Longmire v. McCullick

          OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS, DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, DENYING THE MOTIONS FOR SUMMARY JUDGMENT AND THE NOTICE RE: WARNING PERSISTENT FAILURE TO PERFORM JUDICIAL DUTIES, AND GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS

          HONORABLE MARK A. GOLDSMITH UNITED STATES DISTRICT JUDGE

         Travis Santell Longmire, (“Petitioner”), confined at the Alger Correctional Facility in Munising, Michigan, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his pro se application, Petitioner challenges his convictions for armed robbery, MCL § 750.529, felon in possession of a firearm, MCL § 750.224f, and possession of a firearm during the commission of a felony, MCL § 750.227b. The trial court sentenced Petitioner to concurrent prison terms of 15 to 25 years for the armed robbery conviction, and 1 to 5 years for the felon in possession conviction, to be served consecutive to a two-year term of imprisonment for the felony-firearm conviction. For the reasons stated below, the petition for a writ of habeas corpus is denied.

         I. BACKGROUND

         Petitioner was convicted following a jury trial in the Wayne County Circuit Court. This Court recites verbatim the relevant facts relied upon by the Michigan Court of Appeals, which are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1), see Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):

Defendant's convictions arose from the robbery of a Burger King restaurant in Detroit. The prosecution presented the testimony of three of the four Burger King employees who were present at the time of the robbery. According to the testimony, two men, one wearing a striped shirt and one wearing a white t-shirt, entered the restaurant. The man wearing the t-shirt placed an order and gave the shift manager and cashier, RR, a $5 bill. When RR opened the register, the man wearing the striped shirt, later identified as defendant, produced a handgun and pointed it at RR. As RR pleaded with defendant not to shoot, defendant took money from the register. Two other employees, SS and TR, observed defendant from their respective vantage points in the restaurant and, after defendant left the store, SS and TR again observed him in the parking lot. SS and TR each identified defendant at both a live lineup and at trial. The defense theory at trial was that defendant had been misidentified as the robber.^[1]

People v. Longmire, No. 312071, 2014 WL 3547133, at *1 (Mich. Ct. App. July 17, 2014).

         Petitioner raised the following claims before the Michigan Court of Appeals:

1. Pretrial waiver of counsel was not unequivocal, requiring a new trial.

2. Trial court failed to suppress identification testimony of the eyewitnesses.

         Petitioner in his Standard 4 Brief raised the following additional issues:

1. False Confession.

2. Complete failure to allow Petitioner to view such evidence by the trial court.

3. False/fabricated evidence was provided by Ms. Sutton, violating due process rights.

4. Disregarding Ms. Sutton's original description of the culprit was an abuse of discretion.

5. Officer-in-charge provided perjured testimony at and after the Wade hearing.

6. Officer-in-charge provided perjured testimony in connection with material issues.

7. Warrant was based on witness' conclusions rather than probable cause.

8. The People failed to show a substantial basis of credibility of the confidential informant in obtaining a warrant.

9. Failure to conduct the legal proceedings in accordance within the governing rules.

10. No probable cause at the time of the arrest or at the time of the issuance of the warrant.

         Petitioner raised the following claims before the Michigan Supreme Court:

1. Pretrial waiver of counsel was not unequivocal.

2. Violation of due process by charges brought on the basis of false evidence.

3. Officer-in-charge falsified a police report and supplied perjured testimony at trial.

4. Lack of probable cause for arrest.

         Petitioner's conviction was affirmed on appeal, Id., leave denied 497 Mich. 972, 859 N.W.2d 695 (Mich. 2015).

         On May 21, 2015, Petitioner filed a post-conviction motion for relief from judgment, No. 11-011861-01-FC (Dkt. 8-18), containing the following claims:

1. A Brady violation: that prosecution withheld witness statement of the identifying witness, see Brady v. Maryland, 373 U.S. 83 (1963);

2. Newly discovered evidence that Petitioner's arrest was illegal and that the evidence came from the fruit of the poisonous tree;

3. A jurisdictional defect: that Petitioner was arraigned on baseless charges with no probable cause

4. Deprivation of self-representation.

         The trial court denied this motion. People v. Longmire, No. 11-011861-01-FC (Wayne Cty. Cir. Ct. Aug. 21, 2015) (Dkt. 8-19). The Michigan appellate courts then denied Petitioner leave to appeal from this motion. People v. Longmire, No. 331397 (Mich. Ct. App. June 2, 2016) (Dkt. 8-21); leave denied 500 Mich. 899, 887 N.W.2d 425 (2016).

         Petitioner seeks habeas relief on the following grounds:

1. Petitioner was denied due process by improper “fabricated identification procedures.”

2. Petitioner was improperly denied his right to self-representation.

3. New evidence shows a Fourth Amendment violation with Petitioner's arrest.

4. Petitioner was denied the effective assistance of counsel.

5. Petitioner's sentence is invalid.

         II. ...