White v. Burt

Filing 10

OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus and Declining to Issue a Certificate of Appealability or Leave to Appeal In Forma Pauperis. Signed by District Judge Judith E. Levy. (SBur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Marquel Carlos White,
Petitioner,
v.

Case No. 17-cv-13567
Judith E. Levy
United States District Judge

S.L. Burt,
Mag. Judge Patricia T. Morris
Respondent.
________________________________/
OPINION AND ORDER DENYING PETITION FOR WRIT OF
HABEAS CORPUS AND DECLINING TO ISSUE A
CERTIFICATE OF APPEALABILITY OR LEAVE TO APPEAL IN
FORMA PAUPERIS
Marquel Carlos White (“Petitioner”), incarcerated at the Muskegon
Correctional Facility in Muskegon, Michigan, filed a pro se petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his
convictions for carjacking, Mich. Comp. Laws § 750.529a; armed robbery,
Mich. Comp. Laws § 750.529; receiving and concealing stolen property,
Mich. Comp. Laws § 750.535(7); and felony-firearm, Mich. Comp. Laws §
750.227b. For the reasons stated below, the petition for writ of habeas
corpus is DENIED.

I.

Factual Background
Petitioner was convicted following a jury trial in the Wayne County

Circuit Court, in which he was tried jointly with co-defendant Antonio
Carlos Hubbard. This Court recites verbatim the relevant facts relied on
by the Michigan Court of Appeals, which are presumed correct on habeas
review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d
410, 413 (6th Cir. 2009):
This case arises from multiple criminal acts that occurred
throughout Detroit, Michigan, over the course of two days.
First, two men armed with a pistol carjacked a victim in
northwest Detroit, taking her Chrysler Sebring as well as her
cellular phone. Another car was stolen on the eastside of
Detroit shortly thereafter. Subsequently, a third carjacking
was attempted, which appeared to be related to the other two
incidents. Police officers later observed both stolen vehicles at
a Detroit apartment complex, and defendant was seen with
both cars. Police arrested defendant and another suspect soon
afterward.
The next evening, the victim of the first carjacking and cell
phone robbery participated in a live lineup at the Detroit
Detention Center. She positively identified defendant as the
man who held a gun to her head while taking her Sebring, but
she also identified two other “fillers” 1 as being possibilities
for the second suspect.
As a police officer explained at trial, “fillers” are individuals placed in a
lineup who are not suspects in the case. (Footnote original).
2
1

On June 20, 2014, defendant’s trial counsel filed a motion to
compel discovery of evidence related to the victim’s
identification of defendant in the live lineup. In the
alternative, defendant requested the exclusion of the victim’s
identification of defendant in the live lineup and her
identification of him at the preliminary examination, arguing
that the evidence was tainted because the lineup was unduly
suggestive. The trial court scheduled a hearing on defendant’s
motion on July 18, 2014, during which witnesses were to
testify regarding the lineup, but defense counsel failed to
appear at the scheduled hearing. Due to counsel’s absence, the
trial court dismissed the motion. Defense counsel
subsequently refiled the motion, but the trial court did not
receive notice of his intent to refile early enough to reschedule
a hearing on August 1, 2014, as the defense had requested.
On August 4, 2014, the first day of the jury trial, the trial
court refused to consider defendant’s refiled motion, stating
that it would have been unable to hold a hearing on the motion
on August 1 due to the lack of notice and concluding that it
would not have an opportunity to rule on the pretrial motion
before the trial began. However, it also noted that
identification is always an issue at trial. The jury convicted
defendant on all charges.
People v. White, No. 323465, 2016 WL 370033, at * 1 (Mich. Ct. App. Jan.
26, 2016).
Petitioner’s conviction was affirmed on appeal. Id., lv. den. 500
Mich. 887, 886 N.W.2d 639 (2016).
Petitioner seeks a writ of habeas corpus on the following ground:
3

Defendant-Appellant is entitled to a new trial where he was
denied the effective assistance of counsel. 2
II.

Standard of Review
28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA), imposes the following standard of
review for habeas cases:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim–
(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.

Due to the brevity of the petition for writ of habeas corpus, this Court
will incorporate the arguments raised in petitioner’s state appellate court
brief which the respondent has provided as part of the Rule 5 materials.
(Dkt. # 9-7, Pg ID 536-555). See, e.g., Burns v. Lafler, 328 F. Supp. 2d 711,
717, n. 2. (E.D. Mich. 2004).  

2

4

A decision of a state court 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. 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.” Id. at 410-11.
“[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).

The “AEDPA thus

imposes a ‘highly deferential standard for evaluating state-court rulings,’
and ‘demands that state-court decisions be given the benefit of the
doubt.’” Renico v. Lett, 559 U.S. 766, 773 (2010) ((quoting Lindh v.
Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v. Viscotti, 537 U.S. 19,
24 (2002) (per curiam)). “[A] state court’s determination that a claim
5

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. 86, 101 (2011) (citing Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)). Therefore, in order to obtain habeas
relief in federal court, a state prisoner is required to show that the state
court’s rejection of his or her claim “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

habeas petitioner should be denied relief as long as it is within the “realm
of possibility” that fairminded jurists could find the state court decision
to be reasonable. See Woods v. Etherton, 136 S. Ct. 1149, 1152 (2016).
III. Analysis
Petitioner argues he was denied the effective assistance of trial
counsel because his attorney failed to appear at a pre-trial suppression
hearing, causing the judge to dismiss petitioner’s motion to suppress the
carjacking victim’s identification as being the result of a suggestive pretrial identification procedure.
A defendant is required to satisfy a two-prong test to establish the
denial of the effective assistance of counsel. First, the defendant must
6

show that 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). The defendant must
overcome a strong presumption that counsel’s behavior was within the
wide range of reasonable professional assistance. Id. Stated differently,
the defendant must overcome the presumption that, under the
circumstances, the challenged action might be sound trial strategy.
Strickland, 466 U.S. at 689.
Second, the defendant must show that such performance prejudiced
his or her defense. Id. To demonstrate prejudice, the defendant must
establish that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. Strickland places the burden on
the defendant who raises a claim of ineffective assistance of counsel, and
not the state, to show a reasonable probability that the result of the
proceeding would have been different, but for counsel’s allegedly deficient
performance. See Wong v. Belmontes, 558 U.S. 15, 27 (2009).
On habeas review, “the question ‘is not whether a federal court
believes the state court’s determination’ under the Strickland standard
7

‘was incorrect but whether that determination was unreasonable-a
substantially higher threshold.’” Knowles v. Mirzayance, 556 U.S. 111,
123 (2009) (quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)). “The
pivotal question is whether the state court’s application of the Strickland
standard was unreasonable.

This is different from asking whether

defense counsel’s performance fell below Strickland’s standard.”
Harrington v. Richter, 562 U.S. at 101.
Indeed, “because the Strickland standard is a general standard, a
state court has even more latitude to reasonably determine that a
defendant has not satisfied that standard.” Knowles, 556 U.S. at 123
(citing Yarborough v. Alvarado, 541 U.S. at 664). Pursuant to the §
2254(d)(1) standard, a “doubly deferential judicial review” applies to a
Strickland claim brought by a habeas petitioner. Id. This means that on
habeas review of a state court conviction, “[A] state court must be granted
a deference and latitude that are not in operation when the case involves
review under the Strickland standard itself.” Harrington, 562 U.S. at
101. “Surmounting Strickland's high bar is never an easy task.” Id. at
105 (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)).

8

Initially, the Court must determine whether petitioner’s pre-trial
suppression hearing was a critical stage of the criminal proceedings. The
United States Supreme Court has clearly established that the complete
denial of counsel during a critical stage of a judicial proceeding mandates
a presumption of prejudice. United States v. Cronic, 466 U.S. 648, 659
(1984). The existence of certain structural defects in a trial, such as the
deprivation of the right to counsel, requires automatic reversal of the
conviction because it infects the entire trial process. Brecht v.
Abrahamson, 507 U.S. 619, 629-30 (1993).

The Supreme Court has

routinely found constitutional error without any specific showing of
prejudice to a defendant when counsel is either totally absent, or
prevented from assisting the accused during a critical stage of the
proceedings. Cronic, 466 U.S. at 659, n.25; United States v. Minsky, 963
F. 2d 870, 874 (6th Cir. 1992).
The Sixth Circuit has acknowledged that the “case law available
suggests that the pithy definitions we have do not simply capture the
sometimes permissive or inclusive conclusions by the Supreme Court
and our court that this or that period, moment, or event in the course of
a criminal proceeding is a critical stage.” Hereford v. Warren, 536 F.3d
9

523, 529 (6th Cir. 2008) (quoting Van v. Jones, 475 F. 3d 292, 312 (6th
Cir. 2007)). The Sixth Circuit indicated:
We identified a list of the Supreme Court’s various labels to
include steps: (1) that hold “significant consequences for the
accused,” Bell v. Cone, 535 U.S. 685, 695-96 (2002); (2) where
“[a]vailable defenses may be irretrievably lost, if not then and
there asserted,” Hamilton v. Alabama, 368 U.S. 52, 54 (1961);
(3) where “rights are preserved or lost,” White v. Maryland,
373 U.S. 59, 60 (1963) (per curiam); when counsel’s presence
is “necessary to mount a meaningful defense,” United States
v. Wade, 388 U.S. 218, 225 (1967); and (5) where “potential
substantial prejudice to defendant’s rights inheres in the ...
confrontation and [where] counsel [can] help avoid that
prejudice,” Coleman v. Alabama, 399 U.S. 1, 9 (1970) (internal
quotation marks omitted). Drawing upon that precedent, we
formulated a working definition of a critical stage. We found
the common thread in these decisions to be the likelihood
“that significant consequences might have resulted from the
absence of counsel at the stage of the criminal proceedings.”
Van, 475 F. 3d at 312-13.
Hereford v. Warren, 536 F.3d at 529–30.
Petitioner is not entitled to habeas relief on his claim that he was
denied counsel at a critical stage of the proceedings due to his attorney’s
absence from the suppression hearing.

Although two federal circuit

courts have determined that a suppression hearing is a critical stage of
the proceedings, for Sixth Amendment purposes, See United States v.
10

Hamilton, 391 F. 3d 1066, 1070 (9th Cir. 2004); Henderson v. Frank, 155
F. 3d 159, 166 (3rd Cir. 1998), the United States Supreme Court has yet
to hold that a suppression hearing is a critical stage of the criminal
proceedings, such that counsel’s absence from the hearing would require
an automatic reversal of a defendant’s conviction.
Petitioner is not entitled to habeas relief on his claim that he was
denied the assistance of counsel at a critical stage of the proceedings,
because “no Supreme Court precedent has directly addressed the issue of
whether the denial of counsel at a hearing on a motion to suppress is a
‘complete denial of counsel’ at a ‘critical stage’ of a criminal proceeding
for the purposes of the Sixth Amendment.” Gomez v. Thaler, 526 F. App’x
355, 359 (5th Cir. 2013). Although the Third and Ninth Circuits have
ruled that a suppression hearing is a critical stage of the proceedings,
circuit court precedent does not constitute “clearly established Federal
law, as determined by the Supreme Court” and thus “cannot form the
basis for habeas relief under [the] AEDPA.” Parker v. Matthews, 567 U.S.
37, 48-49 (2012).
Moreover, unlike the defendants in the Hamilton and Henderson
cases, the trial court did not conduct the suppression hearing without
11

counsel for the defense being present. The Court did not conduct the
hearing at all, and dismissed the motion.

Petitioner’s case is more

analogous to a situation in which a defense attorney simply failed to file
a motion to suppress. The Supreme Court has held that “the failure to
file a suppression motion does not constitute per se ineffective assistance
of counsel.” Kimmelman v. Morrison, 477 U.S. 365, 384 (1986). Indeed,
in Kimmelman, the Supreme Court employed the Strickland standard in
evaluating the claim that trial counsel had been ineffective for failing to
file a suppression motion. Id., at 381-91.

Petitioner would thus be

required to satisfy the Strickland actual prejudice standard to prevail on
his claim.
The Michigan Court of Appeals agreed with petitioner that his
counsel had been deficient for failing to appear at the motion hearing or
to inform the trial court ahead of time of that he would be absent from
the hearing because of medical issues. People v. White, 2016 WL 370033,
at * 5. However, the Michigan Court of Appeals ruled that petitioner
failed to show that he was prejudiced by counsel’s failure to appear at the
suppression hearing:
However, defendant has failed to establish that he was
prejudiced by defense counsel’s deficient performance.
12

Although he asserts that the result of the proceeding would
have been different if the trial court had suppressed the
victim’s identification of defendant, he expressly states in his
brief on appeal that he “is not suggesting what the lower
court’s ruling would have been.” Likewise, defendant provides
no argument on appeal regarding the unduly suggestive
nature of the live lineup, or otherwise demonstrating that the
trial court would, or should, have granted his motion to
suppress. By merely asserting that the outcome of his trial
would have been different if the identification evidence had
been suppressed, without showing-or even arguing-that the
trial court would have granted his motion, defendant has not
demonstrated the requisite prejudice. Additionally, although
he also argues that this Court now does not have the
opportunity to review a decision on the motion and determine
whether the lineup identification evidence was properly
admitted, this claim similarly fails to establish that there is a
reasonable probability that the outcome of the proceeding
would have been different but for defense counsel’s absence.
People v. White, 2016 WL 370033, at * 5 (internal citation and footnote
omitted) (emphasis in original).
In a footnote, the Michigan Court of Appeals further concluded that
based on the allegations raised by petitioner in the pre-trial motion to
suppress that had been filed on his behalf by counsel, he failed to show
that the lineup had been unduly suggestive:
[i]n reviewing defendant’s motion to suppress in the lower
court, it appears that defendant was primarily arguing that
the lineup was unduly suggestive because (1) multiple
13

suspects were placed in the same array, (2) one or more police
officers allegedly told the victim that the perpetrator of the
carjacking was in the lineup, and (3) defendant was singled
out because he was only 5′ 6″ while the rest of the fillers were
5′ 10″ or taller. Even if defendant had addressed these
arguments on appeal, he still would not have established, in
light of the relevant Michigan caselaw, that there is a
reasonable probability that the outcome of the proceeding
would have been different but for defense counsel’s absence.
People v. White, 2016 WL 370033, at *5, n.5 (internal citations omitted).
Petitioner has presented no evidence, either to this Court or to the
Michigan Court of Appeals, to establish that the lineup was unduly
suggestive. Conclusory allegations by a habeas petitioner, without any
evidentiary support, do not provide a basis for habeas relief. See, e.g.,
Washington v. Renico, 455 F. 3d 722, 733 (6th Cir. 2006) (bald assertions
and conclusory allegations do not provide sufficient ground to warrant
requiring an evidentiary hearing in a habeas proceeding); Workman v.
Bell, 160 F.3d 276, 287 (6th Cir. 1998) (conclusory allegations of
ineffective assistance of appellate counsel do not warrant habeas relief).
Petitioner’s conclusory allegation that he was prejudiced by trial
counsel’s failure to appear for the suppression hearing is insufficient to
demonstrate that petitioner was actually prejudiced, so as to entitle

14

petitioner to habeas relief on his ineffective assistance of counsel claim.
See Cross v. Stovall, 238 F. App’x 32, 39-40 (6th Cir. 2007).
The challenges made by petitioner’s trial counsel to the lineup were
insufficient to establish that the lineup was unduly suggestive. The fact
that petitioner and his co-defendant were both placed in the same lineup
would not make the lineup unduly suggestive. “The fact that the line-up
contained more than one perpetrator does not render the identification
improper.” Johnson v. Warren, 344 F. Supp. 2d 1081, 1090 (E.D. Mich.
2004) (internal citation omitted).
Likewise, the mere fact that the victim may have known that a
suspect was in the line-up does not render the line-up unduly suggestive.
See Jamison v. Collins, 100 F. Supp. 2d 647, 745 (S.D. Ohio 2000), aff'd,
291 F.3d 380 (6th Cir. 2002). Finally, the four inch discrepancy between
petitioner’s height and the height of the other lineup participants would
also not render the lineup unduly suggestive. The Sixth Circuit has noted
that “a height differential, standing alone, is usually not enough to make
a lineup procedure suggestive.” Howard v. Bouchard, 405 F.3d 459, 471
(6th Cir. 2005) (discrepancy in height between defendant and other
suspects in lineup did not render lineup impermissibly suggestive, even
15

if defendant was three inches taller than others). Petitioner has not
identified any other factors that would lead this Court to believe that the
lineup was suggestive.
In light of the fact that petitioner has failed to show that the lineup
procedure was unduly suggestive, he has failed to show that his lawyer
was ineffective for what amounted to failing to move for suppression of
the pre-trial identification. See Perkins v. McKee, 411 F. App’x 822, 833
(6th Cir. 2011).
Finally, although trial counsel failed to appear at the suppression
hearing, counsel did cross-examine the victim, Guita Demonbreun, and
the officer in charge of the case, Sergeant Robert Wellman, about
problems with the victim’s pre-trial identification. (See Tr/ 8/4/14, pp.
155-62, Tr. 8/5/14, pp. 58-61).

Counsel specifically elicited testimony

from both witnesses that the victim identified two other men as possible
suspects at the lineup.
Petitioner failed to show that that improper police conduct rendered
the victim’s identification unreliable, thus, his attorney’s decision to
challenge the identification through cross-examination instead of
through a pre-trial motion to suppress was not unreasonable, let alone
16

prejudicial. See Pittao v. Hoffner, 722 F. App’x 474, 479 (6th Cir. 2018).
Petitioner is not entitled to relief on his claim.
IV.

Conclusion

The petition for writ of habeas corpus is denied with prejudice.
The Court denies a certificate of appealability. In order to obtain a
certificate of appealability, a prisoner must make a substantial showing
of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2).

To

demonstrate this denial, the applicant is required to show that
reasonable jurists could debate whether, or 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, 483-84 (2000). When a district court
rejects a habeas petitioner’s constitutional claims on the merits, the
petitioner must demonstrate that reasonable jurists would find the
district court’s assessment of the constitutional claims to be debatable or
wrong. Id. at 484. “The district court must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.” Rules
Governing § 2254 Cases, Rule 11(a), 28 U.S.C. foll. § 2254; See also
Strayhorn v. Booker, 718 F. Supp. 2d 846, 875 (E.D. Mich. 2010).
17

For the reasons stated in this opinion, the Court will deny
petitioner a certificate of appealability because he failed to make a
substantial showing of the denial of a federal constitutional right. The
Court will also deny petitioner leave to appeal in forma pauperis, because
the appeal would be frivolous. See Allen v. Stovall, 156 F. Supp. 2d 791,
798 (E.D. Mich. 2001).
V.

ORDER
The Court DENIES WITH PREJUDICE the Petition for Writ of

Habeas Corpus and DENIES a Certificate of Appealability.
Petitioner is DENIED leave to appeal in forma pauperis.
IT IS SO ORDERED.
Dated: July 26, 2018
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 July 26, 2018.
s/Shawna Burns
SHAWNA BURNS
Case Manager
18