Howard v. Bouchard

Decision Date28 April 2005
Docket NumberNo. 03-1850.,03-1850.
Citation405 F.3d 459
PartiesFrank HOWARD, Petitioner-Appellant, v. Barbara BOUCHARD, Warden, Respondent-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

James R. Gerometta, Federal Public Defender's Office, Detroit, Michigan, for Appellant.

Janet A. Van Cleve, Office of the Attorney General, Habeas Corpus Division, Lansing, Michigan, for Appellee.

James R. Gerometta, Andrew N. Wise, Federal Public Defender's Office, Detroit, Michigan, for Appellant.

Debra M. Gagliardi, Office of the Attorney General, Habeas Corpus Division, Lansing, Michigan, for Appellee.

Before: MOORE and GILMAN, Circuit Judges; GWIN, District Judge.*

GWIN, D. J., delivered the opinion of the court, in which GILMAN, J., joined. MOORE, J. (pp. 486-88), delivered a separate dissenting opinion.


GWIN, District Judge.

With this case we decide whether Petitioner-Appellant Frank Howard ("Howard") was denied his constitutional right to due process when a Michigan court permitted three eyewitnesses to identify Howard as the killer of Theodore Hankinson. Howard complains that the three eyewitnesses saw Howard at two scheduled, then cancelled, preliminary hearings before they identified him in a lineup. Howard argues that seeing him at the hearings was impermissibly suggestive and that their subsequent identifications of Howard as the person who killed Hankinson were not otherwise reliable.

On April 2, 1990, a Michigan jury found Petitioner Frank Howard guilty of second degree murder. After Howard lost his appeals and post-conviction appeals in the Michigan state courts, he petitioned for a writ of habeas corpus. The district court denied Howard's petition.

On appeal from that denial, Howard offers three arguments. First, Howard contends that the admission of eyewitness Ken Gapinski's identification testimony violated his due process rights. Second, he similarly argues that the admission of identifications made by witnesses Patrick Chorney and Thomas Carter violated his due process rights. Third, he argues that his trial counsel's failure to challenge the latter two identifications before or during the trial violated his right to the effective assistance of counsel. The Appellee Barbara Bouchard, Warden, opposes the petition. For the reasons that follow, we AFFIRM the decision of the district court to deny the writ.

A. Factual History

On June 9, 1989, at approximately 4:00 am, Theodore Hankinson was needlessly killed while attempting to repossess a truck from a residence at 19300 Telegraph Road, in Detroit, Michigan. Three other men — Patrick Chorney, Thomas Carter, and Kenneth Gapinski — accompanied decedent Hankinson at the time he was killed. Gapinski was Hankinson's brother. The men sought to repossess a Toyota pickup truck that Cynthia Shumate, who lived at 19300 Telegraph, had purchased using credit. Shumate was five months pregnant with Petitioner Howard's child on June 9, 1989. When the four men arrived at 19300 Telegraph, the decedent Ted Hankinson was driving the tow truck used to repossess the Toyota pickup. Patrick Chorney occupied the passenger's seat. Ken Gapinski and Thomas Carter sat in the open bed area.

After arriving at the residence, Hankinson backed the tow truck up the driveway and into the backyard to take possession of the pickup truck. The driveway ran along the side of the house. After putting the repossessed Toyota pickup upon the bar of the tow truck, Ken Gapinski crawled onto the Toyota to check the vehicle identification number. As he crawled onto the truck, an alarm went off. Gapinski, Chorney, and Carter then heard a gunshot. Gapinski and Carter, who had been attaching the boom to the tow truck, jumped back into the tow truck and lay down in the truck's bed.

Hankinson, who was driving, pulled the tow truck alongside the porch. A man with a rifle stood on the porch. A woman, later identified as Shumate, stood nearby. Hankinson showed Shumate and the man paperwork for the repossession. The man yelled and demanded: "put the truck down." Hankinson complied and released the vehicle. At that point, Hankinson's tow truck was only about three feet away from the two individuals on the porch. The shooter then pointed the gun at Chorney, who was sitting in the passenger seat and who had just called the police. The shooter told Chorney to put the phone down.

The tow truck proceeded to leave, moving down the driveway without the repossessed truck. As the tow truck moved down the driveway toward the street, the shooter fired four or five more shots. Hankinson then yelled out that he'd been shot. As the truck began to roll, Gapinski, who had been ducking down in the back, jumped out of the bed and opened the driver-side door to apply the brake and help Hankinson. After being shot in the head, Hankinson had fallen over onto Chorney. The men were somewhere between 15 and 35 feet away from the porch by the time the truck was stopped. Gapinski went to the hospital with Hankinson. Chorney and Carter stayed at the scene until the police came.

Once the police arrived at the scene, Chorney and Carter completed the repossession, and then went to the police station. At the station, Chorney and Carter gave the police descriptions of the shooter. Carter described the shooter as a "black/male/20s, light complx [sic], short hair, thin mustache. I think he was dressed in underwear (boxer shorts)." J.A. 509. Chorney described the shooter as having a smaller build and short hair.

The police also showed Chorney and Carter a photographic lineup of suspects, in which Petitioner Frank Howard was pictured at position No. 1. Chorney and Carter failed to pick out Petitioner from that photo lineup. At trial, Chorney first testified that he had not identified any of the pictures as the shooter. On cross-examination, Chorney testified that he had picked out a different suspect, the suspect labeled No. 4. The police reports indicating Chorney and Carter's identifications each show an "X" next to No. 4, and the phrase "No. I.D." written on the bottom right-hand corner of the page. In testimony that conflicted with Chorney's, Sergeant Harvel, the chief investigating officer on the Hankinson killing, testified that "No I.D." meant that Chorney and Carter had not picked out anyone in the photo array. Regarding the photo array, Suspect No. 1 (Howard) and Suspect No. 4 presented similar appearances. J.A. 715-16.

Gapinski gave a description to the police in August 1989, two months after the shooting. In that description, he described the killer as "a black man with tan shorts on and he had a rifle with a clip. The rifle was real short." Gapinski never participated in a photo identification. Gapinski participated in no identification procedure at all until after the first scheduled preliminary hearing.

In September 1989, police arrested Petitioner Frank Howard for the shooting of Theodore Hankinson. On September 20, 1989, all three eyewitnesses came to court for Howard's scheduled preliminary examination. Before the hearing commenced, Howard was brought out of lockup and seated at the defense table. It is not clear that any of the witnesses had a significant opportunity to view Howard. Chorney testified that he was outside of the court room smoking during the majority of his time at the court house. With regard to his ability to see Howard at the preliminary hearing, Gapinski testified that he saw the back of Howard, but was not paying much attention because he was talking to his family. The hearing was adjourned until September 27, 1989.

On September 27, 1989, with Gapinski again present in the courtroom, Howard was brought out of the lockup and seated at the defense table. The other two witnesses, Chorney and Carter, entered the courtroom when Howard was already seated at the defense table. They then left. The proceedings were again adjourned. At neither proceeding did law enforcement officers say anything to the witnesses to suggest that Howard was the killer.1

About one hour following that adjournment, the police conducted a lineup with defense counsel present. Gapinski, Chorney, and Carter were separately asked to identify the killer. After viewing the lineup, each witness was taken to a different room in order to prevent any communication between the witnesses. All three witnesses picked Howard as the killer.

The preliminary examination took place on October 2, 1989. Gapinski, the decedent's brother, was the only witness to testify. At the preliminary examination, he identified Howard as the person who had shot his brother. Thereafter, defense counsel moved to exclude Gapinski's in-court and lineup identifications on the basis of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). With this motion, Howard first argued that the two courtroom confrontations prior to the lineup tainted the identification. Second, Howard claimed that the lineup impermissibly singled out the defendant in the array. After conducting a hearing on Howard's challenge to Gapinski, the trial court admitted Gapinski's identification testimony.

Howard's trial counsel did not challenge Carter's and Chorney's identifications of Howard as the killer. The case proceeded to trial. At trial, too, Gapinski, Chorney, and Carter each identified Howard as the person who had shot and killed Hankinson.

B. Procedural History

On April 2, 1992, a jury convicted Howard of second degree murder and a felony firearm offense. On direct appeal to the Michigan Court of Appeals, and represented by new counsel, Petitioner raised two issues. First, he argued that the trial court erred when it admitted testimony about the identification that Gapinksi made at a lineup. Second, Howard argued that the trial court erred in sentencing. On April 30, 1993, the Michigan Court of Appeals affirmed the...

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