence
ordinarily will be admitted, and the jury will ultimately
determine its worth.
Perry, 565 U.S. at 231. The Sixth Circuit follows a
two-part analysis when evaluating whether an identification
procedure was unnecessarily suggestive and conducive to
irreparable mistaken identification:
The court first considers whether the procedure was unduly
suggestive. Wilson v. Mitchell, 250 F.3d 388, 397
(6th Cir. 2001); Ledbetter v. Edwards, 35 F.3d 1062,
1070-71 (6th Cir. 1994). The court must decide if the
procedure itself steered the witness to one suspect or
another, independent of the witness's honest
recollection. Wilson, 250 F.3d at 397. “The
defendant bears the burden of proving this element.”
Ledbetter, 35 F.3d at 1071 (citation omitted). If
the procedure was suggestive, the court then determines
whether, under the totality of the circumstances, the
identification was nonetheless reliable and therefore
admissible. Wilson, 250 F.3d at 397 (citation
omitted); Ledbetter, 35 F.3d at 1071.
Cornwell v. Bradshaw, 559 F.3d 398, 413 (6th Cir.
record in this case indicates that a police officer (1) told
Freeman that he had recently arrested someone in the area
where the robbery occurred; (2) asked Freeman whether he
would be able to identify the person; and (3) then singled
out petitioner in the lock-up area of the police station by
asking petitioner, and no one else,  to stand up and walk a few
inches toward Freeman. (10/18/10 Trial Tr., at 17-21, 33.) By
focusing Freeman's attention on a single individual who
was in police custody and had recently been arrested in the
area of the robbery, the police steered Freeman to petitioner
and indirectly suggested that petitioner was the man who
robbed him. The Court finds that the identification of
petitioner at the police station was unnecessarily
next question is whether there was an independent basis for
Freeman's pretrial identification of petitioner. The
following five factors must be considered when determining
whether an identification was reliable despite its
suggestiveness: (1) the witness's opportunity to view the
criminal at the time of the crime; (2) the witness's
degree of attention; (3) the accuracy of the witness's
prior description of the criminal; (4) the witness's
level of certainty at the time of the identification; and (5)
the length of time between the crime and the identification.
Biggers, 409 U.S. at 199-200.
testified at the evidentiary hearing that he was robbed
outdoors at 10:00 a.m. when it was light and he could see
everything. He stood face-to-face with petitioner at a
distance of about eighteen inches. (10/18/10 Trial Tr., at
10-11.) His degree of attention apparently was good because
he looked at the man when the man demanded his money and
wallet. He noticed that the robber walked with a limp, and
after the robbery he was able to describe the robber's
clothing, build, and gun. Id. at 11-13.
description of the robber was fairly accurate, although he
underestimated petitioner's weight and height and failed
to notice petitioner's facial hair. He described
petitioner as a light-skinned black male in his mid-twenties
with short hair and a cleanshaven face. He stated that
petitioner was 160 pounds and five feet, ten inches tall. He
also stated that petitioner walked with a limp and that he
was wearing a black tee shirt, black pants, and black gym
shoes. Id. at 25-27. An officer at the police
station described petitioner as a black male, 27 years old,
six feet and one inch tall, 190 pounds, light complexion, and
wearing a crewcut, beard, and mustache. See
Pet'r's Reply to the State's Answer, Ex.1 (docket
entry 15, Page ID 2702).
was certain of his identification at the police station, and
he said at the evidentiary hearing that nothing the police
officers did affected his identification. (10/18/10 Trial
Tr., at 22.) He identified petitioner because he knew
petitioner was the person who had robbed him and he
remembered petitioner's face. Id. at 22, 34. ...