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Lanham v. Murphy

United States District Court, N.D. West Virginia

January 16, 2018

MICHAEL K. LANHAM, Petitioner,
JOHN T. MURPHY, Warden, Respondent.

          KEELEY JUDGE



         I. Introduction

         On February 10, 2017, the pro se Petitioner, Michael K. Lanham, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. §2254. ECF No. 1. The sole ground raised was that the photographic array used to identify him was impermissibly suggestive. On February 27, 2017, the Petitioner was granted leave to proceed in forma pauperis [ECF No. 9], and Magistrate Judge Michael J. Aloi made a preliminary review of the petition and found that summary dismissal was not warranted. Accordingly, the Respondent was directed to show cause why the petition should not be granted. ECF No. 10. On March 24, 2017, the Petitioner filed a Motion for Leave to File Amendments to Petition. ECF No. 12. On March 27, 2017, the Respondent filed his Response to the original Petition [ECF No. 13], together with a Motion for Summary Judgment with supporting Memorandum. ECF Nos. 14, 15. On March 28, 2017, Magistrate Judge Aloi granted the Petitioner's previously filed Motion and afforded the Respondent 14 days to file any supplemental response he deemed necessary. ECF No. 16. No supplemental response was filed, and on May 12017, a Roseboro[1] Notice was issued. ECF No. 21. On June 14, 2017, the Petitioner filed his Response/Answer to the Respondent's Motion for Summary Judgment. ECF No. 32.

         On June 14, 2017, the Petitioner filed “Petitioner's Amended Habeas Corpus, ” which was construed as a Motion to Amend. ECF No. 33. On June 21, 2017, the Motion was granted, and the Petitioner was directed to refile his amended document on the court-approved form. ECF No. 36. The Petitioner was specifically warned that the amended petition would supersede his original petition and only those grounds raised in the amended petition would be considered.[2] Id. at 3. On July 13, 2017, Petitioner filed his Amended Petition on the court-approved form. ECF No. 43. The Petitioner reasserted his claim that the photographic lineup used to identify him during the police investigation was unconstitutionally and impermissibly suggestive. He also alleged that there was insufficient evidence to support his conviction, and he was denied his Sixth Amendment right to confront the witnesses against him. On August 23, 2017, the Respondent filed a Motion to Dismiss the Amended Petition because it included an unexhausted claim[3] and constituted a mixed petition. ECF No. 49. A second Roseboro Notice was issued on August 24, 2017. ECF No. 50. On September 4, 2017, Petitioner filed a Motion for Leave to File Amendments, which upon further review is actually a request to abandon the claim raised in his Amended Petition which is not exhausted. ECF No. 56. In addition, Petitioner attached 20 pages of what amounts to argument in support of the two exhausted claims. ECF No. 56-1. On September 15, 2017, this matter was transferred from Magistrate Judge Aloi to the undersigned pursuant to an Order entered by Gina M. Groh, Chief Judge. On October 5, 2017, Petitioner filed a Response in Opposition to the Respondent's Motion to Dismiss. In it, Petitioner eluded to his September 4, 2017, Motion for Leave to File Amendments, and indicated that he again wished to drop the unexhausted claim in his Amended Petition. ECF No. 58. On November 21, 2017, an Order was entered directing Petitioner to indicate whether he wished to seek a stay and return to state court to exhaust his state remedies regarding his Sixth Amendment claim. In the event Petitioner indicated he did not wish to seek a stay, the Respondent was afforded 21 days to file a supplemental answer to address the Petitioner's claim that insufficient evidence exists upon which to base his conviction. ECF No. 60. On December 8, 2017, the Petitioner filed a Motion to Submit New Evidence in which he unequivocally stated that he did not wish to seek a stay. ECF No. 62. In addition, Petitioner attached the Bridgeport Police Department Statement form from the victim. ECF No. 62-1. On December 12, 2017, the Respondent filed a second Motion for Summary Judgment and supporting memorandum. ECF Nos. 64, 65. Yet another Roseboro Notice was issued on December 13, 2017. On January 4, 2018, the Petitioner filed his response. The matter is now ripe for this Court's review.

         II. Background

         A. Petitioner's State Criminal Proceedings

         During the May 2011, term of the Harrison County Grand Jury, the Petitioner was indicted for one count of first-degree robbery and one count of conspiracy to commit robbery. ECF No. 13-1. The robbery in question took place at Dry Cleaning World on February 18, 2011. Pamela Hollington was the sole employee in the store at the time. A male and female entered the dry cleaners and subsequently stole $230 from the cash register. During the course of the investigation, the female was identified as Debbie Nunley, a former employee who had recently quit. The male was identified as the Petitioner, Ms. Nunley's boyfriend, who would frequently hang around the dry cleaners while she worked. On February 23, 2011, the investigating officer took a photo array to Dry Cleaning World to show the victim, who identified the Petitioner and Debbie Nunley as the two individuals who had committed the robbery. Prior to trial, the Petitioner moved to suppress the photographic identification made by the victim, Pamela Hollington, and requested a hearing to determine whether the identification was either reliable or impermissibly suggestive. ECF No. 13-2.

         A pretrial hearing was conducted on October 20, 2011 [ECF No. 13-22], during which the circuit court addressed the Petitioner's motion regarding the photo array. The investigating officer, Detective Wilfong, testified regarding the photographic array. Id. 6-20.He stated that he compiled the array using mugshots and DMV photographs, which were pasted into Microsoft Word. Id. 7-8. He acknowledged that the photographs were in color, but that he had to print them in black-and-white due to his lack of a color printer. Id. at 8. He also acknowledged that the program used to transfer the photographs will sometimes stretch them to fit the box provided but that it did not otherwise alter the photograph. Id. He noted that the individuals pictured in the photograph shared similar features. Id. at 10-11. Detective Wilfong further testified that he did not purposefully place the Petitioner's and Ms. Nunley's photographs third in the sequence of their respective photographic arrays. Id. at 12. He specified that both arrays were compiled at the same time. In addition, he indicated that the sequence of the arrays “just happened to fall on that [third] number.” Id.

         Before he presented the photographic arrays to Ms. Hollington, he read to her the following disclaimer:

You will be asked to look at a group of photographs. The fact that the photographs are shown to you should not influence your judgment. You should not conclude or guess that the photographs contain a picture of the person who committed the crime. You are not obligated to identify anyone. It is just as important to free innocent persons from suspicion as to identify guilty parties. Please do not discuss the case with other witnesses nor indicate in any way that you have identified someone.

Id. at 14. Ms. Hollington acknowledged that she understood. Id. After she independently read and signed the form, Detective Wilfong presented her with the photographs. Id. at 13. He testified that he did nothing to suggest any particular photograph and remained silent during Ms. Hollington's review of the array. Id. He testified that Ms. Hollington affirmatively identified the Petitioner as her assailant. Id. Furthermore, Ms. Hollington identified the Petitioner almost immediately, and exhibited “no hesitation.” Id. at 5.

         For purposes of the discussion that will follow, it is important to note that Detective Wilfong testified that he included individuals in the photographic array in the same age range, with similar hairstyle, hair color, and facial features. ECF No. 13-22 at 16-17. He further stated that hair and eye color were ultimately rendered irrelevant due to his use of a black-and-white printer to print the array. Id. The Petitioner and Ms. Nunley were included in their respective arrays based upon Detective Wilfong's own suspicion, which was based upon his familiarity with both suspects from his patronage of Dry Cleaning World. Id. at 19.

         At the conclusion of Detective Wilfong's testimony, counsel for the Petitioner moved for the photo identification suppression based upon how it was compiled. ECF No. at 13-22 at 21. More specifically, counsel argued that the identification should be suppressed because of the Petitioner's and Ms. Nunley's inclusion as the third suspect on their respective photographic arrays. Id. at 21. Counsel argued that such a practice was impermissibly suggestive. Id. Counsel also argued that some of the photographs were “a little dark, ” leaving only four photographs that you can actually really see very well. Moreover, counsel noted that Detective Wilfong testified that he could not be sure if the photographs were stretched or, for lack of a better word, morphed in some way when he cut and pasted them into the lineup. Therefore counsel argued that the array was not accurate, was suggestive and should be suppressed. Id. at 22. The State, based upon Detective Wilfong's adherence to W.Va. Code § 62-1E-1, et seq., and Ms. Hollington's immediate identification of the Petitioner, requested that the motion to suppress be denied. ECF No. 13-22 at 22-23. The Circuit Court agreed and denied Petitioner's motion, adding that the individuals pictured in the array all shared similar features. Id. at 23-24.

         The Petitioner's trial took place on October 25 and 26, 2011. Ms. Hollington appeared and testified that she had time to observe both the Petitioner and Ms. Nunley while they were in Dry Cleaning World. After describing the sequence of events from the time of their arrival to their departure with the money, Ms. Hollington identified both the Petitioner and Ms. Nunley in court. Id. at 144.

         On October 26, 2011, the jury found the Petitioner guilty of both counts of the indictment. ECF No. 13-5 at 5. On December 8, 2011, the circuit court sentenced the Petitioner to an aggregate term of 31 to 35 years' incarceration. ECF No. 13-6.

         B. Petitioner's Direct Appeal

         The Petitioner filed a timely notice of appeal on January 11, 2012. The Petitioner presented the following assignments of error:

1. The trial court erred in permitting the State to introduce the photographic array and subsequent identification as evidence at trial.
2. The evidence presented at trial did not support the jury's finding of a guilty verdict beyond a reasonable doubt.
3. The trial court erred in denying the Petitioner's post trial motion for judgment of acquittal.

ECF No. 13-8 at 9.

         The Supreme Court of Appeals of West Virginia (“WVSCA”) filed a Memorandum Decision denying the Petitioner relief on February 11, 2013. In particular, the Court found that the circuit court did not err in admitting into evidence the photographic array or the subsequent identification of the Petitioner. The Court noted the record showed that the victim's identification of the Petitioner was conducted in accordance with W.Va. Code § 62-1E- 2 and that the array itself was not tainted. In addition, the Court found that the jury was presented with sufficient evidence upon which the jury could have returned a guilty verdict, the Petitioner's credibility arguments notwithstanding. ECF No. 13-11 at 3.

         C. Petitioner's State Habeas Proceeding

         The Petitioner filed a pro se petition for habeas corpus on February 6, 2014. ECF No. 13-27. He raised four grounds for relief. First, he alleged various instances of ineffective assistance of counsel, including: (1) failure to have a mental evaluation completed and ensuring that he was on proper meds; (2) failure to retrieve defendant's timesheet from work for rebuttal; (3) failure to press the fact that the state's key witness, Pam Hollington, was impeached due to perjury; (4) failure to consult with defendant on many issues; (5) failure to present any professional witnesses. Second, he alleged that Detective Wilfong tampered with defense witnesses, including his mother. Third, he alleged prosecutorial misconduct based upon improper comments about his mother and himself during closing statements to the jury. Finally, the Petitioner alleged that his counsel was under the influence of medication during trial and at times was shaky and inaudible. ECF No. 13-13 at 5-6. The circuit court subsequently appointed the Petitioner counsel, and on August 5, 2014, ordered him to file an amended petition for habeas corpus relief. ECF No. 13-14.

         On October 14, 2014, counsel filed a supplemental petition arguing: (1) mental competency at the time of trial; (2) the suppression of helpful evidence; (3) the State's knowing use of perjured testimony; (4) ineffective assistance of counsel; (5) challenges to the composition of the grand jury; (6) constitutional errors and evidentiary rulings; (7) inadequate jury instructions; (8) prejudicial statements by the prosecutor; (9) insufficient evidence; (10) a more severe sentence than expected; and (11) an excessive sentence. ECF No. 13-15. The State answered the supplemental petition on December 1, 2014. ECF No. 13-6, 13-27.

         By order entered May 11, 2016, and amended order entered May 24, 2016, the circuit court denied the Petitioner habeas relief. ECF No. 13-27. In the court's 28 page order, it found the entirety of the Petitioner's claim to be without merit, including his challenge to the photographic identification re-raised as a constitutional challenge to the court's admission of such evidence at trial. Id. at 19-20.

         D. Petitioner's State Habeas Appeal

         The Petitioner filed a timely notice of appeal of the circuit court's denial of habeas relief on May 31, 2016. ECF No. 13-18. However, based upon the Petitioner's inability to raise any colorable claims that were not barred by res judicata, his counsel moved to dismiss the appeal on January 12, 2017. ECF No. 13-19. The WVSCA dismissed the matter on March 2, 2017.[4]

         III. The Pleadings

         A. Petitioner's Amended Petition

         In his amended petition, the Petitioner raises two grounds for relief. First, he alleges, as he has throughout the course of his state and federal proceedings, that the police used an unconstitutionally suggestive photographic array. Second, he alleges that the actual evidence does not support the conviction. More specifically, the Petitioner alleges that there was no evidence to tie him to the crime or the crime scene other that the tainted photo lineup. He notes that there was no DNA, no fingerprints or other physical evidence found, and neither the money bag nor the clothing worn by the suspects was found.

         B. Respondent's Motion for Summary Judgment

         The Respondent first contends that the Petitioner's claim that the police implemented an unconstitutionally suggestive photographic array is without merit. In particular, the Respondent argues that the WVSCA's review of this claim is neither an unreasonable application of clearly established federal law, nor an unreasonable determination of the facts. The Respondent notes that the photographic array implemented by the police to identify the Petitioner was proper and lawful under the independent and adequate state law basis of W.Va. Code § 62-1E-2(a), et seq., which mirrors ...

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