Michael Hardy Brothers v. Earl B. Dowdle, Warden, and Robert K. Corbin, Arizona Attorney General

Brothers was convicted by a jury in Arizona Superior Court of two counts of armed robbery and one count of first degree burglary. After unsuccessfully appealing his conviction, Brothers petitioned for a writ of habeas corpus, alleging: (1) the court improperly admitted evidence derived from an unreliable identification; (2) he received ineffective assistance of counsel; and, (3) the court violated his right to due process by considering his previous “contacts” with the law as aggravating circumstances during sentencing. The district court denied the petition; Brothers appeals.

Facts

On November 1,1981, a masked gunman robbed a Tucson restaurant and fled in a waiting truck. After hearing a police broadcast describing the truck, Officer Timothy Berry spotted it and chased it to a parking lot. There he saw a passenger pull himself out of the truck’s window and run away. Berry called in a general description of the passenger and then stopped the truck, arrested the driver and searched the vehicle. After the arrest, Berry learned that Brothers was a possible accomplice to the robbery. Berry obtained Brothers’ mug number, pulled his photograph from police files and positively…