Monroe v. Smith

Citation197 F.Supp.2d 753
Decision Date15 November 2001
Docket NumberNo. 00-CV-73606-DT.,00-CV-73606-DT.
PartiesPaul Anthony MONROE, Petitioner, v. David SMITH, Respondent,
CourtU.S. District Court — Eastern District of Michigan

Paul Monroe, New Haven, MI, Pro se.

William C. Campbell, Laura G. Moody, Michigan Department of Attorney General, Habeas Corpus Division, Lansing, MI, for David Smith, respondent.

OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS1

TARNOW, District Judge.

Paul Anthony Monroe, ("petitioner"), presently confined at the Ryan Correctional Facility in Detroit, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his pro se application, petitioner challenges his conviction and sentence on one count of bank robbery, M.C.L.A. 750.531; M.S.A 28.799. For the reasons stated below, the petition for writ of habeas corpus is DENIED.

I. Background

Petitioner was convicted of the above offense following a jury trial in the Detroit Recorder's Court. Petitioner's conviction was affirmed on appeal. People v. Monroe, 204719 (Mich.Ct.App. November 23, 1999); lv. den. 462 Mich. 897, 642 N.W.2d 676 (2000). This Court recites verbatim the relevant facts regarding petitioner's conviction from the Michigan Court of Appeals' opinion affirming his conviction, which are presumed correct on habeas review. See United States ex. rel. McDonald v. Page, 108 F.Supp.2d 993, 996 (N.D.Ill.2000); Briggs v. Makowski, 2000 WL 1279168, * 1 (E.D.Mich.2000)(Borman,J.):

On March 14, 1996, at approximately 2:15 p.m., the National Bank of Detroit (NBD), located at 7340 Grand River in the city of Detroit, was robbed. The perpetrator handed a teller a deposit slip which included the words, "Give me the money. Don't move. All out the cash drawer." The teller gave the man approximately $ 800 along with an exploding dye pack. Bank surveillance photographs depicted the perpetrator at the teller's window and leaving the bank after receiving the money. On March 15, 1996, at approximately 4:30 a.m., two Detroit police officers received a police run instructing them to go to the corner of West Warren and Lawton to meet a man named Paul Monroe who wanted to turn himself in for robbing a bank. When the officers arrived at the corner, defendant approached them and stated that he wanted to turn himself in for robbing a bank on Grand River and West Grand Boulevard. The officers observed red dye on the defendant's clothing and hands. Defendant was arrested after the officers confirmed that the robbery had occurred. After being advised of his constitutional rights, defendant gave the arresting officers detailed information regarding the robbery and gave a detailed, signed statement to a Detroit police investigator.

People v. Monroe, Slip. Op. at * 1.

In addition to these facts, the Court notes that the teller in question, Barbara Davis, positively identified petitioner at trial as being the person who robbed her at the bank on March 14, 1996. Additional facts will be discussed when addressing petitioner's claims. Petitioner now seeks the issuance of a writ of habeas corpus on the following grounds:

I. Denial [of] effective assistance of counsel.

II. Double Jeopardy clause [violation].

III. Newly discovered evidence.

IV. Unconstitutional search and seizure.

II. Standard of Review

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—

(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 proceeding.

28 U.S.C. § 2254(d); Harpster v. State of Ohio, 128 F.3d 322, 326 (6th Cir.1997).

A decision of a state court is "contrary to" clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. An "unreasonable application" occurs when the state court identifies the correct legal principle from a Supreme Court's decision but unreasonably applies that principle to the facts of the prisoner's case. Williams v. Taylor, 529 U.S. 362, 412-413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A federal habeas court may not find a state adjudication to be "unreasonable" "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411, 120 S.Ct. 1495.

III. Discussion

A. Claim # 1. The ineffective assistance of counsel claim.

In his first claim, petitioner alleges that he was denied the effective assistance of counsel.

1. Standard of Review.

To show that he was denied the effective assistance of counsel under federal constitutional standards, a defendant must satisfy a two prong test. First, the defendant must demonstrate that, considering all of the circumstances, counsel's performance was so deficient that the attorney was not functioning as the "counsel" guaranteed by the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In so doing, the defendant must overcome a strong presumption that counsel's behavior lies within the wide range of reasonable professional assistance. Id.; O'Hara v. Wigginton, 24 F.3d 823, 828 (6th Cir.1994). In other words, petitioner must overcome the presumption that, under the circumstances, the challenged action might be sound trial strategy. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Second, the defendant must show that such performance prejudiced his defense. Id. To demonstrate prejudice, 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." Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

2. The individual claims

A. Failure to object to the in-court identification of petitioner by Barbara Davis.

Petitioner first claims that his trial counsel was ineffective for failing to object to the in-court identification of him as the perpetrator by Barbara Davis. Petitioner contends that trial counsel should have objected to this in-court identification, because Ms. Davis failed to identify petitioner at a police lineup conducted subsequent to his arrest. Petitioner also claims that counsel should have objected to the in-court identification, because it was brought about by the subornation of perjury.

A defendant has the initial burden of proving that the identification procedure was impermissibly suggestive. It is only after a defendant meets this burden that the burden then shifts to the prosecutor to prove that the identification was reliable independent of the suggestive procedure. English v. Cody, 241 F.3d 1279, 1282-1283 (10th Cir.2001)(citing to United States v. Wade, 388 U.S. 218, 240, n. 31, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967)). If a defendant fails to show that the identification procedures are impermissibly suggestive, or if the totality of the circumstances indicate that the identification is otherwise reliable, no due process violation has occurred; so long as there is not a substantial misidentification, it is for the jury or factfinder to determine the ultimate weight to be given to the identification. United States v. Hill, 967 F.2d 226, 230 (6th Cir. 1992).

Petitioner contends that the in-court identification of him by Davis was somehow tainted because she was unable to identify him either at a pre-trial line-up or at the preliminary examination. The fact that a witness cannot identify an accused at a pre-trial lineup procedure is not a reason to exclude his or her testimony identifying the accused in court; the failure to identify an accused during a pre-trial lineup goes only to the weight of the witness's identification testimony and not to its admissibility. United States v. Causey, 834 F.2d 1277, 1286 (6th Cir.1987); United States v. Hamilton, 684 F.2d 380, 383 (6th Cir.1982). Michigan law is in accord on this point. See People v. Barclay, 208 Mich.App. 670, 676, 528 N.W.2d 842 (1995). Trial counsel's failure to move to suppress this allegedly unreliable in-court identification would not be ineffective assistance, absent a reasonable probability that this motion would have resulted in a decision to exclude the testimony. See White v. Helling, 194 F.3d 937, 941-942 (8th Cir.1999). In light of the fact that Davis' failure to identify petitioner at the pre-trial lineup or at the preliminary examination would not have excluded her in-court identification of him as the perpetrator, counsel was not ineffective for failing to move for its suppression. White v. Kapture, 2001 WL 902500, * 9 (E.D.Mich. 2001)(O'Meara, J.).

Moreover, defense counsel cross-examined Ms. Davis extensively about the fact that she had failed to positively identify anyone at the pre-trial lineup and also questioned her about the discrepancies between her description of the suspect to the police and petitioner's actual appearance. The decision to attack the credibility of Ms. Davis' identification of petitioner through extensive cross-examination, rather than to object to the in-court identification, was a reasonable trial strategy that defeats petitioner's ineffective assistance of counsel claim. See Killebrew v. Endicott, 992 F.2d 660, 665 (7th Cir.1993).

With respect to counsel's failure to object to the allegedly perjured testimony of Barbara Davis in identifying petitioner as being the...

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