Ryan v. Vashaw

Filing 13

OPINION and ORDER Denying Petition for Writ of Habeas Corpus; Denying Certificate of Appealability and Granting Leave to Proceed in Forma Pauperis on Appeal. Signed by District Judge George Caram Steeh. (BSau)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TRAY ARTHUR RYAN,
Case Number: 2:19-CV-12838
HON. GEORGE CARAM STEEH

Petitioner,
v.
ADAM DOUGLAS,1
Respondent.
/

OPINION AND ORDER (1) DENYING PETITION FOR WRIT
OF HABEAS CORPUS (ECF 1); (2) DENYING CERTIFICATE
OF APPEALABILITY; AND (3) GRANTING LEAVE TO
PROCEED IN FORMA PAUPERIS ON APPEAL
Petitioner Tray Arthur Ryan, currently in the custody of the Michigan
Department of Corrections, filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. He challenges his convictions for armed
robbery, Mich. Comp. Laws § 750.529, first-degree home invasion, Mich.
Comp. Laws § 750.110a(2), and unlawful imprisonment, Mich. Comp. Laws
§ 750.349b. For the reasons discussed, the Court denies the petition and

1

The proper respondent in a habeas case is the state officer having
custody of the petitioner. See Rule 2, Rules Governing Section 2254
Cases. Petitioner is currently housed at the Saginaw County Correctional
Facility. The warden of that facility is Adam Douglas. The Court orders the
case caption amended to substitute Adam Douglas as the respondent.
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declines to issue a certificate of appealability. The Court grants Petitioner
leave to proceed in forma pauperis on appeal.
Background
Petitioner’s convictions arise from an armed robbery in Charlotte,
Michigan. Petitioner was tried before a jury in Eaton County Circuit Court.
The Michigan Court of Appeals described the relevant facts, which are
presumed correct on habeas review, see 28 U.S.C. § 2254(e)(1); Wagner
v. Smith, 581 F.3d 410, 413 (6th Cir. 2009), as follows:
This case arises from an armed robbery that took place in
Charlotte in July 2015. The principal complaining witness
testified that he was at home working on his bathroom in the
company of his son and the mother of his daughter. At 10:15
or 10:20 p.m., he went outside to get a board and was
approached by two men. The complainant stated that a
fluorescent light illuminated the area, and described the two
men as “one ... shorter than me and one ... taller than me.”
The complainant identified defendant as the taller of his
assailants, and added that he was able to see defendant’s
face. According to the complainant, the two men “pulled pistols
out” and demanded that he “be quiet and get on the ground.”
The complainant testified that he complied while feeling great
fear, upon which the shorter man put his boot to the
complainant’s head while defendant tied him up.
According to the complainant, the shorter man threatened to kill
the complainant’s son if the complainant did not disclose the
location of $10,000. The complainant admitted that he did
have $10,000 in cash at the time. The complainant testified
that the shorter man entered the house while defendant
threatened to kill him, and that defendant followed the shorter
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man into the house after approximately 30 seconds. The
complainant was able to break free from his restraints. He
started running away and defendant appeared to give chase,
but then defendant ran past him. The complainant stated that
he continued to run, and was able to flag down a neighbor in a
car who allowed him to use his phone to call 9-1-1.
People v. Ryan, No. 335516, 2018 WL 791417, at *1 (Mich. Ct. App. Feb.
8, 2018)
Petitioner was convicted of armed robbery, first-degree home
invasion, and unlawful imprisonment. Petitioner’s convictions were
affirmed on direct appeal. People v. Ryan, 2018 WL 791417; People v.
Ryan, 503 Mich. 860 (2018).
Petitioner then filed the pending habeas corpus petition. He raises
these claims:
I.

The victim’s in-court identification was a result of a
suggestive pretrial identification procedure.

II.

Appellant was denied a fair trial because of the
introduction of the evidence that did not comport
with MRE 404(b), and defense counsel’s failure to
object was ineffective assistance of counsel.

III.

Appellant’s constitutional right to due process was
violated because of prosecutorial misconduct, and
defense counsel was ineffective for failing to object to the
prosecutorial misconduct.

In response, the warden argues that some of the claims presented
here are barred from consideration because they are procedurally
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defaulted and that all of Petitioner’s claims are meritless.
The doctrine of procedural default is applicable when a petitioner fails
to comply with a state procedural rule, the rule is actually relied upon by
the state courts, and the procedural rule is “an independent and adequate
state ground to foreclose review of the federal constitutional claim.” White
v. Mitchell, 431 F.3d 517, 524 (6th Cir. 2005). The Court finds it
unnecessary to address the procedural question because it is not a
jurisdictional bar to review of the merits, Howard v. Bouchard, 405 F.3d
459, 476 (6th Cir. 2005), and “federal courts are not required to address a
procedural-default issue before deciding against the petitioner on the
merits,” Hudson v. Jones, 351 F.3d 212, 215 (6th Cir. 2003) (citing Lambrix
v. Singletary, 520 U.S. 518, 525 (1997)). The procedural defense will not
affect the outcome of this case, and it is more efficient to proceed directly
to the merits.
I. Standard
Review of this case is governed by the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”). Under the AEDPA, a state prisoner
is entitled to a writ of habeas corpus only if he can show that the state
court’s adjudication of his claims –

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(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 proceedings.
28 U.S.C. § 2254(d).
“A state court’s decision is ‘contrary to’ . . . clearly established law if it
‘applies a rule that contradicts the governing law set forth in [Supreme
Court cases]’ or if it ‘confronts a set of facts that are materially
indistinguishable from a decision of [the Supreme] Court and nevertheless
arrives at a result different from [this] precedent.’” Mitchell v. Esparza, 540
U.S. 12, 15-16 (2003) (per curiam) (quoting Williams v. Taylor, 529 U.S.
362, 405-06 (2000)). “[T]he ‘unreasonable application’ prong of the statute
permits a federal habeas court to ‘grant the writ if the state court identifies
the correct governing legal principle from [the Supreme] Court but
unreasonably applies that principle to the facts’ of petitioner’s case.”
Wiggins v. Smith, 539 U.S. 510, 520 (2003), quoting Williams, 529 U.S. at
413. “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.” Harrington v. Richter, 562 U.S.

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86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664
(2004)).
Section 2254(d)(1) limits a federal habeas court’s review to a
determination of whether the state court’s decision comports with clearly
established federal law as determined by the Supreme Court at the time
the state court renders its decision. See Greene v. Fisher, 565 U.S. 34, 38
(2011). Section 2254(d) “does not require citation of [Supreme Court]
cases – indeed, it does not even require awareness of [Supreme Court]
cases, so long as neither the reasoning nor the result of the state-court
decision contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002). “[W]hile
the principles of “clearly established law” are to be determined solely by
resort to Supreme Court rulings, the decisions of lower federal courts may
be instructive in assessing the reasonableness of a state court’s resolution
of an issue.” Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007).
A federal habeas court must presume the correctness of state court
factual determinations. See 28 U.S.C. § 2254(e)(1). A petitioner may
rebut this presumption only with clear and convincing evidence. Id.

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II. Discussion
A.
In his first claim, Petitioner argues that Mark Eitniear, Sr.’s in-court
identification of Petitioner as one of the perpetrators should have been
suppressed because it was tainted by an impermissibly suggestive
identification procedure. Petitioner argues that the encounter was
suggestive and corrupted Eitniear’s in-court identification of him.
The trial court held a hearing in response to Petitioner’s motion to
suppress Eitniear’s identification testimony. Eitniear, the only witness,
testified that he was in a sheriff’s deputy’s car for approximately two hours
after police responded to his 911 call. At approximately 2:30 or 3:00 a.m.,
police took Eitniear to a location where “they were gonna try to drive by ...
the perpetrator and see if ... we could identify him through a drive-by.”
(ECF No. 10-8, PageID.262.) The police drove past the suspect at
approximately 30 or 35 m.p.h., and never stopped the vehicle. It was dark
and Eitniear could not see the suspect clearly. Other than determining that
the suspect appearing to be “the right size,” Eitniear could further identify
the suspect as the perpetrator. (Id. at 264.) Eitniear also testified that he
attended all of the pretrial hearings connected with the criminal proceeding.

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Due process requires suppression of eyewitness identification
evidence “when law enforcement officers use an identification procedure
that is both suggestive and unnecessary.” Perry v. New Hampshire, 565
U.S. 228, 239 (2012). A pretrial identification violates due process where:
(1) the identification procedure is impermissibly suggestive; and (2) the
suggestive procedure gives rise to a very substantial likelihood of
misidentification. Neil v. Biggers, 409 U.S. 188, 197-98 (1972); Manson v.
Braithwaite, 432 U.S. 98, 114 (1977) (due process challenges to
identification procedures are reviewed using Biggers’ test). But the
suppression of the tainted identification is not necessarily the inevitable
consequence. Braithwaite, 432 U.S. at 112-113. Instead, the Court has
held that determining whether to suppress the identification should be done
on a case-by-case basis. Id. at 116; see also Biggers, 409 U.S. at 201.
The danger is that an initial improper identification procedure will
result in misidentification and will unduly influence later investigation.
United States v. Wade, 388 U.S. 218, 229 (1967). “[T]he dangers for the
suspect are particularly grave when the witness’ opportunity for
observation was insubstantial, and thus his susceptibility to suggestion is
the greatest.” Id. Therefore, “reliability is the linchpin in determining the

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admissibility of identification testimony. Brathwaite, 432 U.S. at 114.
The Michigan Court of Appeals affirmed the trial court’s denial of
Petitioner’s motion to suppress, explaining, in relevant part:
The fairness of an identification procedure is evaluated in light
of the “totality of the circumstances” to determine whether the
procedure was so impermissibly suggestive as to render the
identification irreparably unreliable. People v. Davis, 146 Mich.
App. 537, 548; 381 N.W.2d 759 (1985). Where a defendant is
able to show that an identification procedure was suggestive to
the extent that it would likely lead to a misidentification, in-court
identification should not follow unless the prosecution can
establish an independent basis for the identification. People v.
Barclay, 208 Mich. App. 670, 675; 528 N.W.2d 842 (1995).
Improper suggestion commonly comes about because of three
things. First, the witness when called by the police or
prosecution either is told or believes that the police have
apprehended the right person. Second, if the witness is shown
only one person or a group in which one person is singled out
in some way, he is tempted to presume that he is the person.
Third, ... eyewitness identification has inherent weaknesses
from the standpoint of the witness’s problems of sensation,
retention, etc., and the similarity in appearance of people. ...
In this case, defendant emphasizes that the drive-by exposed
the complainant to only one suspect, and asserts that the
police suggested to the complainant that the man they had
detained in the parking lot was the perpetrator of the robbery.
Although the complainant did agree that the police had asked
him to look at a suspect, he clarified, when asked if the police
ever said something along the lines of “this is the guy,” that
“[t]hey never said nothin’ like that.” Further, defendant nowhere
suggests that the trial court erred in recognizing that the police
may conduct on-the-scene confrontations early in an
investigation in order that they might immediately understand if
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they have a plausible suspect in view. See People v. Winters,
225 Mich. App. 718, 728; 571 N.W.2d 764 (1997)
(“[O]n-the-scene confrontations are ... indispensable ...
because they permit the police to immediately decide whether
there is a reasonable likelihood that the suspect is connected
with the crime and subject to arrest, or merely an unfortunate
victim of circumstance.”).
Moreover, the complainant expressed concern that the speed
of the vehicle seemed excessive for the intended purpose, and
also that the area was not well lit. Had the complainant been
unduly convinced that the police had the right man, he
presumably would have ended up with neither concern. Indeed,
that the drive-by procedure was not overly suggestive is
apparent from the complainant’s report on that occasion only
that the suspect’s size and build appeared familiar, while
feeling unable to offer information concerning the suspect’s
clothing or otherwise more positively identify him, thus showing
that the complainant was not using the police’s discovery and
detention of a suspect to fill in any gaps in his recollections.
Defendant’s arguments concerning the complainant’s
attendance at pretrial court proceedings are even less
persuasive. Not in dispute is that the complainant had a right
to attend such proceedings along with the rest of the general
public. And that the victim of a crime will in the normal course
see the suspected perpetrator in court is obvious, if only to
identify him at trial, and also, where applicable, the preliminary
examination. Defendant does not explain why a witness’s
exposure to a suspect in court in pretrial proceedings
transforms that setting into an impermissibly suggestive one.
And, obviously, there was no police or other investigative
misconduct involved in the complainant’s decision to attend
pretrial proceedings relating to the crime against him.
For these reasons, defendant has failed to show that the trial
court erred in characterizing any concerns relating to
suggestiveness in the complainant's identification of him as one
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of his assailants as properly relating to the weight of that
evidence, not its admissibility.
Ryan, 2018 WL 791417, at *3-4.
The Michigan Court of Appeals’ determination that the identification
procedure was not impermissibly suggestive was not contrary to or an
unreasonable application of Supreme Court precedent. An on-the-scene
identification involving only a single suspect does not violate due process.
See Bruner v. Perini, 875 F.2d 531, 534-35 (6th Cir. 1989). Even
assuming that the identification procedure was impermissibly suggestive,
Petitioner has failed to show the identification was not reliable. Eitniear
testified that the area outside his home was sufficiently illuminated for him
to see Petitioner’s face. Ultimately, the reliability of the in-court
identification was for the trier of fact to decide. Habeas relief is denied on
this claim.
B.
Petitioner’s second claim concerns prosecution witness Jesse Lee
Yoder’s statement implicating Petitioner in an unrelated robbery. Yoder
testified that he was in a boot camp serving part of his sentence for
unspecified criminal convictions when he contacted the prosecutor’s office
with information regarding Petitioner’s case. He explained that he decided
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to contact police because, as Yoder phrased it, “defendant robbed my
family.” (ECF No. 10-20, PageID.1265.)
Defense counsel objected immediately to Yoder’s statement and the
jury was excused. Defense counsel asked that the statement be stricken.
The prosecutor agreed. When the jury returned, the trial court instructed
the jury that Yoder’s response was stricken and should not be considered
or discussed by the jury. The trial court further instructed that any prior
relations between Petitioner and Yoder or Yoder’s family were “simply
allegations” with no corroboration. (Id. at 1275.)
Petitioner argues that despite the cautionary instruction, his trial was
rendered fundamentally unfair by Yoder’s stricken testimony, the testimony
violated Michigan Rules of Evidence, and counsel was ineffective for failing
to request a mistrial. The Michigan Court of Appeals held that the trial
court adequately recognized and correctly addressed Yoder’s testimony:
“A mistrial should be granted only for an irregularity that is
prejudicial to the rights of the defendant, and impairs his ability
to get a fair trial.” Haywood, 209 Mich. App. at 228 (citations
omitted). However, not every instance of mention before a jury
of some inappropriate subject matter warrants a mistrial.
Specifically, “an unresponsive, volunteered answer to a proper
question is not grounds for the granting of a mistrial.” Id. In this
case, the witness volunteered his statement about defendant
having robbed his family in response to proper inquiry into his
motive for testifying. Indeed, the prosecutor did not expect such
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response.
We conclude that the utterance giving rise to this issue,
“defendant robbed my family,” without more, was not seriously
prejudicial. No details about that event were disclosed, leaving
the jury with no basis for forming an opinion on the nature or
seriousness of the matter. Also militating against any undue
prejudice from the few words of improper testimony was the
trial court’s characterization of them as referring to mere
uncharged, uncorroborated “allegations” involving “past
relations” between defendant and the witness or his family.
And regardless of what the jurors might have imagined was
behind what the witness said, the court’s instructions that the
witness’s statement was stricken and “not ... appropriate” for
them to discuss or consider should have eliminated any unfair
prejudice. “Jurors are presumed to follow instructions, and
instructions are presumed to cure most errors.” People v.
Petri, 279 Mich. App. 407, 414; 760 N.W.2d 882 (2008). Even if
the jurors might nonetheless have retained some lingering
memory relating to the improper testimony through its
deliberations, a criminal defendant is entitled to a fair trial, not
necessarily a perfect one. ... Because the imperfection here
was not an irregularity so prejudicial as to impair defendant’s
ability to receive a fair trial, the sustaining of the defense
objection and admonishment to the jury to disregard it were
sufficient corrective actions, and a motion for a mistrial would
properly have been denied.
Ryan, 2018 WL 791417, at *4-5.
The Michigan Court of Appeals’ decision is reasonable. The trial
court struck the testimony and carefully instructed the jury not to consider
the stricken testimony. The Court assumes, in the absence of evidence to
the contrary, that the jury followed those instructions. Weeks v. Angelone,

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528 U.S. 225, 234 (2000); Richardson v. Marsh, 481 U.S. 200, 206 (1987)
(noting the “almost invariable assumption of the law that jurors follow their
instructions”). Petitioner provides no reason to believe otherwise. Under
these circumstances, the Michigan Court of Appeals reasonably
determined that Yoder’s brief, isolated, and stricken statement did not
render Petitioner’s trial fundamentally unfair. Further, to the extent that
Petitioner argues that the admission of this evidence violated Michigan
Rules of Evidence, he fails to allege a basis for federal habeas corpus
relief. Errors of state law, particularly the alleged improper admission of
evidence, do not allege a constitutional violation upon which habeas relief
may be granted. See Estelle v. McGuire, 502 U.S. 62 (1991).
Petitioner also argues that defense counsel was ineffective for failing
to move for a mistrial on the basis of Yoder’s testimony. An ineffective
assistance of counsel claim has two components. A petitioner must show
that counsel’s performance was deficient and that the deficiency prejudiced
the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).
The Michigan Court of Appeals held that counsel was not ineffective
for failing to advance a meritless position. In addition, the state court held
that, “even if defense counsel had reason to believe that a request for a

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mistrial might have been granted, counsel might have been sufficiently
satisfied at how well things were going for the defense up to that time that
counsel preferred not to risk starting anew.” Ryan, 2018 WL 791417, at *5.
Defense counsel’s objection to Yoder’s testimony was sustained.
Defense counsel successfully argued that the statement be stricken and
that the trial court instruct the jury not to consider the statement. As
discussed, there is no indication that the jury failed to follow the instruction.
This record supports the court of appeals’ holding that defense counsel
was not deficient.
C.
Petitioner next argues that the prosecutor committed misconduct by
shifting the burden of proof during closing argument. He also claims that
defense counsel was ineffective for failing to object.
The “clearly established Federal law” relevant to a habeas court’s
review of a prosecutorial misconduct claim is the Supreme Court’s decision
in Darden v. Wainwright, 477 U.S. 168, 181 (1986). Parker v. Matthews,
567 U.S. 37, 45 (2012). In Darden, the Supreme Court held that a
“prosecutor’s improper comments will be held to violate the Constitution
only if they ‘so infected the trial with unfairness as to make the resulting

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conviction a denial of due process.’” Id. quoting Donnelly v. DeChristoforo,
416 U.S. 637, 643 (1974). This Court must ask whether the Michigan
Court of Appeals’ decision denying Petitioner’s prosecutorial misconduct
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 2155, quoting Harrington, 562 U.S. at
103.
Petitioner specifically challenges this portion of the prosecutor’s
closing argument:
Ladies and gentlemen, one of the things that you’re gonna
have to decide, again, as you weigh witness credibility, is why
would someone lie. Why would Marke Eitniear and Ruby Fox,
and Mark Eitniear, Junior lie about this? They have – they
have nothing to gain. To go through all of this, nothing to gain.
(ECF No. 10-21, PageID.1440.)
The Michigan Court of Appeals held that the prosecutor did not argue
that the “defense was obliged or otherwise expected to introduce evidence
relating to the credibility of” prosecution witnesses. Ryan, 2018 WL
791417 at *5. Instead, the prosecutor properly argued credibility based on
the evidence presented and did not suggest that he has personal
knowledge about the credibility of prosecution witnesses. Id. The state

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court further held that the prosecutor’s argument was a proper response to
the defense strategy of mistaken identity and the defense’s challenge to
the credibility of prosecution witnesses. Id.
The Michigan Court of Appeals’ decision was not contrary to, or an
unreasonable application of, clearly established Supreme Court precedent.
The prosecutor explored witnesses’ motives for testifying, highlighted
weaknesses in the defense, and argued reasonable inferences from the
evidence. These are all proper arguments. See Bates v. Bell, 402 F.3d
635, 646 (6th Cir. 2005) (“[P]rosecutors can argue the record, highlight the
inconsistencies or inadequacies of the defense, and forcefully assert
reasonable inferences from the evidence.”). Thus, this Court finds that the
state court’s decision that no prosecutorial misconduct occurred was not
“so far out of line with the very general standard” established in Darden as
to entitle the petitioner to habeas relief. Davis v. Lafler, 658 F.3d 525, 535
(6th Cir. 2011) (en banc). Further, because the prosecutor did not
improperly shift the burden of proof, counsel was not ineffective for failing
to object.

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III. Certificate of Appealability
Before a prisoner who has been denied habeas relief may file an
appeal, the prisoner “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). To receive a certificate of
appealability, “a petitioner must show that reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Miller-El, 537 U.S. at 336 (2003)
(internal quotes and citations omitted).
Reasonable jurists would not find the Court’s assessment of Petitioner’s
claims to be debatable or wrong. The Court therefore declines to issue a
certificate of appealability.
IV. Conclusion
For the foregoing reasons, IT IS ORDERED that the petition for a writ
of habeas corpus and a certificate of appealability are DENIED and the matter
is DISMISSED WITH PREJUDICE.

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IT IS FURTHER ORDERED that Petitioner may proceed on appeal in
forma pauperis.
IT IS FURTHER ORDERED that the Adam Douglas shall be substituted
as the Respondent.
Dated: September 15, 2022
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
September 15, 2022, by electronic and/or ordinary mail.
s/Brianna Sauve
Deputy Clerk

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