Floyd v. Griffith, Case No. 4:15CV1145 JCH

CourtUnited States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
PartiesMICHAEL R. FLOYD, Petitioner, v. CINDY GRIFFITH, Respondent.
Docket NumberCase No. 4:15CV1145 JCH
Decision Date15 January 2016

MICHAEL R. FLOYD, Petitioner,

Case No. 4:15CV1145 JCH


January 15, 2016


This matter is before the Court on Missouri State prisoner Michael R. Floyd's pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter is fully briefed and ready for disposition.

On May 19, 2010, a jury in the Circuit Court of St. Louis City, Missouri, found Petitioner guilty of one count of murder in the first degree, and one count of armed criminal action. On July 16, 2010, Petitioner was sentenced to life imprisonment without the possibility of parole, and a concurrent term of thirty years imprisonment. The Missouri Court of Appeals affirmed the convictions and sentence. State v. Floyd, 347 S.W.3d 115 (Mo. App. 2011). Petitioner thereafter filed a motion for post-conviction relief pursuant to Missouri Supreme Court Rule 29.15, which was denied without an evidentiary hearing. The Missouri Court of Appeals affirmed the denial of post-conviction relief. Floyd v. State, 461 S.W.3d 846 (Mo. App. 2015).

Petitioner is currently incarcerated at the Potosi Correctional Center in Mineral Point, Missouri. In the instant petition for writ of habeas corpus, Petitioner raises the following four claims for relief:

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(1) That the trial court erred in denying Petitioner's motion to suppress identification;

(2) That the trial court erred in admitting the rebuttal testimony of Detective Hanewinkel;

(3) That Petitioner received ineffective assistance of counsel, in that trial counsel failed to object to the hearsay testimony offered by Detective James Stagge; and

(4) That Petitioner received ineffective assistance of counsel, in that trial counsel failed to locate, interview, endorse and subpoena Ms. Marian Henderson, Mr. Justin Briggs1, and Mr. Ricardo Graham to testify at trial.

The Court will address the claims in turn.


I. Procedural Default

As stated above, in Ground 1 of his petition Petitioner asserts the trial court erred in denying his motion to suppress identification. (§ 2254 Petition, Attached Supplement PP. 2-3). Specifically, Petitioner claims the trial court erred in admitting evidence that he was identified as the shooter through both a photo spread and a physical lineup, because the identification procedures were so suggestive as to create a substantial likelihood of misidentification. Petitioner raised this claim on direct appeal of his convictions, but the Missouri Court of Appeals found it could review Petitioner's claim only for plain error, because neither his pretrial motion to suppress identification nor his new trial motion indicated why the identifications were impermissibly suggestive or unreliable. State v. Floyd, 347 S.W.3d at 124-25.

"Claims that have not been presented to the state courts, and for which there are no remaining state remedies, are procedurally defaulted." Skillicorn v. Luebbers, 475 F.3d 965, 976 (8th Cir.) (citation omitted), cert. denied, 552 U.S. 923 (2007). "To avoid defaulting on a claim, a petitioner

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seeking habeas review must have fairly presented the substance of the claim to the state courts, thereby affording such courts a fair opportunity to apply controlling legal principles to the facts bearing upon [the] claim." Wemark v. Iowa, 322 F.3d 1018, 1020-21 (8th Cir.) (internal quotations and citations omitted; alteration in original), cert. denied, 540 U.S. 870 (2003). "A claim has been fairly presented when a petitioner has properly raised the same factual grounds and legal theories in the state courts which he is attempting to raise in his federal habeas petition." Id. at 1021 (internal quotations and citations omitted).

In a recent case, the Eighth Circuit Court of Appeals held that a state court's plain error review does not cure a procedural default, and thus federal habeas review is possible only if the petitioner demonstrates cause and prejudice for the default. Clark v. Bertsch, 780 F.3d 873, 875-76 (8th Cir. 2015). Petitioner has neither asserted nor shown cause for or prejudice as a result of his failure to raise the grounds underlying this claim in his pretrial motion to suppress identification or his new trial motion. The claim raised in Ground 1 of the instant petition thus is procedurally defaulted and must be denied.

Even if the Court were able to address the merits of Petitioner's claim in Ground 1 of his petition, the claim would not provide him with a basis for habeas relief. The Missouri Court of Appeals thoroughly reviewed the claim for plain error and found none, as follows:

Floyd complains that the trial court erred in overruling his motion to suppress identification and in admitting State's exhibit 70, the photo lineup, and State's exhibit 72 and 73, photographs of the physical lineup. Floyd asserts that the identification procedures were unduly suggestive and the identification unreliable because "[p]olice used a photo lineup in which Mr. Floyd was the most light-complected person depicted, and later conducted a physical lineup in which Mr. Floyd was the only repeat player, and one of only two men whose skin complexion and dress resembled that of the shooter."

Floyd filed a pretrial motion to suppress identification, which the court took with the case. At trial, Floyd objected "subject to his pretrial motion" to exhibits 70, 72, and 73,

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which the court overruled. Neither Floyd's pretrial motion nor new trial motion indicated why the identifications were impermissibly suggestive or unreliable. Accordingly, the argument is not preserved and review is for plain error. Moore, 303 S.W.3d at 522-23; State v. Rasheed, 340 S.W.3d 280, 287 (Mo.App. E.D. 2011). Floyd's argument does not show evident, obvious, and clear error.

Identification testimony is admissible unless the pretrial identification procedure is impermissibly suggestive, and this suggestive procedure made the identification unreliable. State v. Middleton, 995 S.W.2d 443, 453 (Mo. banc 1999). "A pre-trial identification procedure is unduly suggestive if the identification results not from the witness's recollection of first-hand observations, but rather from the procedures or actions employed by the police." State v. Chambers, 234 S.W.3d 501, 513 (Mo.App. E.D. 2007). "The key issue in determining whether unduly suggestive pre-trial procedures tainted the identification is whether the witness has an adequate basis for the identification independent of the suggestive procedure." Id. "Identification evidence will be excluded as impermissibly suggestive 'only when the procedure was so suggestive that it gave rise to a very substantial likelihood of irreparable misidentification.'" State v. Lewis, 874 S.W.2d 420, 424 (Mo.App. W.D. 1994) (citation omitted).

In determining the reliability of a witness's identification, we consider: (1) the opportunity of the witness to view the subject; (2) the witness's degree of attention; (3) the accuracy of any prior description given by the witness; (4) the level of certainty demonstrated by the witness in making the identification; and (5) the interval between the event and the identification procedure. Middleton, 995 S.W.2d at 453. However, the defendant must establish that the police procedures were impermissibly suggestive before review of the reliability of the identification is necessary or appropriate. State v. Vinson, 800 S.W.2d 444, 446 (Mo. banc 1990); State v. Allen, 274 S.W.3d 514, 526 (Mo.App. W.D. 2008); Chambers, 234 S.W.3d at 513.

"Dissimilarity in physical appearance, alone, is insufficient to establish impermissible suggestion." Chambers, 234 S.W.3d at 513. Because courts normally only require the police to use reasonable efforts to find physically similar participants in a photo lineup, "differences in age, weight, height, hairstyle, and other physical characteristics do not compel a finding of impermissible suggestiveness." Id. at 514. Since only identical twins can be identical in a lineup and as long as no one individual clearly stands out in the lineup, "[t]he law does not require exact conformity to ensure an untainted identification procedure." State v. Williams, 18 S.W.3d 425, 432 (Mo.App. S.D. 2000); State v. Montgomery, 596 S.W.2d 735, 737 (Mo.App. E.D. 1980). Police are only required to find physically similar participants, even if a defendant has a physical abnormality or very distinctive appearance, as no lineup in that type of situation can be expected to provide subjects reasonably close in appearance. State v. Cooks, 861 S.W.2d 769, 772 (Mo.App. E.D. 1993).

The record taken in its entirety fails to demonstrate that the police took any action which made either the photo or the physical lineup impermissibly suggestive. Floyd's first complaint that he was the only participant in both the photo and physical lineups did not render either lineup impermissibly suggestive. State v. Williams, 277 S.W.3d 848, 851

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(Mo.App. E.D. 2009).

Detective Hanewinkel prepared the photo lineup of six individuals which included Floyd. He used a computer to help select the other five individuals. After the computer generated several hundred possibilities based upon the race and build of Floyd, Detective Hanewinkel selected the hairstyle. From the computer-generated photos, Detective Hanewinkel selected five fillers for the photo lineup. Given that all six individuals in the photo lineup were of the same race, similar hairstyle, and general age, Floyd's complaint that he was the most light-complected individual in the photo lineup alone did not make the photo lineup impermissibly suggestive.

Floyd also asserts that he was the only light-complected individual in the four-person physical lineup, and that Floyd and only one other individual wore a black hoodie. Detective Hanewinkel testified that a detective will take the defendant around the jail and find other inmates that "have similar characteristics as

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