Case Information
*1 Before: BOGGS, ROGERS, and STRANCH, Circuit Judges.
BOGGS, Circuit Judge. Before us is Cecil Howard’s appeal of the district court’s denial of his petition for writ of habeas corpus. Howard was indicted under Ohio law for attempted murder and aggravated robbery, both with a firearm specification, as well as for having a weapon while under disability. All three indictments arose from the two-man robbery of a convenience store in Springfield, Ohio, during the summer of 2002.
At Howard’s trial, Donald Little, a store employee, testified about a pretrial identification of Howard that he made from a police photo array. Little also made an in-court identification of Howard. During both the pretrial and in-court identifications, Little identified Howard as the same man that he saw a few blocks away from the scene of the crime shortly after the robbery was committed. Howard objected to the introduction of this identification, arguing that it was unreliable. The trial court overruled Howard’s objection, and he was subsequently convicted of all three charges. On direct appeal, Howard argued that, due to the motives, biases, and personal knowledge of Little and his wife, the photo lineup resulting in Little’s identification was unduly suggestive and also unreliable. Accordingly, Howard asserted that introduction of the identification at trial violated his Fifth and Fourteenth Amendment rights to due process, a claim the Ohio Court of Appeals rejected. The Ohio Supreme Court refused to review Howard’s undue-suggestiveness claim.
Howard then filed a petition for writ of habeas corpus in the United States District Court for
the Southern District of Ohio, pressing,
inter alia
, his undue-suggestiveness claim. A magistrate
judge issued a report and recommendation (R&R) stating that Howard’s petition should be granted,
but only as to his undue-suggestiveness claim. The district court, however, relying on
Perry v. New
Hampshire
,
I
A Howard’s convictions arose out of the June 22, 2002 robbery of a Beverage Oasis convenience store located in Springfield, Ohio. When two men wearing ski masks entered the store, most of the employees, including Donald Little, fled and flagged down a passing SUV. Clifford Conley, the owner of the store, remained and exchanged shots with the two robbers, injuring one and eventually scaring away both. Meanwhile, the driver of the SUV, fearing pursuit by one of the robbers, transported the fleeing employees several blocks away from the store and then stopped to dial 911 using his cell phone. While the SUV was stopped, a maroon car pulled up next to the SUV, and a passenger in the back seat rolled down his window, grinned at Little, who was standing on the side of the street, and then told the driver to “go.”
In late 2003, Howard was arrested for the robbery. He was indicted on December 3, 2003, for attempted murder, in violation of Ohio Rev. Code §§ 2923.02 and 2903.02, and aggravated robbery, in violation of Ohio Rev. Code § 2911.01, both with a firearm specification, as well as for having a weapon while under disability, in violation of Ohio Rev. Code § 2923.13. In November 2003 and again in May 2004, Little’s wife, Debra, contacted Officer Darwin Hicks, who had been assigned to investigate the robbery, and told him that Little could identify one of the “shooters.” Debra had been in frequent contact with the police, as they were also investigating the murder of her brother and had recently informed her that Howard was likely involved. Soon after Debra’s second call to the police, Little confirmed that he could make an identification, but only of a man in a car near the scene of the crime, not of a “shooter.” Based on this information, Hicks asked Little to participate in a photo lineup. At the lineup, Little immediately identified Howard as the individual that he saw in the maroon car shortly after the robbery.
Before trial, Howard moved to suppress Little’s identification, arguing that it was unreliable. Specifically, Howard argued that Little only had a few seconds to observe the man in the maroon car, that it was dark, that nearly two years had elapsed between the robbery and the identification, that there had been widespread media coverage of Howard’s arrest for the robbery, and that the identification was tainted by Little’s knowledge that Howard may have been involved with the murder of Little’s brother-in-law.
After a suppression hearing, the state trial court denied the motion and allowed Little to testify at trial about his pretrial identification of Howard. The trial court found that the photo array contained six persons of similar appearance, that Little had demonstrated excellent recall skills, that Little did not appear to have knowledge of any news coverage of the investigation, and that claims of improper motive were not supported by the suppression-hearing testimony. Finally, although Howard did not appear to press the argument that the procedures used during the identification were unduly suggestive, the trial court found that the circumstances of the lineup were not suggestive as to whom Little should identify and that Little’s identification was made independently without any influence from Officer Hicks.
On June 4, 2004, Little was convicted of all three counts relating to the convenience-store robbery and sentenced to 25 years of imprisonment. Howard appealed to the Ohio Court of Appeals, alleging, inter alia , that he was denied his Fourteenth Amendment right to due process when the trial court failed to suppress the results of an unduly suggestive and unreliable photo lineup.
The Ohio Court of Appeals affirmed the judgment of the trial court. It began by summarizing
the United States Supreme Court’s two-part test for undue suggestiveness, stating that “[t]o warrant
suppression of identification testimony, the accused bears the burden of showing [(1)] that the
identification procedure was ‘so impermissibly suggestive as to give rise to a very substantial
likelihood of irreparable misidentification’ and [(2)] that the identification itself was unreliable under
the totality of the circumstances.”
State v. Howard
, No. 2004CA29,
Operating under this framework, the Ohio Court of Appeals found that the identification was
not unduly suggestive and thus did not meet part one of the undue-suggestiveness test. The court
dismissed Howard’s claim that the photo array was suggestive because he was the only person with
cropped hair, a mole, a wide mustache, sunken eyes, and a strip of hair running from his lower lip
to his chin, noting that the suspects used in a photo array need not be exactly alike. Finding that the
suspects were all similar in appearance, build, and complexion and that each had substantially
similar facial hair, the Ohio Court of Appeals found nothing unduly suggestive about the photo array.
Howard
,
The court also analyzed part two of the undue-suggestiveness test, additionally holding that the identification itself was reliable. The court based this finding on the fact that Little was only four or five feet from the maroon car, that he could see the car well, that he had enough time to observe the passenger inside the car, and that his subsequent identification at the photo lineup was immediate. The court was concerned that nearly two years had passed between the robbery and Little’s identification but was reassured by Little’s certainty during his identification and the lack of evidence that intervening events had affected Little’s memory. Id. at*4–5.
Howard next appealed to the Ohio Supreme Court, which remanded his case for re- sentencing but declined to address his undue-suggestiveness claim. After re-sentencing, Howard appealed his new sentence, and the Ohio Court of Appeals affirmed. The Ohio Supreme Court then denied Howard’s application for leave to appeal. Finally, Howard sought collateral review of his conviction on grounds unrelated to his undue-suggestiveness claim, which was denied.
B
Howard next filed a petition for writ of habeas corpus in the United States District Court for the Southern District of Ohio. Howard’s final amended petition put forward five grounds for relief, reasserting as ground one Howard’s undue-suggestiveness claim. Specifically, Howard alleged that “[t]he lower court violated [his] right to due process when it overruled the motion to suppress unreliable identification testimony, in violation of the Fifth and Fourteenth Amendments to the United States Constitution and Section 16, Article I, of the Ohio Constitution.”
A magistrate judge issued his R&R on November 9, 2011, which recommended conditionally granting Howard’s petition with respect to ground one and denying all other grounds for relief. The R&R deferred to the Ohio Court of Appeals’s finding “that the differences in physical appearance among the suspects—by themselves—are not so significant to be deemed unduly suggestive.” Nonetheless, it found that the Court of Appeals’s decision “was based on an unreasonable determination of the facts because [it] ignored important evidence [concerning] the highly suggestive manner in which the police learned that Little could identify one of the robbers.” More specifically, the R&R listed the following facts that it felt the Ohio Court of Appeals failed to consider:
(1) Debra Little, not Donald Little, was the one who informed the police that her husband could identify one of the robbers, almost one and a half years after the robbery; (2) Debra Little specifically told the police that Howard was involved in the Oasis robbery and her husband could identify one of the shooters ; (3) Debra Little potentially had an improper motive in assisting with Howard’s conviction because Howard had been a suspect in her brother’s murder; (4) although Officer Hicks testified that he did not learn that Little could identify one of the robbers until a few days before he presented the photo array, the police department, in fact, received that information months earlier, in November 2003; (5) Little testified that when the photo array was presented to him, he already knew that Howard had been charged with robbery; and (6) Little testified that he never provided Officer Hicks with a description of Howard.
(citations omitted). The R&R asserted that, based on the aforementioned facts, “the pretrial photographic identification was unduly suggestive.”
The R&R went on to hold that the photo identification was also unreliable under a totality of the circumstances, as required by part two of the undue-suggestiveness framework, and also held that its admission was not harmless error. Thus, the R&R recommended granting Howard’s habeas petition as to ground one, but denying the petition as to all other grounds for relief. The State objected to the magistrate judge’s recommendation on ground one, arguing that a determination of undue suggestiveness should turn only on whether law-enforcement authorities acted to influence the eyewitness, not on the motives, biases, and personal knowledge of third parties.
After the magistrate judge issued the R&R, the Supreme Court decided
Perry
, which clarified
that the due-process concerns on which the undue-suggestiveness framework is based arise only
when an identification is “infected by improper
police
influence.”
Based on this ruling, the district court, after restating the two-part test for undue
suggestiveness, sustained the State’s objection to the R&R. The district judge found that, in ,
“the Supreme Court [had] clarified that ‘what triggers due process concerns is
police use
of an
unnecessarily suggestive identification procedure,’”
Howard v. Warden
, No. 3:08-cv-424, 2012 WL
395186, at *5 (S.D. Ohio Feb. 7, 2012) (quoting ,
The court also emphasized that while these factors might be considered when determining whether an identification was reliable , an inquiry into reliability constituted part two of the undue- suggestiveness test, which should only be undertaken if undue suggestiveness is demonstrated in part one. Thus, the court explained that while Little’s motive, his personal knowledge, and other potential defects in his story might impact the weight one ultimately afforded his identification, these factors would not affect a determination of whether the setting in which that identification was made was unduly suggestive. [1]
The district court therefore declined to adopt the R&R as to ground one and denied that ground for relief, adopted the R&R as to grounds two through five and denied those grounds for relief, and dismissed Howard’s petition for writ of habeas corpus in its entirety. In addition, since the district court and magistrate judge disagreed as to ground one, the district court granted a certificate of appealability only with regard to that ground for relief. Howard now appeals the district court’s denial of ground one of his petition, i.e., his undue-suggestiveness claim.
II
A When assessing a district court’s decision to grant or deny a habeas petition, we review its “legal conclusions de novo and its factual determinations for clear error,” McKinney v. Ludwick , 649 F.3d 484, 487 (6th Cir. 2011), mindful that the more deferential standard of the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254(d), applies to the reasoning of the underlying state-court opinion.
As this circuit has made clear, if a state court issues a ruling on the merits of a habeas claim,
a federal district court “may only grant habeas relief [if it finds] that the [state] court’s decision was
‘contrary to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States’ or ‘was based on an unreasonable
determination of the facts in light of the evidence that was presented in the State court proceeding.’”
Peak v. Webb
,
The Supreme Court has recently emphasized, and this court has reiterated, that the level of
review permitted by AEDPA is narrower than even the plain language of that statute might suggest.
Harrington v. Richter
, 131 S. Ct. 770, 786 (2011);
Peak
, 673 F.3d at 472. “A state court’s
determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists
could disagree on the correctness of the state court’s decision.”
Harrington
,
B
Over the past fifty years, the Supreme Court has developed a two-part test for determining
whether the evidence gathered from an eyewitness identification must be excluded from trial due to
the unduly suggestive nature of the identification procedure. To start, the Supreme Court has always
embraced the baseline rule that “[t]he Constitution . . . protects a defendant against a conviction
based on evidence of questionable reliability, not by prohibiting introduction of the evidence, but by
affording the defendant means to persuade the jury that the evidence should be discounted as
unworthy of credit.”
Perry
,
Nevertheless, “the Supreme Court has carved out a narrow exception from this general rule
for eyewitness identifications.”
United States v. Washam
,
The two-part test outlined above proceeds in a linear fashion. When determining whether
to suppress an eyewitness identification, a court should not consider the reliability of eyewitness
evidence, i.e., engage in part two of the test, unless the defendant satisfies the requirements of part
one by proving that the police employed an unduly suggestive identification procedure.
See Perry
,
Finally, the Supreme Court ruling in
Perry
clarified that “[t]he due process check for
reliability . . . comes into play only after the defendant establishes improper
police
conduct.” ,
C
Moving to the instant case, we find, and no party contests, that the Ohio Court of Appeals ruled on the merits of Howard’s undue-suggestiveness claim. Thus, we apply the deferential standard of review prescribed by AEDPA § 2254(d) when reviewing that court’s decision, asking only whether the Ohio Court of Appeals’s ruling was contrary to, or involved an unreasonable application of, clearly established federal law or was based on an unreasonable determination of the facts in light of the evidence presented in the state court.
1
Howard first alleges that the design of the photo array itself was unduly suggestive, arguing
that differences in the photos presented influenced Little to select the photo of Howard. The Ohio
Court of Appeals, when engaging in part one of the undue-suggestiveness analysis, focused only on
these arguments, finding that “all the suspects [in the photo array] were similar in appearance and
build” and had a complexion similar to Howard’s.
Howard
,
On appeal, Howard simply reiterates the claims he made before the Ohio court that “his picture sticks out” because he “is the only person who has prominent facial hair and his picture appears larger than the others.” Appellant Br. at 27. He provides no new argument as to why the Ohio Court of Appeals’s factual findings were unreasonable in light of the evidence that was presented in the State court proceeding, nor does he explain why it was an unreasonable application of clearly established federal law to rely on those facts and hold that the photo array itself was not unduly suggestive. He also makes no effort to explain why the decision of the magistrate judge and district court to credit those same facts was clear error. Thus, Howard’s conclusory statements clearly do not meet his burden of showing that the Ohio Court of Appeals made an unreasonable determination of the facts.
2
The bulk of Howard’s argument on appeal is not focused on the photo array itself, but rather on the Ohio Court of Appeals’s failure to consider certain extrinsic factors in determining whether the procedure used to obtain Little’s identification was unduly suggestive. Howard’s brief discusses at length the facts that Little and his wife, Debra, believed Howard to be responsible for the death of Debra’s brother and that Debra was the one to inform the police that Little could identify a “shooter.” Appellant Br. at 27. Howard’s brief also focuses on local newspaper and television coverage of the Beverage Oasis robbery, which allegedly displayed Howard’s picture and stated that he had been arrested in connection with the robbery. Id . at 28. These facts, in Howard’s view, indicate, at the least, that Little was in some way predisposed to identify Howard due to information that he had read about the Beverage Oasis crime and, at the worst, that he intentionally planned to identify Howard in order to avenge his brother-in-law’s death. Id . at 27–28.
Based on this theory, Howard argues that the police engaged in misconduct sufficient to render the photo array unduly suggestive when, “aware of this animus and motive of revenge, [they] develop[ed] a lineup that include[d] the Appellant.” Id . at 27. Essentially, Howard asserts that when police know that an eyewitness is personally biased or otherwise unreliable, any identification procedure that the police later arrange with that eyewitness must be excluded as unduly suggestive. According to Howard, “knowing these motives and relationships imposes upon the police [a duty] to corroborate this information before basing their entire case upon a single identification.” Ibid .
The Supreme Court, however, expressly rejected this argument in
Perry
when it made clear
that the general reliability of an identification is not a reason to exclude it unless the procedure used
to procure the identification is first proven to be unduly suggestive due to police misconduct. In fact,
the defendant in
Perry
put forward an argument almost identical to the one Howard now presses,
asserting that all identifications made under suggestive circumstances, regardless of who arranged
those circumstances, should be subjected to pretrial assessment for reliability. ,
Perry’s limitation would . . . involve trial courts, routinely, in preliminary examinations. Most eyewitness identifications involve some element of suggestion. Indeed, all in-court identifications do. Out-of-court identifications volunteered by witnesses are also likely to involve suggestive circumstances. For example, suppose a witness identifies the defendant to police officers after seeing a photograph of the defendant in the press captioned “theft suspect,” or hearing a radio report implicating the defendant in the crime. Or suppose the witness knew that the defendant ran with the wrong crowd and saw him on the day and in the vicinity of the crime. Any of these circumstances might have “suggested” to the witness that the defendant was the person the witness observed committing the crime.
Id . at 727–28 (emphasis added). The Supreme Court rejected this vision of the courts’ role and instead clearly held that “[t]he due process check for reliability . . . comes into play only after the defendant establishes improper police conduct.” Id . at 726 (emphasis added). Especially noteworthy is the Supreme Court’s express statement that the two alleged defects on which Howard now relies—an eyewitness’s reading about a defendant in the press or having preconceived notions about a defendant’s criminal background—do not make an identification procedure unduly suggestive.
Because Perry makes clear that courts should not consider the extrinsic factors of which Howard complains during step one of the undue-suggestiveness analysis, the Ohio Court of Appeals did not engage in an unreasonable application of clearly established federal law when it refused to account for these factors in determining whether the procedure used during Little’s identification was unduly suggestive. And since the Ohio Court of Appeals, when properly considering only the actions of the police and the design of photo array itself, reasonably determined that there was no undue suggestiveness, as discussed supra at pp. 12–14, Howard’s failure to satisfy step one ends the inquiry. [2]
In closing, we recognize the Supreme Court’s holding in
Williams
,
of what was already implicit in earlier decisions.
See Perry
,
To the extent Perry is new law, it simply demonstrates that, prior to its filing, there was at least some dispute as to whether step one of the undue-suggestiveness analysis should account only for actions of the police or also for those of third parties. Thus, before , fairminded jurists could and did disagree on whether suggestive circumstances not caused by the police could be considered during step one of the undue-suggestiveness analysis, confirming that the Ohio Court of Appeals’s decision satisfied the deferential AEDPA standard. And finally, it seems clear that the purpose of the Williams rule, rooted in the twin goals of “comity and finality,” Williams, 529 U.S. at 381, is to prevent a federal court from second-guessing a state court in hindsight through the use of rules the benefit of which the state court did not have. In this case, Perry is being used not to question, but rather to affirm, the Ohio Court of Appeals’s interpretation of the undue-suggestiveness framework.
In sum, the Ohio Court of Appeals’s decision not to include the Littles’ potentially improper motives and biased personal knowledge in its assessment of whether Little had participated in an unduly suggestive identification was not only a reasonable application of clearly established federal law—it was the application on which the Supreme Court itself later settled. Thus, Howard’s undue- suggestiveness claim fails under the deferential AEDPA standard and, indeed, would fail even under de novo review.
III
For the aforementioned reasons, we AFFIRM the judgment of the district court.
Notes
[1] The district court ended its inquiry there, stating that “[b]ecause the state courts’
determination that the lineup was not unduly suggestive was reasonable, this Court need not consider
the second step of the two-part [undue-suggestiveness] test.”
Howard
,
[2] While the Ohio Court of Appeals went on to hold that the identification was also reliable in and of itself and that even if not, its admission was harmless error, those holdings were not necessary for it to dispense with Howard’s claim, and we need not review them here.