Millender v. Adams

• Decision Date: 15 July 2004
• Docket Number: No. 02-1403.,02-1403.
• Citation: 376 F.3d 520
• Parties: Trenton MILLENDER, Petitioner-Appellant, v. Stanley ADAMS, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

376 F.3d 520

Trenton MILLENDER, Petitioner-Appellant, v. Stanley ADAMS, Respondent-Appellee.

No. 02-1403.

United States Court of Appeals, Sixth Circuit.

Argued: April 29, 2004.

Decided and Filed: July 15, 2004.

Appeal from the United States District Court for the Eastern District of Michigan, Gerald E. Rosen, J.

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John F. Royal (argued and briefed), Detroit, MI, for Petitioner-Appellant.

Laura Graves Moody (argued and briefed), Office of the Attorney General, Habeas Corpus Division, Lansing, MI, for Respondent-Appellee.

Before KENNEDY, MARTIN, and ROGERS, Circuit Judges.

OPINION

BOYCE F. MARTIN, JR., Circuit Judge.

Mr. Trenton Millender appeals the judgment of the district court denying his 28 U.S.C. § 2254 petition for a writ of habeas corpus. This Court granted a certificate of appealability on four issues: (1) whether Mr. Millender's trial counsel was constitutionally ineffective; (2) whether the Michigan trial court's failure to instruct jurors on mistaken identity and impeachment by a prior inconsistent statement denied petitioner a fair trial; (3) whether comments the prosecutor made in closing argument denied petitioner a fair trial; and (4) whether the cumulative effect of these alleged errors denied petitioner a fair trial. For the reasons that follow, we affirm the judgment of the district court.

I.

Late in the evening in July 1994, petitioner and two other individuals broke into a home to commit a robbery. Once inside the home, the three assailants brutally assaulted its occupants. Based on these actions, a Michigan state-court jury convicted Mr. Millender of three counts of first-degree criminal sexual conduct, three counts of armed robbery, one count of assault with intent to do great bodily harm, three counts of felonious assault, and one count of felonious possession of a firearm during the commission of a felony. The trial court sentenced petitioner to a lengthy prison term following this conviction.

The Michigan Court of Appeals subsequently denied two motions to remand and a motion for rehearing filed by petitioner. Thereafter, in October 1996, the Michigan Court of Appeals affirmed his conviction. In December 1997, the Michigan Supreme Court denied petitioner's motion for leave to appeal and, in February 1998, the Michigan Supreme Court denied his motion for reconsideration. Petitioner then moved for an evidentiary hearing in the United States District Court. The district court denied this motion without prejudice in March 2000. In February 2002, the district court also denied petitioner's petition for a writ of habeas corpus and sua sponte denied him a certificate of appealability. In October 2002, this Court granted Mr. Millender's request for a certificate of appealability, and we certified four issues for review.

II.

We review a grant or denial of a petition for writ of habeas corpus de novo and the factual findings of the district court for clear error. Lott v. Coyle, 261 F.3d 594, 606 (6th Cir.2001). Under 28 U.S.C. § 2254, a writ of habeas corpus may not be granted unless the state-court proceedings:

(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 proceedings.

28 U.S.C. § 2254(d). Section 2254(d)(1) defines two categories of cases in which a state prisoner may gain habeas relief. See Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (O'Connor, J., concurring).

To gain habeas relief under the first category, involving state decisions contrary to federal law, a defendant must show that the state court arrived at a conclusion opposite to that reached by the Supreme Court on a question of law' or that the state court decided a case differently than the Supreme Court has on a set of materially indistinguishable facts. Under the second category, involving the unreasonable application of federal law by a state court, a federal habeas court must ask whether the state court's application of clearly established federal law was objectively reasonable. If the federal court finds that, viewed objectively, the state court has correctly identified the governing legal principle from the Supreme Court's decisions but unreasonably applied that principle to the facts of the prisoner's case, it may grant the writ.

Washington v. Hofbauer, 228 F.3d 689, 698 (6th Cir.2000) (citation and internal quotations omitted). With respect to all four issues raised by petitioner, we find no error in the judgment of the district court and affirm.

III.

The first issue Mr. Millender raises to support his claim for habeas relief is ineffective assistance of counsel. Petitioner alleges that his attorney violated his right to effective representation, which is guaranteed under the Sixth Amendment in criminal cases. "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Millender advances several grounds for relief to support this claim, including his attorney's failure to object to the introduction of evidence, failure to object to various in-court identifications and prosecutorial remarks, failure to call a rebuttal witness, and failure to make an opening statement or request certain instructions. We review de novo the district court's judgment on an ineffective-assistance-of-counsel claim. Hudson v. Jones, 351 F.3d 212, 215 (6th Cir.2003).

In its review of the ineffective-assistance-of-counsel claim, the district court applied the standard set out in Strickland and ruled that Mr. Millender's counsel was not constitutionally ineffective. The Strickland standard involves a two-step inquiry that requires a petitioner to show (1) that his trial representation was deficient, or objectively unreasonable, and (2) that prejudice resulted from this representation. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. Mr. Millender argues that the district court erred not only in ruling that his counsel was not ineffective, but also in analyzing his claim under the Strickland standard rather than the less stringent standard set out in United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). Under Cronic, prejudice is presumed, and therefore need not be proved, if petitioner's counsel "entirely fails to subject the prosecution's case to meaningful adversarial testing[.]" Cronic, 466 U.S. at 659, 104 S.Ct. 2039.

Throughout the trial, petitioner's attorney was an active participant: he cross-examined witnesses, made proper objections, and presented a closing argument. This level of representation does not fall below the low threshold required by Cronic. Therefore, the district court did not err in its application of the Strickland standard, and we rely on the same standard in our review of this claim.

A.

Petitioner alleges that his attorney's failure to file a motion to suppress evidence from witness and voice-identification police lineups and in-court identifications constitutes ineffective assistance of counsel. Under United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), a defendant may have the right to a pretrial hearing to contest the validity of an out-of-court identification. Petitioner argues that his attorney should have requested a Wade hearing to suppress the lineup identifications because he claims these identifications were impermissibly suggestive. He alleges the lineup was suggestive because he was the tallest suspect; he alleges the voice identification was suggestive because, according to him, his voice did not sound "in any way" like the other suspect's voices and it was conducted at the same time as the identification lineup. Petitioner also argues that his attorney should have objected to in-court identifications of him because eyewitness testimony is "extremely unreliable" yet has a profound impact on juries. Thus, according to petitioner, his attorney's failure to file a motion to suppress this identification evidence constitutes ineffective assistance of counsel because his primary defense was mistaken identity.

We hold that petitioner's attorney's failure to file a motion to suppress does not constitute ineffective assistance of counsel. In some circumstances, discrepancies in height may be impermissibly suggestive. See Foster v. California, 394 U.S. 440, 442-43, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969). Although petitioner was taller than the other suspects used in the lineup, he was only one inch taller than two other suspects, all of whom were roughly the same height, and all of the suspects were dressed similarly and were approximately the same age. In addition, as the Michigan Court of Appeals pointed out, the fact that only three of the six victims identified petitioner in the lineup belies his argument that it was impermissibly suggestive. As to the voice-identification evidence, a defense attorney present at the lineup made no objection to or comments about any discrepancy in the voices. Consequently, because there was nothing to suggest that the lineup procedure was in any way improper, petitioner's counsel was not ineffective for failing to seek a Wade hearing or failing to suppress evidence concerning the three victims' identification of petitioner during that lineup. See United States v. Carter, 355 F.3d 920, 924 (6th Cir.2004) (holding that counsel was not ineffective for failing...