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McLaurin v. Davids

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

May 21, 2019

JOHN DAVIDS, [1] Respondent.



         Gerran 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.

         I. BACKGROUND

         Petitioner was convicted following a jury trial in the Wayne County Circuit Court.

         On 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).

         Cheryl 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).

         Officer 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).

         A 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. 151-152).

         Petitioner's 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).

         Petitioner 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 appointed.
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 testimony.
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, § 17.


         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 Supreme Court of the United States; or
(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.

         A 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 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).

         The 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).[2]


         A. Claim # 1. The counsel of choice claim.

         Petitioner 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.

         The Michigan Court of Appeals rejected petitioner's claim as follows:

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. Defendant stated:
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.

         The trial court denied the motion for substitute counsel, stating:

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 ...

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