Sanders v. Berghuis
OPINION AND ORDER Denying Petition for Writ of Habeas Corpus 1 ; Denying 13 Application for Appointment of Counsel; Declining to Issue Certificate of Appealability; Granting Leave to Proceed InForma Pauperis on Appeal, filed by Timothy Sanders Signed by District Judge Victoria A. Roberts. (CPin)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
TIMOTHY JAY SANDERS,
CASE NO. 13-cv-12935
HONORABLE VICTORIA A. ROBERTS
OPINION AND ORDER
DENYING THE REQUEST FOR APPOINTMENT OF COUNSEL (ECF NO. 13),
DENYING THE PETITION FOR WRIT OF HABEAS CORPUS (ECF NO. 1),
DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, BUT
GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
Petitioner Timothy Jay Sanders filed a pro se petition for writ of habeas corpus
on July 5, 2013. The pleading challenges Petitioner’s state convictions for three counts
of armed robbery, one count of assault with intent to rob while armed, and three firearm
offenses. Petitioner alleges that a pretrial identification procedure was unduly
suggestive, that the trial court abused its discretion when ruling on his motion to
suppress the identification testimony, and that his trial attorney was ineffective.
Respondent Mary Berghuis urges the Court through counsel to deny the habeas petition
because Petitioner’s claims lack merit or were procedurally defaulted in state court. The
Court agrees that Petitioner’s claims do not warrant habeas relief; the Court denies the
The charges against Petitioner arose from two robberies at supermarkets in
Detroit, Michigan during April of 2008. The two cases were consolidated for a bench
trial in Wayne County Circuit Court.
A. The Trial
1. Prosecution Witnesses
In case number 08-7464, the Wayne County prosecutor charged Petitioner with
armed robbery, assault with intent to rob while armed, assault with a dangerous weapon
(felonious assault), felon in possession of a firearm, and possession of a firearm during
the commission of a felony (felony firearm). The robbery in that case occurred at the
Food Giant Store on Greenfield Road where Nidhal Yono and Debra Leach were
cashiers. They testified at trial that Petitioner approached them with a gun about 5:00
p.m. on April 19, 2008, and demanded money. Both women identified Petitioner at a
line-up eleven days after the crime and again at trial. The manager of the store,
Ghazwan Denha, observed the robbery from a glass-enclosed office in the store. He
also identified Petitioner in the line-up and at trial.
In case number 08-6148, the prosecutor charged Petitioner with two counts of
armed robbery, one count of felon in possession of a firearm, one count of carrying a
concealed weapon, one count of felony firearm, and one count of felonious assault.
That robbery occurred on April 22, 2008, at the Banner Supermarket on Schaefer Road
Zina Abro testified that she was working at the cash register when a man pointed
a gun at her and told her to hand over the register. Initially, she could not open the
register drawer. So, the man went to the other cashier. The man returned to her,
however, and because her register was open by that time, she put the entire drawer in a
bag and gave it to the man. After the man went back to the other cashier, he left the
store. Ms. Abro identified Petitioner at a line-up in the Wayne County Jail on April 30,
2008, and at trial.
Diane Kinaia was the other cashier at the Banner Supermarket on April 22, 2008.
She testified that someone came from behind her, hit her behind the shoulder with a
gun, and demanded money from her register. The man went to the other register, but
returned to her. He left the store after she gave him the currency in her cash register
drawer. Ms. Kinaia identified Petitioner at trial and at the line-up held eight days after
Charles Moore testified that he was a stock clerk at the Banner Supermarket and
that he observed the robbery on April 22, 2008, while he was working at the front of the
store by the cash registers. He followed the robber out of the store and saw where he
went. When the police pulled up, he pointed out the direction in which the man had
walked away. About eight days after the robbery, he went to the Wayne County Jail
where he identified Petitioner in a line-up.
Police Officer Garrett Taylor testified that, on April 22, 2008, he was on routine
patrol when two juveniles informed him that the Banner Supermarket was being robbed.
Officer Taylor and his partner drove to the supermarket where the security guard
pointed to a fleeing man and said that was the person who robbed the store. Officer
Taylor and his partner pursued the man in their vehicle. The fleeing man turned around,
saw them, and ran between some houses. Taylor gave chase on foot. As the man
hopped a fence, he dropped a cash register drawer. Officer Taylor lost sight of the
man, but he later heard over the air that the man was apprehended. He subsequently
retraced his steps and noticed the cash register drawer and some currency on the
grass. He also found a handgun along the path that he had chased Petitioner. At trial,
Officer Taylor identified Petitioner as the man he chased on April 22, 2008.
Police Officer Eugene Fitzhugh testified that Petitioner was caught at 14536
Snowden, that a cash register drawer containing $492.11 was found there, and that a
weapon was recovered from the rear of 14553 Littlefield. Police Officer Shetekia Brown
testified that she and her partner observed Petitioner jogging slowly near Eaton and
Schaefer Streets a few minutes after she received a description of the suspect from
another police officer. She got of the car to investigate and then detained Petitioner. As
she patted him down, Petitioner said that he did not have a gun and that he had
2. Defense Witnesses
Petitioner’s aunt, Lesa Smith, testified for the defense that Petitioner was with her
on April 19, 2008. She claimed that the two of them went to her niece’s house about
5:00 or 5:30 p.m. that day and that she and Petitioner “hung out” together at her
girlfriend’s house until 2:30 a.m. the next morning.
Petitioner testified that he was with his Aunt Lesa on April 19, 2008, and that they
went to his sister’s house, to his cousin’s house, and then to the house of his aunt’s
friend. He denied stopping by the Food Giant supermarket. As for April 22, 2008, he
claimed that his former girlfriend came over to his house about 4:00 p.m. and that they
got into an argument. He left the house about 5:00 p.m. and started walking “to blow off
some steam.” He saw a lot of police activity and tried to return home, but he was
arrested about two miles from his home. At trial, he denied telling the arresting police
officer that he had dropped a gun and did not have the gun.
3. The Trial Court’s Findings, Conclusions, and Sentence
On August 20, 2008, the trial court read its findings of fact and conclusions of law
to the parties. In case number 08-7464, the trial court found Petitioner guilty of armed
robbery, Mich. Comp. Laws § 750.529, assault with intent to rob while armed, Mich.
Comp. Laws § 750.89, felon in possession of a firearm, Mich. Comp. Laws § 750.224f,
and felony firearm, Mich. Comp. Laws § 750.227b. In case number 08-6148, the trial
court found Petitioner guilty of two counts of armed robbery and one count of felony
firearm. The court acquitted Petitioner of the remaining charges, including two counts of
felonious assault, one count of felon in possession of a firearm, and one count of
carrying a concealed weapon.
On September 8, 2008, the trial court sentenced Petitioner to concurrent terms of
fifteen to twenty years in prison for the robbery and assault convictions and two to five
years in prison for the felon-in-possession conviction. The trial court sentenced
Petitioner to a consecutive term of two years in prison for the felony firearm convictions.
B. The Direct Appeal and State Collateral Proceedings
In an appeal as of right, Petitioner argued that the pretrial line-up was
impermissibly suggestive and that the trial court applied an incorrect legal standard
when ruling on his motion to suppress the identification testimony. The Michigan Court
of Appeals disagreed and affirmed Petitioner’s convictions in an unpublished, per
curiam opinion. See People v. Sanders, Nos. 288099 and 288100 (Mich. Ct. App. Apr.
15, 2010.) Petitioner raised the same issues in the Michigan Supreme Court, which
denied leave to appeal on September 9, 2010, because it was not persuaded to review
the issues. See People v. Sanders, 488 Mich. 857; 787 N.W.2d 113 (2010) (table).
Petitioner subsequently filed a motion for relief from judgment in which he argued
that (1) the trial judge abused her discretion when she based her decision regarding the
constitutionality of the line-up on the height and weight of the participants in the line-up,
as opposed to the witnesses’ description of the suspect, the video, and the amount of
time the witnesses had to observe the suspect; (2) trial counsel was ineffective for
failing to object when someone said that the witnesses had time to view the suspect
during the robbery; (3) trial counsel was ineffective for failing to adequately investigate
evidence that Petitioner’s skin tone and hair differed from that of the other participants in
the pretrial line-up; and (4) the pretrial identification was unduly suggestive. The trial
court denied Petitioner’s motion after concluding that it was precluded from deciding
three of Petitioner’s claims because he raised them on direct appeal and that Petitioner
had failed to show actual prejudice from the alleged irregularities that supported his
remaining claim for relief.
Petitioner appealed the trial court’s decision, but he merely reiterated his
challenge to the pretrial identification procedure, an issue that he raised on direct
appeal. The Michigan Court of Appeals denied leave to appeal for failure to establish
entitlement to relief under Michigan Court Rule 6.508(D). See People v. Sanders, No.
310573 (Mich. Ct. App. Nov. 3, 2012).
Petitioner raised the same claim in a subsequent application for leave to appeal
in the Michigan Supreme Court. He also raised two new issues, claiming that he was
denied impeachment evidence (pictures of the line-up participants) and that the line-up
attorney misled him in order to induce him to participate in the line-up. On June 25,
2013, the Michigan Supreme Court denied leave to appeal for failure to establish
entitlement to relief under Rule 6.508(D). See People v. Sanders, 494 Mich. 868; 832
N.W.2d 231 (2013) (table).
C. The Habeas Petition and Responsive Pleading
On July 1, 2013, Petitioner signed and dated his habeas petition, and on July 5,
2013, the Clerk of the Court filed the petition. Petitioner argues that the trial judge
abused her discretion when ruling on the constitutionality of the line-up, that his trial
counsel was ineffective, and that the pretrial identification was unduly suggestive.
Respondent argues in her answer to the petition that Petitioner’s claims are
procedurally defaulted or meritless.
“[A] procedural default, that is, a critical failure to comply with state procedural
law, is not a jurisdictional matter,” Trest v. Cain, 522 U.S.87, 89 (1997), and the Court
has determined that Petitioner’s claims lack substantive merit. Thus, a determination of
whether Petitioner procedurally defaulted his claims “adds nothing but complexity to the
case.” Babick v. Berghuis, 620 F.3d 571, 576 (6th Cir. 2010). The Court therefore
excuses any procedural defaults and proceeds directly to the merits of Petitioner’s
claims, using the following standard of review.
II. Standard of Review
“The statutory authority of federal courts to issue habeas corpus relief for
persons in state custody is provided by 28 U.S.C. § 2254, as amended by the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).” Harrington v. Richter,
562 U.S. 86, 97 (2011). Pursuant to § 2254, the court may not grant a state prisoner’s
application for the writ of habeas corpus unless the state court’s adjudication of the
prisoner’s claims on the merits
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
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).
Under the “contrary to” clause [of § 2254(d)(1)], a federal habeas court
may grant the writ 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. Under the “unreasonable application”
clause [of § 2254(d)(1)], a federal habeas court may grant the writ if the
state court identifies the correct governing legal principle from [the
Supreme] Court’s decisions but unreasonably applies that principle to the
facts of the prisoner’s case.
Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O’Connor, J., opinion of the Court for
“[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. Rather, that application must
also be unreasonable.” Id. at 411. “AEDPA thus imposes a ‘highly deferential standard
for evaluating state-court rulings,’ Lindh v. Murphy, 521 U.S. 320, 333, n. 7, 117 S. Ct.
2059, 2066 n.7 (1997), and ‘demands that state-court decisions be given the benefit of
the doubt,’ Woodford v. Visciotti, 537 U.S. 19, 24, 123 S. Ct. 357, 360 (2002) (per
curiam).” Renico v. Lett, 559 U.S. 766, 773 (2010).
“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.” Richter, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S.
652, 664 (2004)). To obtain a writ of habeas corpus from a federal court, a state
prisoner must show that the state court’s ruling on his claims “was so lacking in
justification that there was an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.” Id. at 103.
A. The Line-up (claim four)
The Court begins its discussion with Petitioner’s fourth claim regarding the
pretrial identification procedure. Petitioner contends that pretrial line-up was unduly
suggestive because he was the only person in the line-up with light skin and long hair.
Petitioner raised this claim on direct appeal. The Michigan Court of Appeals
stated that the line-up may have been somewhat suggestive because Petitioner was the
only participant with braids and because Ms. Abro and Ms. Kinaia stated that they were
told the robber was in the line-up. The Court of Appeals nevertheless concluded from
the totality of the relevant circumstances that Petitioner’s line-up passed constitutional
1. Clearly Established Federal Law
The Supreme Court has stated that an identification procedure violates due
process of law if the confrontation was “‘unnecessarily suggestive and conducive to
irreparable mistaken identification.’” Neil v. Biggers, 409 U.S. 188, 196 (1972) (quoting
Stovall v. Denno, 388 U.S. 293, 301-02 (1967)). “Suggestive confrontations are
disapproved because they increase the likelihood of misidentification, and unnecessarily
suggestive ones are condemned for the further reason that the increased chance of
misidentification is gratuitous.” Id. at 198. Courts in this Circuit follow a two-part
analysis when determining whether an identification is admissible. Cornwell v.
Bradshaw, 559 F.3d 398, 413 (6th Cir. 2009).
The court first considers whether the procedure was unduly suggestive.
Wilson v. Mitchell, 250 F.3d 388, 397 (6th Cir. 2001); Ledbetter v.
Edwards, 35 F.3d 1062, 1070-71 (6th Cir. 1994). The court must decide if
the procedure itself steered the witness to one suspect or another,
independent of the witness’s honest recollection. Wilson, 250 F.3d at 397.
“The defendant bears the burden of proving this element.” Ledbetter, 35
F.3d at 1071 (citation omitted). If the procedure was suggestive, the court
then determines whether, under the totality of the circumstances, the
identification was nonetheless reliable and therefore admissible. Wilson,
250 F.3d at 397 (citation omitted); Ledbetter, 35 F.3d at 1071.
The only two eyewitnesses to testify at the Wade hearing1 on the
constitutionality of the line-up were Ms. Abro and Ms. Kinaia, who were the cashiers
during the Banner Supermarket robbery on April 22, 2008. They were told that the
suspect was in the line-up. (Wade Hr’g, 8, 15, July 11, 2008.) This did not necessarily
render the line-up unduly suggestive, particularly because the witnesses promptly and
unequivocally identified Petitioner as the robber and they were not told which man the
police thought was the suspect. United States v. Porter, 29 F. App’x 232, 237 (6th Cir.
2002). Nevertheless, because at least one of the witnesses described the suspect to
the police as having braids (Wade Hr’g Tr., 10, July 11, 2008), and because Petitioner
See Wade v. United States, 388 U.S. 218 (1967).
was the only participant in the line-up with long, braided hair (id. at 15-16), the line-up
The Court therefore proceeds to an evaluation of whether, under the totality of
the circumstances, there was an independent basis for the witnesses’ identification of
Petitioner. The following five factors must be considered when determining whether an
identification was reliable despite its suggestiveness:
the opportunity of the witness to view the criminal at the time of the crime,
the witness’ degree of attention, the accuracy of the witness’ prior
description of the criminal, the level of certainty demonstrated by the
witness at the confrontation, and the length of time between the crime and
Biggers, 409 U.S. at 199-200.
a. Opportunity to View the Suspect
The first Biggers factor assesses the witness’s opportunity to view the suspect at
the initial observation. Ms. Abro testified at the Wade hearing that the robbery may
have lasted ten to fifteen minutes, that she saw the robber’s face, and that he was right
in front of her. (Wade Hr’g Tr., 8-9, July 11, 2008.) At trial, she testified that she saw
the robber twice: when he first approached her and after he returned from talking to the
other cashier. (Trial Tr. Vol. I, 93, Aug. 14, 2008.)
Ms. Kinaia testified at the Wade hearing that her contact with the robber was very
brief, but that the robbery may have lasted a little more than five minutes. (Wade Hr’g
Tr.,17, July 11, 2008.) Although she was in pain because the robber hit her on the
shoulders, she claimed that she looked at the robber when she was handing him the
money. She noticed his nose and braided hair. (Id.) At trial, she said that she had a
“pretty good look” at the robber’s face. (Trial Tr. Vol. I, 104, Aug. 14, 2008.) The Court
concludes that the witnesses had a good opportunity to view the shooter.
b. Degree of Attention
The second Biggers factor assesses the witness’s attentiveness during the initial
To analyze the sufficiency of an eyewitness’s degree of attention, [courts]
generally examine the circumstances surrounding the witness’s
encounter. United States v. Thomas, 116 Fed. Appx. 727, 736 (6th Cir.
2004), vacated on other grounds, 543 U.S. 1116, 125 S.Ct. 1104, 160
L.Ed.2d 1064 (2005) (remanding in light of United States v. Booker, 543
U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)). [Courts] find more
reliability where a witness was able to view the assailant with a
“heightened degree of attention, as compared with disinterested
bystanders or casual observers.” United States v. Crozier, 259 F.3d 503,
511 (6th Cir. 2001) (quotation omitted). Generally, [courts] place greater
trust in witness identifications made during the commission of a crime
because the witness has a reason to pay attention to the perpetrator. See
United States v. Meyer, 359 F.3d 820, 826 (6th Cir. 2004) (finding
heightened degree of attention where witness spoke with robber and
studied his features while looking for an opportunity to escape); Crozier,
259 F.3d at 511 (finding heightened degree of attention where robber
confronted witnesses with a gun).
Howard v. Bouchard, 405 F.3d 459, 473 (6th Cir. 2005).
Both Ms. Abro and Ms. Kinaia had a heightened degree of attention because the
robber approached them with a gun. Ms. Abro, in fact, implied at the pretrial hearing
that she could not forget Petitioner’s face because his gun was in her face during the
robbery. (Wade Hr’g Tr., 12, July 11, 2008.) The Court concludes that the witnesses
were attentive during the robbery.
c. Accuracy of Description
The third Biggers factor examines the accuracy of the witness’s prior description
of the defendant. The Court has found no reference in the record to Ms. Kinaia’s
description of the robber to the police. Ms. Abro, however, claimed that she described
the robber to the police as a black man with a somewhat big nose and braids, which
showed under the towel that he wore on his head. (Id. at 9-10.) Petitioner does not
dispute the accuracy of this description. The Court concludes that Ms. Abro’s limited
description of the suspect was accurate.
d. Level of Certainty
The fourth Biggers factor examines the witness’s level of certainty at the pretrial
confrontation. Ms. Abro testified at the pretrial hearing that she recognized Petitioner
“right away” in the line-up and that she did not bother to look at the other participants in
the line-up for this reason. (Id. at 11-12.) Ms. Kinaia also testified that she immediately
recognized Petitioner in the line-up. (Id. at 16.) Although she initially informed the
police that she was not a hundred percent sure, she claimed at trial that she later
realized it was him. (Trial Tr. Vol. I, 108, Aug. 14, 2008.) The Court concludes that both
witnesses were certain of their identifications.
e. Length of Time
The final Biggers factor looks at the length of time between the crime and the
identification. The Banner Supermarket robbery occurred on April 22, 2008. The lineup
was held eight days later on April 30, 2008. The length of time between the crime and
the identifications was not significant.
The Court concludes from the totality of the circumstances that there was an
independent basis for Ms. Abro’s and Ms. Kinaia’s identification of Petitioner. Both
eyewitnesses had a good opportunity to view the suspect, and their attention was
heightened by the presence of a gun. Ms. Abro’s limited description of Petitioner was
accurate, and both women were sure of their identifications. The length of time
between the crime and the identification was short. Consequently, the witnesses’
identification of Petitioner was reliable enough to overcome any suggestiveness in the
lineup and to be admissible.2
It also appears that there was an independent basis for the identification of Petitioner
as the robber in the Food Giant robbery. Nidhal Yono testified at the preliminary
examination that she looked “really good” at Petitioner’s face during the robbery.
(Prelim. Examination Tr., 15, June 3, 2008.) She claimed that Petitioner had medium
dark complexion and that all six of the participants in the line-up had a similar skin tone.
(Id. at 15-17.) At trial, Ms. Yono testified that she saw the robber’s face during the
robbery and that she was able to identify Petitioner “right away” in the line-up because
she remembered his face. (Trial Tr. Vol. I, 24-25, 27-28, 34, Aug. 14, 2008.)
Debra Leach testified at the preliminary examination that the store was well lit
during the robbery and that nothing covered Petitioner’s face. (Prelim. Examination Tr.,
25-26, June 3, 2008.) She informed the police that Petitioner was twenty-five to thirtyfive years old and that he had a medium complexion. (Id. at 29.) Petitioner was twentysix years old at the time. At trial, Ms. Leach testified that she saw the robber’s face for
only a few seconds, but she claimed that was long enough. (Trial Tr. Vol. I, 46, Aug. 14,
The store manager, Ghazwan Denha, was confident in his identification of
Petitioner, claiming at trial that, “You can’t forget a face.” (Id. at 59.) He described the
robber to the police as twenty-four or twenty-five years old, five foot, seven inches to
five foot, nine inches and fair complected, not too dark and not too white. Mr. Denha
also stated that Petitioner had braids and a little goatee. (Id. at 49-50.) Petitioner does
not dispute this description, and the record indicates that he was five foot, nine inches
tall and twenty-six years old at the line-up.
To summarize, the eyewitnesses to the first robbery had an independent basis
for identifying Petitioner. They had a good opportunity to view the suspect during the
robbery, their attention to the suspect was good, their prior descriptions of Petitioner
were accurate, they were certain of their identifications, and the length of time between
the crime and the line-up (eleven days) was short.
The state appellate court’s rejection of Petitioner’s claim was not contrary to, or
an unreasonable application of, Biggers. Therefore, Petitioner is not entitled to habeas
corpus relief on the basis of his challenge to the line-up.
B. The Trial Court’s Ruling on the Constitutionality of the Line-up (claim one)
Petitioner argues in a related claim that the trial court abused its discretion when
ruling on the constitutionality of the line-up. Petitioner contends that the trial court
focused on the participants’ height and weight even though the witnesses based their
description on skin tone and hair.
On direct review, Petitioner argued that the trial court improperly focused on the
presence of an attorney at the line-up and the attorney’s lack of objection to the
identification procedure. The Michigan Court of Appeals rejected Petitioner’s
suggestion that the trial court applied an incorrect legal standard.
Petitioner is raising a slightly different claim here, contending that the trial court
improperly focused on the height and weight of the line-up participants. Because no
state court adjudicated this claim on the merits, “the deference due under AEDPA does
not apply,” Maples v. Stegall, 340 F.3d 433, 436 (6th Cir. 2003), and this Court’s review
is de novo, McAdoo v. Elo, 365 F.3d 487, 498 (6th Cir. 2004).
1. Clearly Established Federal Law
“Most eyewitness identifications involve some element of suggestion.” Perry v.
New Hampshire, 132 S. Ct. 716, 727 (2012), But
[a]n identification infected by improper police influence . . . is not
automatically excluded. Instead, the trial judge must screen the evidence
for reliability pretrial. If there is “a very substantial likelihood of irreparable
misidentification,” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct.
967, 19 L.Ed.2d 1247 (1968), the judge must disallow presentation of the
evidence at trial. But if the indicia of reliability are strong enough to
outweigh the corrupting effect of the police-arranged suggestive
circumstances, the identification evidence ordinarily will be admitted, and
the jury will ultimately determine its worth.
Id. at 720.
Petitioner has submitted a copy of the “Showup & Photo Identification Record” to
the Court as “Documentation.” See ECF No. 8, page 5; ECF No. 9, page 18. This
record indicates that the six men in the line-up ranged in height from five feet, eight
inches to five feet, ten inches and that their weight ranged from 155 pounds to 200
pounds. Defense counsel conceded at the Wade hearing that there were some
similarities among the participants as far as race, weight, and height were concerned,
but that Petitioner was the only person with braided hair. (Wade Hr’g Tr., 20, July 11,
The trial court agreed that Petitioner was the only participant in the line-up with
braids, but nevertheless stated that Petitioner had failed to show that the line-up was
unduly suggestive. The court noted that an attorney was present at the line-up to
ensure its fairness. The trial court went on to say that all the men in the lineup were
“within the ballpark” in terms of age, height, and weight. The trial court concluded that
the line-up was constitutional, but subject to cross-examination at trial as to weight and
as to Ms. Kinaia’s comment that she was not 100 percent sure of her identification. (Id.
Although the trial court did not mention the participants’ complexion, the court did
screen the identification evidence for reliability and implicitly concluded that the indicia
of reliability outweighed any suggestive circumstances. This Court, moreover,
determined above that, even if the line-up was suggestive, the eyewitnesses had an
independent basis for their identification of Petitioner. Therefore, even if the state trial
court abused its discretion when assessing the suggestiveness of the line-up, the
eyewitnesses’ identification testimony did not deprive Petitioner of a fair trial. Habeas
relief is not warranted on Petitioner’s claim.
C. Trial Counsel (claims two and three)
In his remaining two claims, Petitioner alleges that his trial attorney provided
ineffective assistance. Specifically, Petitioner claims that his attorney failed to view the
evidence about which he was most interested, did not care about his concerns, and “did
the bare minimum.” Pet. at 6. Petitioner further alleges that trial counsel failed to
perform a pretrial investigation on the line-up. Petitioner claims that he informed his
attorney that the line-up was suggestive due to differences in skin tone and hair and
because of what the police told the witnesses before the line-up.
No state court adjudicated these claims on the merits. Therefore, this Court’s
review is de novo. McAdoo v. Elo, 365 F.3d at 498.
1. Clearly Established Federal Law
The Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668 (1984),
is clearly established federal law for purposes of Petitioner’s ineffective-assistance-ofcounsel claim. Cullen v. Pinholster, 563 U.S. 170, __, 131 S. Ct. 1388, 1403 (2011).
Under Strickland, a defendant must show that his trial attorney’s “performance was
deficient” and “that the deficient performance prejudiced the defense.” Strickland, 466
U.S. at 687. “Unless a defendant makes both showings, it cannot be said that the
conviction . . . resulted from a breakdown in the adversary process that renders the
result unreliable.” Id.
The “deficient performance” prong of the Strickland test “requires showing that
counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Id. “Judicial scrutiny of counsel’s
performance must be highly deferential.” Id. at 689.
To demonstrate that counsel’s performance prejudiced the defense, Petitioner
must show “a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. at 694. “This does
not require a showing that counsel’s actions ‘more likely than not altered the outcome,’ ”
but “[t]he likelihood of a different result must be substantial, not just conceivable.”
Richter, 562 U.S. at 111-12 (quoting Strickland, 466 U.S. at 693).
The record does not support Petitioner’s contention that his attorney did
“the bare minimum” or that the attorney failed to adequately investigate the line-up. The
attorney moved to suppress the identification testimony, thoroughly questioned the
eyewitnesses at the Wade hearing, elicited testimony regarding what the police told
them before the line-up, and argued that the line-up was suggestive because Petitioner
was the only person with braids.
At trial, defense counsel cross-examined prosecution witnesses, presented an
alibi witness for the first robbery, and produced Petitioner to explain his activities on the
day of the second robbery. In his closing argument, defense counsel pointed out that
Petitioner’s fingerprints were not found on the gun in evidence. He also maintained that
the witnesses’ identifications were not credible because the witnesses were nervous
and had only a brief opportunity to view the robber.
The record also does not support the contention that trial counsel failed to
address Petitioner’s concerns. The attorney consulted Petitioner as to whether he
wanted to consolidate his two cases and waive his right to a jury trial. (Wade Hr’g Tr.,
23-25, July 11, 2008.) The attorney also requested supplemental discovery (id. at 25),
and Petitioner himself addressed the trial court on the issue of the suggestiveness of
the line-up and the lack of photographs of the participants in the line-up. (Id. at 29-30.)
The Court concludes that defense counsel’s performance was not deficient.
Furthermore, the evidence against Petitioner was overwhelming. Three eyewitnesses
from each robbery independently identified Petitioner as the robber, and Petitioner was
caught following a chase after the second robbery. Therefore, the allegedly deficient
performance could not have prejudiced the defense. Habeas relief is not warranted on
Petitioner’s claims of ineffective assistance of counsel.
The state appellate court’s adjudication of Petitioner’s first claim on the merits
was not contrary to Supreme Court precedent, an unreasonable application of Supreme
Court precedent, or an unreasonable determination of the facts. As for Petitioner’s
remaining claims, which were not adjudicated on the merits in state court, the Court
concludes from a de novo review of the claims that Petitioner’s constitutional rights were
not violated. The Court denies Petitioner’s habeas corpus petition (ECF No. 1) and his
request for appointment of counsel (ECF No. 13).
V. Denying a Certificate of Appealability, but
Granting Leave to Proceed In Forma Pauperis on Appeal
“[A] prisoner seeking postconviction relief under 28 U.S.C. § 2254 has no
automatic right to appeal a district court’s denial or dismissal of the petition. Instead,
[the] petitioner must first seek and obtain a [certificate of appealability.]” Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003). A certificate of appealability may issue “only if the
applicant has made a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of
reason could disagree with the district court’s resolution of his constitutional claims or
that jurists could conclude the issues presented are adequate to deserve
encouragement to proceed further.” Miller El, 537 U.S. at 327.
For the reasons given above, reasonable jurists would not find the Court’s
assessment of Petitioner’s claims debatable or wrong. Nor would reasonable jurists
conclude that the issues deserve encouragement to proceed further. The Court
declines to issue a certificate of appealability on any of Petitioner’s claims.
Nevertheless, Petitioner may appeal this Court’s decision in forma pauperis, because
he was permitted to proceed in forma pauperis in this Court, and an appeal could be
taken in good faith. Fed. R. App. P. 24(a)(3)(A).
S/Victoria A. Roberts
VICTORIA A. ROBERTS
UNITED STATES DISTRICT JUDGE
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