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Lanham v. Murphy

United States District Court, N.D. West Virginia

March 28, 2018

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

          MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 69]

          IRENE M. KEELEY UNITED STATES DISTRICT JUDGE

         Pending 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.

         For the 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 PREJUDICE.

         I. BACKGROUND[1]

         In May 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.

         A. Criminal Trial and Direct Appeal

         Prior 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.[2] 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.

         Following 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.

         At 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).

         The 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).

         B. Post-Conviction Proceedings

         1. State Habeas Corpus

         After 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. No. 13-15).

         By 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.

         Lanham 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).

         2. § 2254 Petition

         While 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).

         In his 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.

         On 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).

         By 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).

         In a 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.

         The 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).

         II. ...


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