United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF
HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS
CARAM STEEH, UNITED STATES DISTRICT JUDGE.
Dashawn McLaurin, (“petitioner”), incarcerated at
the Ionia Correctional Facility in Ionia, Michigan, seeks the
issuance of a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. In his pro se application, petitioner
challenges his conviction for carjacking, M.C.L.A. §
750.529a; possession of a firearm during the commission of a
felony (felony-firearm), M.C.L.A. § 750.227b; assault
with intent to do great bodily harm less than murder,
M.C.L.A. § 750.84; and third-degree fleeing or eluding a
police officer, M.C.L.A. § 257.602a(3)(a). For the
reasons stated below, the application for a writ of habeas
corpus is DENIED WITH PREJUDICE.
was convicted following a jury trial in the Wayne County
August 20, 2014, Raymond Schultz locked his 2011 Chevrolet
Equinox and was walking towards a party store on E. Jefferson
when he heard a male voice and felt a tug on his shirt. As he
turned around, his assailant put a gun in his face and said,
“This is a real gun. This is a carjacking. Give me the
keys.” Schultz struggled with his assailant and
sustained a gunshot wound in the left buttock area. When his
assailant aimed the gun at his face, Schultz threw the keys
to his assailant and fell to the ground. The assailant then
drove off with the Equinox. (T. 12/9/2014, pp. 33-40).
Schultz was taken to Detroit Receiving Hospital where he was
classified as “level one, ” which is code for
“potential for immediate threat to life or limb”
due to the proximity of the wound to his pelvis and abdomen.
(Id., p. 23).
Harrison testified that she was in the parking lot with her
boyfriend during the carjacking. They observed the incident
and came to Schultz's aid, waiting for help to arrive.
(T. 12/8/2014, pp. 234, 237; T. 12/9/2014, pp. 15, 41).
Kevin Briggs of the Detroit Police Department testified that
later that day they observed an individual driving a burgundy
Equinox in reverse and at a high rate of speed, going through
stop signs and over a curb. The Equinox then went forward and
was pursued by Officer Briggs who testified that he looked
directly at petitioner, as petitioner drove the vehicle. The
passenger-side tire flew off when the Equinox hit the curb,
but petitioner continued to drive on three wheels until the
airbags deployed, when petitioner hit another curb. When
petitioner ditched the vehicle, Officer Briggs pursued
petitioner on foot and quickly apprehended him. (T.
12/9/2014, pp. 92-99).
line-up was conducted the next day. Schultz (the victim)
narrowed down the line-up to two suspects, one of which was
petitioner. During the line-up, petitioner was laughing and
looking down so as to avoid being recognized by Schultz.
(Id., pp. 44, 54-57, 154). Harrison and Saunders,
who both watched the incident, immediately identified
petitioner as the assailant during the live line-up which
took place on August 21, the day after the carjacking.
Harrison was “a hundred percent sure.” (T.
12/8/2014, pp. 226-228). Petitioner was represented by
counsel at the time of the lineup. (T. 12/9/2014, pp.
conviction was affirmed. People v. McLaurin, No.
325780, 2016 WL 3639898 (Mich. Ct. App. July 7, 2016) lv.
den. 500 Mich. 947, 890 N.W.2d 672 (2017).
seeks a writ of habeas corpus on the following grounds:
I. Mr. McLaurin is entitled to a new trial for a violation of
his right to counsel under U.S. Const, AMS VI, XIV and Const
1963, Art 1, § 20, where a breakdown in the relationship
with counsel necessitated that substitute counsel be
II. Mr. McLaurin was denied his rights to effective
assistance of counsel under U.S. Const, AMS VI, XIV and Const
1963 Art 1, § 20 by trial counsel's failure to call
an expert witness to explain the unreliability of eyewitness
III. Defendant was denied his due process right to a fair
trial when the results of a constitutionally improper and
highly suggestive out-of-court identification procedure
employed by the police was introduced at trial and trial
counsel proved ineffective when he failed to move the
out-of-court identification be excluded from evidence. U.S.
Const, AMS V, VI, XIV; Const 1963, Art 1, § 20; Art 1,
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.
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
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).
Court notes that the Michigan Court of Appeals reviewed and
rejected petitioner's third claim under a plain error
standard because he failed to preserve the issue as a
constitutional claim at the trial court level. The AEDPA
deference applies to any underlying plain-error analysis of a
procedurally defaulted claim. See Stewart v.
Trierweiler, 867 F.3d 633, 638 (6th Cir. 2017);
cert. den. 138 S.Ct. 1998 (2018).
Claim # 1. The counsel of choice claim.
first argues that his right to counsel of choice was violated
when the judge denied his motion to substitute counsel three
days before trial. Petitioner brought his motion on December
5, 2014, which was three days before the first day of trial.
Michigan Court of Appeals rejected petitioner's claim as
The trial court previously appointed substitute defense
counsel in October 2014. At a final pretrial conference on
Friday, December 5, 2014, three days before trial was
scheduled to begin, defendant's second appointed counsel
informed the trial court of his belief that defendant lacked
confidence in him, in part because of counsel's inability
to arrange a plea offer that was acceptable to defendant.
I asked him and my last attorney numerous times to fill out
motions for me that ... haven't got [sic] done. And I
asked them things about my case that they haven't or
couldn't tell me about ....
Neither one of them feels like they can fight for my life.
This is my life on the line and I feel that they [are] not
fighting for me. And I need somebody that ... I feel like
they can fight for my life like it's theirs on the line.
trial court denied the motion for substitute counsel,
I would indicate ... that this is your second request for an
attorney. There is in the court file a written request that
you gave me sometime ago during the pendency of this case
before this Court in which you indicated that your prior
counsel ... did not ...