Thomas v. Huss

• Decision Date: 25 March 2019
• Docket Number: Civil No. 2:18-CV-11628
• Parties: LAWRENCE THOMAS, Petitioner, v. ERICA HUSS, Respondent
• Court: U.S. District Court — Eastern District of Michigan

LAWRENCE THOMAS, Petitioner, v. ERICA HUSS, Respondent

Civil No. 2:18-CV-11628

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

March 25, 2019

HONORABLE SEAN F. COX UNITED STATES DISTRICT JUDGE

OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS

Lawrence Thomas, ("petitioner"), confined at the Carson City Correctional Facility in Carson City, Michigan, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he challenges his conviction for first-degree felony murder, Mich. Comp. Laws § 750.316(1)(b); two counts of assault with intent to commit murder, Mich. Comp. Laws § 750.83; felon in possession of a firearm, Mich. Comp. Laws § 750.224f; escape from lawful custody, Mich. Comp. Laws § 750.197a; and possession of a firearm in the commission of a felony, Mich. Comp. Laws § 750.227b. For the reasons that follow, the petition for writ of habeas corpus is DENIED.

I. Background

Petitioner was convicted following a jury trial in the Wayne County Circuit Court. This Court recites verbatim the relevant facts regarding petitioner's conviction from the Michigan Court of Appeals's opinion, which are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See e.g. Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):

Defendant's convictions arise from a shooting incident during the early morning hours of August 17, 2014, at Chevelles Bar & Grill ("Chavelles") on the west side of Detroit. At closing time, after the bar's lights were turned on signaling that it was time to leave, Kenneth Davis and his friends began to make their way toward the entrance. According to witnesses at trial, defendant grabbed Davis's designer glasses off his face. Defendant then produced a gun and fired into the crowd. Davis was grazed by a bullet. Jessica Porter was fatally shot in the head. Latris Rucker was also shot, but recovered from his injury.

The defense theory at trial was that defendant was misidentified as the shooter. Neither Davis nor the Chevelles bartender, Chaloea Smith, were able to identify defendant in a photographic lineup, but they both identified defendant as the shooter at a subsequent corporal lineup and at trial.

People v. Thomas, No. 328534, 2017 WL 378727, at * 1 (Mich. Ct. App. Jan. 26, 2017).

Petitioner's conviction was affirmed. Id., lv. den. 501 Mich. 862, 901 N.W.2d 98 (2017).

Petitioner seeks a writ of habeas corpus on the following grounds:

I. The trial court clearly erred by not excluding the identification of the petitioner by Kenneth Davis and Chaloea Smith at a corporeal lineup.

II. The defense counsel in this matter provided unconstitutional, ineffective assistance of counsel when, amongst other errors, they (A) failed to investigate Kenneth Davis, his alleged and suspicious police stop and EMS contact and failed to call any of Mr. Davis's associates, especially Aaron Brown, Dwight, and Mr. Ricker's mother, as witnesses; and (B) failed to try and find any of the other witnesses who made statements after the shooting, including the DJ or any security guards at the bar.

III. Petitioner's felony-murder conviction is not based on a conviction of an underlying felony and it must be vacated.

II. Standard of Review

28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), imposes the following standard of review for habeas cases:

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.

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. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An "unreasonable application" occurs when "a state court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case." Id. at 409. A federal habeas court may not "issue the writ 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 410-11. "[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, 562 U.S. 86, 101 (2011)(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). To obtain habeas relief in federal court, a state prisoner is required to 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. at 103.

III. Discussion

A. Claim # 1. The suggestive identification claim.

Petitioner argues that the trial court erred in denying his pre-trial motion to suppress the identification testimony of Davis and Smith, claiming that they were subjected to suggestive identification procedures.

Davis and Smith were unable to identify petitioner as the shooter in photographic arrays, although Smith identified petitioner in a crowd photo that was taken during the evening in question at Chevelles. Petitioner was positively identified by Smith and Davis in subsequent corporeal lineups. Petitioner argued that the corporeal lineups were impermissibly suggestive because he was the only person in the lineups whose photo had been included in the photo arrays that were previously shown to Davis and Smith. Petitioner also appears to argue that the photographic show-ups were somehow suggestive because the police purportedly only showed the witnesses one photograph at a time of the persons in the array, rather than showing them six photographs of the persons in the same display. Petitioner also claims that the live lineups were impermissibly suggestive because the Chicago Bulls jersey that he was wearing during the lineups linked him to the shooter, who was wearing a Chicago Bulls baseball cap inside Chevelles. Petitioner also argues that the corporeal lineups were suggestive because he was the tallest person in the lineup.

Due process protects the accused against the introduction of evidence which results from an unreliable identification obtained through unnecessarily suggestive procedures. Moore v. Illinois, 434 U.S. 220, 227 (1977). To determine whether an identification procedure violates due process, courts look first to whether the procedure was impermissibly suggestive; if so, courts then determine whether, under the totality of circumstances, the suggestiveness has led to a substantial likelihood of an irreparable misidentification. Kado v. Adams, 971 F. Supp. 1143, 1147-48 (E.D. Mich. 1997)(citing to Neil v. Biggers, 409 U.S. 188 (1972)). Five factors should be considered in determining the reliability of identification evidence:

1. the witness's opportunity to view the criminal at the time of the crime;

2. the witness's degree of attention at the time of the crime;

3. the accuracy of the witness's prior description of the defendant;4. the witness's level of certainty when identifying the suspect at the confrontation; and,

5. the length of time that has elapsed between the time and the confrontation.

Neil v. Biggers, 409 U.S. at 199-200.

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. See United States v. Hill, 967 F.2d 226, 230 (6th Cir. 1992).

Petitioner failed to show that the witnesses' in-court identification was the product of a suggestive pre-trial identification. Indeed, "the Supreme Court has never held that an in-court identification requires an independent basis for admission in the absence of an antecedent improper pre-trial identification." Cameron v. Birkett, 348 F. Supp. 2d 825, 843 (E.D. Mich. 2004). Moreover, "the Due Process Clause does not require a preliminary judicial inquiry into the reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances arranged by law enforcement." Perry v. New Hampshire, 565 U.S. 228, 248 (2012).

Petitioner first argues that the identification procedure was somehow tainted because the witnesses at the initial photographic array were shown one photograph at a time of six persons, rather than having all six photographs of the participants displayed all at once. Petitioner admits that neither witness positively identified petitioner at the photographic array but nonetheless argues that this procedure somehow tainted their subsequent corporeal and in-court identifications.

"Although identifications arising from single-photograph displays may be viewed in general with suspicion," Manson v. Brathwaite, 432 U.S. 98, 116 (1977), the police in this situation did not conduct a single photographic display but instead showed the witnesses the pictures of six potential suspects, albeit one at a time. The identification procedure here was not suggestive...