UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

TONY WALLACE,

Petitioner, 

v.

STEVE RIVARD,

Respondent. 

 /

Case Number: 14-14535

HON. AVERN COHN

MEMORANDUM AND ORDER 

DENYING PETITION FOR WRIT OF HABEAS CORPUS

AND DENYING A CERTIFICATE OF APPEALABILITY

I. Introduction

This is a habeas case under 28 U.S.C. § 2254. Petitioner Tony Wallace

(Petitioner) is a state inmate at the Chippewa Correctional Facility in Kincheloe,

Michigan. Petitioner filed a pro se petition for a writ of habeas corpus challenging the

sentences imposed for his convictions for second-degree murder, M.C.L. § 750.317,

assault with intent to do great bodily harm less than murder, M.C.L. § 750.84, felonious

assault, M.C.L. § 750.82, and felony firearm, M.C.L. § 750.227b. Respondent, through

the Attorney General’s office, filed a response, arguing that one of Petitioner’s claims is

partially procedurally defaulted, and that all of his claims are without merit. For the

reasons which follow, the petition will be denied. 

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II. Background

A. Facts

The Michigan Court of Appeals summarized the evidence presented at trial: 

The case arose out of a shooting on June 17, 2011. While walking down

the street, Linsay Pitman was approached by a vehicle driven by Angela

Carson. Pitman got into the car, and Carson drove to an apartment

building owned by Roosevelt Ward and parked across the street from the

apartment. Ward approached the car on the driver’s side and engaged

the women in conversation. Soon after, a man, identified as defendant

Tony Wallace, ran toward the car and began shooting a handgun. Ward

was severely/seriously injured, and Carson was killed. Ward was unable

to identify the gunman, and immediately after the event, Pitman told police

that she also was unable to identify him. However, Pitman subsequently

testified that she did recognize the gunman as defendant, from whom she

regularly purchased drugs. She spoke with defendant after the shooting

on a couple of occasions. One of the times he said, “Snitches end up in

ditches.” The next time he asked her, “how does a lamb lye [sic]” and

then stated, “They’re only lying when they’re dead.”

On July 28, 2011, Pitman went to the police and informed Officer Karen

Miller that defendant was the shooter. Police then prepared three photo

arrays for Pitman. The first two arrays did not have defendant’s picture,

but the third one did. Pitman picked defendant out of the third array. 

Defendant filed a pretrial motion challenging the admissibility of the photo

lineup identification, and the trial court held an evidentiary hearing. Officer

Miller, who conducted the third photo array,[] testified at the hearing, and

acknowledged that she had to shake Pitman in an effort to wake her up

during the interview. Pitman, who was in custody on unrelated charges,

did not appear at the hearing despite defense counsel’s request that

Pitman be produced, so that counsel could cross-examine her and

establish that at the time she made her identification of defendant, she

was high on drugs. However, after hearing Officer Miller’s testimony and

viewing the photo array the trial court eventually denied the request to

produce Pitman, stating that the photo array [was] extremely fair. The trial

court found that the lineup was not impermissibly suggestive, that plaintiff

did not have to establish an independent basis for the identification at trial,

and that the question regarding the credibility of Pitman’s identification of

defendant was for the trier of fact.

At trial, Pitman identified defendant in court as the shooter. Pitman

testified that, while she was high at the time of the shooting, she had seen

defendant over 100 times before at a particular dope house and had

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known him for approximately six months. She admitted using crack

cocaine and heroin and that she had bought drugs from defendant. 

Pitman also testified that she did not identify defendant as the shooter on

the night of the incident because he was her drug source and she did not

want him to go to jail.

People v. Wallace, No. 310442, 2013 WL 4525881, *1-2 (Mich. Ct. App. Aug. 27, 2013). 

B. Procedural History

Petitioner was convicted by a jury in Wayne County Circuit Court of seconddegree murder, assault with intent to do great bodily harm less than murder, assault

with a dangerous weapon, and possession of a firearm during the commission of a

felony. He was later sentenced to 31 years, 3 months to 50 years for second-degree

murder, 6 years, 8 months to 10 years for assault with intent to do great bodily harm

less than murder, and 2 to 4 years for assault with a dangerous weapon, all to be

served concurrently with one another and consecutively to 2 years for the felony-firearm

conviction. 

Petitioner filed an appeal of right in the Michigan Court of Appeals. He raised

these claims: (i) right of confrontation violated at pretrial evidentiary hearing; and (ii)

denied right to present a defense. The Michigan Court of Appeals affirmed Petitioner’s

convictions. Wallace, 2013 WL 4525881. Petitioner filed an application for leave to

appeal to the Michigan Supreme Court, rasing the same claims raised in the Michigan

Court of Appeals. The Michigan Supreme Court denied leave to appeal. People v.

Wallace, 843 N.W.2d 191 (Mich. 2014). 

Petitioner then filed the pending habeas petition. He raises these claims:

I. Trial court violated due process of law with abuse of discretion at

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evidentiary hearing.

II. Trial court abused discretion on ruling with “complete defense;” counsel

admitted ineffectiveness

III. Standard of Review

An application for a writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a State court shall not be granted with respect to any

claim that was adjudicated on the merits in State court proceedings unless the

adjudication of the claim –

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented

in the State court proceedings. 

28 U.S.C. § 2254(d).

“A state court’s decision is ‘contrary to’ . . . clearly established law if it ‘applies a

rule that contradicts the governing law set forth in [Supreme Court cases]’ or if it

‘confronts a set of facts that are materially indistinguishable from a decision of [the

Supreme] Court and nevertheless arrives at a result different from [this] precedent.’”

Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam), quoting Williams v. Taylor,

529 U.S. 362, 405-06 (2000). “[T]he ‘unreasonable application’ prong of the statute

permits a federal habeas court to ‘grant the writ if the state court identifies the correct

governing legal principle from [the Supreme] Court but unreasonably applies that

principle to the facts’ of petitioner’s case.” Wiggins v. Smith, 539 U.S. 510, 520 (2003),

quoting Williams, 529 U.S. at 413. However, “[i]n order for a federal court to find a state

court’s application of [Supreme Court] precedent ‘unreasonable,’ the state court’s

decision must have been more than incorrect or erroneous. The state court’s

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application must have been ‘objectively unreasonable.’” Wiggins, 539 U.S. at 520-21

(citations omitted); see also Williams, 529 U.S. at 409. “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 v. Richter,

562 U.S. 86, 101 (2011), quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). 

“Section 2254(d) reflects the view that habeas corpus is a guard against extreme

malfunctions in the state criminal justice systems, not a substitute for ordinary error

correction through appeal. . . . As a condition for obtaining habeas corpus from a federal

court, a state prisoner must show that the state court’s ruling on the claim being

presented in federal court was so lacking in justification that there was an error well

understood and comprehended in existing law beyond any possibility for fairminded

disagreement.” Id. at 102-03 (internal quotation omitted).

Section 2254(d)(1) limits a federal habeas court’s review to a determination of

whether the state court’s decision comports with clearly established federal law as

determined by the Supreme Court at the time the state court renders its decision. See

Williams, 529 U.S. at 412. Section 2254(d) “does not require citation of [Supreme

Court] cases–indeed, it does not even require awareness of [Supreme Court] cases, so

long as neither the reasoning nor the result of the state-court decision contradicts them.” 

Early v. Packer, 537 U.S. 3, 8 (2002). “[W]hile the principles of “clearly established law”

are to be determined solely by resort to Supreme Court rulings, the decisions of lower

federal courts may be instructive in assessing the reasonableness of a state court’s

resolution of an issue.” Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007) citing

Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir. 2003); Dickens v. Jones, 203 F.

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Supp. 2d 354, 359 (E.D. Mich. 2002)).

Lastly, a federal habeas court must presume the correctness of state court

factual determinations. See 28 U.S.C. § 2254(e)(1). A petitioner may rebut this

presumption only with clear and convincing evidence. Warren v. Smith, 161 F.3d 358,

360-61 (6th Cir. 1998).

IV. Discussion

A. Identification-Related Claims

1.

Petitioner raises two claims related to the pre-trial identification procedure. First,

he claims that the pretrial identification procedure was unduly suggestive. Second, he

claims that he was denied his right of confrontation when the witness whose

identification was at issue was not called to testify at the Wade1 hearing. 

Due process requires suppression of eyewitness identification evidence “when

law enforcement officers use an identification procedure that is both suggestive and

unnecessary.” Perry v. New Hampshire, — U.S. —, 132 S. Ct. 716, 718 (2012). A

pretrial identification violates due process where: (1) the identification procedure is

impermissibly suggestive; and (2) the suggestive procedure gives rise to a very

substantial likelihood of misidentification. Neil v. Biggers, 409 U.S. 188, 197-98 (1972);

Manson v. Brathwaite, 432 U.S. 98, 114 (1977) (due process challenges to identification

procedures are reviewed using Biggers’ test). But the Supreme Court has held that

1

 See United States v. Wade, 388 U.S. 218 (1967). Petitioner filed a pretrial

motion challenging the admissibility of the photo lineup identification. The trial court

held an evidentiary hearing, commonly known as a Wade hearing, and concluded that

the line up was not impermissibly suggestive.

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suppression of the tainted identification is not necessarily the inevitable consequence. 

Brathwaite, 432 U.S. at 112-113. Instead, the Court has held that determining whether

to suppress the identification should be done on a case-by-case basis. Id. at 116; see

also Biggers, 409 U.S. at 201.

The danger is that an initial improper identification procedure will result in

misidentification and will unduly influence later investigation. U.S. v. Wade, 388 U.S.

218, 229 (1967). “[T]he dangers for the suspect are particularly grave when the

witness’ opportunity for observation was insubstantial, and thus his susceptibility to

suggestion is the greatest.” Id. Therefore, “reliability is the linchpin in determining the

admissibility of identification testimony. Brathwaite, 432 U.S. at 114. A court must

undertake a two-step analysis to determine the validity of a pretrial identification. First,

the court must determine whether the procedure was unduly suggestive. If the court

finds that the procedure was unduly suggestive, the court must then “evaluate the

totality of the circumstances to determine whether the identification was nevertheless

reliable.” Ledbetter v. Edwards, 35 F.3d 1062, 1070 (6th Cir. 1994). 

2.

The Michigan Court of Appeals (the last state court to issue a reasoned opinion

regarding this claim) held that the identification procedure was not impermissibly

suggestive stating, in relevant part:

Generally, a photo array is not suggestive if it contains some photographs

that are fairly representative of the defendant's physical features, and

thus, are sufficient to reasonably test the identification. Kurylczyk, 443

Mich. at 304. If a witness has exposure to an impermissibly suggestive

pretrial lineup or showup, that witness may not make an in-court

identification of the defendant unless the prosecutor shows by clear and

convincing evidence that the in-court identification has a sufficiently

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independent basis to purge the taint of the improper identification. ...“The

need to establish an independent basis for an in-court identification arises

[only] where the pretrial identification is tainted by improper procedure or

is unduly suggestive.” People v. Barclay, 208 Mich.App 670, 675; 528

N.W.2d 842 (1995).

In this case, the trial court heard the testimony of Officer Miller that she

prepared the third photo array, with defendant’s picture in it, based on the

facial characteristics of the suspect, which were described by Pitman, as

well as the approximate age of the suspect. Officer Miller testified that the

computer generated the photos based on this information, which included

that the suspect was a black male with short braids and facial hair. The

trial court observed the photo array, found it to be extremely fair, and

concluded that Pitman’s testimony was not necessary at the hearing and

would be evaluated instead by the trier of fact.

The trial court did not abuse its discretion in making this determination. 

The men chosen for the lineup look strikingly similar to defendant, and

there is nothing about defendant’s photo that makes it stand out more than

the others. ...

In summary, viewing the totality of the circumstances surrounding the

photographic lineup, we conclude that the trial court did not clearly err in

finding that the procedure followed by the officer in charge was not so

impermissibly suggestive that it gave rise to a very substantial likelihood of

irreparable misidentification. 

Wallace, 2013 WL 4525881 at *2-3. 

The Michigan Court of Appeals also held that, even if the pretrial procedure was

impermissibly suggestive, an independent basis existed for Pitman’s in-court

identification. Id. at 3-4. The state court relied on Pitman’s familiarity with Petitioner

(she had seen him approximately 100 times over a period of six months), her close

proximity to the shooter (approximately five feet), her description matched Petitioner’s

actual appearance, and she gave a viable explanation for waiting one month to provide

police with a description of the shooter (she feared she would lose access to drugs if

Petitioner were arrested because he was her supplier). Id. at *4. 

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3.

The Court concludes that the state court’s determination that the identification

procedure was not impermissibly suggestive was not contrary to or an unreasonable

application of Supreme Court precedent. Moreover, even assuming that the

identification procedure was impermissibly suggestive, Petitioner has failed to show the

identification was not reliable. Ultimately, the reliability of the in-court identification was

for the jury to decide. Perry, 132 S. Ct. at 729-30. 

4.

Petitioner also argues that he was denied the right to confront Pitman at the

pretrial Wade hearing. Although Respondent argues that this claim is procedurally

defaulted, it is not necessary to address this issue. Procedural default is not a

jurisdictional bar to review of the merits of an issue, Howard v. Bouchard, 405 F.3d 459,

476 (6th Cir. 2005), and “federal courts are not required to address a procedural-default

issue before deciding against the petitioner on the merits,” Hudson v. Jones, 351 F.3d

212, 215 (6th Cir. 2003) (citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997)). 

Because Petitioner is not entitled to relief on this claim, it is more efficient to proceed

directly to the merits. 

“In all criminal prosecutions, the accused shall enjoy the right . . . to be

confronted with the witnesses against him.” U.S. Const. amend. VI. The right to a trial

by jury is predicated upon the belief “‘that the ‘evidence developed’ against a defendant

shall come from the witness stand in a public courtroom where there is full judicial

protection of the defendant’s right of confrontation, of cross examination, and of

counsel.’” Pointer v. Texas, 380 U.S. 400, 405 (1965), quoting Turner v. State of

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Louisiana, 379 U.S. 466, 472-73 (1965). The Michigan Court of Appeals held that

Petitioner did not have a constitutional right to confront Pitman at the pretrial hearing. 

Wallace, 2013 WL 4525881 at *4. 

Petitioner cites no case holding that the Sixth Amendment right of confrontation

applies to a pretrial hearing. The Supreme Court has held that “[t]he right to

confrontation is basically a trial right.” Barber v. Page, 390 U.S. 719, 725 (1968). See

also Nelson v. O’Neil, 402 U.S. 622, 626 (1971) (“[T]he ‘confrontation’ guaranteed by

the Sixth and Fourteenth Amendments is confrontation at trial . . “). The Confrontation

Clause bars “admission of testimonial statements of a witness who did not appear at

trial unless he was unavailable to testify, and the defendant had a prior opportunity for

cross-examination.” Crawford v. Washington, 541 U.S. 36, 53-54 (2004) (emphasis

supplied). See also Pennsylvania v. Ritchie, 480 U.S. 39, 52 (1987) (“The opinions of

[the Supreme] Court show that the right to confrontation is a trial right, designed to

prevent improper restrictions on the types of questions that defense counsel may ask

during cross-examination.”). Courts in other circuits have consistently held that the

Confrontation Clause does not apply to pre-trial hearings. See e.g., Ebert v. Gaetz, 610

F.3d 404, 414 (7th Cir. 2010) (holding that the Confrontation Clause does not extend to

a pretrial suppression hearing); Finkel v. Walker, No. CV-10-536-PHX-FJM, 2011 WL

2746297, *11-12 (D. Ariz. May 9, 2011) (“[T]he Confrontation Clause does not confer a

right to cross-examination during . . . a pretrial hearing.”); Jones v. Woods, No. 07-cv01326, 2009 WL 4906882, *3 (E.D. N.Y. Dec. 18, 2009) (same); United States ex rel.

Thomas v. Gaetz, 633 F. Supp. 2d 645, 657 (N.D. Ill. 2009) (finding no Supreme Court

precedent extending Confrontation Clause protections to pre-trial hearings). 

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Because no clearly established Supreme Court precedent supports Petitioner’s

argument that the Confrontation Clause applies to pretrial proceedings, the state court

cannot be said to have unreasonably applied clearly established Federal law in denying

this claim. Habeas relief is therefore not warranted. 

B. Right to Present a Defense

1.

Petitioner’s second claim concerns the trial court’s exclusion of evidence that

Carson was involved in an illegal drug business and that another individual had a motive

to shoot her. He argues that the trial court’s exclusion of this evidence violated his right

to present a defense and that defense counsel’s failure to lay a proper foundation for

admission of this evidence was ineffective. 

Petitioner sought to introduce testimony from the evidence technician who

catalogued all of the personal property in Carson’s vehicle. The technician would have

testified that among the items recovered from Carson’s vehicle were 15 driver’s licences

and identification cards. He also sought to introduce testimony of Jason Poyle. The

Michigan Court of Appeals summarized the testimony offered by Poyle as follows:

According to Poyle’s affidavit, he was approached by an individual known

as “D” shortly after the murder. “D” asked him to erase the hard drive on a

laptop computer. When Poyle accessed the computer, he noticed that

one of the user names was “Angela.” Poyle also noted that “D” was

between 5'7' and 5'9' tall and he had seen “D” at sometime in the past

wear a “light blue hoody with a design.” He further stated that Carson was

known to illegally sell prescription medications. Defendant avers that this

information is evidence that “D” was the person who shot Carson, and the

fact that it was not admitted at trial violated his right to due process. 

Wallace, 2013 WL 4525881 at *5. 

The Michigan Court of Appeals held that the trial court properly excluded the

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evidence technician’s and Poyle’s testimony. The court of appeals held that, while the

evidence technician’s testimony may have cast light on Carson’s illegal activities, “it did

not sufficiently connect any other person to being her shooter.” Id. With regard to

Poyle’s proffered testimony, the Michigan Court of Appeals held that it did not connect

someone else to the shooting. Instead, it rested on only speculation and conjecture. Id. 

2.

The right of a defendant to present a defense has long been recognized as “a

fundamental element of due process of law.” Washington v. Texas, 388 U.S. 14, 19

(1967). It is one of the “minimum essentials of a fair trial.” Chambers v. Mississippi,

410 U.S. 284, 294 (1973). While the right to present a defense is a fundamental tenet

of due process, it is “not unlimited, but rather is subject to reasonable restrictions.” 

United States v. Scheffer, 523 U.S. 303, 308 (1998). Indeed, “[a] defendant’s interest in

presenting . . . evidence may thus bow to accommodate other legitimate interests in the

criminal trial process.” Id. (internal quotations omitted). The exclusion of evidence is

unconstitutional where it “infringe[s] upon a weighty interest of the accused.” Id., citing

Rock v. Arkansas, 483 U.S. 44, 58 (1987). In determining whether the exclusion of

evidence infringes upon a weighty interest of the accused, the question is whether the

defendant was afforded “‘a meaningful opportunity to present a complete defense.’”

Crane v. Kentucky, 476 U.S. 683, 690 (1986), quoting California v. Trombetta, 467 U.S.

479, 485 (1984). But, “the Due Process Clause does not permit the federal courts to

engage in a finely tuned review of the wisdom of state evidentiary rules.” Marshall v.

Lonberger, 459 U.S. 422, 438 n. 6 (1983). 

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On federal habeas review, a court considering the exclusion of evidence must

balance the state’s interest in enforcing its evidentiary rules against the relevance and

cumulative nature of the excluded evidence, and the degree to which the excluded

evidence was “indispensable” to the defense. Crane, 476 U.S. at 691. State rules

excluding evidence from criminal trials “do not abridge an accused’s right to present a

defense so long as they are not ‘arbitrary’ or ‘disproportionate to the purposes they are

designed to serve.’” Scheffer, 523 U.S. at 308 (internal citations omitted). 

3.

Here, the record shows that the state court excluded this evidence based upon a

well-grounded requirement that evidence be relevant and based upon something more

than mere speculation. The decision was not arbitrary or disproportionate to its

purpose. The Michigan Court of Appeals’ decision that Petitioner was not denied his

right to present a defense was not contrary to or an unreasonable application of

Supreme Court precedent. 

4.

Petitioner also argues that his attorney was ineffective in failing to lay a proper

foundation for testimony regarding third-party culpability. In Strickland v. Washington,

466 U.S. 668 (1984), the Supreme Court established a two-pronged test for determining

whether a habeas petitioner has received ineffective assistance of counsel. First, a

petitioner must prove that counsel’s performance was deficient. This “requires a

showing that counsel made errors so serious that counsel was not functioning as the

‘counsel’ guaranteed by the Sixth Amendment.” Id. at 687. Second, a petitioner must

show that counsel’s deficient performance prejudiced petitioner. Id.

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The Michigan Court of Appeals held that Petitioner could not satisfy Strickland’s

prejudice prong because even if counsel had more comprehensively explained to the

trial court the rationale for admitting the evidence, the evidence remained inadmissible. 

The court of appeals’ decision a reasonable application of Strickland. Where evidence

is inadmissible under state evidentiary rules, counsel cannot be found ineffective for

failing to gain its admission. Habeas relief is therefore denied on this claim. 

IV. Conclusion

For the reasons stated above, Petitioner’s petition for a writ of habeas corpus is

DENIED. Furthermore, reasonable jurists would not debate the Court's assessment of

Petitioner's claims, nor conclude that the issues deserve encouragement to proceed

further. The Court therefore DECLINES to grant a certificate of appealability under 28

U.S.C. § 2253(c)(2). See Slack v. McDaniel, 529 U.S. 473, 484 (2000).

SO ORDERED. 

S/Avern Cohn

AVERN COHN

UNITED STATES DISTRICT JUDGE

Dated: May 31, 2016

Detroit, Michigan

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