Cole v. Rewerts

          MEMORANDUM AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY

          Hon. Avern Cohn United States District Judge

         I. Introduction

         This is a habeas case under 28 U.S.C. § 2254. Petitioner, proceeding pro se, challenges his conviction for armed robbery, in violation of M.C.L. § 750.529, for which he received a sentence of 190 to 360 months. Petitioner claims his trial counsel was ineffective for failing to impeach a prosecution witnesses with inconsistent testimony from his first trial. For the reasons which follow, the petition will be denied for lack of merit.

         II. Background

         Petitioner’s first trial ended in a hung jury. At Petitioner’s second trial, Kenneth Pugh (Pugh) testified that Petitioner was an acquaintance. On the date of the incident, Petitioner gave Pugh a ride in his truck. Petitioner pulled his vehicle truck to the side of the road, announced he was robbing Pugh, pointed an ice pick at him, and demanded his money. Pugh gave Petitioner around $400 and Petitioner drove away.

         Pugh called 9-1-1, and the tape was played for the jury. Petitioner was later arrested in his vehicle and was found with about $400 on cash on him.

         During the 9-1-1 call, Pugh falsely claimed that Petitioner threatened him with a gun and gave inconsistent descriptions of Petitioner’s vehicle. Pugh later falsely told police that Petitioner was armed with a gun. Pugh explained at trial that he lied about these details because he was angry at Petitioner.

         Police Officer Charles Ruffin (Ruffin) testified at both trials. On cross-examination at the first trial Ruffin testified about the inventory search of Petitioner’s vehicle:

Q. Okay. And you said you found some clothing items. Did you find any type of a -- did you find a knife?

A. No, sir, I did not.

Q. Did you find a gun?

A. No, sir, I did not.

Q. Did you find an ice pick or any other ...