STEPHEN J. MURPHY, III, District Judge.
Petitioner Edward Ricks, who is confined at the Alger Correctional Facility in Munising, Michigan, seeks a writ of habeas corpus under 28 U.S.C. § 2254. Ricks challenges his convictions and sentences for carjacking, Mich. Comp. Laws § 750.529a; armed robbery, Mich. Comp. Laws § 750.529; being a felon in possession of a firearm, Mich. Comp. Laws § 750.224f; felonious assault, Mich. Comp. Laws § 750.82; possession of a firearm in the commission of a felony, Mich. Comp. Laws § 750.227b; receiving or concealing a stolen motor vehicle, Mich. Comp. Laws § 750.535(7); receiving and concealing stolen property valued at $1,000 or more but less than $20,0000, Mich. Comp. Laws § 750.535(3)(a); and being a fourth felony habitual offender, Mich. Comp. Laws § 769.12. For the reasons stated below, the application for writ of habeas corpus will be denied.
Ricks was convicted following a jury trial in the Wayne County Circuit Court. The Michigan Court of Appeals summarized the case as follows
Ricks then appealed. The Michigan Court of Appeals affirmed his conviction, and the Michigan Supreme Court denied leave to appeal. People v. Ricks, No. 301479 (Mich. Ct. App. April 26, 2012), lv. den. 493 Mich. 856.
In a proceeding under 28 U.S.C. § 2254, a writ of habeas corpus may issue only if the state court adjudication of a claim on the merits
28 U.S.C. § 2254(d).
A state court 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 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.
Because "a federal court's collateral review of a state-court decision must be consistent with the respect due state courts in our federal system," Miller-El v. Cockrell, 537 U.S. 322, 340 (2003), a federal 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." Williams, 529 U.S. at 410-11. Instead, a "highly deferential standard" applies under which "state-court decisions be given the benefit of the doubt." Renico v. Lett, 559 U.S. 766, 773 (2010) (quoting first Lindh v. Murphy, 521 U.S. 320, 333, n.7 (1997), and second Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)). Therefore, "so long `fairminded jurists could disagree' on the correctness of the state court's decision," a state court's determination that a claim lacks merit will preclude habeas relief. Harrington v. Richter, 131 S.Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)); see also Wetzel v. Lambert, 132 S.Ct. 1195, 1199 (2012).
Ricks makes four habeas claims. He argues that (1) he was denied effective assistance of counsel at trial, (2) insufficient evidence supports his convictions, (3) his sentence is constitutionally disproportionate to his offense, and (4) the trial court violated his due process and fair trial rights by erroneously admitting an in-court identification. The petition lacks merit.
Ricks alleges that he was denied the effective assistance of counsel because the attorney representing him at the retrial declined to call Dr. Steven Raymond Miller, an expert on eyewitness identification who the trial court had appointed at the request of the attorney representing Ricks at his first trial.
Even on direct review, demonstrating ineffective assistance of trial counsel is difficult. Harrington, 131 S. Ct. at 788 ("Surmounting Strickland's high bar is never an easy task." Padilla v. Kentucky, 559 U.S. 356, 371 (2010)). The criminal defendant must first show that his trial 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 (1984). Meeting this standard requires overcoming the strong presumption that the counsel's behavior could be reasonably sound trial strategy. Id. at 687-88; see also Cullen v. Pinholster, 131 S.Ct. 1388, 1407 (2011). Second, the defendant must show that the deficient performance was prejudicial. Id. This requires the defendant to demonstrate 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; see also Wong v. Belmontes, 558 U.S. 15, 27 (2009).
On habeas review, demonstrating ineffective assistance of counsel is all the more difficult. Harrington, 131 S. Ct. at 785; Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). Due to the deference given to state courts, the question is not just whether the habeas petitioner's counsel was actually ineffective; rather, the critical inquiry is whether the state courts unreasonably applied the Strickland standard to the facts of the petitioner's case. Knowles, 556 U.S. at 123. This is a "substantially higher threshold." Id. (quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)); see also Harrington, 131 S. Ct. at 788.
Here, the Michigan Court of Appeals rejected Ricks's ineffective assistance of counsel claim. People v. Ricks, No. 301479, slip op. at *4. The court observed there were sound reasons for pursuing a theory of erroneous identification but not calling the expert. One was that Ricks's attorney feared that the expert's proposed testimony would not be admissible under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). Ricks, No. 301479, slip op. at *4. Indeed, Dr. Miller himself acknowledged he could not defend against a Daubert challenge. Id. at *4 & n.3. And another was that the attorney reasonably believed that he could dispense with expert testimony "because of the obvious problems with the witnesses' identification" of Ricks. Id. at 4. Consistent with this evaluation, Ricks's attorney crossexamined Wingfield, who was unable to identify Ricks at trial, and Bullach, who had identified a different person in the photographic array. Id. The attorney also obtained a standard jury instruction on the dependability of eyewitness identification. Id.
The state court's conclusion was reasonable. No Supreme Court precedent requires counsel to call "an expert witness about the problems with eyewitness testimony." Perkins v. McKee, 411 F. App'x 822, 833 (6th Cir. 2011). A defense attorney may reasonably choose to pursue a mistaken identification theory by cross-examining witnesses about inconsistencies in their identifications or by otherwise discrediting the witnesses' testimony. See Dorch v. Smith, 105 F. App'x 650, 653 (6th Cir. 2004); Greene v. Lafler, 447 F.Supp.2d 780, 794-95 (E.D. Mich. 2006). Ricks is not entitled to habeas relief on his first claim.
Ricks also argues that there was insufficient evidence to establish his identity as the perpetrator.
It is settled law that the Due Process Clause "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). But due process only requires that the record contain evidence reasonably sufficient to "support a finding of guilt beyond a reasonable doubt" — a standard that is satisfied so long as any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). A court should not reweigh the evidence or second-guess a witness's credibility. See Marshall v. Lonberger, 459 U.S. 422, 434 (1983); Matthews v. Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003); Neal v. Morris, 972 F.2d 675, 679 (6th Cir. 1992).
Moreover, to obtain post-conviction relief, a federal habeas petitioner must also show that a state court decision finding sufficient evidence was objectively unreasonable. See Cavazos v. Smith, 132 S.Ct. 2, 4 (2011). The resulting hurdle is "nearly insurmountable." Davis v. Lafler, 658 F.3d 525, 534 (6th Cir. 2011) (quoting United States v. Oros, 578 F.3d 703, 710 (7th Cir. 2009)).
On direct appeal, the Michigan Court of Appeals rejected Ricks's insufficient evidence claim. It explained:
Ricks, No. 301479, slip op. at *5 (internal citations omitted).
The Michigan Court of Appeals's conclusion was reasonable. Bullach unequivocally identified Ricks at trial as being the person who drove the stolen truck and who pointed a gun at him. This testimony was sufficient to support the convictions. See Sok v. Romanowski, 619 F.Supp.2d 334, 351 (W.D. Mich. 2008) (holding that an in-court identification was sufficient to support a conviction despite conflicting testimony from the defendant and an alibi witness). Additionally, Wingfield positively identified Ricks at a photographic lineup conducted two days after the incident. Wingfield was "very certain" of his identification. Albeit not able to identify Ricks at trial, Wingfield explained that the petitioner's appearance at trial, during which he was clean shaven and wearing glasses, was different than his appearance in the photograph, in which he had facial hair and no glasses. And Wingfield remained certain that the person whom he identified in the photographic lineup was his assailant. The jury could have reasonably believed Wingfield's testimony. See Burger v. Prelesnik, 826 F.Supp.2d 997, 1015-16 (E.D. Mich. 2011) (observing that the jury could reasonably rely on an identification witness's testimony who identified the perpetrator at trial but was unable to identify him in two photo arrays due to the age of the photographs and changes in facial hair).
Given the testimony presented, the Michigan Court of Appeals did not unreasonably reject the petitioner's sufficiency of evidence claim.
Ricks claims that his sentences for the offenses of carjacking and armed robbery were disproportionate to the offenses and to the offender. Ricks also claims that the sentences were imposed to penalize him for successfully appealing after his first trial.
The petitioner's sentence of 30 to 50 years for the carjacking conviction and 25 to 50 years for the armed robbery conviction were within the statutory limits for those offenses. See Mich. Comp. Laws § 750.529 (armed robbery); Mich. Comp. Laws § 750.529a(1) (carjacking). A sentence imposed within the statutory limits is rarely susceptible to collateral attack. See Townsend v. Burke, 334 U.S. 736, 741 (1948); Cook v. Stegall, 56 F.Supp.2d 788, 797 (E.D. Mich. 1999). Once a federal court determines that a state court sentence is within the statutory limits, federal habeas review typically ends. Allen v. Stovall, 156 F.Supp.2d 791, 795 (E.D. Mich. 2001). Ricks fails to overcome this strong presumption.
The Eighth Amendment contains only a "narrow proportionality principle," Graham v. Florida, 560 U.S. 48, 59-60 (2010) (quoting Harmelin v. Michigan, 501 U.S. 957, 997, 1000-01 (1991)), making successful challenges to the proportionality of a particular sentence "exceedingly rare," Rummel v. Estelle, 445 U.S. 263, 272 (1980). Federal courts, therefore, will not overturn a sentence within statutory limits as disproportionate if the sentence is not death or life imprisonment without parole. See Austin v. Jackson, 213 F.3d 298, 302 (6th Cir. 2000); Seeger v. Straub, 29 F.Supp.2d 385, 392 (E.D. Mich. 1998). Ricks accordingly is not entitled to relief under the Eighth Amendment, and his claim that his sentence is disproportionate under Michigan law is not cognizable on habeas review. Hastings v. Yukins, 194 F.Supp.2d 659, 673 (E.D. Mich. 2002); Whitfield v. Martin, 157 F.Supp.2d 758, 761 (E.D. Mich. 2001).
Ricks also alleges that the sentences that he received after the second trial were imposed to penalize him for successfully appealing his first conviction, because the sentences imposed after the second trial were greater than the sentences he received at his first trial. The Michigan Court of Appeals rejected this claim. Ricks, No. 301479, slip op. at *6.
Due process of law requires that "vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial." North Carolina v. Pearce, 395 U.S. 711, 725 (1969). To guard against vindictiveness, the Supreme Court requires that, "whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear" on the record. Id. at 726. Federal courts have interpreted this rule to apply "a presumption of vindictiveness, which may be overcome only by objective information in the record justifying the increased sentence." United States v. Goodwin, 457 U.S. 368, 374 (1982). But where there is no reasonable likelihood that the increased sentence is the product of actual vindictiveness on the part of the sentencing authority, such as when different judges conduct each sentencing, the burden remains upon the defendant to prove actual vindictiveness in the sentencing decision. See Alabama v. Smith, 490 U.S. 794, 799 (1989); Texas v. McCullough, 475 U.S. 134, 140 (1986).
Because Ricks was sentenced by two different judges, the presumption of vindictiveness does not apply. See Goodell v. Williams, 643 F.3d 490, 500-01 (6th Cir. 2011). Moreover, he fails to allege or prove any actual vindictiveness. The Michigan Court of Appeals thus reasonably rejected his vindictive sentencing claim, precluding habeas relief.
Finally, Ricks claims that the judge erred in denying his motion to suppress Wingfield's and Bullach's in-court identifications.
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). There is a two-step procedure for determine whether an identification can be admitted consistent with due process. The first step is to determine whether the identification procedure was impermissibly suggestive. Ledbetter v. Edwards, 35 F.3d 1062, 1070-71 (6th Cir.1994). If it was, the second step is to determine whether the identification nonetheless has sufficient indicia of reliability considering all the circumstances. Id. Five considerations bear on the reliability of an identification:
Neil v. Biggers, 409 U.S. 188, 199-200 (1972).
A criminal defendant has the initial burden of proving that the identification procedure was impermissibly suggestive. It is only after a habeas petitioner meets this burden of proof that the burden shifts to the state to prove that the identification was reliable. Johnson v. Warren, 344 F.Supp.2d 1081, 1090 (E.D. Mich. 2004) (citing English v. Cody, 241 F.3d 1279, 1282-83 (10th Cir. 2001)). Here, Ricks fails to show that the police conducted improper pretrial identifications. Ricks has offered no evidence to the Michigan Court of Appeals or to this Court showing that the composition of the photo arrays or other aspects of the pretrial identification procedures were suggestive. The fact that Bullach initially picked another suspect from the photographic array and that Wingfield could not positively identify Ricks at the preliminary examination is not evidence of suggestiveness. Due process, therefore, does not require exclusion of the identifications or entitle Ricks to habeas relief. See Perry v. New Hampshire, 132 S.Ct. 716, 730 (2012) ("[T]he 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."); Cameron v. Birkett, 348 F.Supp.2d 825, 843 (E.D. Mich. 2004) ("[T]he 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.").
Before a habeas petitioner may appeal an adverse district court decision, the district court must first determine if the petitioner is entitled to a certificate of appealability. 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). The court may issue a certificate of appealability "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). A petition that meets this standard must be reasonably debatable on the merits or must present issues that should be developed further. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Having considered the petition, the Court finds that Ricks has not made a substantial showing of a denial of a constitutional right and that an appeal of this order would not be in good faith. Because any appeal would be frivolous, the Court will deny a certificate of appealability and deny Ricks leave to proceed in forma pauperis on appeal. See Long v. Stovall, 450 F.Supp.2d 746, 755 (E.D. Mich. 2006); Hence v. Smith, 49 F.Supp.2d 547, 549 (E.D. Mich. 1999).
