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Ivory v. Horton

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

April 19, 2019

GREGORY IVORY, Plaintiff,
v.
CONNIE HORTON, Defendant.

          OPINION AND ORDER DENYING AMENDED PETITION FOR WRIT OF HABEAS CORPUS [21]

          HONORABLE LAURIE J. MICHELSON, JUDGE

         On November 18, 2009, at about 2:00 in the afternoon, John Grant was attacked as he was walking from his van to one of his rental properties. The attacker punched and kicked Grant. Eventually, the attacker secured Grant's van keys and took off in Grant's van. Grant believed that Gregory Ivory was his attacker. Ivory was charged and tried. His first trial ended in a mistrial. His second ended in convictions of carjacking, unarmed robbery, and assault with intent to do great bodily harm less than murder. Ivory was sentenced to a minimum of 13 years in state prison. Ivory appealed his convictions without success.

         He now seeks a writ of habeas corpus from this Court. As will be explained, the Michigan Court of Appeals adjudicated Ivory's first, second, and thirds claims on the merits and Ivory has not shown that the state appellate court's decision was based on unreasonable fact finding, an unreasonable application of Supreme Court precedent, or that it was contrary to Supreme Court precedent. So 28 U.S.C. § 2254(d) prevents this Court from granting a writ on those three grounds. And Ivory's fourth, fifth, and sixth claims for habeas corpus relief are procedurally defaulted. So the Court will deny Ivory the writ.

         I.

         The following is a brief summary of Ivory's two trials.

         A.

         Sergeant Joseph Turner testified at Ivory's first trial. Among other things, Turner told the jury that police eventually recovered Grant's stolen van. But, Turner testified, because the van's theft and recovery were separated by many months, the police did not test the van for fingerprints. (ECF No. 26, PageID.1234.)

         In response, Ivory's counsel argued that he had never been told that Grant's van had been recovered and indicated that had he been told, he might have ordered fingerprint testing to exculpate Ivory. (ECF No. 26, PageID.1245.) This was allegedly a violation of Brady v. Maryland, 373 U.S. 83 (1963). (ECF No. 26, PageID.1246.) Ivory's counsel sought a mistrial and, on the record, Ivory agreed to that relief. (ECF No. 26, PageID.1250.) Although the trial judge found that the prosecution's failure to disclose the van's recovery had been inadvertent (ECF No. 26, PageID.1254-1255), he still found that “it would be inherently unfair to the defense” if he did not declare a mistrial (ECF No. 26, PageID.1256).

         B.

         At his second trial, Ivory's defense was that he was not Grant's attacker. In fact, Ivory presented an alibi witness. Jocelyn Smith testified that, on the day of the attack, she saw Ivory go to the computer lab of the community college they were attending at 12:15 p.m. (ECF No. 12, PageID.653-655.) Apparently, there was only one way into and out of the lab and Smith could see that area from where she was studying. (ECF No. 12, PageID.653-654.) She testified that she studied in the same spot until about 2:30 p.m. and never saw Ivory leave the lab. (ECF No. 12, PageID.653-655.) Ivory's testimony was similar: he said he went to the computer lab “to get on Facebook” and that he was there from about 12:00 to 2:00 p.m. (ECF No. 12, PageID.674.) He then left the lab, went to a bus stop, and arrived home around 3:00 p.m. (ECF No. 12, PageID.674.)

         William Fleenor also testified at Ivory's second trial. Fleenor told the jury that the attack happened around 1:00 or 2:00 p.m. and that he was about ten feet away when it happened. (ECF No. 12, PageID.554.) The jury heard how Fleenor was shown a photo array of eight individuals, narrowed it down to two as the possible attacker, and ultimately did not pick Ivory's picture (the other was Ivory's, though). (ECF No. 12, PageID.551-553.) In court, however, Fleenor unequivocally testified that Ivory was Grant's attacker. (ECF No. 12, PageID.548.)

         Grant also testified. Grant said that around 2:00 or 3:00 p.m. on the day of the attack he was visiting one his rental properties in Detroit to do repairs. Grant recalled that when walking from his van toward the house, he saw Ivory. (ECF No. 12, PageID.568.) Grant told the jury that Ivory hit him in the face and then kicked him while he was on the ground. (ECF No. 12, PageID.568-569.) At that point, said Grant, Ivory stole his keys, got into his van, and started to drive away. Grant told the jury: “I saw Mr. Ivory in the front seat of the car. He looked straight back at me.” (ECF No. 12, PageID.570.) Ivory stopped in the street and yelled for someone to get in the van. Grant saw Ayshia Whitfield, a tenant of one of Grant's properties, get in. (ECF No. 12, PageID.570.) According to Grant, sometime before the attack, Ivory and Whitfield had filed paperwork to rent one of Grant's properties. (ECF No. 12, PageID.573.) Only Whitfield ended up renting from Grant and the two later had a dispute about her deposit. Grant testified that during the attack, his attacker “said something like where is her deposit?” (ECF No. 12, PageID.576.)

         Grant also explained that at some point he was shown a photo array of eight people. (ECF No. 12, PageID.579.) Grant told the jury that from among the eight he marked Ivory as his attacker. (Id.) Notably, Ivory's picture is the only one with white margin space surrounding it and his face is among the two smallest. (See R. 12, PageID.960-961.)

         II.

         The Antiterrorism and Effective Death Penalty Act (AEDPA) (and 28 U.S.C. § 2254 in particular) “confirm[s] that state courts are the principal forum for asserting constitutional challenges to state convictions.” Harrington v. Richter, 562 U.S. 86, 103 (2011); see also Cullen v. Pinholster, 563 U.S. 170, 182 (2011). If a claim was “adjudicated on the merits in State court proceedings, ” this Court cannot grant habeas corpus relief on the basis of that claim “unless the adjudication of the claim . . . . resulted in a decision” (1) “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) “that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” See 28 U.S.C. § 2254(d). But if the state courts did not adjudicate a claim “on the merits, ” this “‘AEDPA deference' does not apply and [this Court] will review the claim de novo.” Bies v. Sheldon, 775 F.3d 386, 395 (6th Cir. 2014).

         III.

         In his amended petition for a writ of habeas corpus, Ivory ...


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