Ricks v. Palmer

Filing 11

OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus, Denying a Certificate of Apealability, and Denying Leave to Appeal in Forma Pauperis. Signed by District Judge Stephen J. Murphy, III. (CCoh)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
EDWARD RICKS,
Case No. 13-cv-11800

Petitioner,

HONORABLE STEPHEN J. MURPHY, III

v.
CARMEN PALMER,
Respondent.
/

OPINION AND ORDER DENYING PETITION FOR A
WRIT OF HABEAS CORPUS, DENYING A CERTIFICATE
OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
Petitioner Edward Ricks, who is confined at the Alger Correctional Facility in Munising,
Michigan, seeks a writ of habeas corpus under 28 U.S.C. § 2254. Ricks challenges his
convictions and sentences for carjacking, Mich. Comp. Laws § 750.529a; armed robbery,
Mich. Comp. Laws § 750.529; being a felon in possession of a firearm, Mich. Comp. Laws
§ 750.224f; felonious assault, Mich. Comp. Laws § 750.82; possession of a firearm in the
commission of a felony, Mich. Comp. Laws § 750.227b; receiving or concealing a stolen
motor vehicle, Mich. Comp. Laws § 750.535(7); receiving and concealing stolen property
valued at $ 1,000 or more but less than $ 20,0000, Mich. Comp. Laws § 750.535(3)(a); and
being a fourth felony habitual offender, Mich. Comp. Laws § 769.12. For the reasons stated
below, the application for writ of habeas corpus will be denied.
BACKGROUND
Ricks was convicted following a jury trial in the Wayne County Circuit Court. The

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Michigan Court of Appeals summarized the case as follows1:
On July 26, 2007, Frederick Wingfield worked as a delivery-truck driver for
General Wine and Liquor Company, which is now called Great Lakes Wine and
Spirits. During a 1:00 p.m. delivery at Dean’s Liquor in Detroit, Wingfield
encountered a man holding a gun in the back alley of the store. It was sunny
outside, and Wingfield was able to see the man’s face. The man approached
within a few feet of Wingfield and pointed his gun at Wingfield’s chest. The man
demanded money and the keys to the delivery truck. He then talked to Wingfield
about how to operate the truck and the value of its contents. The man asked
whether there was a tracking device in the truck, and Wingfield confirmed that
there was. Wingfield observed that the man was approximately 35 or 40 years
old, five feet, eleven inches in height, and 195 pounds. He was dark skinned
with a bald head and a thin mustache. He wore a “du-rag,” a baseball hat or
skull cap, blue jean shorts, and a light-colored t-shirt.
Immediately after the incident, Wingfield called the police and then his employer
to report the carjacking. He spoke with his employer’s loss-prevention director,
Peter Bullach, who was a former detective sergeant and 25–year veteran of the
Detroit Police Department. Wingfield described the carjacker’s appearance and
the direction of the truck as it fled the scene.
Based on Wingfield’s description and information that Bullach had gathered
from investigating prior similar incidents, Bullach and fellow employee Kenneth
Anderson2 drove toward Yacama Street near the I–75 expressway to track
down the truck. With the help of the company dispatcher, who obtained GPS
tracking information from the truck’s telephone system, Bullach and Anderson
successfully located the truck. They first spotted it heading the wrong way on
Yacama, a one-way street. Bullach gave chase and followed the truck to Lance
Street, where it came to a stop. As Bullach and Anderson approached, the
driver’s door of the truck was open, and the back-up lights were blinking
because the vehicle was still in gear. The man standing next to the open door,
who fit Wingfield’s description of the carjacker, started walking in Bullach’s
direction. Bullach was able to look the man “dead on” and got within 30 to 35
feet of him. As Bullach began to exit his vehicle, the man lifted up his shirt,
pulled out a gun, pointed it in the direction of Bullach and his vehicle, and then
ran away. Bullach got back into his vehicle and pursued the man. As the man
ran down the sidewalk, Bullach pulled close to the curb alongside him. The man

1

This statement of facts is presumed correct on habeas review. See 28 U.S.C. §
2254(e)(1); Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009).
2

Anderson was not called to testify at trial. The parties stipulated that if he were
called as a witness, he could not identify defendant.
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then began to run across lawns. Bullach slammed on his brakes and started to
get out of his vehicle to chase the man on foot. The man again pointed his gun
toward Bullach. Bullach pulled out his own weapon and fired a shot at the man,
who then fled the scene.
Two days after the incident, Wingfield went to the police station to view a
photographic line-up. Wingfield positively identified defendant among a selection
of six photographs. Wingfield was “very certain” of his identification.
At the preliminary examination on August 21, 2007, Wingfield was asked
whether he saw the person who robbed him sitting among the individuals seated
in the courtroom pews. The pews were “completely filled” with people. Wingfield
identified a person other than defendant. He testified at trial that he was scared
at the preliminary examination, defendant’s appearance was similar to the
person he identified, and he had chosen between defendant and the other
person, as they looked alike.
At the jury trial on October 2010, Wingfield did not believe defendant was the
person who committed the carjacking. He testified, however, that defendant’s
appearance at trial, where he was clean shaven and wearing glasses, was
vastly different than his appearance in the photograph shown to him by the
police at the photographic line-up two days after the incident. Wingfield
remained certain that the person he identified in the photographic line-up
(defendant) was indeed the person who robbed him. The court allowed the jury
to submit questions, and Wingfield answered a series of questions regarding the
quality of his memory and vision.
Bullach also viewed a photographic line-up at the behest of the police two days
after the crime. He viewed six photos and initially identified photo number six as
the culprit of these crimes. When asked whether he was sure, Bullach said no
because he was debating between photo number one and photo number six.
Bullach studied the photos for another minute or two and chose photo number
one, defendant, as the culprit. When asked again whether he was sure, Bullach
said yes. When asked to identify the culprit among the pews of the
very-crowded courtroom at the preliminary examination, Bullach positively
identified defendant. At trial, Bullach was 100 percent certain that defendant
was the man he pursued near the delivery truck on the day of the carjacking.
Defendant was previously tried and convicted of the crimes charged; however,
we reversed and remanded for a new trial because defendant was denied his
constitutional right of confrontation when a police officer was permitted to testify
regarding the substance of a telephone call she received from an anonymous
source, which eventually led to defendant's arrest. People v. Ricks, unpublished
opinion per curiam of the Court of Appeals, issued June 9, 2009 (Docket No.
283053). On retrial, defendant was again convicted . . . .
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People v. Ricks, No. 301479, slip. op. at *1-3 (Mich. Ct. App. April 26, 2012) (footnote in
original).
Ricks then appealed. The Michigan Court of Appeals affirmed his conviction, and the
Michigan Supreme Court denied leave to appeal. People v. Ricks, No. 301479 (Mich. Ct.
App. April 26, 2012), lv. den. 493 Mich. 856.
STANDARD OF REVIEW
In a proceeding under 28 U.S.C. § 2254, a writ of habeas corpus may issue only if the
state court adjudication of a claim on the merits
(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.
28 U.S.C. § 2254(d).
A state court decision 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.
Because "a federal court’s collateral review of a state-court decision must be
consistent with the respect due state courts in our federal system,” Miller-El v. Cockrell, 537
U.S. 322, 340 (2003), a federal court may not “issue the writ simply because that court
concludes in its independent judgment that the relevant state-court decision applied clearly
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established federal law erroneously or incorrectly.” Williams, 529 U.S. at 410–11. Instead,
a "highly deferential standard" applies under which "state-court decisions be given the
benefit of the doubt.” Renico v. Lett, 559 U.S. 766, 773 (2010) (quoting first Lindh v.
Murphy, 521 U.S. 320, 333, n.7 (1997), and second Woodford v. Viscotti, 537 U.S. 19, 24
(2002) (per curiam)). Therefore, "so long 'fairminded jurists could disagree' on the
correctness of the state court’s decision," a state court’s determination that a claim lacks
merit will preclude habeas relief. Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (quoting
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)); see also Wetzel v. Lambert, 132 S.
Ct. 1195, 1199 (2012).
DISCUSSION
Ricks makes four habeas claims. He argues that (1) he was denied effective
assistance of counsel at trial, (2) insufficient evidence supports his convictions, (3) his
sentence is constitutionally disproportionate to his offense, and (4) the trial court violated
his due process and fair trial rights by erroneously admitting an in-court identification. The
petition lacks merit.
I.

Ineffective Assistance of Counsel
Ricks alleges that he was denied the effective assistance of counsel because the

attorney representing him at the retrial declined to call Dr. Steven Raymond Miller, an
expert on eyewitness identification who the trial court had appointed at the request of the
attorney representing Ricks at his first trial.
Even on direct review, demonstrating ineffective assistance of trial counsel is difficult.
Harrington, 131 S. Ct. at 788 ("Surmounting Strickland's high bar is never an easy task."

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Padilla v. Kentucky, 559 U.S. 356, 371 (2010)). The criminal defendant must first show that
his trial counsel's performance was so deficient that the attorney "was not functioning as
the 'counsel' guaranteed by the Sixth Amendment." Strickland v. Washington, 466 U.S.
668, 687 (1984). Meeting this standard requires overcoming the strong presumption that
the counsel’s behavior could be reasonably sound trial strategy. Id. at 687–88; see also
Cullen v. Pinholster, 131 S. Ct. 1388, 1407 (2011). Second, the defendant must show that
the deficient performance was prejudicial. Id. This requires the defendant to demonstrate
that “there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. at 694; see also Wong v.
Belmontes, 558 U.S. 15, 27 (2009).
On habeas review, demonstrating ineffective assistance of counsel is all the more
difficult. Harrington, 131 S. Ct. at 785; Knowles v. Mirzayance, 556 U.S. 111, 123 (2009).
Due to the deference given to state courts, the question is not just whether the habeas
petitioner's counsel was actually ineffective; rather, the critical inquiry is whether the state
courts unreasonably applied the Strickland standard to the facts of the petitioner's case.
Knowles, 556 U.S. at 123. This is a "substantially higher threshold." Id. (quoting Schriro v.
Landrigan, 550 U.S. 465, 473 (2007)); see also Harrington, 131 S. Ct. at 788.
Here, the Michigan Court of Appeals rejected Ricks's ineffective assistance of counsel
claim. People v. Ricks, No. 301479, slip op. at *4. The court observed there were sound
reasons for pursuing a theory of erroneous identification but not calling the expert. One was
that Ricks's attorney feared that the expert's proposed testimony would not be admissible
under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). Ricks, No. 301479, slip
op. at *4. Indeed, Dr. Miller himself acknowledged he could not defend against a Daubert
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challenge. Id. at *4 & n.3. And another was that the attorney reasonably believed that he
could dispense with expert testimony “because of the obvious problems with the witnesses’
identification" of Ricks. Id. at 4. Consistent with this evaluation, Ricks's attorney crossexamined Wingfield, who was unable to identify Ricks at trial, and Bullach, who had
identified a different person in the photographic array. Id. The attorney also obtained a
standard jury instruction on the dependability of eyewitness identification. Id.
The state court's conclusion was reasonable. No Supreme Court precedent requires
counsel to call "an expert witness about the problems with eyewitness testimony." Perkins
v. McKee, 411 F. App'x 822, 833 (6th Cir. 2011). A defense attorney may reasonably
choose to pursue a mistaken identification theory by cross-examining witnesses about
inconsistencies in their identifications or by otherwise discrediting the witnesses' testimony.
See Dorch v. Smith, 105 F. App'x 650, 653 (6th Cir. 2004); Greene v. Lafler, 447 F. Supp.
2d 780, 794–95 (E.D. Mich. 2006). Ricks is not entitled to habeas relief on his first claim.
II.

Sufficiency of the Evidence
Ricks also argues that there was insufficient evidence to establish his identity as the

perpetrator.
It is settled law that the Due Process Clause “protects the accused against conviction
except upon proof beyond a reasonable doubt of every fact necessary to constitute the
crime with which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). But due process
only requires that the record contain evidence reasonably sufficient to “support a finding
of guilt beyond a reasonable doubt” — a standard that is satisfied so long as any rational
trier of fact could have found the essential elements of the crime beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 318–19 (1979). A court should not reweigh the
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evidence or second-guess a witness’s credibility. See Marshall v. Lonberger, 459 U.S. 422,
434 (1983); Matthews v. Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003); Neal v. Morris, 972
F.2d 675, 679 (6th Cir. 1992).
Moreover, to obtain post-conviction relief, a federal habeas petitioner must also show
that a state court decision finding sufficient evidence was objectively unreasonable. See
Cavazos v. Smith, 132 S. Ct. 2, 4 (2011). The resulting hurdle is “nearly insurmountable.”
Davis v. Lafler, 658 F. 3d 525, 534 (6th Cir. 2011) (quoting United States v. Oros, 578 F.3d
703, 710 (7th Cir. 2009)).
On direct appeal, the Michigan Court of Appeals rejected Ricks’s insufficient evidence
claim. It explained:
Here, despite an initial selection of a different person at the photographic
line-up, Bullach positively identified defendant as the carjacker, and he
remained consistent in his certainty at both the preliminary examination and
trial. Furthermore, while Wingfield identified a different person at the preliminary
examination and was unable to identify defendant as the carjacker at trial three
years after the incident, he testified that he was very certain that the carjacker
was the person that he identified in the photographic line-up: defendant. We
hold that while Wingfield’s and Bullach’s identifications of defendant may have
been less than compelling, the credibility of their identification testimony was a
question for the trier of fact that this Court does not resolve anew. The record
reflects that, in addition to hearing testimony from the witnesses as elicited by
the attorneys, the trial court permitted jurors to submit their own questions to be
asked of the witnesses so that they could fully assess the credibility and
reliability of the testimony. Viewing this evidence in a light most favorable to the
prosecution, we hold that the evidence was sufficient to find defendant guilty of
these crimes because, at some point, both Wingfield and Bullach identified
defendant as the perpetrator of the crimes, including when Bullach identified
defendant as the culprit in court.
Ricks, No. 301479, slip op. at *5 (internal citations omitted).
The Michigan Court of Appeals’s conclusion was reasonable. Bullach unequivocally
identified Ricks at trial as being the person who drove the stolen truck and who pointed a
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gun at him. This testimony was sufficient to support the convictions. See Sok v.
Romanowski, 619 F. Supp. 2d 334, 351 (W.D. Mich. 2008) (holding that an in-court
identification was sufficient to support a conviction despite conflicting testimony from the
defendant and an alibi witness). Additionally, Wingfield positively identified Ricks at a
photographic lineup conducted two days after the incident. Wingfield was “very certain” of
his identification. Albeit not able to identify Ricks at trial, Wingfield explained that the
petitioner’s appearance at trial, during which he was clean shaven and wearing glasses,
was different than his appearance in the photograph, in which he had facial hair and no
glasses. And Wingfield remained certain that the person whom he identified in the
photographic lineup was his assailant. The jury could have reasonably believed Wingfield’s
testimony. See Burger v. Prelesnik, 826 F. Supp. 2d 997, 1015–16 (E.D. Mich. 2011)
(observing that the jury could reasonably rely on an identification witness’s testimony who
identified the perpetrator at trial but was unable to identify him in two photo arrays due to
the age of the photographs and changes in facial hair).
Given the testimony presented, the Michigan Court of Appeals did not unreasonably
reject the petitioner’s sufficiency of evidence claim.
III.

Sentencing Errors
Ricks claims that his sentences for the offenses of carjacking and armed robbery

were disproportionate to the offenses and to the offender. Ricks also claims that the
sentences were imposed to penalize him for successfully appealing after his first trial.
The petitioner’s sentence of 30 to 50 years for the carjacking conviction and 25 to 50
years for the armed robbery conviction were within the statutory limits for those offenses.
See Mich. Comp. Laws § 750.529 (armed robbery); Mich. Comp. Laws § 750.529a(1)
9

(carjacking). A sentence imposed within the statutory limits is rarely susceptible to collateral
attack. See Townsend v. Burke, 334 U.S. 736, 741 (1948); Cook v. Stegall, 56 F. Supp. 2d
788, 797 (E.D. Mich. 1999). Once a federal court determines that a state court sentence
is within the statutory limits, federal habeas review typically ends. Allen v. Stovall, 156 F.
Supp. 2d 791, 795 (E.D. Mich. 2001). Ricks fails to overcome this strong presumption.
The Eighth Amendment contains only a “narrow proportionality principle,” Graham v.
Florida, 560 U.S. 48, 59–60 (2010) (quoting Harmelin v. Michigan, 501 U.S. 957, 997,
1000–01 (1991)), making successful challenges to the proportionality of a particular
sentence “exceedingly rare,” Rummel v. Estelle, 445 U.S. 263, 272 (1980). Federal courts,
therefore, will not overturn a sentence within statutory limits as disproportionate if the
sentence is not death or life imprisonment without parole. See Austin v. Jackson, 213 F.3d
298, 302 (6th Cir. 2000); Seeger v. Straub, 29 F. Supp. 2d 385, 392 (E.D. Mich. 1998).
Ricks accordingly is not entitled to relief under the Eighth Amendment, and his claim that
his sentence is disproportionate under Michigan law is not cognizable on habeas review.
Hastings v. Yukins, 194 F. Supp. 2d 659, 673 (E.D. Mich. 2002); Whitfield v. Martin, 157
F. Supp. 2d 758, 761 (E.D. Mich. 2001).
Ricks also alleges that the sentences that he received after the second trial were
imposed to penalize him for successfully appealing his first conviction, because the
sentences imposed after the second trial were greater than the sentences he received at
his first trial. The Michigan Court of Appeals rejected this claim. Ricks, No. 301479, slip op.
at *6.
Due process of law requires that “vindictiveness against a defendant for having
successfully attacked his first conviction must play no part in the sentence he receives after
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a new trial.” North Carolina v. Pearce, 395 U.S. 711, 725 (1969). To guard against
vindictiveness, the Supreme Court requires that, “whenever a judge imposes a more
severe sentence upon a defendant after a new trial, the reasons for his doing so must
affirmatively appear” on the record. Id. at 726. Federal courts have interpreted this rule to
apply “a presumption of vindictiveness, which may be overcome only by objective
information in the record justifying the increased sentence.” United States v. Goodwin, 457
U.S. 368, 374 (1982). But where there is no reasonable likelihood that the increased
sentence is the product of actual vindictiveness on the part of the sentencing authority,
such as when different judges conduct each sentencing, the burden remains upon the
defendant to prove actual vindictiveness in the sentencing decision. See Alabama v. Smith,
490 U.S. 794, 799 (1989); Texas v. McCullough, 475 U.S. 134, 140 (1986).
Because Ricks was sentenced by two different judges, the presumption of
vindictiveness does not apply. See Goodell v. Williams, 643 F.3d 490, 500–01 (6th Cir.
2011). Moreover, he fails to allege or prove any actual vindictiveness. The Michigan Court
of Appeals thus reasonably rejected his vindictive sentencing claim, precluding habeas
relief.
IV.

Suggestive Identification
Finally, Ricks claims that the judge erred in denying his motion to suppress

Wingfield’s and Bullach’s in-court identifications.
Due process protects the accused against the introduction of evidence which results
from an unreliable identification obtained through unnecessarily suggestive procedures.
Moore v. Illinois, 434 U.S. 220, 227 (1977). There is a two-step procedure for determine
whether an identification can be admitted consistent with due process. The first step is to
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determine whether the identification procedure was impermissibly suggestive. Ledbetter
v. Edwards, 35 F.3d 1062, 1070–71 (6th Cir.1994). If it was, the second step is to
determine whether the identification nonetheless has sufficient indicia of reliability
considering all the circumstances. Id. Five considerations bear on the reliability of an
identification:
1.
2.
3.
4.

the witness’s opportunity to view the criminal at the time of the crime;
the witness’s degree of attention at the time of the crime;
the accuracy of the witness’s prior description of the defendant;
the witness’s level of certainty when identifying the suspect at the confrontation;
and,
5. the length of time that has elapsed between the time and the confrontation.
Neil v. Biggers, 409 U.S. 188, 199–200 (1972).
A criminal defendant has the initial burden of proving that the identification procedure
was impermissibly suggestive. It is only after a habeas petitioner meets this burden of proof
that the burden shifts to the state to prove that the identification was reliable. Johnson v.
Warren, 344 F. Supp. 2d 1081, 1090 (E.D. Mich. 2004) (citing English v. Cody, 241 F. 3d
1279, 1282–83 (10th Cir. 2001)). Here, Ricks fails to show that the police conducted
improper pretrial identifications. Ricks has offered no evidence to the Michigan Court of
Appeals or to this Court showing that the composition of the photo arrays or other aspects
of the pretrial identification procedures were suggestive. The fact that Bullach initially
picked another suspect from the photographic array and that Wingfield could not positively
identify Ricks at the preliminary examination is not evidence of suggestiveness. Due
process, therefore, does not require exclusion of the identifications or entitle Ricks to
habeas relief. See Perry v. New Hampshire, 132 S. Ct. 716, 730 (2012) (“[T]he Due
Process Clause does not require a preliminary judicial inquiry into the reliability of an
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eyewitness identification when the identification was not procured under unnecessarily
suggestive circumstances arranged by law enforcement.”); Cameron v. Birkett, 348 F.
Supp. 2d 825, 843 (E.D. Mich. 2004) (“[T]he Supreme Court has never held that an in-court
identification requires an independent basis for admission in the absence of an antecedent
improper pre-trial identification.”).
CERTIFICATE OF APPEALABILITY
Before a habeas petitioner may appeal an adverse district court decision, the district
court must first determine if the petitioner is entitled to a certificate of appealability. 28
U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). The court may issue a certificate of
appealability “only if the applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). A petition that meets this standard must be
reasonably debatable on the merits or must present issues that should be developed
further. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473,
484 (2000).
Having considered the petition, the Court finds that Ricks has not made a substantial
showing of a denial of a constitutional right and that an appeal of this order would not be
in good faith. Because any appeal would be frivolous, the Court will deny a certificate of
appealability and deny Ricks leave to proceed in forma pauperis on appeal. See Long v.
Stovall, 450 F. Supp. 2d 746, 755 (E.D. Mich. 2006); Hence v. Smith, 49 F. Supp. 2d 547,
549 (E.D. Mich. 1999).
ORDER
WHEREFORE, IT IS HEREBY ORDERED that the petition for a writ of habeas corpus

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is DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that petitioner leave to appeal in forma pauperis is
DENIED.
SO ORDERED.

s/Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge
Dated: April 14, 2014
I hereby certify that a copy of the foregoing document was served upon the parties and/or
counsel of record on April 14, 2014, by electronic and/or ordinary mail.
s/Carol Cohron
Case Manager

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