Potlow v. Curtin

• Decision Date: 02 May 2011
• Docket Number: CASE NO. 2:09-CV-14667
• Parties: JAMES POTLOW, #158008, Petitioner, v. CINDI CURTIN, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

JAMES POTLOW, #158008, Petitioner,

v.CINDI CURTIN, Respondent.

CASE NO. 2:09-CV-14667

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Dated: May 2, 2011

HONORABLE PAUL D. BORMAN

OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS

CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND

DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

I. Introduction

This is a habeas case brought pursuant to 28 U.S.C. § 2254. Michigan prisoner James Potlow ("Petitioner") was convicted of assault with intent to rob while armed, Mich. Comp. Laws § 750.89, and attempted armed robbery, Mich. Comp. Laws § 750.529, following a jury trial in the Oakland County Circuit Court and was sentenced as a fourth habitual offender, Mich. Comp. Laws § 769.12, to concurrent terms of 18 to 40 years imprisonment. In his pleadings, Petitioner asserts that trial counsel was ineffective for failing to challenge an on-scene identification and that the trial court mis-scored an offense variable (OV 4) under the state sentencing guidelines. For the reasons set forth, the Court denies the petition for a writ of habeas corpus. The Court also denies a certificate of appealability and denies leave to proceed in forma pauperis on appeal.

II. Facts and Procedural History

Petitioner's convictions arise from the assault and attempted robbery of a store cashier in Pontiac, Michigan in 2006. The Michigan Court of Appeals provided a summary of the facts, which is presumed correct on habeas review, see Monroe v. Smith, 197 F. Supp. 2d 753, 758 (E.D. Mich. 2001), aff‘d. 41 F. App'x 730 (6th Cir. 2002), as follows:

On the evening of December 9, 2006, Samantha Berney was working as a cashier at a Family Dollar store in Pontiac, Michigan. Defendant approached Berney's register and as Berney was placing defendant's items in a bag, defendant grabbed her arm, opened his coat showing Berney a knife, and asked Berney to open the register. Scared, Berney pulled away, hit the panic button and ran to the store's back room while continuing to look back at defendant. Defendant hit the register, but was not able to get any money and he fled. Berney then paced around the store, crying.

When police arrived at the scene, Berney indicated that she "really didn't get a look at the guy's face," but described defendant as a tall African-American man with a moustache, wearing a blue jacket and red hat. Twenty to thirty minutes later, police officers apprehended defendant and summoned Berney to their location. Defendant was wearing a gray sweatshirt-type jacket, burgundy hooded sweatshirt, and a red baseball skullcap.FN1 The officers told Berney that they had "found a guy that might be the guy" or "we think we got the guy." Berney then identified the police suspect as defendant. Since this incident, Berney has suffered from nightmares.

FN1. At trial, Berney indicated that defendant had been wearing a maroon hoody, khaki jacket, black pants, and a baseball hat.

People v. Potlow, No. 280646, 2009 WL 153426, *1 (Mich. Ct. App. Jan. 22, 2009) (unpublished).

Following his convictions and sentencing, Petitioner filed an appeal as of right with the Michigan Court of Appeals asserting that trial counsel was ineffective for failing to challenge the on-scene identification procedures and that the trial court erred in scoring OV 4 of the sentencing guidelines. The court denied relief on those claims and affirmed Petitioner's convictions. Id at *2-3. Petitioner's application for leave to appeal with the Michigan Supreme Court was denied in a standard order. People v. Potlow, 483 Mich. 1021, 765 N.W.2d 297 (2009).

Petitioner thereafter instituted this federal habeas action raising the same claims presented to the state courts on direct appeal of his convictions. Respondent has filed an answer to the petition contending that it should be denied for lack of merit.

III. Standard of Review

The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), codified 28 U.S.C. § 2241 et seq., govern this case because Petitioner filed this petition after the AEDPA's effective date. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). The AEDPA provides:

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) (1996).

"A state court's decision is 'contrary to'... clearly established law if it 'applies a rule that contradicts the governing law set forth in ^{reme Court cases}' or if it 'confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [that] precedent.'" Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)); see also Bell v. Cone, 535 U.S. 685, 694 (2002). "[T]he 'unreasonable application' prong of § 2254(d)(1) permits a federal habeas court to 'grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court but unreasonably applies that principle to the facts of petitioner's case."Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at 413); see also Bell, 535 U.S. at 694. However, "[i]n order for a federal court find a state court's application of ^{reme Court} precedent 'unreasonable, ' the state court's decision must have been more than incorrect or erroneous. The state court's application must have been 'objectively unreasonable.'" Wiggins, 539 U.S. at 520-21 (citations omitted); see also Williams, 529 U.S. at 409. "AEDPA thus imposes a 'highly deferential standard for evaluating state-court rulings, ' and 'demands that state-court decisions be given the benefit of the doubt.'" Renico v. Lett, _ U.S. _, 130 S. Ct. 1855, 1862 (2010) (quoting Lindh, 521 U.S. at 333, n. 7; Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)).

The Supreme Court recently held that "a state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, _ U.S. _, 131 S. Ct. 770, 786 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court emphasized "that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003). Pursuant to § 2254(d), "a habeas court must determine what arguments or theories supported or... could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision" of the Supreme Court. Id. Thus, in order to obtain habeas relief in federal court, a state prisoner must show that the state court's rejection of his claim "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id.

Section 2254(d)(1) limits a federal habeas court's review to a determination of whether the state court's decision comports with clearly established federal law as determined by the SupremeCourt at the time the state court renders its decision. See Williams, 529 U.S. at 412; see also Knowles v.Mirzayance, _ U.S. _, 129 S. Ct. 1411, 1419 (2009) (noting that the Supreme Court "has held on numerous occasions that it is not 'an unreasonable application of clearly established Federal law' for a state court to decline to apply a specific legal rule that has not been squarely established by this Court") (quoting Wright v. Van Patten, 552 U.S. 120, 125-26 (2008) (per curiam)); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). Section 2254(d) "does not require a state court to give reasons before its decision can be deemed to have been 'adjudicated on the merits.'" Harrington, 131 S. Ct. at 785. Furthermore, it "does not require citation of ^{reme Court} cases-indeed, it does not even require awareness of ^{reme Court} cases, so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8 (2002); see also Mitchell, 540 U.S. at 16. While the requirements of "clearly established law" are to be determined solely by Supreme Court precedent, the decisions of lower federal courts may be useful in assessing the reasonableness of the state court's resolution of an issue. See Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007) (citing Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir. 2003)); Dickens v. Jones, 203 F. Supp. 354, 359 (E.D. Mich. 2002).

Lastly, a state court's factual determinations are presumed correct on federal habeas review. See 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption only with clear and convincing evidence. See Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998).

IV. Analysis

A. Ineffective Assistance of Counsel/Identification Procedure Claim

Petitioner first asserts that he is entitled to federal habeas relief because trial counsel was ineffective for failing to object to the on-scene identification procedure utilized by the police. Heclaims that the identification procedure was unduly suggestive because he was the only person viewed by the victim and the police indicated that they might have the perpetrator.

In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court set forth a two-prong test for determining whether a habeas petitione...