Leo Abby v. Carol Howe
742 F.3d 221
6th Cir.2014Background
- Abby was convicted of second-degree murder in Michigan; conviction upheld on direct appeal.
- He petitioned for habeas corpus arguing denial of counsel of choice and ineffective assistance by trial counsel Gust.
- Abby retained two attorneys, Gust and Piazza; Piazza was to assist but attended trial only briefly due to scheduling conflicts.
- Trial proceeded with Gust alone; Abby sought a continuance to have Piazza present, which the court denied.
- Evidence at trial included Abby’s fingerprints, circumstantial links via a saw borrowed by Abby, and testimony regarding pre-arrest statements.
- On habeas review, the district court rejected most claims but acknowledged the AEDPA deferential standard and addressed each claim on the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did denial of a continuance to accommodate second counsel violate the Sixth Amendment? | Abby asserted a right to counsel of choice and that denying Piazza attendance undermined fairness. | Trial court and state courts balanced calendar needs with the right; Piazza’s limited role and scheduling justified proceeding. | No reversible error; denial was not an abuse of discretion under controlling law. |
| Was Gust’s performance deficient for failing to object to pre-arrest silence evidence? | Gust should have objected; pre-arrest silence evidence violated Fifth Amendment norms and prejudiced Abby. | There was no prejudice because Salinas allows such comments if Abby did not invoke silence; objection would be futile under current law. | Gust’s failure to object did not prejudice Abby under post-Salinas standards; ineffective assistance claim failed. |
| Whether the state court’s rejection of the counsel-of-choice claim was reasonable under AEDPA? | Gonzalez-Lopez requires stronger protection of counsel of choice; denial was unreasonable. | Gonzalez-Lopez does not squarely address two-counsel trial settings; denial was not unreasonable. | State court’s rejection was not contrary to or an unreasonable application of clearly established law. |
| Was the overall habeas review governed by an unreasonable application of Strickland or AEDPA standards? | Abby could show deficient performance and prejudice under Strickland and AEDPA standards. | The state court reasonably applied Strickland; prejudice not shown; AEDPA deference applies. | Habeas relief denied; state court’s application of standards reasonable. |
| Does Salinas v. Texas foreclose prejudice based on pre-arrest silence evidence at trial today? | Pre-arrest silence evidence was prejudicial and improper under earlier standards. | Salinas allows such evidence if no explicit invocation of right to silence; prejudice shown only if invocation occurred. | Prejudice not shown; Salinas applies; no relief for this claim. |
Key Cases Cited
- Gonzalez-Lopez v. O Centro Espirita Beneficiente Uniao Do Vegetal, 548 U.S. 140 (U.S. 2006) (right to counsel of choice separate from right to effective assistance)
- Ungar v. Sarafite, 376 U.S. 575 (U.S. 1964) (court may continue cases to protect right to counsel)
- Wheat v. United States, 486 U.S. 153 (U.S. 1988) (right to counsel of choice limited by fairness and calendar needs)
- Mortiz v. Lafler, 525 F. App’x 277 (6th Cir. 2013) (cited as contextual for scheduling discretion; not controlling)
- Salinas v. Texas, 133 S. Ct. 2174 (U.S. 2013) (pre-arrest silence may be used as substantive evidence if no invocation of right to silence)
- Lockhart v. Fretwell, 506 U.S. 364 (U.S. 1993) (prejudice cannot be considered based on now-invalid objections; focus on current law)
- Evans v. Hudson, 575 F.3d 560 (6th Cir. 2009) (deficiency and prejudice framing in ineffective assistance review)
- Knowles v. Mirzayance, 556 U.S. 111 (U.S. 2009) (double deference standard in AEDPA reviews)
- Harrington v. Richter, 131 S. Ct. 770 (U.S. 2011) ( AEDPA deference and reasonable adjudication standard)
- Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (standard for sufficiency of evidence in habeas review)
- Yarborough v. Alvarado, 541 U.S. 652 (U.S. 2004) (fair-minded jurists could disagree on state court rulings under AEDPA)