Cleveland v. Macomber

Background

Darren Cleveland sought federal review of his California state convictions for attempted premeditated murder, discharging a firearm from a motor vehicle, assault with a deadly weapon, and possessing a firearm as a felon with three prior convictions. The state trial court imposed a sentence of 30 years to life; the opinion says that, after a later remand, the sentence appears to have been changed to 25 years to life.

The victim, identified in the opinion as Marlon M., was shot and struck with a baseball bat several weeks after an altercation with Cleveland’s son. Two days after the shooting, Marlon viewed a six-photo sequential lineup at the hospital and selected Cleveland’s photograph. At trial, however, Marlon testified that he was sure Cleveland was not the attacker and said he did not remember speaking with detectives or viewing the lineup.

The record also included evidence that Cleveland’s car resembled the car seen near the shooting, gunshot residue was found on parts of that car, Cleveland’s phone was near the shooting location, and a gun case, ammunition magazine, and cleaning kit were found at his home. Cleveland’s federal petition raised three main issues: an allegedly unconstitutional identification procedure, ineffective assistance of trial counsel for failing to object to that procedure, and prosecutorial misconduct based on an allegedly altered transcript of Marlon’s police interview.

Identification claims

Cleveland argued that the photo lineup was unnecessarily suggestive because his ears and facial hair stood out and because Marlon expected the suspect to be included. The state appellate court rejected those arguments, finding that the photographs showed men with similar characteristics and that Cleveland’s ears and facial hair did not make his photograph stand out. The federal court held that this state-court decision was reasonable under the deferential standard governing federal review of state convictions.

The federal court explained that an identification procedure violates due process when improper police conduct creates a substantial likelihood of misidentification. It found no such conduct here. The six photographs depicted men of similar age, weight, build, race, and complexion; they were shown one at a time in random order; and Marlon was told that the shooter might not be included and that he did not have to identify anyone. The court concluded that Cleveland’s ears and facial hair did not make the lineup unconstitutional. It also stated that the other evidence against Cleveland showed no prejudice even if the lineup had been improperly suggestive. The claim was denied.

Cleveland separately argued that police changed the photo numbers and labels to make it appear that Marlon identified Cleveland when he had actually selected someone else. The court found that this claim was not presented to the state courts and was therefore unexhausted, meaning Cleveland had not given the state courts a fair opportunity to consider that specific claim. The court nevertheless denied the claim on its merits, as federal law allows in some circumstances. It found no factual support for the alleged manipulation. The court concluded that the lineup records showed the photographs were presented in the order described by the state appellate court and that Marlon’s handwriting appeared on Cleveland’s photograph.

Ineffective assistance of counsel

Cleveland argued that his trial lawyer was ineffective for failing to object to the lineup. Under the legal test for ineffective assistance, a defendant must show both that the lawyer’s performance fell below reasonable professional standards and that the error probably affected the result. The court held that because the lineup was not unconstitutional, counsel had no valid basis for objecting. It also relied on the strong evidence of guilt and concluded that the state court reasonably rejected this claim. The claim was denied.

Prosecutorial misconduct

Cleveland alleged that the prosecutor highlighted and otherwise marked a transcript of Marlon’s police interview, copied the marked version, and gave it to the jury. The court reviewed the record independently because the state courts had denied this claim without a written explanation.

The court found no evidence that the prosecutor made the markings or that the jurors received marked copies. A defense lawyer reported markings on one copy, but the prosecutor denied making them. The trial court had also instructed the jurors that the transcript was not evidence and that the recording controlled if the transcript differed from it. The court concluded that Cleveland had not shown misconduct, prejudice, or an unfair trial. The claim was denied.

Disposition

Judge William H. Orrick denied the petition for a writ of habeas corpus. He also denied Cleveland’s motion to stay the case so he could pursue state-court exhaustion of the identification-manipulation claim. The court ordered judgment for the respondent, stated that a certificate of appealability would not issue, noted that Cleveland could seek one from the United States Court of Appeals for the Ninth Circuit, terminated the pending motions, and closed the file.