Burger v. Prelesnik, Case No. 08–10085.

• Court: United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
• Writing for the Court: DAVID M. LAWSON
• Citation: 826 F.Supp.2d 997
• Parties: George Gerard BURGER, Petitioner, v. John PRELESNIK, Respondent.
• Docket Number: Case No. 08–10085.
• Decision Date: 27 September 2011

826 F.Supp.2d 997

George Gerard BURGER, Petitioner,
v.
John PRELESNIK, Respondent.

Case No. 08–10085.

United States District Court,E.D. Michigan,Southern Division.

Sept. 27, 2011.

[826 F.Supp.2d 1002]

Michael J. McCarthy, Redford, MI, for Petitioner.

John S. Pallas, Michigan Department of Attorney General, Lansing, MI, for Respondent.

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS DAVID M. LAWSON, District Judge.

Michigan prisoner George Gerard Burger challenges his convictions of armed robbery and fleeing from a police officer through a petition for a writ of habeas corpus filed under 28 U.S.C. § 2254 with the assistance of counsel. The robbery facts were archetypical: a lonely gas station clerk was confronted late at night by an unshaven man wearing a hat that partially concealed his face, who brandished a knife and announced, “This is a stick-up,” after which the perpetrator took money and fled the scene in a pickup truck. An Oakland County, Michigan circuit court judge managed to find something unique in the robber's style and presentation, especially after learning that the petitioner had robbed a convenience store seven years earlier using the phrase, “This is a stickup.” The state judge admitted the evidence of the earlier robbery, ostensibly to prove the identity of the petitioner as the perpetrator of the present crime, despite the fact that he could not be credited with having coined the phrase or otherwise establishing this manner of heist as his brand. The petitioner contends that evidentiary error violated his constitutional rights by denying him a fair trial because the jury probably used the earlier robbery to find that he had a propensity to commit robberies, which led to the guilty verdict in this case. This Court cannot agree. Although the evidence ruling at the petitioner's trial was obviously flawed, and most evidence codes consider propensity evidence to prove guilt anathema, there is no constitutional rule that bars the use of other-act evidence for such purpose, and therefore it cannot be said that the state's evidentiary blunder denied the petitioner a fair trial under the Due Process Clause. The petitioner's other claims—insufficient evidence and ineffective assistance of counsel—do not warrant relief, either. Therefore, the Court will deny the petition.

I.

At the petitioner's jury trial, Steven Goble testified that he was working at a

[826 F.Supp.2d 1003]

Mobil gas station on Highland Road (M–59) and Duck Lake Road in Highland, Michigan in the early morning hours of Easter Sunday, April 20, 2003. At around 4:00 a.m. he was watching television when a man walked in and announced, “This is a stick-up.” Goble thought the man was kidding—who wouldn't, given the unoriginal announcement?—but he realized he was being robbed when the man tapped a knife on the counter. Goble described the perpetrator as an unshaven white male wearing a stocking cap pulled down over his eyebrows. The man appeared to be 40–to–50 years old.

Goble was positioned behind the counter on a slight rise, and the man kept his head lowered and never looked directly him. Goble placed the money from the cash register on the counter; the man took it and left the station. Goble immediately called 9–1–1 and exited the station behind the perpetrator, who disappeared from view behind the gas pump. Goble then saw tail lights illuminate on a vehicle parked on Duck Lake Road. From the taillights alone, Goble identified the vehicle as a mid–1980's domestic small-sized pickup truck.

At trial, Goble could not positively identify the knife offered in evidence by the prosecutor, and he acknowledged identifying other individuals as the perpetrator in both photo and corporeal lineups. When asked if the knife “look[ed] like the [one] that you saw that night?” Goble answered, “It looks a lot like it. It looked a little bigger, but it looks like it.” However, when the prosecutor asked Goble, “I want you to take a look at this man right here [indicating the petitioner]. Does that look like the man who robbed you that night?” Goble responded, “Yes, it does.”

But on cross-examination, Goble was asked if he was “sure” that the petitioner was the man who robbed him, and Goble responded, “A hundred percent sure? No, not the way he's dressed and not clean shaven.”

Goble conceded that he had previously described the knife as a hunting knife that had a black blade and multiple finger ridges on the handle. He did not mention a serrated edge or black thumb stud on the blade. The knife Goble identified at trial was a lock blade with a silver blade, a partially serrated edge, a black thumb stud on the blade for one-handed opening, and one ridge on the handle. Goble attempted to explain the difference between the description he gave to the police and the actual appearance of the knife as a result of how the perpetrator held the knife in his hand and because it was held in the shadow of the credit card keypad platform. Goble testified that despite these inconsistencies, the knife produced at trial “looks a lot like” the knife used by the perpetrator.

Defense counsel then showed Goble the photograph array used in a pretrial identification procedure. Goble conceded that he identified subject # 2 as the perpetrator whereas the petitioner was subject # 4 in the array. Goble also testified on cross-examination that he identified a man other than the petitioner at a live lineup identification procedure. Goble explained on re-direct examination that the petitioner was clean-shaven at the live line up, and that after he identified a different man who was not clean-shaven, he told the detective that the petitioner would have been his second choice.

Deputy Steven Dooley testified that he and Deputy Potts were about 200 yards away from the Mobil station performing a building check when he received the dispatch concerning the robbery. He and Potts sprinted back to their patrol vehicles and headed north on Duck Lake Road. They passed the Mobil station within a

[826 F.Supp.2d 1004]

couple of minutes of receiving the dispatch. Potts continued north on Duck Lake Road, and Dooley turned west onto Wardlow Road, which he described as a common route taken away from Duck Lake Road. There was no traffic at that time of night, and Dooley saw no taillights.

As Dooley approached Milford Road, approximately five minutes after he passed the Mobil station, he saw a full-size pickup truck parked at the On–The–Go convenience store. He stopped for about two to three minutes to investigate and talked with the driver, whom he knew. While he was standing in the parking lot, he saw a Chevy S–10, a smaller pickup truck, driving west on Wardlow—the direction from which Dooley had come—and then turn north onto Milford Road. On cross–examination, Dooley conceded that if the S–10 was being driven by the perpetrator of the robbery and had traveled the shortest route, he should have passed him before reaching the On–The–Go. But Dooley saw no other vehicles until he reached the On–The–Go. Dooley returned to his vehicle and gave pursuit.

Dooley stopped the S–10 on Milford Road and asked the driver to exit the vehicle. The petitioner was driving the vehicle. Dooley asked the petitioner if he could search the truck, but the petitioner refused. Dooley then asked the petitioner if he had been somewhere in the area of Duck Lake Road and M–59. The petitioner said, “I'm outta here,” jumped back into his truck, and sped away.

Dooley pursued the petitioner along several roads. During the pursuit Dooley could see that the petitioner was swerving back and forth and making furtive gestures in the passenger seat. Eventually the petitioner pulled off the road, stopped, and fled on foot into a woods. The petitioner managed to elude capture but was arrested a few days later at an apartment in Farmington, Michigan.

Deputy John MacDonald testified that he responded to the scene where the petitioner fled on foot. He searched the S–10 and discovered the knife that was identified by Goble at trial. He also recovered a black jacket and found what he described as a crack pipe in the inside pocket.

Detective Craig Cooper testified that he conducted the pretrial identification procedures. The petitioner was not in custody when the photographic lineup was conducted. Cooper explained that as a result, he was forced to use an old picture of the petitioner. Cooper claimed that the photograph of the man Goble chose looked more like the petitioner than the old picture of the petitioner did. Cooper also explained that when the petitioner was arrested, he was clean shaven. On cross–examination, Cooper conceded that he did not write in any of his reports that Goble told him that the petitioner would have been his second choice in the live lineup.

Beside the evidence relating to the robbery itself, the prosecution also presented evidence that the petitioner committed an armed robbery of a gas station in 1996. At a pretrial hearing to determine the admissibility of this evidence, the prosecutor argued that although the petitioner's actions in the previous robbery were different from the actions of the robber in the instant case, those differences could be explained by the notion that a criminal will learn from his earlier mistakes that had then led to his apprehension and conviction. The prosecutor also pointed to the fact that in the 1996 case, the petitioner told the victim that this is a “stick up.” The prosecutor argued that the perpetrator used the same term in the instant case instead of other common terms. Remarkably, the trial judge accepted the prosecution's position that the term “stick up” was

[826 F.Supp.2d 1005]

a unique term, and she ruled that the similar-acts evidence would be admitted to establish identity: “[T]he thing that I'm really taken by is, this is a stick up. That is so archaic, I think, and it shows a pattern. Those are unusual words to use, to me, in this day and age....” The court...