Green v. Chapman

• Decision Date: 31 January 2020
• Docket Number: 18-CV-13452-TGB
• Parties: JESSIE GREEN, Petitioner, v. WILLIS CHAPMAN, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

JESSIE GREEN, Petitioner, v. WILLIS CHAPMAN¹, Respondent.

18-CV-13452-TGB

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

January 31, 2020

ORDER

(1)DENYING THE PETITION FOR WRIT OF HABEAS CORPUS;

(2) GRANTING THE MOTION TO AMEND CAPTION (ECF NO. 24);

(3) DENYING THE REMAINING PENDING MOTIONS (ECF NOS. 18, 20, 21, 23);

(4) DENYING A CERTIFICATE OF APPEALABILITY, AND

(5) GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS

Jessie Green, ("Petitioner"), confined at the Thumb Correctional Facility in Lapeer, Michigan, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his convictions for unlawful imprisonment, M.C.L.A. § 750.349b; attempted assault by strangulation, M.C.L.A. §§ 750.84(1)(b); 750.92; felonious assault, M.C.L.A. § 750.82,and felony-firearm, M.C.L.A. § 750.227b. For the reasons that follow, the petition for writ of habeas corpus is DENIED.

I. Background

Petitioner was convicted following a jury trial in the Wayne County Circuit Court. This Court recites verbatim the relevant facts regarding petitioner's case from the Michigan Court of Appeals' opinion affirming his conviction, 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 the assault of Symphony Whitney on December 19, 2013, in Detroit, Michigan. Whitney, who was 16 years old at the time of the assault, was walking to school between 8:00 a.m. and 8:30 a.m. As she walked along the sidewalk, she approached a vacant house. A green van was parked in the driveway of the house and partially on the sidewalk, forcing Whitney to walk around the vehicle. The van's passenger side was closest to Whitney as she approached the vehicle.

Whitney walked around the front of the van and immediately saw defendant kneeling down by the driver's side door. He was dressed all in black and wore a ski mask, although he had pulled the mask up so that it only covered his forehead. Whitney only saw defendant's face "[f]or a short moment" before he pulled the mask down over his face, jumped to his feet, and grabbed her. Whitney fell in the snow and began screaming. Defendant pulled her up by the neck, then put her in a chokehold with his right arm. Whitney continued toscream and struggle to escape. Defendant's right arm was across Whitney's neck, but she was able to breathe and scream for help. She was not, however, able to get away or remove his arm. While Whitney testified that defendant did not pull her toward the van, testimony from two other witnesses admitted at defendant's trial established that defendant pulled her toward the vehicle.

With his right arm still around Whitney's neck, defendant pulled out a black gun with his left hand and pointed it at her and menacingly told her to shut up. Whitney continued to scream. A white work van passed the two as they struggled, then the driver, Calvin White, stopped, backed the vehicle up, and got out of the van. Earl Jackson, who was visiting at the house across the street, heard the commotion, looked out the window, and saw a man in black with a ski mask struggling with Whitney. Jackson ran outside with his weapon drawn.

Whitney removed from her pocket the mace she usually carried when she walked to school, eventually sprayed it at defendant while they struggled, and managed to break free and run toward Wright's work van. Jackson saw defendant run away. Neither Wright nor Jackson saw a gun in defendant's possession.

Wright let Whitney sit inside his van while he tried to see which way defendant had run. Whitney called her father, and a woman who had emerged from another nearby house called 911. Jackson approached the green van and took the keys out of the ignition. Detroit Police officers arrived a few minutes later. When Whitney's father arrived at the scene, she told him that her neck hurt.

Detroit Police Officer Charles Howard was working an undercover surveillance detail on a breaking-and-entering task force that morning. He responded to the dispatch call reporting an attempted abduction. Detroit Police officers whowere already at the scene ran the green van's license plate through the Law Enforcement Information Network (LEIN), which revealed defendant's name and an address in Harper Woods. Officer Howard drove to the Harper Woods address in his unmarked police car, arriving there shortly after 9:00 a.m.. Officer Howard saw a black Ford and a blue Buick in the driveway. The Ford was registered to Henrietta Barber at an address on Farmbrook Street, and the Buick was registered to defendant and Velvatine Jones at an address on Nottingham Road in Detroit. The Farmbrook address was approximately eight blocks away from the scene of the assault on Whitney.

About 30 minutes after Officer Howard arrived at the Harper Woods address, he saw a woman drive the Ford out of the driveway. The Ford circled the block a couple of times. About ten minutes later, he saw a man drive the Buick out of the driveway. Both vehicles proceeded to the Farmbrook address and Officer Howard also went to that location.

Officer Howard maintained surveillance at the Farmbrook address for approximately 30 minutes before defendant came out of the house with his girlfriend, Vernell Fleming. Defendant and Fleming got into the Buick and drove away. Defendant was driving. Officer Howard radioed for assistance, and a waiting marked car stopped defendant.

Detroit Police Officer Jeremiah Orvelo was in the marked car that stopped defendant. During the stop, Officer Orvelo's partner recovered a handgun from defendant's side of the Buick. Defendant carried a valid Carry Pistol License (CPL), but the officers confiscated the weapon for safekeeping. Officer Orvelo did not arrest defendant because Detroit Police Sergeant Jose Ortiz told the officers to ask defendant to come to the police station for questioning.

Later that day, Detroit Police Officer Jeffery Manson assembled a photographic lineup for Whitney to identify her attacker. Officer Manson placed defendant's driver's license picture, which he had obtained from LEIN, in the sixth position in the lineup. The picture on defendant's driver's license was three years old at the time. Officer Manson took the other five pictures from the Michigan Sex Offenders Registry because the backgrounds of the pictures were similar to the background of defendant's driver's license picture.

Whitney, meanwhile, came to the police station to meet with a composite sketch artist. While there, she described her attacker as being around 6 feet tall, skinny, brown-skinned with a medium complexion, and about 30 years old. When the sketch was complete, she asked the artist to add in a beard to more accurately reflect her attacker's appearance.

After Whitney's meeting with the sketch artist, Sergeant Ortiz showed her the photographic lineup. Whitney said that the man in the fourth position looked familiar, but that she was not sure he was the man who attacked her. Unbeknownst to Whitney, the man in the fourth position had been incarcerated at the time of the assault.

Later that same day, defendant arrived at the police station for an interview. Sergeant Ortiz interviewed him and noted that defendant looked different and younger in his driver's license picture than in person. Sergeant Ortiz took a picture of defendant with his cell phone and sent the picture to Officer Manson for inclusion in a second photographic lineup. During the interview, defendant stated that he had inadvertently left the keys in the green van that morning, and that he had last seen the van in the driveway of the Harper Woods address. Defendant maintained that Fleming had been with him allmorning and that they had driven together in the Buick to the Nottingham address, then to the Farmbrook address.

On December 20, 2013, Officer Manson went to Whitney's house with the second photographic lineup. He had replaced the other five photographs with photographs of individuals who more closely reflected defendant's different appearance in the new picture that Sergeant Ortiz had taken. He believed that it would have been unduly suggestive to have used the same pictures from the first lineup given that they did not look like the new picture of defendant. Defendant's new picture was now in the fourth position. Whitney only looked at the photographs for "a matter of seconds" and, when asked, indicated that she recognized number four. Whitney wrote, "I think he's the one who attacked me," and, "He tried to kidnap me," on the photographic lineup.

Later that day, Officer Manson called defendant to tell him that he could pick up his green van at the police station. Officer Manson arrested defendant when he arrived. Detroit Police officers never recovered defendant's gun, however, because defendant had reclaimed it the previous day and because it was not on his person when Officer Manson arrested him.

People v. Green, No. 321519, 2015 WL 5311660, at * 1-3 (Mich. Ct. App. Sept. 10, 2015) (internal footnote omitted).

Petitioner's conviction was affirmed on direct appeal. Id., lv. den. 499 Mich. 915, 877 N.W. 2d 895 (2016).

Petitioner filed a post-conviction motion for relief from judgment, which was denied. People v. Green, No. 14-000470-01-FH (Third Cir. Ct.,Nov. 28, 2016). The Michigan appellate courts denied petitioner leave to appeal. People v. Green, No. 337063 (Mich. Ct. App. July 13, 2017); lv. den. 501 Mich. 1080, 911 N.W.2d 713 (2018), reconsideration den., 503 Mich. 862, 917 N.W.2d 369 (2018).

Petitioner in his original and amended habeas petitions seeks habeas relief on the following grounds: (1) Petitioner is entitled to immediate release where there was police and prosecutor misconduct resulting in extrinsic fraud on the court to confer jurisdiction, (2) the photographic identification procedure was unduly suggestive,² (3) petitioner was denied the effective assistance of trial counsel, and (4) petitioner was denied the effective...