Johnny Marshall has already spent seventeen years in jail for a $261 robbery that he very well may not have committed. And after our decision today, he may spend the rest of his life there. But Marshall’s attorney almost certainly could have prevented Marshall’s conviction, had he done what any other competent attorney would have on this record: pursued a motion to suppress the illegally obtained sole eye-witness’s identification of Marshall, an identification that the same witness’s earlier description of Marshall squarely contradicted.
I write separately because I believe that Marshall was denied effective assistance of counsel, in violation of the Sixth Amendment. Nevertheless, despite the weak evidence underlying Marshall’s conviction and the substantial error his trial counsel made, I agree with the Majority’s ultimate conclusion that 28 U.S.C. § 2254 offers Marshall no relief. Whether because of § 2254’s strict statutory exhaustion requirements or its highly deferential standard of review of state-court decisions, we have no choice but to deny Marshall’s claim. At this point, any potential relief Marshall might obtain must come from the state, such as an act of clemency by the state’s executive branch.
Thin. That’s a generous way to describe the evidence against Marshall. The only evidence tying Marshall to the robbery consists of Geraldine Jenkins’s identification of him. But Jenkins—the Pizza Hut employee who was present during the robbery—identified Marshall within about an hour of providing a description of the robber that bore about as much resemblance to Marshall’s actual appearance as broccoli does to carrots. Both are in the same general category—men and vegetables, respectively—but that’s where the similarities end.
Wednesday, July 13, 2016
That was Judge Rosenbaum in this concurrence yesterday. Here's the whole intro: