Cervantes v. Rivard
Filing
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OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus, Denying Certificate of Appealability, and Granting Leave to Proceed in Forma Pauperis - Signed by District Judge Judith E. Levy. (FMos)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Rashawn Cervantes,
Petitioner,
v.
Case No. 13-cv-11612
Hon. Judith E. Levy
Mag. Judge R. Steven Whalen
Steven Rivard,
Respondent.
________________________________/
OPINION AND ORDER DENYING PETITION FOR WRIT OF
HABEAS CORPUS [1], DENYING CERTIFICATE OF
APPEALABILITY, AND GRANTING LEAVE TO PROCEED IN
FORMA PAUPERIS
Michigan state prisoner Rashawn Cervantes filed a pro se petition
for a writ of habeas corpus on April 10, 2013, pursuant to 28 U.S.C.
§ 2254. (See Dkt. 1.) Petitioner is currently incarcerated at the Earnest
C. Brooks Correctional Facility in Muskegon Heights, Michigan. He
challenges his convictions of armed robbery, felon in possession of a
firearm, and possession of a firearm during the commission of a felony.
For the reasons set forth below, the petition is denied.
I.
Facts
The relevant facts relied on by the Michigan Court of Appeals,
which this Court must presume are correct on habeas review pursuant
to 28 U.S.C. § 2254(e)(1), are set forth below:
In the early hours of October 27, 2009, Cervantes robbed
Richard Mullen as Mullen walked home from a friend’s
house. Cervantes approached Mullen from behind and held
a pistol to his face. Mullen said, “I know you. You’ll have to
kill me,” and slapped the pistol away. Cervantes then shot
Mullen in his left leg and took Mullen’s cigarettes and
cellular telephone. Cervantes fled the scene on foot while
Mullen managed to walk to a nearby sheriff’s station, where
an ambulance took him to a hospital.
While waiting for the ambulance to arrive, Mullen informed
police that he did not know [the] identity of the gunman.
However, a citizen who observed the incident and called 911
stated that he saw the two men walking together. The 911
caller told police what he had seen, but he was subsequently
unavailable to testify at trial.
When Mullen arrived at the hospital, he told police that the
gunman looked familiar and that he believed he spent time
in jail with the gunman. The day after the robbery, Mullen
picked Cervantes out in a photographic lineup and stated
that he was positive the gunman was . . . Cervantes. Mullen
stated that he recalled seeing Cervantes around the
neighborhood before. When Mullen identified Cervantes as
the gunman during trial, defense counsel specifically crossexamined him regarding inconsistencies in his description of
Cervantes and his ability to remember and perceive the
event. During closing argument, defense counsel pointed out
all the reasons Mullen would have difficulty identifying
Cervantes. Specifically, defense counsel discussed faulty
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eyewitness identification
convictions in other cases.
as
the
basis
for
wrongful
People v. Rashawn Deangelo Cervantes, No. 299491, 2011 Mich. App.
LEXIS 1855, at *1-2 (Mich. Ct. App. Oct. 20, 2011).
II.
Procedural history
Following a jury trial in Jackson County Circuit Court, Petitioner
was convicted of armed robbery, Mich. Comp. Laws § 750.529, felon in
possession of a firearm, Mich. Comp. Laws § 750.224f, and possession of
a firearm during the commission of a felony, Mich. Comp. Laws
§ 750.227b. (See Dkt. 11-8 at 4-5.) On July 15, 2010, Petitioner was
sentenced to twenty to forty years’ imprisonment for armed robbery,
three to ten years’ imprisonment for felon in possession of a firearm,
and two years’ imprisonment for possession of a firearm during the
commission of a felony. (See Dkt. 11-9 at 11-12.)
Petitioner appealed to the Michigan Court of Appeals, arguing in
relevant part that “the trial court abused its discretion when it denied
his request for an eyewitness identification expert,” and “the trial
court’s denial of his request for an expert infringed on his right to
present a defense.” People v. Rashawn Deangelo Cervantes, No. 299491,
2011 Mich. App. LEXIS 1855, at *3-7 (Mich. Ct. App. Oct. 20, 2011).
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The Michigan Court of Appeals affirmed. Id. at *8.
Petitioner filed an application for leave to appeal to the Michigan
Supreme Court, raising the expert witness claim that was denied by the
Michigan Court of Appeals and new claims of ineffective assistance of
trial and appellate counsel. The Michigan Supreme Court denied leave
to appeal. People v. Cervantes, 810 N.W.2d 911 (Mich. 2012).
Petitioner then filed this habeas petition, raising the following
claim:
Plaintiff was deprived of his right to [] due process and to a
fair trial under the [Fourteenth] Amendment to the United
States Constitution and of his right to a Jury Trial under the
[Sixth] Amendment to the United States Constitution when
the identification was contaminated by impermissibly
suggestive police conduct in pointing out alleged suspect
which happen[ed] to be [Petitioner] to the only eyewitness
and when the trial judge abused his discretion in denying
[Petitioner] his right to present a defense where the trial
court abused its discretion by denying funds for an expert on
witness identification.
(Dkt. 1 at 10.)
III.
Standard
Under the Antiterrorism and Effective Death Penalty Act of 1996,
Pub. L. No. 104-132, 110 Stat. 1214 (“AEDPA”), a federal court can
order habeas relief only if the state’s adjudication of a claim (1)
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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).
In applying these standards, this Court is to
examine the holdings of the Supreme Court as they existed at “the time
of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362,
412 (2000). The Court can, however, look to decisions of other courts to
determine whether a legal principle has been clearly established by the
Supreme Court. Hall v. Vasbinder, 563 F.3d 222, 232 (6th Cir. 2009);
Smith v. Stegall, 385 F.3d 993, 998 (6th Cir. 2004).
IV.
Analysis
a. Petitioner is not entitled to habeas relief based on his
claim that the lineup procedure was impermissibly
suggestive.
Petitioner first seeks habeas relief on the ground that the
eyewitness identification was tainted by an impermissibly suggestive
lineup procedure. (Dkt. 1 at 10.) Petitioner argues that the pretrial
identification was impermissibly suggestive because police officers told
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Richard Mullen, the victim, that they had an idea of who shot Mullen
based on his description, and the photographic array they showed
Mullen included Petitioner. (See id. at 10-14.)
Respondent argues that Petitioner’s challenge to the lineup
procedure is not exhausted because it was never presented in state
court. Respondent is correct that this claim is unexhausted. The Court
may, however, address an unexhausted claim when the unexhausted
claim is plainly meritless, when the unexhausted claim is not cognizable
on federal habeas review, or when it is in the best interests of the
parties and judicial economy.
See Hudson v. Larson, No. 13-12254,
2015 U.S. Dist. LEXIS 54433, at *17 (E.D. Mich. Apr. 27, 2015) (“[A]
habeas Petitioner’s failure to exhaust his or her state court remedies
does not deprive a federal court of its jurisdiction to consider the merits
of the habeas petition.”) (citing Granberry v. Greer, 481 U.S. 129, 131
(1987)); see also Granberry, 481 U.S. at 131 (“[T]here are some cases in
which it is appropriate for an appellate court to address the merits of a
habeas
corpus
petition
notwithstanding
the
lack
of
complete
exhaustion.”); Hanna v. Ishee, 694 F.3d 596, 610 (6th Cir. 2012) (“[T]his
Court may deny relief on the merits, notwithstanding a failure to
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exhaust, where appropriate.”) (citing 28 U.S.C. § 2254(b)(2)). In this
case, Petitioner’s claim lacks merit and will be addressed on the merits.
Under existing Supreme Court precedent, an identification
procedure will be set aside only if the identification was so
impermissibly suggestive and conducive to mistaken identification that
the defendant was denied due process of law. Stovall v. Denno, 388
U.S. 293, 301-02 (1967); see also Simmons v. United States, 390 U.S.
377, 384 (1968). “[T]he ‘primary evil’ to be avoided with identification
procedures
is
any
‘substantial
likelihood’
that
an
‘irreparable
misidentification’ will take place.” Gregory v. City of Louisville, 444
F.3d 725, 755 (6th Cir. 2006) (quoting Neil v. Biggers, 409 U.S. 188,
199-200 (1972)). 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).
“And the dangers for the suspect are particularly grave when the
witness’ opportunity for observation was insubstantial, and thus his
susceptibility to suggestion the greatest.” Id.
The Supreme Court has adopted a two-step process to determine
the admissibility of identification evidence. First, a “defendant bears
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the burden of proving the identification procedure was impermissibly
suggestive,” and second, “the trial court must determine whether, under
the totality of the circumstances, the testimony was nevertheless
reliable.” United States v. Hill, 967 F.2d 226, 230 (6th Cir. 1992). Five
factors should be considered in determining the reliability of
identification evidence: “(1) the witness’s opportunity to view the
criminal at the time of the crime; (2) the witness’s degree of attention at
the time of the crime; (3) the accuracy of the witness’s prior description
of the defendant; (4) the witness’s level of certainty when identifying
the suspect at the confrontation; and (5) the length of time that has
elapsed between the crime and the confrontation.” Id. (citing Neil v.
Biggers, 409 U.S. at 199-200).
A pretrial lineup is not impermissibly suggestive only because a
witness knows that a suspect is in custody when the lineup is
conducted. United States v. Bowman, 215 F.3d 951, 966 (9th Cir. 2000);
see Piper v. Portuondo, 82 F. App’x 51, 52 (2d Cir. 2003) (holding that
the fact that witnesses were told that a suspect was in custody did not,
by itself, render a lineup impermissibly suggestive); United States v.
Carter, 756 F.2d 310, 313 (3rd Cir. 1985) (statement that there would be
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a suspect in the lineup is dangerously suggestive in a one person showup, but not a fair lineup). The fact that the witness in this case was
informed that the suspect was in the photo array does not, on its own,
render the identification procedure unduly suggestive.
Other than the officer’s purported statement to the witness that
the suspect was in the photographic array, Petitioner raises, and the
trial transcript reveals, no additional concerns that would compromise
the reliability of the identification procedure. Defense counsel crossexamined Mullen extensively about Mullen’s identification of Petitioner,
his opportunity to view the gunman, and discrepancies in various
accounts he gave to police about the incident.
Because the
identification testimony did not violate due process, the petition for
habeas relief on this ground is denied.
b. Petitioner is not entitled to habeas relief based on his
claim that the trial court denied his request to fund an
eyewitness identification expert.
Petitioner argues that he was denied his right to present a defense
when the trial court denied his request for funds to retain an expert
witness in eyewitness identification. The Michigan Court of Appeals
denied this claim, finding that Petitioner was able to present a defense
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of mistaken identification without the aid of an expert.
The Supreme Court has held that a defendant has a constitutional
right to “a competent psychiatrist who will conduct an appropriate
examination and assist in evaluation, preparation, and presentation of
the defense,” when the defendant demonstrates that his sanity at the
time of the offense is going to be an issue at trial. Ake v. Oklahoma, 470
U.S. 68, 83 (1985). But the Supreme Court has not extended this right
to other types of experts. See, e.g., Caldwell v. Mississippi, 472 U.S.
320, 323 n.1 (1985); Jackson v. Ylst, 921 F.2d 882, 886 (9th Cir. 1990)
(“No issue was presented to the Supreme Court in Ake concerning the
right of an indigent to the appointment of an expert on eyewitness
identification. The parties have not cited any authority that holds that
the federal constitution requires the appointment of such an expert.”);
Weeks v. Angelone, 176 F.3d 249, 265 (4th Cir. 1999) (“We
interpret Ake and Caldwell together to stand for the proposition that
due process . . . only required that an indigent defendant be appointed
psychiatric experts when his sanity is at issue in the trial.”). Because
there is no Supreme Court authority which “squarely addresses the
issue in this case,” Petitioner cannot demonstrate that the state court
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decision was contrary to, or an unreasonable application of, clearly
established federal law. Wright v. Van Patten, 552 U.S. 120, 126 (2008)
(“Because our cases give no clear answer to the question presented, let
alone one in [petitioner’s] favor, ‘it cannot be said that the state court
unreasonabl[y] appli[ed] clearly established Federal law.’”) (quoting
Carey v. Musladin, 549 U.S. 70, 77 (2006)). Moreover, even though
Petitioner did not have an eyewitness expert, his counsel crossexamined
Mullen
testimony,
and
extensively
Petitioner
was
regarding
able
to
Mullen’s
present
identification
the
mistaken
identification argument to the jury.1 The petition for habeas relief on
this ground is therefore denied.
V.
Conclusion
In order to obtain a certificate of appealability, Petitioner must
make “a substantial showing of the denial of a constitutional right.” See
28 U.S.C. § 2253(c)(2).
Under this standard, a petitioner must
However, the importance of eyewitness expert testimony has been addressed by
the Sixth Circuit.
The fact that “defense counsel was able to challenge
inconsistencies in the victim[’s] identification testimony” does mean there was “‘an
effective substitute’ for what the [expert witness] would have provided.” Ferensic v.
Birkett, 501 F.3d 469, 473 (6th Cir. 2007). But the petition cannot be granted here
because AEDPA narrows the Court’s review to whether the Supreme Court has
clearly mandated that indigent defendants be appointed an expert on eyewitness
identification. It has not. But to be clear, cross-examination and argument from
counsel are not necessarily a sufficient substitute for such expert testimony.
1
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demonstrate 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.’” Slack v. McDaniel, 529 U.S. 473,
483 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).
This determination “requires an overview of the claims in the habeas
petition and a general assessment of their merit,” but “does not require
a showing that the appeal will succeed.” Miller-El v. Cockrell, 537 U.S.
322, 337 (2003). In this case, reasonable jurists would not debate that
the petition should have been resolved in a different manner.
Therefore, the Court denies a certificate of appealability.
A court may grant in forma pauperis status if the court finds that
an appeal would be taken in good faith. See 28 U.S.C. § 1915(a)(3);
Foster v. Ludwick, 208 F. Supp. 2d 750, 764 (E.D. Mich. 2002) (“The
standard for issuing a certificate of appealability has a higher threshold
than the standard for granting in forma pauperis status, which requires
showing that the appeal is not frivolous.”) (citing United States v.
Youngblood, 116 F.3d 1113, 1115 (5th Cir. 1997)). While reasonable
jurists would not debate the Court’s resolution of Petitioner’s claims,
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the issues are not frivolous. “‘Good faith’ merely requires showing that
the issues are arguable on the merits; it does not require a showing of
probable success.” Id. at 765. Because an appeal could be taken in
good faith, Petitioner may proceed in forma pauperis if he wishes to
appeal this decision. Id.
For the foregoing reasons, the Court denies the petition for a writ
of habeas corpus, denies a certificate of appealability, and grants leave
to proceed in forma pauperis.
IT IS SO ORDERED.
Dated: October 15, 2015
Ann Arbor, Michigan
s/Judith E. Levy
JUDITH E. LEVY
United States District Judge
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on October 15, 2015.
s/Felicia M. Moses
FELICIA M. MOSES
Case Manager
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