Opinion
Civil Action No: 04-1415 Section: C(3).
April 29, 2005
ORDER AND REASONS
Joe Anthony Davis ("Petitioner" or "Defendant") filed this petition for habeas corpus pursuant to 28 U.S.C. § 2254 seeking relief from his conviction for armed robbery resulting in a 25 year sentence. As grounds for relief, Petitioner asserts (1) that the trial court erroneously denied his motion to suppress identification, and (2) that the sentence imposed is excessive. Having reviewed the record, the memoranda, and the law, this Court has determined that the record is sufficient and that no evidentiary hearing is necessary. For the reasons set forth as follows, Petitioner's motion for habeas corpus is DENIED.
Petitioner is incarcerated at the Washington Correctional Institute in Angie, Louisiana. On September 24, 2002, he was convicted by a jury of armed robbery in the 22nd Judicial District Court of St. Tammany Parish. On October 30, 2002, Petitioner was sentenced to 25 years at hard labor without the benefit of probation, parole, or suspension of sentence. Petitioner timely filed a direct appeal with the First Circuit Court of Appeal asserting the same assignments of error as in the instant habeas petition. The First Circuit denied the appeal on the merits on September 26, 2003. A writ of certiorari, timely filed with the Louisiana Supreme Court, was denied without reasons on February 20, 2004. Petitioner filed the instant petition for habeas corpus on or about May 11, 2004.
Timeliness and Exhaustion
The State does not contend that exhaustion or timeliness are at issue. The Court agrees, and finds that the petition is timely filed and the claims have been exhausted in state court. Accordingly, the claims will be considered on the merits.
Standard of Review
The AEDPA comprehensively overhauled federal habeas corpus legislation, including 28 U.S.C. § 2254. Amended subsections 2254(d)(1) and (2) contain revised standards of review for questions of fact, questions of law, and mixed questions of law and fact. Provided that the state court adjudicated the claim on the merits, pure questions of law and mixed question of law and fact are reviewed under § 2254(d)(1) and questions of fact are reviewed under § 2254(d)(2). Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000).
As to questions of law and mixed questions of law and fact, a federal court must defer to the state court's decision unless it "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). The United States Supreme Court has noted:
§ 2254(d)(1)'s "contrary to" and "unreasonable application" clauses have independent meaning. A federal habeas court may issue the writ under the "contrary to" clause if the state court applies a rule different from the governing law set forth in our cases, or if it decides a case differently than we have done on a set of materially indistinguishable facts. The court may grant relief under the "unreasonable application" clause if the state court correctly identifies the governing legal principle from our decisions but unreasonably applies it to the facts of the particular case. The focus of the latter inquiry is on whether the state court's application of clearly established federal law is objectively unreasonable, and we stressed in Williams [ v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)] that an unreasonable application is different from an incorrect one.Bell v. Cone, 535 U.S. 685, 694 (2002) (citations omitted).
As to questions of fact, factual findings are presumed to be correct and a federal court will give deference to the state court's decision unless it "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)(2); see also Hill, 210 F.3d at 485; 28 U.S.C. § 2254(e) (1).
Statement of Facts
The Louisiana First Circuit Court of Appeal summarized the facts of the case in its opinion as follows:
At the pretrial motion to suppress defendant's photographic identification, the following testimony was elicited. On the evening of February 28, 2002, Sara Mohon was working alone as manager of the Jackson Hewitt Tax Service Center in Slidell, Louisiana. A black male entered and inquired about a tax refund check, giving her what was later determined to be a false name. Ms. Mohon had a face-to-face conversation with that person, who she initially believed to be a customer. The individual in question spent a total of about fifteen minutes in the store, and she had a good opportunity to see him. The business was sell lit with florescent lighting and she had an unobstructed view of his face. Before leaving, the supposed customer assaulted Ms. Mohon and robbed her.
As soon as the perpetrator left the scene, Ms. Mohon called the police and provided them with a physical description of the assailant, including the distinguishing features of a very large, flat nose and what appeared to be a type of cleft lip deformity of "harelip." She later assisted them in preparing a composite sketch of the assailant.
On June 3, 2002, Ms. Mohon was summoned to the police station to view a second photographic lineup of six individuals. Ms. Mohon had been shown another photo array, about one week after the incident, which did not contain defendant's photograph. She had refused to identify any of the subjects depicted in those photographs as the suspect. She testified that, prior to this second lineup, the officers did not call her attention to any one of the photographs, pressure her in any way to make an identification, promise her anything in order to induce her to make an identification, or mention the name of any of the persons whose photographs were being displayed. After viewing the photo array, she unhesitatingly identified defendant as the person who had assaulted and robbed her. She advised the officers that she was sure he was the perpetrator.
Defendant argues at the hearing on his motion to suppress that none of the other men in the second photographic lineup has what appeared to be a harelip deformity or a nose as prominent as his. Given that he was the only one with an upper lift deformity in the lineup, he claimed that the victim naturally was induced to select him as the perpetrator. It should also be noted that Ms. Mohon testified that, without anyone having advised her of the identity of the defendant, she immediately recognized him in the courtroom before the proceedings commenced on the motion to suppress. She stated she was "300%" sure that the defendant was her assailant. At the conclusion of the hearing on the motion to suppress, the trial judge denied the motion.
At the trial on the merits, additional details were revealed that bear on the reliability of Ms. Mohon's identification of the defendant. When the individual inquired about his supposed refund check, she asked for his Social Security number so she could locate him in the computer system and to determine the status of the refund check. Ms. Mohon spent about ten minutes talking to him while she tried, in vain, to find information under the false name. While Ms. Mohon had her back turned to him while using the main computer, the individual asked if he could use the telephone to call his mother to get his Social Security number. He then approached Ms. Mohon from behind, wrapped a telephone cord around her neck, and whispered that he was going to rape and kill her. Ms. Mohon grabbed the cord and struggled with defendant, who then tried to stab her with a pair of scissors he grabbed from a nearby workstation. They continued to fight each other after falling to the floor. During the struggle, Ms. Mohon and the assailant were so close that at one point they even touched face-to-face. She was able to get a good look at him in the well-lit office. Ms. Mohon denied any vision problems and positively identified defendant in court as the person she struggled with that night.
During the incident, the attacker straddled Ms. Mohon, ripper her earrings out of her ears, and tried to pull her wedding ring from her hand. She continued to resist and eventually managed to take the scissors away from him. Ms. Mohon's spirited resistance ultimately forced her assailant to flee from the scene. As he fled, he grabbed her keys, which were in the office door lock.
In the course of the ensuing police investigation, Ms. Mohon assisted in composing a computer-assisted composite sketch of her assailant. She explained that she was asked to pick different features from possible alternatives shown in a book to get as close to the image of her attack as possible. She was unable to refine the composite image as precisely as she would have liked because she could not locate picture components featuring a harelip-type defect, the particular hairstyle she recalled, and a nose as broad as she recollected. She indicated to the police at that time that she was "100 percent sure" that the defendant had an upper lip deformity. She also described the assailant as being sixteen to twenty years old, approximately 160 pounds, a bit taller than herself, and wearing a maroon shirt, dark pants, and a visor.
When shown the second photographic lineup containing a picture of defendant, Ms. Mohon immediately picked defendant out of the six-image array as the man who attacked her. Because she could see only his face and not his full body from the photograph, she indicated that she was "98 percent" certain of that identification and would like to see the suspect in person to be "100 percent positive." Admittedly, all six of the persons in the photo array did not have upper lip deformities. Sergeant Chad Wilkes testified that the police probably could have managed to assemble a photographic lineup composed only of persons with harelip deformities and broad noses. When Ms. Mohon finally saw defendant in person in the courtroom at the hearing on the motion, she positively identified him as her attacker.
Claim One: Trial Court erred or abused its discretion when it denied motion to suppress identification.
Petitioner argues that because none of the persons depicted in the second photographic lineup with a harelip and a wide nose, the identification was unfair and in violation of his 14th amendment right to due process.A defendant attempting to suppress an identification must prove the identification was suggestive, and that there was a likelihood of misidentification as a result of the identification procedure. State v. Johnson, 2000-0680, 775 So.2d 670, 677 (La.App. 1 Cir. 12/22/00), citing State v. Reed, 97-812, p. 4-5 (La.App. 1 Cir. 4/8/98), 712 So.2d 572, 576. An identification procedure is suggestive if it unduly focuses a witness's attention on the suspect. Johnson, 775 So.2d at 677. Strict identity of physical characteristics among the persons depicted in a photographic array is not required; however, there must be sufficient resemblance to reasonably test the identification. Id. The question for a reviewing court is to determine whether the procedure is so conducive to irreparable misidentification that due process was denied. Id., citing State v. Bright, 98-0398, p. 10 (La. 4/11/00), 776 So.2d 1134, 1141.
The First Circuit Court considered this standard when it found that the photo array was not impermissibly suggestive. That court reasoned:
All of the subjects included in the array are black males of similar complexion and age. At least four of the men depicted, in addition to defendant, have very wide noses. The lip deformity described by the victim is not prominently featured in defendant's photograph. Indeed, had we not known that the victim described defendant as having an upper lip deformity, we would not have independently singled out that facial feature in defendant's photograph. There is no evidence suggesting that the police in any way directed the victim's attention to defendant's photograph or to the lip deformity depicted. Rather, the victim testified that as soon as she looked at the array, she immediately and without prompting recognized defendant as her assailant. In our view, defendant has failed to establish that the photo array in question was impermissibly suggestive or that the other individuals displayed did not bear a sufficient overall resemblance to the description of the perpetrator to test victim's identification.
At this point the court added the following footnote: "If the upper lip deformity exhibited in the photograph was the result of a congenital cleft lip deformity, the original deformity must have been surgically repaired, as the visible deformity resembles a scar rather than an actual cleft. The victim's attention to that particular feature was evidently due to her proximity to defendant's face during her struggle with him, and not due to any distinctive character or overwhelming prominence."
The Court finds that this conclusion by the First Circuit Court of Appeal is not an unreasonable application of clearly established federal law as determined by the Supreme Court. The lineup is not in the record, so the Court cannot make its own assessment.
Moreover, even if the photo lineup were suggestive, this alone would not indicate a violation of Petitioner's right to due process. "It is the likelihood of misidentification that violates due process, not merely the suggestive identification procedure." State v. Johnson, 775 So.2d at 677. The following factors are considered in determining the likelihood of misidentification; (1) the witness's opportunity to view the defendant at the time the crime was committed; (2) the degree of attention payed by the witness during the commission of the crime; (3) the accuracy of any prior description; (4) the level of the witness's certainty displayed at the time of identification; and (5) the length of time elapsed between the crime and the identification. Manson v. Brathwaite, 432 U.S. 98, 114 (1977).
The state appeals court also considered these factors and found that, even if the identification were somehow suggestive, Petitioner has failed to prove a likelihood of misidentification. The court found:
The record confirms that, during the robbery and immediately prior thereto, the victim had an opportunity to look directly into the face of her assailant in a well-lit business establishment. After the offense, she gave the police a detailed description of the defendant and assisted in the generation of a composite sketch of the perpetrator that bore a strong resemblance to the defendant. It is clear from her testimony at trial that she paid remarkably close attention to detail. When Ms. Mohon viewed an initial photographic array, she told officers with confidence that defendant was no in that display. However, when later shown the array at issue, she immediately pointed to defendant as the perpetrator. Both at the motion hearing and at trial, Ms. Mohon confidently identified defendant in open court. In view of these facts, we are satisfied that the out-of-court identification was clearly reliable and the in-court identification was also admissible, having had an independent basis. The identification procedures used in this case did not deprive defendant of due process, and the trial judge did not abuse his discretion in denying defendant's motion to suppress.
This Court finds that the appeals court did not apply Manson unreasonably. In view of the facts, the out-of-court identification was reliable. Accordingly, Petitioner's first assignment of error is without merit.
Claim Two: Excessive Sentence
Petitioner also asserts that he first-time offender and "25 years is harsh, cruel and excessive for an 18 year old." (Rec. doc. 1, memorandum p. 6). In his brief before the state appellate court he further asserted that he did not bring a weapon into the store and he did not harm anyone. Petitioner's motion to Reconsider the sentence was denied on October 30, 2002.
Petitioner was sentenced to 25 years to run concurrently with a prior conviction for simple burglary. The sentence is pursuant La.R.S. 14:64, which provides a sentencing range of not less than ten years and not more than 99 years for a conviction of armed robbery. At sentencing, the trial court noted that Petitioner did not have a prior record of violent offenses, but also that the physical attack on the victim, together with the threats he made over the telephone, justified the sentence. (State rec. vol. 3 of 3, p. 361).
"A punishment is constitutionally excessive if it makes no measurable contribution to acceptable goals of punishment and is nothing more than the purposeless imposition of pain and suffering and is grossly out of proportion to the severity of the crime." State v. Weaver, 805 So.2d 166, 174 (La. 2002). In Rummel v. Estelle, 445 U.S. 263, 100 S. Ct. 1133, 63 L.Ed. 2d 382 (1980), the Supreme Court upheld a life sentence for a person convicted of three non-violent crimes, specifically, passing a forged check, fraudulent use of a credit card, and obtaining money by false pretenses. The Supreme Court has more recently upheld, for example, statutes mandating strict sentencing guidelines in the cases of multiple offenders. See Lockyer v. Andrade, 538 U.S. 63 (2003) (upholding California's "three-strikes" law). Moreover, Louisiana courts have held that similar sentences for armed robbery were not excessive. See, e.g., State v. Smith, 886 So.2d 1186 (La.App. 2 Cir. 10/27/04) (25 year term for armed robbery conviction not excessive even though defendant had no prior felony conviction); State v. Watson, 89-KA-2280, 575 So.2d 411 (La.App. 4 Cir. 1/31/91) (50 year sentence for armed robbery conviction not excessive as it was approximately one half of maximum and defendant had a prior conviction for armed robbery); State v. Guillory, CR 88-687, 544 So.2d 643 (La.App. 3 Cir. 5/24/89) (Sentence of 45 years not excessive for armed robbery conviction where defendant, who was young and had no prior felony convictions, played role of getaway driver in robbery resulting in serious injury to victim).
When compared to punishments upheld in similar cases, and given the limitations on this Court's review of the state court's determination, the term does not appear to be unconstitutionally excessive. As such, the sentence imposed by the trial court did not violate clearly established Federal law, as determined by the Supreme Court of the United States. Applying the AEDPA's deferential standard, this Court rejects Petitioner's claim that the trial court imposed a constitutionally excessive sentence. This claim is therefore without merit.
Accordingly,
IT IS ORDERED that Joe Davis's petition for habeas corpus is DENIED WITH PREJUDICE.