Brian Bourne v. Cindi Curtin
2012 U.S. App. LEXIS 554
6th Cir.2012Background
- Bourne challenged his 2002 Michigan murder conviction in a habeas petition after the state courts denied relief.
- During deliberations, the jury asked to re-hear testimony from five witnesses; the judge denied the request ex parte and without consulting counsel.
- Defense counsel learned of the jury’s request after verdict and stated he would have objected to the denial.
- Bourne pursued direct appeal, raising several issues but not the trial court’s failure to consult counsel; Michigan courts affirmed and denied relief.
- In district court, Bourne’s claims were procedurally defaulted except for ineffective assistance; the court rejected the merits of the ineffectiveness claim, and Bourne sought a certificate of appealability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ex parte jury communication violated rights | Bourne argues the denial without counsel breached right to presence and counsel. | Bourne cannot show prejudice; Michigan permits harmless objections and the denial was reasonable. | Merits decide, ex parte was harmless error; no per se harm. |
| Appellate counsel ineffective for not raising issue | Appellate counsel failed to raise a clearly stronger issue on appeal. | Counsel’s strategy reasonably chose issues with a reasonable chance of success. | Not clearly stronger; deficiency not shown under Strickland. |
| District court evidentiary hearing | An evidentiary hearing is needed to develop counsel’s strategic decisions. | Record before state court suffices; Cullen/Pinholster doctrine limits new evidence. | No evidentiary hearing warranted. |
Key Cases Cited
- Rushen v. Spain, 464 U.S. 114 (1983) (right to counsel at critical stages; harmless-error framework)
- Illinois v. Allen, 397 U.S. 337 (1970) (defendant’s right to be present at trial)
- Cronic, 466 U.S. 648 (1984) (reversal for structural error without showing prejudice)
- Bell v. Cone, 535 U.S. 685 (2002) (prejudice showing required for ineffective assistance claims)
- Strickland v. Washington, 466 U.S. 668 (1984) (establishes standard for ineffective assistance of counsel)
- Harrington v. Richter, 131 S. Ct. 770 (2011) (highly deferential review of state-court determinations)
- Cullen v. Pinholster, 131 S. Ct. 1388 (2011) (limitations on evidentiary hearings in habeas proceedings)
- People v. Carter, 612 N.W.2d 144 (Mich. 2000) (state-law handling of jury ex parte communications)