GEORGE CARAM STEEH, District Judge.
Gerran Dashawn McLaurin, ("petitioner"), incarcerated at the Ionia Correctional Facility in Ionia, 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 for carjacking, M.C.L.A. § 750.529a; possession of a firearm during the commission of a felony (felony-firearm), M.C.L.A. § 750.227b; assault with intent to do great bodily harm less than murder, M.C.L.A. § 750.84; and third-degree fleeing or eluding a police officer, M.C.L.A. § 257.602a(3)(a). For the reasons stated below, the application for a writ of habeas corpus is DENIED WITH PREJUDICE.
Petitioner was convicted following a jury trial in the Wayne County Circuit Court.
On August 20, 2014, Raymond Schultz locked his 2011 Chevrolet Equinox and was walking towards a party store on E. Jefferson when he heard a male voice and felt a tug on his shirt. As he turned around, his assailant put a gun in his face and said, "This is a real gun. This is a carjacking. Give me the keys." Schultz struggled with his assailant and sustained a gunshot wound in the left buttock area. When his assailant aimed the gun at his face, Schultz threw the keys to his assailant and fell to the ground. The assailant then drove off with the Equinox. (T. 12/9/2014, pp. 33-40). Schultz was taken to Detroit Receiving Hospital where he was classified as "level one," which is code for "potential for immediate threat to life or limb" due to the proximity of the wound to his pelvis and abdomen. (Id., p. 23).
Cheryl Harrison testified that she was in the parking lot with her boyfriend during the carjacking. They observed the incident and came to Schultz's aid, waiting for help to arrive. (T. 12/8/2014, pp. 234, 237; T. 12/9/2014, pp. 15, 41).
Officer Kevin Briggs of the Detroit Police Department testified that later that day they observed an individual driving a burgundy Equinox in reverse and at a high rate of speed, going through stop signs and over a curb. The Equinox then went forward and was pursued by Officer Briggs who testified that he looked directly at petitioner, as petitioner drove the vehicle. The passenger-side tire flew off when the Equinox hit the curb, but petitioner continued to drive on three wheels until the airbags deployed, when petitioner hit another curb. When petitioner ditched the vehicle, Officer Briggs pursued petitioner on foot and quickly apprehended him. (T. 12/9/2014, pp. 92-99).
A line-up was conducted the next day. Schultz (the victim) narrowed down the line-up to two suspects, one of which was petitioner. During the line-up, petitioner was laughing and looking down so as to avoid being recognized by Schultz. (Id., pp. 44, 54-57, 154). Harrison and Saunders, who both watched the incident, immediately identified petitioner as the assailant during the live line-up which took place on August 21, the day after the carjacking. Harrison was "a hundred percent sure." (T. 12/8/2014, pp. 226-228). Petitioner was represented by counsel at the time of the lineup. (T. 12/9/2014, pp. 151-152).
Petitioner's conviction was affirmed. People v. McLaurin, No. 325780, 2016 WL 3639898 (Mich. Ct. App. July 7, 2016) lv. den. 500 Mich. 947, 890 N.W.2d 672 (2017).
Petitioner seeks a writ of habeas corpus on the following grounds:
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:
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)). Therefore, in order 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." Harrington, 562 U.S. at 103. A habeas petitioner should be denied relief as long as it is within the "realm of possibility" that fairminded jurists could find the state court decision to be reasonable. See Woods v. Etherton, 136 S.Ct. 1149, 1152 (2016).
The Court notes that the Michigan Court of Appeals reviewed and rejected petitioner's third claim under a plain error standard because he failed to preserve the issue as a constitutional claim at the trial court level. The AEDPA deference applies to any underlying plain-error analysis of a procedurally defaulted claim. See Stewart v. Trierweiler, 867 F.3d 633, 638 (6th Cir. 2017); cert. den. 138 S.Ct. 1998 (2018).
Petitioner first argues that his right to counsel of choice was violated when the judge denied his motion to substitute counsel three days before trial. Petitioner brought his motion on December 5, 2014, which was three days before the first day of trial.
The Michigan Court of Appeals rejected petitioner's claim as follows:
The trial court denied the motion for substitute counsel, stating:
The record amply supports the trial court's conclusion that defendant failed to demonstrate good cause for a second substitution of trial counsel. Defendant made only general complaints that defense counsel was unprepared for trial and failed to communicate with defendant. Defendant offered nothing to substantiate that he and defense counsel had a legitimate difference of opinion regarding any specific fundamental trial tactic, or that defense counsel otherwise performed inadequately, lacked in diligence, or exhibited disinterest in his case.
The record also amply supports the trial court's implicit conclusion that defendant's second substitution of counsel, only three days before trial, would unreasonably disrupt the judicial process. As the trial court found, defendant made some of the same arguments in support of his motion to substitute his first defense counsel, and defendant also had recently mentioned a trial adjournment.
Accordingly, the trial court did not abuse its discretion in denying defendant's second request for substitute counsel. McLaurin, 2016 WL 3639898, at *1-3 (internal citations omitted).
The Sixth Amendment right to the assistance of counsel does not guarantee a criminal defendant that he will be represented by a particular attorney. Serra v. Michigan Department of Corrections, 4 F.3d 1348, 1351 (6th Cir. 1993)(citing Caplin & Drysdale v. United States, 491 U.S. 617, 624 (1989)). A criminal defendant who has the desire and the financial means to retain his own counsel "should be afforded a fair opportunity to secure counsel of his own choice." Id. (quoting Powell v. Alabama, 287 U.S. 45, 53 (1932)). Indeed, "[t]he Sixth Amendment guarantees the defendant the right to be represented by an otherwise qualified attorney whom that defendant can afford to hire, or who is willing to represent the defendant even though he is without funds." U.S. v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006)(quoting Caplin & Drysdale, 491 U.S. at 624-25). However, while a criminal defendant who can afford his own attorney has a right to a chosen attorney, that right is a qualified right. Serra, 4 F.3d at 1348 (citing to Wheat v. United States, 486 U.S. 153, 159 (1988)). Stated differently, the right to counsel of one's own choice is not absolute. See Wilson v. Mintzes, 761 F.2d 275, 280 (6th Cir. 1985). "Although a criminal defendant is entitled to a reasonable opportunity to obtain counsel of his choice, the exercise of this right must be balanced against the court's authority to control its docket." Lockett v. Arn, 740 F.2d 407, 413 (6th Cir. 1984); see also Gonzalez-Lopez, 548 U.S. at 151-52) ("Nothing we have said today casts any doubt or places any qualification upon our previous holdings that limit the right to counsel of choice and recognize the authority of trial courts to establish criteria for admitting lawyers to argue before them...We have recognized a trial court's wide latitude in balancing the right to counsel of choice against the needs of fairness, and against the demands of its calendar.")(internal citations omitted). Finally, the right to counsel of choice may not be used to unreasonably delay a trial. See Linton v. Perini, 656 F.2d 207, 209 (6th Cir. 1981).
In reviewing a motion for substitution of counsel, a reviewing court should consider "the timeliness of the motion; the adequacy of the [trial] court's inquiry into the defendant's complaint; and the asserted cause for that complaint, including the extent of the conflict or breakdown in communication between lawyer and client (and the client's own responsibility, if any, for that conflict)." Martel v. Clair, 565 U.S. 648, 663 (2012). "Because a trial court's decision on substitution is so fact-specific, it deserves deference; a reviewing court may overturn it only for an abuse of discretion." Id. at 663-64. Although all of the federal circuit courts agree that a court "cannot properly resolve substitution motions without probing why a defendant wants a new lawyer[,]" Martel, 545 U.S. at 664, the Supreme Court in Martel did not require, as a matter of federal constitutional law, that a trial court must engage in an inquiry with a criminal defendant concerning the nature of his complaints against counsel before denying a motion for substitution. The Supreme Court in Martel held that a federal district court did not abuse its discretion in denying a habeas petitioner's motion for substitution of counsel without first conducting an inquiry into the nature of his complaints, where the motion was untimely and the court was ready to render a decision in that case. Id. at 664-66. There is no clearly established federal law from the Supreme Court requiring an inquiry by the trial judge into the nature of a defendant's dissatisfaction with his attorney prior to denying a motion for substitution of counsel. See James v. Brigano, 470 F.3d 636, 643 (6th Cir. 2006) (reversing a grant of relief because the inquiry requirement was not clearly established Federal law). Thus, in the absence of a showing that a habeas petitioner received the ineffective assistance of counsel at trial, a state trial judge's failure to inquire into a habeas petitioner's complaints against his counsel before denying a motion for substitution of counsel would not entitle the petitioner to habeas relief. See Peterson v. Smith, 510 F. App'x 356, 366-67 (6th Cir. 2013).
This Court first notes that petitioner's request for substitute of counsel was untimely because it was made three days before trial. Furthermore, petitioner brought a motion to replace his first appointed counsel based on the same allegations. The trial court judge granted his motion for new counsel, giving petitioner "the benefit of the doubt," and informed petitioner that "this was not going to be a revolving door of attorneys requested by you. And I believe you agreed on the record." The Sixth Circuit has noted that when "the granting of the defendant's request [for a continuance to obtain new counsel] would almost certainly necessitate a last-minute continuance, the trial judge's actions are entitled to extraordinary deference." U.S. v. Whitfield, 259 F. App'x 830, 834 (6th Cir. 2008)(quoting United States v. Pierce, 60 F.3d 886, 891 (1st Cir.1995)). The Sixth Circuit has also rejected similar requests for the replacement of counsel as being untimely. See U.S. v. Trujillo, 376 F.3d 593, 606-07 (6th Cir. 2004)(motion for substitution of counsel was untimely, coming only three days prior to the start of the trial); United States v. Jennings, 83 F.3d 145, 148 (6th Cir. 1996)(motion to continue to obtain new counsel untimely when it was made the day before trial); United States v. Watson, 620 F. App'x 493, 501 (6th Cir. 2015)(request for new counsel made 19 days before trial untimely); United States v. Fonville, 422 F. App'x 473, 480 (6th Cir. 2011)(request for new counsel made less than a month and a half before trial not timely); United States v. Chambers, 441 F.3d 438, 447 (6th Cir. 2006)(no abuse of discretion to deny request for new counsel made a month and a half before trial). In the present case, petitioner's request for a continuance to obtain new counsel three days before trial was untimely, particularly where petitioner was granted substitute counsel and previously and agreed with the trial judge's statement that this was not be going to be a reoccurring event.
Moreover, this Court notes that petitioner had already discharged his first attorney and sought three days before trial to discharge his second counsel and obtain what would have been his third attorney. There had already been delays in the case due to petitioner's replacement of his first attorney. Permitting petitioner to discharge his second attorney in order to obtain yet a third one would have caused even further delays, thus, the trial court did not err in denying petitioner's request for substitute counsel. See e.g. United States v. Ammons, 419 F. App'x 550, 552 (6th Cir. 2011).
Second, petitioner failed to establish good cause for substitution of counsel, where he failed to show that the conflict between himself and his attorney was so great that it resulted in a total lack of communication which prevented an adequate defense. See Jennings, 83 F.3d at 149. Petitioner brought the same conclusory statements before the court that were brought when he initially sought substitution of his first counsel. The statements were initially found void of any evidence of any irreconcilable conflict or total lack of communication. See e.g. Adams v. Smith, 280 F.Supp.2d 704, 720 (E.D. Mich. 2003). The trial court judge found that each time petitioner complained, the complaint pertained to his attorney not having his best interest in mind, because the attorney was merely doing what any good attorney would do by trying to get the most options available. A conclusory allegation that an attorney is not supportive or does not have a petitioner's interest in mind does not establish that there was a serious conflict or inability to communicate that would justify the substitution of counsel, particularly where petitioner's motion to substitute was untimely. See United States v. Justice, 14 F. App'x 426, 430-31 (6th Cir. 2001). Thus, the record in this case does not demonstrate that the disagreements between petitioner and his attorney rose to the level of a conflict sufficient to justify the substitution of counsel. See United States v. Sullivan, 431 F.3d 976, 981 (6th Cir. 2005).
Third, the judge sufficiently inquired into petitioner's allegations of ineffectiveness against counsel and appointed substitute counsel when the same allegations were initially brought before the court. Petitioner's motion sought the appointment of yet a third attorney. In light of the fact that there were "lengthy discussions" about the alleged conflicts between petitioner and his counsel, there was no abuse of discretion in denying petitioner's motion for substitute counsel. See U.S. v. Vasquez, 560 F.3d 461, 467 (6th Cir. 2009).
Finally, petitioner is unable to show that he was prejudiced by the failure of the trial court to grant petitioner a third appointed attorney, in light of the fact that he received effective assistance of counsel at trial. See Vasquez, 560 F.3d at 468. "The strained relationship" between petitioner and his attorney was not a "complete breakdown in communication" that prevented petitioner from receiving an adequate defense. Id. Petitioner is not entitled to habeas relief on his first claim.
In his second claim, petitioner contends that he was deprived of the effective assistance of trial counsel when counsel failed to call an expert witness to testify about the unreliability of eyewitness identification.
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 (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. 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. 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. "Strickland's test for prejudice is a demanding one. `The likelihood of a different result must be substantial, not just conceivable.'" Storey v. Vasbinder, 657 F.3d 372, 379 (6th Cir. 2011)(quoting Harrington, 562 U.S. at 112). The Supreme Court's holding in Strickland places the burden on the defendant who raises a claim of ineffective assistance of counsel, and not the state, to show a reasonable probability that the result of the proceeding would have been different, but for counsel's allegedly deficient performance. See Wong v. Belmontes, 558 U.S. 15, 27 (2009).
More importantly, on habeas review, "the question `is not whether a federal court believes the state court's determination' under the Strickland standard `was incorrect but whether that determination was unreasonable — a substantially higher threshold.'" Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)(quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)). "The pivotal question is whether the state court's application of the Strickland standard was unreasonable. This is different from asking whether defense counsel's performance fell below Strickland's standard." Harrington v. Richter, 562 U.S. at 101. Indeed, "because the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard." Knowles, 556 U.S. at 123 (citing Yarborough v. Alvarado, 541 U.S. at 664). Pursuant to § 2254(d)(1), a "doubly deferential judicial review" applies to a Strickland claim brought by a habeas petitioner. Id. This means that on habeas review of a state court conviction, "[A] state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself." Harrington, 562 U.S. at 101. "Surmounting Strickland's high bar is never an easy task." Id. at 105 (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)).
In his second claim, petitioner contends that his trial counsel was ineffective for failing to call an expert witnesses in the areas of eyewitness identification testimony.
As an initial matter, petitioner has presented no evidence either to the state courts or to this Court that he has an expert witness who would be willing to testify regarding eyewitness identification. A habeas petitioner's claim that trial counsel was ineffective for failing to call an expert witness cannot be based on speculation. See Keith v. Mitchell, 455 F.3d 662, 672 (6th Cir. 2006). Petitioner has offered, neither to the Michigan courts nor to this Court, any evidence that an expert witness would testify and what the content of this witness' testimony would have been. In the absence of such proof, petitioner is unable to establish that he was prejudiced by counsel's failure to call an expert witness to testify at trial, so as to support the second prong of an ineffective assistance of counsel claim. See Clark v. Waller, 490 F.3d 551, 557 (6th Cir. 2007).
Moreover, with respect to petitioner's claim that counsel was ineffective for failing to call an expert on eyewitness identification, "[N]o precedent establishes that defense counsel must call an expert witness about the problems with eyewitness testimony in identification cases or risk falling below the minimum requirements of the Sixth Amendment." Perkins v. McKee, 411 F. App'x 822, 833 (6th Cir. 2011); see also Dorch v. Smith, 105 F. App'x 650, 653 (6th Cir. 2004)(upholding as reasonable the Michigan Court of Appeals's conclusion that defense counsel's failure to call an expert witness on eyewitness identification counsel did not satisfy Strickland, because counsel "presented several witnesses who testified as to [the habeas petitioner's] whereabouts on the weekend of the incident" and cross-examined the eyewitness regarding inconsistencies in his identification of the petitioner).
Moreover, two eyewitnesses testified that they watched the carjacking. Although petitioner argued misidentification, the jury chose to believe the two eyewitnesses. Petitioner has failed to show how an expert witness in eyewitness identification would have assisted him.
Finally, although counsel did not call an expert witness on the problems of eyewitness identification, trial counsel discredited the victim who testified that he had chosen two people in a lineup that he thought could have been the perpetrator. Petitioner was not denied effective assistance of counsel due to trial counsel's failure to seek the assistance of expert witness on identification, where counsel elicited testimony to discredit the victim's identification testimony. See Greene v. Lafler, 447 F.Supp.2d 780, 794-95 (E.D. Mich. 2006). Petitioner is not entitled to habeas relief on his second claim.
In his third claim, petitioner alleges that he was subjected to an impermissibly suggestive pre-trial identification. Petitioner further argues that trial counsel was ineffective for failing to file a pre-trial motion to suppress the allegedly suggestive identification.
The Michigan Court of Appeals applied plain error review to the suggestive identification claim and then denied it on the merits as follows:
McLaurin, 2016 WL 3639898, at *11-12 (internal citations omitted).
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:
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 initially alleges that the attorney present at the lineup was not acting on his behalf, but on the behalf of the State. The Michigan Court of Appeals reasonably rejected petitioner's allegation by finding that the lineup attorney was only there to protect petitioner's rights and that there was no evidence presented that the attorney acted to the contrary. Conclusory allegations of ineffective assistance of counsel, without any evidentiary support, do not provide a basis for habeas relief. See Workman v. Bell, 178 F.3d 759, 771 (6th Cir. 1998).
Petitioner also alleges that an officer pointed out petitioner to Cheryl Harrison during the lineup identification, resulting in a suggestive and unreliable identification.
The Michigan Court of Appeals again reasonably found:
McLaurin, 2016 WL 3639898, at *12.
Petitioner's allegations are not consistent with the record. (T. 12/8/2014, p. 227-228, T. 12/9/2014, pp. 81, 148-149). Petitioner has presented no evidence to show that an allegedly suggestive pre-trial identification line-up took place with Ms. Harrison.
Conclusory allegations by a habeas petitioner, without any evidentiary support, do not provide a basis for habeas relief. See, e.g., Washington v. Renico, 455 F.3d 722, 733 (6th Cir. 2006)(bald assertions and conclusory allegations do not provide sufficient ground to warrant requiring an evidentiary hearing in a habeas proceeding); Workman v. Bell, 160 F.3d at 287. Petitioner is not entitled to habeas relief because his claim that he was subjected to an unduly suggestive identification procedure is conclusory and unsupported. See Champ v. Zavaras, 431 F. App'x 641, 654 (10th Cir. 2011).
In this case, assuming that the pre-trial identification procedures were unduly suggestive, petitioner has failed to show, under the totality of circumstances, that the suggestiveness led to a substantial likelihood of an irreparable misidentification. Harrison testified that during the carjacking she had a clear view of petitioner. Moreover, the length of time between the carjacking and the challenged identifications was only one day and Ms. Harrison did not identify anyone else as being the perpetrator. These factors all support a finding that an independent basis existed for Ms. Harrison's in-court identification of petitioner. See Robertson v. Abramajtys, 144 F.Supp.2d 829, 847 (E.D. Mich. 2001.).
Moreover, with respect to Ms. Harrison's attentiveness to the situation, courts tend to "place greater trust in witness identifications made during the commission of a crime because the witness has a reason to pay attention to the perpetrator." Howard v. Bouchard, 405 F.3d 459, 473 (6th Cir. 2005); see also United States v. Meyer, 359 F.3d 820, 826 (6th Cir. 2004)(finding heightened degree of attention where witness spoke with robber and studied his features while looking for an opportunity to escape); United States v. Crozier, 259 F.3d 503, 511 (6th Cir. 2001)(finding heightened degree of attention where robber confronted witnesses with a gun). In light of the fact that Ms. Harrison watched while the carjacking took place, it was not unreasonable for the state courts to conclude that Ms. Harrison paid a high degree of attention to the assailant.
Moreover, even if there would have been slight discrepancies between Ms. Harrison's description of the assailant and petitioner's appearance, this would be insufficient to render the in-court identification suspect, in light of the fact that Ms. Harrison was able to get a good look at petitioner and testified that she was certain in her identification of petitioner as being the suspect. See United States v. Hill, 967 F.2d at 232-33 (in-court identification of alleged bank robber held admissible despite five years between incident and trial and slight inaccuracies in witness' description of robber, where witness' view of robber was brightly lit and unobstructed and she showed high degree of certainty in her in-court identification).
Finally, Cheryl Harrison testified that when she identified the perpetrator at the line up, it took her "Literally one second. Soon as I laid eyes on him, I knew that it was him." (Tr. 12/9/2014, p. 8). The reliability of Ms. Harrison's in-court identification is supported by the fact that she "testified without equivocation" that petitioner was the assailant. Howard, 405 F.3d at 473.
In addition to considering the reliability of the actual identification, courts also look to other evidence to determine whether, if the identification was tainted, permitting the identification was an error of sufficient magnitude to rise to a constitutional level because of a very substantial likelihood of irreparable misidentification, or whether the error was harmless. Robertson, 144 F. Supp. 2d at 848.
In the present case, petitioner was caught by the police a short time after the carjacking, driving the victim's burgundy Equinox near the crime scene. Petitioner attempted to flee from the police when they went to arrest him. Given this evidence, any error in the admission of Ms. Harrison's allegedly unreliable identification testimony was harmless error at best. See Solomon v. Curtis, 21 F. App'x 360, 363 (6th Cir. 2001); see also Williams v. Stewart, 441 F.3d 1030, 1039 (9th Cir. 2006)(strong circumstantial evidence linking petitioner to crime scene rendered admission of pre-trial identification harmless); Flaherty v. Vinzant, 386 F.Supp. 1170, 1175 (D. Mass. 1974)(admission of suggestive identification harmless error at best where petitioner had handkerchief folded in the shape of a mask in his pocket at the time of his arrest).
Petitioner failed to show that Ms. Harrison's 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). There is no suggestion that Ms. Harrison was subjected to a suggestive pre-trial identification; accordingly, Ms. Harrison's in-court identification of petitioner does not entitle him to habeas relief.
Finally, in light of the fact that petitioner has failed to show that he was subjected to any pre-trial identification procedure that was unduly suggestive, he has failed to show that his lawyer was ineffective for failing to move for suppression of the pre-trial identifications. See Perkins v. McKee, 411 F. App'x 822, 833 (6th Cir. 2011). Petitioner is not entitled to relief on his third claim.
In order to obtain a certificate of appealability, a prisoner must make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To demonstrate this denial, the applicant is required to show that reasonable jurists could debate whether, or agree that, the petition should have been resolved in a different manner, or that the issues presented were adequate to deserve encouragement to proceed further. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). When a district court rejects a habeas petitioner's constitutional claims on the merits, the petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims to be debatable or wrong. Id. at 484. "The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Rules Governing § 2254 Cases, Rule 11(a), 28 U.S.C. foll. § 2254.
The Court denies petitioner a certificate of appealability because he has failed to make a substantial showing of the denial of a federal constitutional right. Myers v. Straub, 159 F.Supp.2d 621, 629 (E.D. Mich. 2001). Petitioner is denied leave to appeal in forma pauperis, because the appeal would be frivolous. Id.
Accordingly, the Court DENIES WITH PREJUDICE the petition for a writ of habeas corpus. The Court further DENIES a certificate of appealability or leave to appeal in forma pauperis.
