Holland v. Wolfenbarger

MARLIN DEVON HOLLAND, Petitioner,

v.HUGH WOLFENBARGER, Respondent.

Case Number: 2:08-CV-13558

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DATE: December 8, 2010

Honorable Patrick J. Duggan

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS

CORPUS AND DENYING CERTIFICATE OF APPEALABILITY

Petitioner Marlin Devon Holland filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is presently in the custody of the Michigan Department of Corrections pursuant to convictions in 2002 for armed robbery, assault with intent to murder, felon in possession of a firearm, and possession of a firearm during the commission of a felony. Petitioner seeks habeas relief contending that he received ineffective assistance of trial and appellate counsel, hearsay testimony was improperly admitted, the trial court improperly excluded a composite sketch made at the complainant's direction, his sentence was based on facts not found by a jury, and a photographic line-up was improperly suggestive. The Court finds that Petitioner's claims lack merit. The Court, therefore, denies the petition.

I. Factual Background

Petitioner's convictions arise from a robbery and shooting of a cashier at a Mobil gas station in Dearborn Heights, Michigan, on July 17, 2002. Abdul Al-Shawi testified that he was working alone at the gas station on the night of the robbery. He was standing behind the counter when a man he identified as Petitioner entered the station. He described the man as wearing a pink t-shirt and jeans and having a mustache. Petitioner paid Al-Shawi for a package of cigarettes and, when Al-Shawi attempted to give Petitioner his change, Petitioner pulled out a silver automatic handgun and pointed it at Al-Shawi's chest. Petitioner warned Al-Shawi not to move, and told him to give Petitioner all his money or he would be killed. Al-Shawi gave Petitioner the money from the cash drawer. Petitioner took the money and then shot Al-Shawi three times in the neck.

Robert Gonzales testified that he entered the mobile gas station at approximately 8:30 p.m. on the day of the robbery. He purchased a drink and then left the gas station. As Gonzalez was leaving, he saw someone drive a vehicle onto the premises and park toward the rear of the gas station. He described the driver of the vehicle as having a mustache and some facial hair, perhaps a goatee. He identified Petitioner as the individual he saw drive up to the station. Three or four minutes after Gonzalez walked away from the gas station, he saw Petitioner drive by at a high rate of speed.

On August 7, 2002, the Dearborn Heights Police presented Gonzales and Al-Shawi with a photo array containing six photographs, including a photograph of Petitioner. In the photograph, Petitioner had a full beard. Gonzales and Al-Shawi both identified Petitioner as the individual they saw at the Mobil station on July 17. On August 7, the police also executed a search warrant at Petitioner's home. They found, among other things, a box of.25 caliber Winchester ammunition, which was missing ten bullets. The spent shell casings recovered from the gas station were also.25 caliber.

II. Procedural History

Following a jury trial in the Wayne County Circuit Court, Petitioner was convicted of armed robbery, assault with intent to murder, felon in possession, and felony firearm. The trial court sentenced Petitioner to the following terms of imprisonment: 75 to 125 years for the armed robbery and assault convictions, 2 to 5 years for the felon-in-possession conviction, and 10 years for the felony-firearm conviction. Petitioner filed an appeal of right in the Michigan Court of Appeals raising the following claims through counsel:

I. Defendant-appellant's convictions should be reversed because the trial court abused its discretion in admission of subsequent acts evidence under M.R.E. 404(b).

II. Defendant-appellant's convictions should be reversed because the trial court improperly denied admission of a composite drawing of the alleged perpetrator.

Petitioner filed a pro se brief raising the following additional claim:

I. The trial court erred, and deprived defendant Holland of his liberty without due process of law, where the court failed to suppress identification testimony which was established under circumstances where defendant Holland was denied his constitutional right to counsel at a precustodial, investigatory lineup, in which he was the primary focus of the investigation of the crimes charged.

The Michigan Court of Appeals affirmed Petitioner's convictions. People v. Holland, No. 247038, 2004 WL 1977633 (Mich. Ct. App. Sept. 7, 2004). Petitioner filed a motion for reconsideration which the court of appeals also denied. People v. Holland, No. 247038 (Mich. Ct. App. Oct. 18, 2004). Petitioner filed an application for leave to appeal in the Michigan Supreme Court, raising the same claims raised in the state court of appeals, which the Supreme Court denied on July 28, 2005. People v. Holland, 472 Mich. 938, 698 N.W.2d 395 (2005).

Petitioner thereafter filed a motion for relief from judgment in the trial court, arguing that counsel was ineffective in failing to: (i) present an opening statement; (ii) object to prosecutorial misconduct; (iii) present expert testimony of a sketch artist; and (iv) move to suppress pre-trial identification as unduly suggestive. The trial court denied the motion on June 27, 2006. People v. Holland, No. 02-010683 (Wayne County Cir. Ct. June 27, 2006). After the motion was denied, Petitioner filed a motion to amend the motion to include the following claims: (i) counsel was ineffective in failing to present the best defense, including alibi witnesses; (ii) trial court used facts during sentencing which were not found by a reasonable doubt by the jury; and (iii) the photo line-up was unduly suggestive. The trial court denied the supplemental motion for relief from judgment on August 2, 2006. People v. Holland, No. 02-010683 (Wayne County Cir. Ct. Aug. 2, 2006).

Petitioner filed an application for leave to appeal the denial of his first and supplemental motions for relief from judgment in the Michigan Court of Appeals. The Michigan Court of Appeals dismissed the appeal from the denial of the supplemental motion because the order appealed from denied a successive motion for relief from judgment and such an appeal is not allowed under Michigan Court Rules. People v. Holland, No. 275108 (Mich. Ct. App. Feb. 22, 2007). The court of appeals denied leave to appeal from the denial of the original motion for relief from judgment "for failure to meet the burden of establishing entitlement to relief under M.C.R. 6.508(D)." People v. Holland, No. 275108 (Mich. Ct. App. Oct. 23, 2007).

Petitioner filed an application for leave to appeal in the Michigan Supreme Court, raising the same claims raised in the Michigan Court of Appeals. On May 27, 2008, the Michigan Supreme Court denied leave to appeal because Petitioner "failed to meet the burden of establishing entitlement to relief under M.C.R. 6.508(D)." People v. Holland, 481 Mich. 876, 741 N.W.2d 808 (2008).

On August 18, 2008, Petitioner filed the pending petition for a writ of habeas corpus. In the Petition, he raises the following claims:

I. Do defendant Holland's references to the record and supporting facts demonstrate that the failure of his appellate counsel, as set forth below, to raise the issues presented in his Rule 6.500 motion constitute ineffective assistance of counsel and satisfy] the requirement that he show "cause" and "prejudice" under Rule 6.508(D)(a)?

II. Was defendant Holland deprived of his liberty without due process of law by the admission of third-party hearsay testimony designed to bolster the credibility of the complainant's identification testimony?

III. Was defendant denied the effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments where counsel (A) failed to object to prejudicial prosecutor misconduct; (B) failed to make offer of proof for presentation of expert testimony; and (C) failed to press motion to suppress identification testimony of thecomplainant.

IV. Was defendant Holland deprived of his liberty without due process of law, his right to a fair trial, and his right to present a defense as guaranteed by the Sixth and Fourteenth Amendments, where the trial court refused to admit evidence of a composite drawing made by a police expert sketch artist at the complainant's direction?

V. Was defendant denied effective assistance of counsel and a fair trial, contrary to the Sixth Amendment of the United States Constitution, when defense counsel did not present defendant's best defense to the charge?

VI. Is defendant's sentence constitutionally infirm because facts were considered, through the sentencing guidelines, that the jury... had not found, as a result he is entitled to re-sentencing?

VII. Was defendant denied due process of law and a fair trial because of the unduly and impermissible suggestiveness of the photographic line-up where defendant was the only person depicted with a shaved head and full beard, identical to the photograph aired of him during a T.V. broadcast, and there was no independent basis for the identification?

III. Standard of Review

This case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Pursuant to the AEDPA, Petitioner is entitled to a writ of habeas corpus only if he can show that the state court's adjudication of his 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). Simply stated, under § 2254(d), Petitioner must show that the state court's decision "was either...