*1 rH 423(a), upon majority
Section
relies, governs the establishment entitle- benefits, disability
ment to not the continua-
tion thereof once established.1 Continued statutory prerequisite is not a
insured status receiving disability
to entitlement to continue
benefits. logical fair
There is no reason for the 423(f) just § exception
court to create an prerequisite
because insured status is a
establishing entitlement to benefits. foregoing
For the reasons would remand entry mandating of an order the rein-
statement of benefits as of the effective date
of cessation. PERKINS, Petitioner-
Appellee, LeCUREUX, Respondent-
Robert
Appellant.
No. 94-1594. Appeals,
United Court States
Sixth Circuit.
Argued March 1995.
Decided June 1995. dissent, majority, response disability arising 1. The to this reit- after his insured status ex- legally significant plain- but, rather, erates that it is that the pired on whether there had been (See July tiff's benefits were terminated in 1983. improvement plaintiffs such a medical in 5). footnote Herein lies the root of the error of physical impairment, or mental or combination position majority the Commissioner’s which the thereof, engage that he could now in substantial adopts. put The effect of Samuels was to statute, gainful activity. applicable regu- plaintiff position back into the he would have lations this court’s decision in re- Difford illegal been had an standard not been used to quired that this determination be made with all Thus, terminate his benefits. the focus of the evidence available at the time of the termination 423(f) subsequent hearing § termination under hearing. eligible whether he was for benefits *2 (argued),
David James Bra- C. Sarnacki S. McNitt, (briefed), Miller, dy, Theodore R. Jr. Johnson, Cumminskey, Rap- Grand Snell & ids, MI, petitioner-appellee. for ' Hunter, Atty. Asst. Kathleen Davison Gen. briefed), Atty. (argued and Office of the Gen. Div., 'MI, Lansing, respondent- Habeas appellant. SILER, Circuit
Before: JONES WISEMAN, Judge.* Judges; District WISEMAN, D.J., opinion of delivered the court, SILER, J., joined. in which 14-16), JONES, (pp. concurring in the J. result, concurring separate delivered opinion..
WISEMAN, Judge. District grant Respondent-appellant appeals 'the petitioner-appellee. approved Report and Rec- District Court Magistrate Judge and ommendation of the Michigan to resentence ordered State days him petitioner within 90 or release reasons, follow, custody. For the from and remand with instruction we reverse petition. dismiss the Tennessee, Wiseman, Jr., by designation. sitting Thomas A. United *The Honorable the Middle District of States District up prosecutor Facts life asked for sen- of a “minimum tences of a hundred The facts of the ease are bizarre from a prison state and I recommend[ed] standpoints. petitioner, number of every the court recommend that serve Perkins, codefendants, and two Jo- (Joint Appendix minute of their time.” *3 Jeffrey Dorsey, seph Thomas and were con- 331) imposed on Instead a sentence 19, 1975, victed on March of two counts of years parole Perkins of 50 to 100 was not second-degree guilty murder based on their mentioned. pleas in the Recorder’s Court of Detroit be- Judge In a fore Del Rio. the course of Judge Del Rio from was removed house, burglary interrupted by of a Michigan Supreme when bench Court for owners, petitioner return and at least reasons unrelated to this case. man one of the codefendants shot the and his 1983, petition in Thereafter Perkins filed a times, killing 22
wife them both. The case for habeas in the District for Court notorious in the Detroit media at the was Michigan. the Eastern District of The Dis time, being dubbed the “911 murders” be- rejected Judge trict a Recommendation of apparently cause the woman had dialed 911 and denied the writ. The recording before her death and a was made petition plea basis of that was that the was multiple gun period of the shots over a involuntary having been induced the un several minutes. promise judge fulfillable A then Del Rio. 12, 1975, jury March after On selection had panel of this court affirmed the district court begun, trial counsel for all three codefend- Mintzes, 15, in Perkins v. No. 83- ants, Campbell, told his clients Cir.1984)(unpublished). The court strong there was a likelihood of conviction said: suggested plea negotiations. Campbell here, Applying principles these we do parte had an Judge ex conversation with Del plead not find that Perkins’ decision to judge Rio the hall when the told defense guilty second-degree to murder rested counsel because of the intense media any significant degree Judge Del Rio’s ease, coverage compelled of the he would be promise to reconsider Perkins’ sentence in sentences, impose harsh but also said he years. a Although strongly few we .con willing would be to reconsider the sentences extra-judicial type demn this behavior years. after three There also have been counsel, judge between a trial and defense a second conference room be do Judge’s we not believe that the com judge, lawyer tween the Campbell, defense primary ments were the inducement be and the three defendants without the state’s willingness hind plead guilty. Perkins’ attorney being present. The defendants en Rather, the actual inducement behind Per pleas tered their and at the hear realization, plea kins’ was the acknowl action, ing judge, again the trial in a bizarre counsel, edged by Perkins’ trial that there lawyer invited the defense and the three strong was a likelihood that Perkins and codefendants bench for an off-the- his codefendants would be convicted of presence record discussion without the first-degree they murder continued with attorney. Undisputed testimony state’s was law, Michigan their trial. Under a convic judge that the reaffirmed his earlier state first-degree tion requires murder a ments and told the defendants that their parole; life-sentence without a conviction sentences would be severe because of the second-degree open possibil leaves
publicity they and that could return in a few Hatch, ity parole. Richardson v. years to have him reconsider their sentences. (W.D.Mich.1955). F.Supp. 111-12 prosecutor Furthermore, urged then on the record to the extent that impose the maximum sentences remarks can be characterized as Rio’s protect community peo- specific promise order to from which Perkins relied ple who upon, had committed heinous crimes but Perkins received the benefit of that Michigan promise also as a deterrent to others. imposed when Del Rio permitted any fifty- hundred-year prison law sentences of term of to one term. And handle case. much easier to it’s so open pos imposed leaves The sentence particu- secondly, I sentenced these when at' a later for Perkins parole sibility of individuals, pre- reading the and after have sentenced lar Rio could Judge Del date. this term, I felt that People report, v. Van see sentence life to a Perkins —that in the center thing, particularly N.W.2d Mich.App. sort Epps, 59 going discre to continue. (1975), city, to exercise his was not but chose the situation Unlike in this tion manner. particular case I did not discuss Machibroda, given a Perkins was that at Heading, but I knew with that his sentence promise specific conversations, we had times other when number longer than defined run no meetings, that the bench and after before only told years. Perkins up our myself had made as well he *4 willing his to reconsider Judge be would particular depending upon the that minds Thus, Perkins years. in a few sentence it, circumstances of we were and the crime Judge Del of implied benefit received message back to the black going to send a namely, prison a sentence promise, Rio’s stop kind of community to this senseless Perkins possibility that open the that left And killing in with robberies. connection later date. at a be released could I took of the considerations that is one particular individu- eodefendant, Thomas, these when sentenced Thereafter Perkins’ of this rob- the circumstances corpus als under of habeas petition for the writ filed a killing. bery and Michigan on October of District in the Eastern assis alleging denial effective Rio, Transcript (See Judge Testimony of Del rep had Campbell counsel because tance of 4, 1985, at Hearing Evidentiary on Nov. Magis The codefendants. resented all three Response to “A” to Petitioner’s Exhibit evidentiary hearing at which an trate held Order) Stay Respondent’s Motion three code- attorney Campbell, all defense unresponsive to Rio’s answer was Mr. Del ex-judge Schigur and fendants, prosecutor repre- Magistrate and by the question Magistrate’s recom The Rio testified. thought of his purported revelation a sented writ was for issuance mendation years and ten one-half processes delivered Judge the re and District adopted fact. after the A divided this court. appealed to spondent 30, 1991, later, May years six Some conflict of found an actual panel of the court writ petition for the filed this second Perkins the dis the decision of and interest affirmed District of in the Western of habeas unless a new granting the writ trict a deni- grounds therefor Michigan alleging as days. Thomas within 90 trial was scheduled of the laws because equal protection al of Cir.1987). Foltz, v. in his of race impermissible consideration an peti- Thomas proof on the part of the As He cited by then-judge Del Rio. Rio, tion, ex-judge Del in the examination Rio of Del the remarks thereof as evidence 4, 1985, after examination his on November quoted above. completed, the were and cross-examination appointed counsel Magistrate The place between colloquy took following motion to granted later a and petitioner Mr. Del Rio: Magistrate and transcript of to include expand the record BY THE COURT: v. hearing held in Thomas evidentiary question, Judge. Q. further Just one 84-4740, Foltz, the re- which contained No. unusual, in view particularly, it be Would (See Peti- “A” of exhibit of Del Rio. marks memory certain your about of the fact that Respondent’s Motion Response to tioner’s transcript could in the things not contained Order) from the appeal was taken Stay No so, understandably it vague, be and Magistrate non-dispositive order a, might you require what unusual be allowing expansion of record. are mul- where there package deal term negotiations? Judge then submitted plea Magistrate ti-defendants The District to the reason, Report and Recommendation Honor, the rea- No, your prejudice found cause and docket, he Judge which you’ve got clear being son petitioner’s present failure to raise the grounds in previous petition constitutes petition issue in his earlier since did Perkins abuse of the writ. Application of this rule not learn of Del Rio’s statement until after requires analysis an prejudice” “cause and petition his earlier been denied. The required had similar to that procedural in state Magistrate Judge then went on to find Zant, McCleskey default cases. 499 U.S. “it is obvious” that his sentence was harsher 467, 493, 1454, 1469-70, 111 S.Ct. white, than it would have been had he been (1991). L.Ed.2d 517 The cause issue seems judge’s testimony that the represents direct clearly to exist here because the statement of “purposeful evidence of discrimination” Judge Del Rio was not made until after against Perkins because he is African Ameri- petition Perkins’ earlier had been dismissed can, that his was the sentence result of invid- on appeal. race, ious discrimination on account of resentencing should ordered. prong second of the cause and
The district adopted Report prejudice problematic. test is more On the Recommendation and ordered issuance of the sole basis the statement of Mr. Del Rio ten writ unless the defendant was fact, resentenced after the days. respondent objected within found that “it is petitioner’s obvious that Magistrate’s *5 the reliance on the of sentence was harsher than it would have Judge objection Del Rio. rejected This was (Joint petitioner been had Ap been white.” by the district ground court on the that no 243) pendix at finding was based on appeal was Magistrate taken from the transcript prior written so there Judge’s allowing order expansion the credibility was no determination. We there the record to transcript include the of the finding fore review the de novo. corpus Thomas habeas hearing. From this Contrary to the- “obviousness” of discrimi- respondent appeals, order the assigning four natory part animus on Judge the Del Rio errors. are a number of other bearing facts on this I. Whether the District Court improperly First, question. Judge Rio, the defen- respondent’s denied review of substantive ob- dants, victims, the the prosecutor, and de- jections to the Judge’s Report fense Campbell counsel were all African- and Recommendation. American. suggestion There was no any II. Whether findings the factual of the any racial in previous proceed- bias the prior state court and corpus habeas are court ings. least, very At the this casts doubt on entitled to the presumption of correctness. the existence of an anti-black animus. Sec- petitioner’s III. Whether petition second ond, at the time of sentencing, the the undis- writ of corpus by is barred the puted testimony judge, the defendants abuse of the writ doctrine. lawyer Campbell and their is that the sen- going tence was to be harsh because of the IV. Whether the improp- District Court publicity intense had case received. The erly based issuance of the writ of habeas defendants their lawyer were fearful incompetent on evidence. guilty first-degree verdict for murder which I, II, Assignments and IV are all related to require of life without pa- sentence statement of Del Rio in Thom- role and were aware of this difference in hearings. They together will be treated arriving plead the decision to to second- portion the later opinion. of this We first degree murder. finding This of fact was Assignment address III and the asserted by made both the Perkins and abuse of the writ. prior Third, petitions. Thomas the testimo- ny counsel,' of defense Campbell, on the Abuse of the Writ judge’s thought processes at the time of sen- 9(b), Rule Governing Rules Section tencing is relevant: Cases, requires dismissal of second or petitions successive Now, for the writ if Q. your it’s today recollection finds that newly failure to alleged assert you 1982 that only can recall this one Rio, meeting perhaps possible Judge Del is that or it’s with
conversation meeting such a occurred? correct? well, I think A. would that — Well, vaguely recall that A. I do also conducting accustomed to a lot of talk was bench, I guys up to the called the he times, I in the room at but would not by reading sen- of this
was reminded
Schigur
think
I
that Mr.
was there because
was un-
transcript, and this
itself
tence
Schigur being privy
don’t recall Mr.
to the
usual,
up to the
to call the defendants
Judge easing up in
discussions about the
my presence
prosecutor
with no
bench
ahead.
there,
just
and then I believe he
more
Q.
right.
All
later,
what he said
“I’ve
less reaffirmed
(cid:127)
anything
A. And
was said
you guys
in a
got
tough
to be
now but
I don’t believe Mr.
aceuseds
me,”
years come back and see
some-
few
there,
Schigur
again may
was
but then
he
thing like that.
just basing
my
been.
I’m
that on
have
Q. This bench conference was at the
understanding
Judge’s
of how the
court-
sentencing,
day of
or before —the
time
operated
my fairly
clear recollec-
room
immediately prior to
sentencing but
been,
Schigur
tion that Mr.
would have
correct,
sentencing,
is that
sir?
time of
ointment,
fly
just
in the
he would have
I
whether it
before
A.
don’t recall
confusing
by trumpet-
been there
the issue
or after.
ing the horrible facts.
Q.
right.
All
(Joint
316-319.)
Appendix at
says
transcript
it
think that
Further,
fighter
judge imposed
sen-
dispute
and I have no reason to
was before
prosecutor
tence
one-half than the
recom-
it.
Schigur asked for one
mended. Prosecutor
*6
Q.
right.
years
All
and a recommendation “that
hundred
every
of their
time.”
serve
minute
words,
point being,
In other
the
re-
(Joint
331.)
Instead,
Appendix at
Perkins
any-
ally,
trying
that we were
to do
not
years
to a minimum of 50
and
was sentenced
pub-
thing underhanded but more that the
parole was'possible.
that he had treat-
lic would not understand
young
with love and
ed these three
fellows
petitioner attacking
A
a conviction
understanding and consideration because
showing
the
of
not
“must shoulder
burden
brutal,
very
there were rac-
the crime was
merely
possibility
prejudice,
...
of
but
ist overtones to the situation which
actual and sub
that
worked to his
[errors]
behavior; moreover, I
mitigate
to
the
seem
disadvantage ...”
v.
stantial
United States
culpa-
think that Mr. Perkins was the least
1584,
152, 170, Frady, 456 U.S.
S.Ct.
recall, and,
words,
ble,
I
in
I was
other
(1982)
(emphasis in
ple an en at banc reversal stake this case. of The District a district penalty court death Court’s decision to 20-year-old this disturb decision, the Fifth Circuit held: conviction entirely is based on a statement decide, however, by made We judge portion ten after fact, regarding testimony Fuller’s thought processes his he ex- plained his sentencing. imposing the time of reasons for type the death This of evi sentence and probable response dence his must not be considered. evidence adduced at the habeas hearing is It is a principle Anglo- cardinal inadmissible evidence that not be con- jurisprudence American speaks a court sidered the district court. only through its Ninety-one years minutes. It is a firmly juris- established rule in our ago the-Supreme Court announced the rule prudence judge may that a not be asked to testimony processes mental of a testify about processes his mental in reach- judge was not to be considered: judicial ing a decision. testimony [T]he judge given the trial six Id., at 1263. years after the disposed of, case has been In rejecting the request state’s to call the in respect to matters he considered and trial to testify about whether certain passed upon, obviously incompetent evidence did or did prejudice the result judgment A is a solemn record. ..... trial, non-jury Judge Stevens of the Parties right have a rely on it. It District of New-Jersey cogently explained lightly disturbed, should not ought policy why reasons such is never to be overthrown or limited never admitted: oral a judge juror what First, such testimony is inherently suspect. he had in mind at time the decision. inaccuracy, The risk of opinion Fayerweather Ritch, 306-07, 195 U.S. Court, outweighs any *7 probative value 58, 67, (1904) 25 S.Ct. 49 193 (emphasis L.Ed. might such evidence have. testimony “The added). given is often several after the fact Fayerweather The good rule is still law. judge unlikely and is to be able to recon- The upon Eleventh Circuit relied it in 1982 in thought processes struct his accurately holding that a district court should not have over such a span of time.” Washington v. judge’s considered a trial post-decision state Strickland, supra at 1263. ments concerning the influence various facts Moreover, the fact that the state trial had on his decision. post-decision “Such might judge be willing testify to is irrele- statements judge juror or his about to vant this consideration. Our concern mental processes in reaching decision accuracy with the probative and value of not be used as evidence subsequent in a testimony same, remains the irrespec- challenge to the decision.” v. Wain Proffitt testimony tive whether the is voluntarily might, 685 Cir.1982) F.2d or involuntarily provided. Moreover, this added). (emphasis Circuit, Fifth The in simi Court is satisfied that if testimony such larly language, adamantine said: admitted, were line between voluntari- A judge’s statement process- of his mental ness and quickly involuntariness would be- absolutely es is unreviewable. come blurred. A petitioner against whom
has observing no means of mental process such should, evidence were introduced ar- ... judge’s The trial statement of guably, his men- to entitled cross-examination process tal impervious is so that discovery. attack and judicial Concerns with im- even if he were to today come forward and munity, comity, independence and would thought processes petition- circumstances regardless of the thus arise might brought have er. trier of fact into court. JONES, Judge, NATHANIEL R. Circuit Finally, opinion that this Court is of the concurring. prohibited by general inquiry an is such judicial finality. When consideration I While concur the conclusion reached rendered, judge is neither the nor verdict majority, separately explain I write justifications. The is asked for important principle that there is another reversed, may be and decision reviewed right stake this case—the constitutional However, the trier modified or amended. equal protection majority of the laws. The placed on the witness of fact is not to be opinion emphasizes that it is an historical as to the reasons stand and cross examined judge may impeach that or her rule his outcome, impro- absent evidence of Nevertheless, judicial determinations. making process it- prieties in the decision judicial finality rule of must not be construed judge give for a self. If a seeks to reasons always precluding as from a claim relief decision, for what said on we are wiser is brought Equal under the Protection Clause However, judicial opin- the record. onee a of the Fourteenth Amendment. filed, all as ion is written and we are case, Judge In the instant Del Rio’s state- interpretation in its hand expert ment, context, full when considered its belongs wrote it. It to us all. equal protection does not evidence a clear Kimmelman, F.Supp. Morrison v. warranting violation relief. (D.N.J.1986). Still, I believe that there could well be a case judge post-decision it
where a
testified
Issue
Preservation of the
Equal
was so clear
Protection
justice
Clause had been violated that
district
refused to consider the
acknowledging
judge’s testimony
demand
admissibility
competency
discriminatory
reversing
judge’s
ac-
ground
respon-
Del Rio on the
tion.
appeal
dent did not
from the
argued
allowing expansion
Respondent
the rec-
LeCureux
that cases
Judge’s order
606(b)1
addressing
of Evidence
respondent
appealed
could have
Federal Rule
ord. Even
case
point, there is a marked difference were irrelevant
to the instant
because
at this
find,
applies only
jurors.
how
expansion of the record and the
the rule
between the
606(b)
ever,
addressing Rule
illu
subsequent interpretation
portions
of that
that cases
prin
dispositive
care
which the clash of
expanded record and
reliance on minate the
with
interpretation
ciples
at issue in the instant case must be
portions.
such
To the
instance,
Gag
respondent
timely object and the
examined. For
Shillcutt
reliance
did
*8
Cir.1987)
(7th
non,
1155,
the
refusing
827 F.2d
district court erred
to consider
event,
juror’s post-ver
that a
objections.
any
In
in view of the Seventh Circuit held
such
alleged
made
precedent
testimony
dict
of an
racial slur
clearly established
cited above and
therefor,
juror during
by another
deliberations could
cogent policy reasons
we hold
the
verdict,
impeach
jury
rely
not be used to
the
plain
that it was
error to consider
606(b).
of Evidence
upon
pursuant
Del Rio as to his
to Federal Rule
therewith,
606(b)
processes
except
following:
in connection
1. Rule
states
juror may testify
question
on the
whether
Inquiry
validity
into
of verdict or indictment.
prejudicial
was im-
extraneous
information
validity
Upon
inquiry
an
into the
of a verdict
properly brought
jury’s
or
to the
attention
indictment,
any
juror may
testify
as to
or
any
improperly
influence was
whether
outside
occurring during the
matter or statement
upon any juror.
may
brought
Nor
to bear
jury’s
deliberations or to the
course
any
juror's affidavit or evidence of
statement
anything upon
any
ju-
that or
other
effect of
juror concerning
a matter about
influencing
juror
testifying
juror
precluded
ror’s mind or emotions as
be
would be
from
purposes.
from the verdict or
for these
to assent to
dissent
received
606(b).
concerning
juror's
mental
Fed.R.Evid.
indictment or
however,
In
ruling,
so
the court
'd,
(11th
noted the
Cir.1991),
covery the violation of rights constitutional
may rights. themselves violate those
.... As consequence of this collision principles, constitutional blanket rules excluding juror
either all testimony of bias
or admitting all such inap- are propriate. struck, A balance must pro- HOLBROOK, Ova Plaintiff-Appellant, tecting parties from the egregious most cases of jury bias leaving jury while free to decide most cases without fear of AUTOMOTIVE, INC., HARMAN judicial intrusion. While lines be dif- Defendant-Appellee. cases, ficult to many draw it should be No. 94-5194. among clear that the most serious cases of jury bias those involving preju- are racial United States Court Appeals, dice. Eradication the evil of sup- state Sixth Circuit. ported prejudice racial is at the heart of Argued the Fourteenth March 1995. sug- Amendment. This gests that the constitutional interests of Decided June 1995. party the affected are at strongest their when the jury allegedly employs such bias. operation prejudice racial under- jury’s
mines ability perform the role preventing governmental oppression
and, fact, converts itself into an
instrument oppression. of that This also
suggests policy interests behind 606(b)
the enforcement of Rule are at their
weakest in such a case. Wright Charles A. Gold, J. Victor
Federal § Practice and Procedure (1990) (footnotes omitted); see also Dobbs v.
Zant, (N.D.Ga.1989), 720 F.Supp. 1571-74