United States District Court, N.D. West Virginia
MICHAEL K. LANHAM, Petitioner,
JOHN T. MURPHY, Warden, Respondent.
REPORT AND RECOMMENDATION
E. SEIBERT UNITED STATES MAGISTRATE JUDGE
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 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.
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. 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 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
Petitioner's State Criminal Proceedings
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.
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.
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
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.
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.
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.
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.
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.
Petitioner's Direct Appeal
Petitioner filed a timely notice of appeal on January 11,
2012. The Petitioner presented the following assignments of
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
3. The trial court erred in denying the Petitioner's post
trial motion for judgment of acquittal.
ECF No. 13-8 at 9.
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.
Petitioner's State Habeas Proceeding
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.
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.
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.
Petitioner's State Habeas Appeal
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.
Petitioner's Amended Petition
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.
Respondent's Motion for Summary
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