                            NOT FOR PUBLICATION
                             File Name: 05a0512n.06
                               Filed: June 15, 2005

                                    No. 03-2570

                   UNITED STATES COURT OF APPEALS
                        FOR THE SIXTH CIRCUIT

JOHN CHANDLER EWING,                          *
                                              *
      Plaintiff-Appellant,                    *
                                              *
v.                                            *   ON APPEAL FROM THE UNITED
                                              *   STATES DISTRICT COURT FOR
NICK LUDWICK, Warden,                         *   THE EASTERN DISTRICT OF
                                              *   MICHIGAN
      Defendant-Appellee.                     *
                                              *
                                              *


BEFORE: KEITH, CLAY, and FARRIS,* Circuit Judges.

      FARRIS, J. John Chandler Ewing was convicted in 1985 by a Michigan state

jury of criminal sexual conduct in the first degree and was sentenced to life

imprisonment. He claims in this habeas appeal that he has unearthed previously

undisclosed, exculpatory evidence, and that certain of the government’s pretrial

identification procedures violated his constitutional rights. The district court denied

the petition in a thorough, seventy-page opinion. We agree with the district court and


      *
      The Honorable Jerome Farris, Circuit Judge of the United States Court of
Appeals for the Ninth Circuit, sitting by designation.
affirm.

                                  BACKGROUND

      This appeal involves Ewing’s May 16, 1985, jury conviction for the rape of

Julie Culhane.

      At that trial, Culhane testified that on June 20, 1983, while she was jogging, a

man jogged up behind her, grabbed her, and dragged her into the woods. The man

threw her down on her stomach, put her shirt over her head, removed her clothes,

turned her over onto her back, and raped her. He then told her to count to 100 before

she moved and threatened to kill her if she screamed. Culhane stated that the rapist

wore aviator-style sunglasses with silver rims. She also testified that she concentrated

on her assailant’s face, trying to remember it so that she could tell the police.

      Two days later, Culhane, who was an art student, assisted the police in drawing

a composite sketch of the rapist. Culhane testified that she was not satisfied with the

police drawing, so she drew her own. Though Ewing disputes this fact, Culhane also

testified that she drew a second sketch two days later. These were the only two

composite sketches entered into evidence at trial. There were slight differences in the

length of the mustache in the sketches; in the second of her sketches, the mustache did

not extend below the lip.

      On two occasions in the year that followed, the police showed Culhane an array

                                           2
of photographs. Culhane picked out Ewing’s picture as the man who raped her on the

second occasion. She testified that she recognized the man, without prompting from

the police, because of the distinctive jaw line, nose, hair, and mustache.1

      After the photo identification, Detective William Eskridge arrested Ewing for

Culhane’s rape, as well as for the rape of two other women who had positively

identified his picture. He was convicted of Culhane’s rape and sentenced to life

imprisonment. Ewing appealed his conviction and sentence on multiple occasions to

the Michigan Court of Appeals and the Michigan Supreme Court, all with little

success.2 He then filed this motion for habeas relief, which the district court denied.

                            STANDARD OF REVIEW

      The Antiterrorism and Effective Death Penalty Act sets the federal courts’

standard of review in habeas cases; petitions are not to be granted unless the state

court adjudication: “(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



      1
        After Culhane positively identified Ewing, the police showed an array
containing Ewing’s photograph to several other rape victims. Some of the victims
identified Ewing as their rapist.
      2
       Ewing did achieve a series of remands on the question of his sentence. No
sentencing issues are before us.

                                          3
an unreasonable determination of the facts in light of the evidence presented in the

State court proceedings.” 28 U.S.C. § 2254(d). Federal courts are bound by state

court adjudications unless those decisions are contrary to or an unreasonable

application of clearly established federal law. Franklin v. Francis, 144 F.3d 429,

433 (6th Cir. 1998).

                                    ANALYSIS

      1. The Undisclosed Exculpatory Evidence Claim

      A failure to disclose evidence to the defense is actionable “where the

evidence is material either to guilt or to punishment, irrespective of the good faith

or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87 (1963). A

Brady violation exists when evidence is (1) suppressed, (2) material to the question

of guilt, and (3) favorable to the accused. Elmore v. Foltz, 768 F.2d 773, 777 (6th

Cir. 1985). Evidence is material “if there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of the proceeding would have

been different.” United States v. Bagley, 473 U.S. 667, 682 (1985).

      Ewing’s primary piece of allegedly undisclosed, exculpatory evidence

involves a composite sketch of Ewing that was shown to Culhane. Ewing claims

that Detective Eskridge, after coming to suspect Ewing of the Culhane rape based

on his experience and knowledge of other rapes, altered a composite sketch in

                                          4
another rape case so that it more closely resembled Ewing (making the mustache

extend lower than the lips, giving the chin a cleft, and making the hair color closer

to Ewing’s). Ewing alleges that Eskridge withheld the actual Culhane composite

and attempted to substitute the altered composite at trial. Ewing concedes,

however, that the altered composite was never actually introduced at trial;

nevertheless, he argues that the altered composite should have been disclosed to

him because he believes that it was used to elicit a positive identification from

Culhane. The claim, in brief, is that Eskridge framed Ewing for the Culhane rape

by altering one of the police composite sketches so that it more closely resembled

Ewing, and then failed to disclose the altered sketch.

      Ewing’s arguments are unpersuasive for at least three reasons. First, as

detailed by the district court, there is absolutely no evidence that Eskridge or

anyone else altered the composite sketch shown to Culhane. Second, even if one

of the numerous composite sketches had been altered, Ewing establishes no basis

for a conclusion that this hypothetically altered composite was ever shown to

Culhane. Ewing’s contention that he would have benefitted simply by knowing

that, at some time, a composite was altered by someone is without merit. Culhane

testified that she drew two composite sketches of her assailant, and that it was on

the basis of these sketches and the second photograph array that she was able to

                                          5
identify Ewing.3 Third, even if there had been an alteration in one of the

composites, Ewing has failed to show how obtaining such evidence would have

made a material difference. The alleged alterations consist of a slightly longer

mustache, a chin cleft, and slightly different hair color. These differences do not

undermine the reliability of the identification or the jury verdict, and do not justify

granting the writ. See Kyles v. Whitney, 514 U.S. 419, 434 (1995) (citing Bagley,

473 U.S. at 678) (“A ‘reasonable probability’ of a different result is . . . shown

when the government’s evidentiary suppression ‘undermines confidence in the

outcome of the trial.’”).

      It is not clear to what extent Ewing relies on other allegedly undisclosed

evidence. He mentions obliquely a five-page report written by Detective Eskridge

that dealt with the rape of another person, Carrie Rice. Rice was not permitted to

testify at Ewing’s trial; whether another suspect had been developed in Rice’s case

was immaterial to the circumstances of Culhane’s rape.4 Ewing similarly points to

a police report in another rape case, that of Gail-Lynn Johnson,5 which he claims


      3
       Ewing points out that in other proceedings, Culhane testified that she drew
only one sketch, not two. This may be true, but it hardly demonstrates, as Ewing
suggests, that Culhane was “obviously confused at trial.”
      4
       We note that Ewing pled nolo contendere to raping Rice.
      5
       Ewing pled nolo contendere to raping Johnson.

                                           6
was not disclosed to him. The record reflects that Johnson did not testify at

Ewing’s trial.

      Ewing argues that the district judge should have reviewed the withheld

evidence “cumulatively” to assess its collective impact. The record reflects no

evidence to which Ewing was entitled but did not receive.

      Lastly, Ewing argues that the government “destroyed evidence” some years

after his conviction, and that all evidence in his case should have been retained. We

reject this argument. Ewing does not and cannot show “bad faith destruction” on

the part of the government. See Arizona v. Youngblood, 488 U.S. 51, 57 (1988).

      2. The Unconstitutional Pretrial Identification Procedures Claim

      Ewing complains of procedures used to identify and arrest him.

      First, he claims that his Fourth Amendment rights were violated because he

was in custody and not free to leave when Detective Eskridge took his photograph

at the police station. He argues that (1) Eskridge would not let him leave until he

had obtained his photograph, and (2) he was not read his Miranda rights.6

      6
        It is not clear why Ewing believes that he should have been given Miranda
warnings. Miranda warnings must be given when a person undergoes custodial
interrogation. Miranda v. Arizona, 384 U.S. 436, 444 (1965). Ewing was not
undergoing custodial interrogation. Furthermore, the failure to give a Miranda
warning does not require the suppression of physical evidence, such as a
photograph. See United States v. Patane, 124 S. Ct. 2620, 2626 (2004) (noting that
the Fifth Amendment is not violated as a result of the introduction of

                                          7
      His claim is without merit. A federal habeas court cannot ordinarily review

a state court’s decisions on a Fourth Amendment claim if the state has provided a

full and fair opportunity to litigate that claim. Stone v. Powell, 428 U.S. 465, 489-

90 (1976). Ewing was given a full and fair opportunity to litigate this claim. He

admits as much when he states that the state courts held that he was never in

custody.

      Second, Ewing claims that the identification procedures used by the police

were unduly suggestive. He complains that the alteration of the composite sketch

that forms the basis of his claim of withheld, exculpatory evidence also renders the

identification process flawed. Nothing in the record indicates that the composite

sketch was altered as he suggests. His other claims of undue suggestion are

unpersuasive: he contends that “Ewing’s eyes were covered on his photo to help

Culhane identify it,” but it was Culhane who requested that the police officers do

this because she had not seen her assailant’s eyes. Ewing also argues that his

photograph was the only one without writing on the back, but Culhane specifically

testified that she did not look at the back of the photographs in the second array.

      Nothing in the record supports a claim of impermissibly suggestive conduct.

See Thigpen v. Cory, 804 F.2d 893, 895 (6th Cir. 1986).


nontestimonial evidence).

                                          8
AFFIRMED.




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