OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS, DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS
Alvin Lewis Richardson, (alternately "Petitioner"), currently on parole with the Lincoln Park Parole Office, in Lincoln Park, Michigan, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his convictions for identity theft, Mich. Comp. Laws § 445.65(1)(a)(i), and obtaining or possessing personal identifying information of another with the intent of committing identity theft, Mich. Comp. Laws § 445.67(d). Richardson was sentenced as a habitual offender to 14 months to five years' imprisonment. Having reviewed the habeas petition, the warden's response, and the state-court record, the Court concludes that the state courts reasonably found that Richardson's claims are procedurally defaulted or without merit. The Court will thus DENY the petition.
I. FACTUAL AND PROCEDURAL BACKGROUND This Court recites verbatim the relevant facts relied upon by the Michigan Court of Appeals, 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):
On September 10, 2011 at approximately 8:30 p.m., Detective Greg Morabito was on patrol in a fully marked patrol car at the Utica Home Depot when he noticed a white Ford Escort pull into the parking lot. The car parked a distance from the store even though it was not crowded, which Morabito found suspicious. There were three occupants in the vehicle. Morabito observed that the individuals were looking at him, causing him to become more suspicious because "that's a pretty good indication that more things are going to happen." Morabito pretended as though he was leaving the parking lot but parked where he could watch the car. Two of the occupants—the driver and the backseat passenger—got out of the vehicle. Morabito subsequently identified defendant as the driver. The individuals went into the store and Morabito approached the vehicle. The third individual was shuffling his legs around and Morabito could see a bag under his legs that looked like it had high-end plumbing supplies, including replacement cartridges. The passenger identified himself as Anthony Garland.
As Morabito spoke with Garland, the other two individuals exited the store. When Morabito began to approach them, defendant returned inside the store. The other individual, later identified as "Simmons," walked past as if they were not together. Morabito confronted defendant in the lobby and asked him to step outside. Defendant provided his name and told Morabito that he had absconded from parole. At that point, Morabito was required to arrest defendant. Defendant was placed under arrest because of his status and because he was drivingon a suspended license; he was not arrested for anything that occurred on September 10, 2011. Morabito conducted a search incident to arrest and found a driver's license belonging to Robert Hayes in defendant's wallet. Morabito indicated that he found several return receipts and some of those refunds were attributable to Simmons and Garland. Simmons had been carrying a bag out of the Home Depot. Nevertheless, Simmons and Garland were released at the scene.
Robert Hayes testified that he was a self-employed "transportation expediter" and lived in Grosse Pointe. In the early spring of 2011, Hayes noticed that his driver's license was missing. He did not carry a wallet and generally just kept his license in his pocket. After backtracking and retracing his steps failed to recover the lost license, Hayes ultimately applied for and received a replacement license. Hayes never gave anyone his license and never allowed anyone to use the license to facilitate refunds at Home Depot.
Jeremy Greenleaf's responsibility at Home Depot was to investigate organized retail crime and financial crimes. Greenleaf explained that a refund could be done at any Home Depot with or without a receipt. If an individual had the receipt, then the original form of payment was returned. If an individual did not have a receipt, then he would get store credit if he presented ID. The clerk would input the driver's license into the computer system. The individual would also have to sign for the refund, but the clerk processing the refund would not be able to see the signature. Home Depot only permitted a certain number of returns without a receipt and then the ID would be flagged as "Log Attempted," which meant that the individual seeking to make the return would not be able to do so.
In September 2011, Greenleaf was contacted by Morabito. Greenleaf investigated defendant's return history and learned that, as of September 2, 2011,defendant was no longer permitted to return merchandise without a receipt. Greenleaf had business records documenting defendant's returns from June 2011. The returns were at various Home Depots and were generally for faucet repair kits. Greenleaf located documents for a return on September 2, 2011. The driver's license presented belonged to Hayes. There was also a video that went along with the transaction that was played for the jury.
People v. Richardson, No. 314245, 2016 WL 1680392, at *1-2 (Mich. Ct. App. Apr. 26, 2016).
The Court adds additional facts from the testimony of Det. Morabito, of the Utica Police Department. Morabito was a patrol officer during the time in question. (ECF 13-13, PageID.552-553). He testified that when he arrested Richardson as a parole absconder, he searched him and found the driver's license of another individual, Robert Hayes (Hayes), on his person. (Id. at 562). Morabito then contacted Jeremy Greenleaf. Jeremy Greenleaf testified that he was working as a corporate investigator for Home Depot on September 12, 2011. Greenleaf testified that he was contacted by Det. Morabito who requested the video and provided the names of Alvin Richardson (petitioner), Anthony Garland, and Robert Hayes. Greenleaf further testified that he did a refund history search with a drivers' license belonging to Hayes and an ID belonging to petitioner. (ECF 13-7, Page ID.297-298). Petitioner had several refunds and was no longer allowed to return items without a receipt. He also found a refund transaction for RobertHayes at the Macomb Home Depot, which has video surveillance at the registers. Greenleaf testified that he pulled the surveillance video which depicted the transaction. Det. Morabito viewed the video of the Hayes refund and identified petitioner as the person requesting the refund. (Id. at 300-302, ECF 13-14, 631-632). Richardson is seen returning items on September 2, 2011, with a driver's license belonging to Robert Hayes. (ECF 13-14, PageID.624-627). Eight days later, Morabito testified that he arrested Richardson under suspicious circumstances at a different Home Depot store, with Hayes' driver's license in his possession. (ECF 13-13, PageID.553-554, 562-563).
Richardson's conviction was affirmed by the Michigan Court of Appeals. lv. den. 500 Mich. 933 (2017).
Petitioner seeks a writ of habeas corpus on the following grounds:
1. Testimony by Detective Morabito invaded the fact-finding province of the jury.
2. Denial of a fair trial where the trial court judge improperly instructed the jury.
3. Denial of a fair trial when petitioner was not present at a critical stage of the proceedings.
4. Failure to be sentenced based on accurate information.
5. Failure to be read his Miranda1 rights or fingerprinted upon arrest.
6. Ineffective assistance of trial counsel.
7. Trial court committed reversable error by allowing an illegal arrest to stand and failure to bring petitioner before a magistrate judge for arraignment within 100 days of arrest.
8. Speedy Trial violation.
9. Due Process violation under the Sixth and Fourteenth Amendments when the judge's father came out of retirement just to deny petitioner's motion.
10. Prosecutor's withholding of three (3) videos constituted a Brady2 violation.
11. Petitioner was denied the choice of a bench trial.
12. Shackling during trial violated petitioner's due process rights.
13. Trial counsel was ineffective for failing to:
a. Investigate/interview potential witnesses and file a motion to suppress.
b. Raise or challenge the arraignment.
c. Request an evidentiary hearing regarding the video evidence.d. Effectively cross-examine, impeach, or object to the false testimony of the prosecution witnesses.
14. Petitioner was denied due process when detained 30 days before his arraignment.
15. Lack of subject-matter jurisdiction when complaint was not signed by complainant.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which governs this case, "circumscribe[s]" the standard of review that federal courts apply when considering an application for a writ of habeas corpus raising constitutional claims. See Wiggins v. Smith, 539 U.S. 510, 520 (2003). Under the statute, a federal court may not grant habeas relief to a state prisoner with respect to any claim that has been "adjudicated on the merits in State court proceedings" unless the state-court adjudication "(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).
A state court's decision 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...
