Swanigan v. Rivard

Filing 14

OPINION AND ORDER denying [ re 13 MOTION for Reconsideration re 11 Memorandum Opinion & Order, 12 Judgment filed by Jarrett Swanigan. Signed by District Judge Patrick J. Duggan. (MOre)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JARRETT WADE SWANIGAN,
Petitioner,

Civil No. 11-11833
Honorable Patrick J. Duggan

v.
STEVEN RIVARD,
Respondent,
/
OPINION AND ORDER DENYING PETITIONER’S MOTION FOR
RECONSIDERATION AND DENYING PETITIONER A CERTIFICATE OF
APPEALABILITY
Petitioner Jarrett Wade Swanigan (“Petitioner”), a Michigan Department of
Corrections’ prisoner, filed a pro se petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254. In an opinion and order entered October 31, 2012, this Court concluded
that Petitioner is not entitled to habeas relief. Presently before the Court is Petitioner’s
motion for reconsideration, filed November 13, 2002.
In his motion, Petitioner challenges only the Court’s statement in its adjudication
of his Sixth Amendment claim related to a line-up that “[b]ecause Petitioner had not yet
been formally charged with any crime when there was the attempt to conduct a lineup in
the case, there was no violation of his Sixth Amendment right to counsel.” (ECF No. 11
at 11.) Petitioner points out that he was represented by counsel when he was asked to
participate in a live line-up. (See 6/30/04 Trial Tr. at 169.) Petitioner states in his motion

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for reconsideration that he was formally arraigned on the charges on February 13, 2004,
and was approached at later dates for an interview and to stand in a physical line-up.
(Pet.’s Mot. ¶ 6.) This, however, does not change the outcome with respect to his claim.
As this Court stated in its October 31, 2012 decision: “Because the Fifth
Amendment is not implicated by a criminal defendant’s appearance in a lineup, evidence
of a defendant’s refusal to appear in a lineup does not violate his right against selfincrimination.” (ECF No. 11 at 10, citing O’Brien v. Wainwright, 738 F.2d 1139, 1143
(11th Cir. 1984).) Thus, regardless of whether Petitioner already had been arraigned, his
rights were not violated when he was asked to participate in the lineup or when the
sergeant commented at trial on his refusal to do so. Moreover, Petitioner’s trial counsel
opened the door to the admission of this evidence when she attempted during her crossexamination to show that the police had conducted a less than thorough investigation and
a flawed photo lineup. (6/30/04 Trial Tr. at 157-60.)
During his testimony, the sergeant also referred to his attempt to interview
Petitioner and Petitioner’s refusal to be interviewed. (6/30/04 Trial Tr. at 159.) Even if
the admission of this evidence was improper, the comment was too fleeting to have had a
substantial and injurious effect on the jury’s verdict.
For the above reasons, Petitioner fails to demonstrate a palpable defect in the
Court’s October 31, 2012 decision sufficient to warrant a different outcome with respect
to his petition for the writ of habeas corpus. The Court does not believe that reasonable
jurists would debate its adjudication of Petitioner’s motion for reconsideration and thus
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declines to issue a certificate of appealability.
Accordingly,
IT IS ORDERED, that Petitioner’s motion for reconsideration is DENIED and a
certificate of appealability will not issue.
Dated: December 20, 2012

s/PATRICK J. DUGGAN
UNITED STATES DISTRICT JUDGE

Copies to:
Jarrett W. Swanigan, #503492
St. Louis Correctional Facility
8585 N. Croswell Road
St. Louis, MI 48880
AAG Laura Moody

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