United States District Court, N.D. West Virginia
MICHAEL K. LANHAM, Petitioner,
JOHN T. MURPHY, Warden, Respondent.
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 69]
M. KEELEY UNITED STATES DISTRICT JUDGE
for review is the Amended Petition Under 28 U.S.C. §
2254 for Writ of Habeas Corpus by a Person in State Custody
(“Amended Petition”) filed by the pro se
petitioner, Michael K. Lanham (“Lanham”). In
2011, Lanham was convicted of first-degree robbery and
conspiracy to commit robbery in the Circuit Court of Harrison
County, West Virginia (“Circuit Court”). In his
Amended Petition, Lanham contends that the photographic array
used to identify him was impermissibly suggestive, and that
there was insufficient evidence to support his convictions.
reasons that follow, the Court ADOPTS the
Report and Recommendation (Dkt. No. 69),
GRANTS the respondent's motions for
summary judgment (Dkt. Nos. 14, 64), DENIES
the Amended Petition (Dkt. No. 43), and
DISMISSES the case WITH
2011, a grand jury in Harrison County, West Virginia,
returned a two-count indictment, charging Lanham with one
count of first-degree robbery and one count of conspiracy to
commit robbery (Dkt. No. 13-1). The robbery in question
occurred on February 18, 2011, at Dry Cleaning World in
Bridgeport, West Virginia. During the course
of the investigation of the robbery, Detective Matthew
Wilfong (“Wilfong”) of the Bridgeport Police
Department compiled two photographic arrays consisting of six
males and six females, respectively. On February 23, 2011, he
presented both photo arrays to Pamela Hollington
(“Hollington”), the victim and sole employee in
the store at the time of the robbery. From the arrays,
Hollington identified Lanham and Deborah Nunley
(“Nunley”), Lanham's girlfriend and a former
store employee, as having committed the robbery.
Criminal Trial and Direct Appeal
to trial, Lanham moved to suppress the photographic array
(Dkt. No. 13-2), contending that the identification procedure
was impermissibly suggestive because both his photograph and
that of Nunley appeared in the third position in each photo
array. At a pretrial hearing on October 20, 2011,
Detective Wilfong testified that he had not purposefully
placed Lanham and Nunley's photographs in the third
position in their respective photographic arrays, stating
that the sequencing of their photos “just happened to
fall on that [third] number” (Dkt. No. 13-22 at 12).
Detective Wilfong further testified that all of the
individuals included in the respective arrays shared similar
ages, facial features and hairstyles, and that, when
presented with the male array, Hollington had identified
Lanham almost immediately and without hesitation.
Id. at 5, 16-17.
Wilfong's testimony, Lanham's attorney moved to
suppress the photo array, arguing that the same-position
sequencing of Lanham and Nunley was impermissibly suggestive,
and also that some of the photos were “a little
dark” or stretched and, therefore, inaccurate.
Id. at 21-22. The Circuit Court denied Lanham's
motion, noting in doing so that the individuals included in
the array all shared similar features. Id. at 23.
The case proceeded to trial on October 25, 2011.
trial, Hollington testified about the events of the robbery
before identifying Lanham and Nunley as her assailants (Dkt.
No. 13-22). On October 26, 2011, the jury convicted Lanham on
both counts (Dkt. No. 13-5 at 5), and, on December 8, 2011,
the Circuit Court sentenced him to an aggregate term of 31 to
35 years incarceration (Dkt. No. 13-6). Lanham timely
appealed his convictions (Dkt. No. 13-8 at 9).
Supreme Court of Appeals of West Virginia (“Supreme
Court of Appeals”) affirmed Lanham's convictions on
February 11, 2013 (Dkt. No. 13-11). In particular, it
concluded that the trial court had not erred in admitting the
photographic array or the subsequent identifications of
Lanham, and that the jury had been presented sufficient
evidence upon which it could have returned a guilty verdict
(Dkt. No. 13-11 at 3).
State Habeas Corpus
the Supreme Court of Appeals affirmed his conviction, Lanham
filed a pro se petition for habeas corpus relief on
February 6, 2014 (Dkt. No. 13-27). The Circuit Court
appointed counsel, who filed an amended petition on
Lanham's behalf, raising the following issues: 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 trial 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 (Dkt.
written order entered on May 11, 2016, and amended order
entered on May 24, 2016, the Circuit Court denied habeas
relief (Dkt. No. 13-17), concluding that the entirety of
Lanham's claim, including his constitutional challenge to
the court's admission of the photographic identification
at trial, was without merit. Id. at 19-20.
filed a timely notice of appeal on May 31, 2016 (Dkt. No.
13-18). Subsequently, however, his counsel moved to dismiss
the appeal based on the inability to raise any colorable
claims not barred by res judicata (Dkt. No. 13-19). The
Supreme Court of Appeals dismissed the appeal on March 2,
2017 (Dkt. No. 13-21).
§ 2254 Petition
his appeal was pending, on February 10, 2017, Lanham filed
his § 2254 Petition in this Court (Dkt. No. 1). In his
sole ground for relief, Lanham claimed that the photographic
array used to identify him was impermissibly suggestive.
Pursuant to 28 U.S.C. § 636 and LR PL P 2, the Court
referred the Petition to United States Magistrate Judge James
E. Seibert for initial review. On March 27, 2017, the
respondent answered Lanham's Petition and also moved for
summary judgment (Dkt. No. 14). With the Court's leave,
Lanham amended his Petition on July 13, 2017 (“Amended
Petition”) (Dkt. No. 43).
Amended Petition, Lanham raised three grounds for relief.
First, as he had throughout the course of his state and
federal proceedings, he contended that the photo array used
to identify him was unconstitutionally suggestive.
Id. at 6. Second, he claimed there was insufficient
evidence to support his conviction. Id. at 10. More
specifically, he alleged that there was “no evidence to
tie [him] to the crime or crime scene other than the tainted
photo lineup.” Id. Finally, he alleged that he
was denied his Sixth Amendment right to confront the
witnesses against him. Id. at 12.
August 23, 2017, the respondent moved to dismiss the Amended
Petition on the ground that, because Lanham had never
presented his Sixth Amendment claim to any state court, his
Amended Petition included an unexhausted claim and thus
constituted a “mixed petition” subject to
dismissal (Dkt. No. 49). On September 4, 2017, Lanham filed a
motion seeking to abandon his unexhausted claim (Dkt. No.
56), and reiterated his request in a subsequent filing on
October 5, 2017 (Dkt. No. 58).
Order entered on November 21, 2017, the magistrate judge
directed Lanham to indicate whether he wished to seek a stay
and return to state court to exhaust his state remedies
regarding his Sixth Amendment claim (Dkt. No. 60). On
December 8, 2017, Lanham moved to submit new evidence,
stating that he did not wish to seek a stay (Dkt. No. 62). On
December 12, 2017, the respondent renewed its motion for
summary judgment (Dkt. No. 64).
Report and Recommendation (“R&R”) entered on
January 16, 2018, Magistrate Judge Seibert recommended that
the Court grant the respondent's motions for summary
judgment and deny and dismiss the Amended Petition with
prejudice (Dkt. No. 69). With regard to the photographic
array, the R&R concluded that Lanham had failed to
adequately rebut the findings of the Circuit Court or the
Supreme Court of Appeals, or to establish that the state
courts that had reviewed his case had unreasonably applied
federal law or improperly weighed the applicable facts in
light of the evidence. Id. at 17. Magistrate Judge
Seibert further concluded that, when viewed in the light most
favorable to the prosecution, the evidence was sufficient to
support the jury's verdict. Id. at 22.
R&R informed Lanham of his right to file “written
objections identifying the portions of the Recommendation to
which objections are made, and the basis for such
objections.” Id. at 23. It further warned that
the failure to do so may result in waiver of his right to
appeal. Id. After receiving an extension of time to
do so (Dkt. No. 78), Lanham timely filed objections to the
R&R on February 5, 2018 (Dkt. Nos. 79; 81). On February
9, 2018, he moved to amend his objections to include certain
attachments for the Court's consideration (Dkt. No. 81).