Charles Northrop v. David Trippett, Warden

CLAY, Before BOGGS and Circuit Judges; GWIN, Judge.** District OPINION GWIN, Judge. District case, Respondent-Warden In this Trippett appeals David the district court's grant corpus of a writ of habeas to Peti Northrop pursuant tioner Charles to 28 granting Northrop's § U.S.C. 2254. In petition, Northrop the district court found had been denied his Sixth Amendment right to the effective assistance of counsel. Although for different reasons than those upon by court, agree relied the district did not receive effective as sistance of counsel and thus AFFIRM the judgment of the district court.1 I Petitioner seeks relief from possession his state conviction for of co says caine. He his conviction cannot stand because he did not receive the effective representation due him under the Sixth particular, Northrop Amendment.2 says his trial counsel should have moved to suppress the cocaine evidence offered against him at trial. August 29, 1990, anonymous

On call- Jeffrey Caminsky (argued Department W. and er informed the Detroit Police males, wearing green briefed), County Wayne that two black one Prosecutor's jeans outfit, selling drugs Office, Detroit, MI, Appellant. "Used" were for Gwin, **TheHonorableJames S. UnitedStates jurisdiction. LaVallee, habeas Carafas v. Judge 234, 239-40, District for the Northern District of 20 L.Ed.2d Ohio,sittingby designation. argument, petition, Northrop 1. At oral counsel informedus that In his habeas also asserts longer prison. jeopardy Petitioner Because is no a double claim under the Fifth petition appeal filed this while in Amendment. He does not the district prison, his recent release does not defeat our rejection court's of this claim. the Greyhound Bus Station Detroit. the claim. Michigan The Supreme Court The caller provided no other information. denied Northrop’s leave ap- second peal.

That same day, Detroit Police Officers Robert Jackson and Oliver Collins re- After unsuccessfully appealing his con- ceived a call relaying the anonymous radio viction, Northrop petition filed a for a writ later, tip. Minutes the uninformed officers of corpus habeas with the United States station, arrived at bus where ob- District Court for the Eastern District of served two black sitting males and talking. Michigan. 16, 1998, On November One of the males wore an outfit matching district court granted the writ. the description tip. included Respondent-Warden Trippett David other male was Charles Northrop. appeals now the district ruling. court’s As the approached, officers took duffel off his shoulder and II placed it under his seat. He then rose from his seat attempted to walk past We review district court’s deci so, officers. Before he could do Collins grant sion to deny a writ of habeas stopped Northrop. corpus de Yukins, novo. Barker v. Collins and Jackson (6th both asked Cir.1999). Nor- F.3d 870 In so doing, throp for identification. Collins next we consider the substantive gov standards asked Northrop to empty pockets. his erning the review of state court decisions Northrop complied. After finding no con- challenged petition. federal habeas traband in Northrop’s pockets, Collins Id. at 871. asked Northrop if he had any drugs on his Because Northrop filed petition his after person. In response, Northrop admitted the Antiterrorism and Effective that he marijuana had in his sock. Collins Death Penalty (“AEDPA”) Act sets the

then arrested for violating a mu- standard for federal habeas review under nicipal marijuana ordinance. § 28 U.S.C. 2254. The AEDPA amended After arresting Northrop, Collins seized the standard of review set forth in 28 the duffel bag placed had 2254(d) § U.S.C. provide: under just his seat moments before. A An application for writ of corpus habeas search of the large revealed a quantity on behalf a person of in custody pursu- of cocaine. ant to the judgment of the state court Michigan charged posses- with shall granted not be with respect sion of a controlled substance. On Novem- claim that adjudicated was on the merits 29, 1990, ber after a bench trial in the in State court proceedings unless the Wayne County Court, Circuit adjudication (1) of the claim resulted was of convicted between possessing 50 a decision that to, was contrary or in- grams of cocaine. The trial court volved an of, unreasonable application sentenced Northrop to eight twenty clearly law, established Federal as de- years in prison. Attorney Eric Braverman termined by Supreme Court of the represented Northrop through the trial. (2) States; United or resulted in a deci-

Northrop appealed conviction, his rais- sion that was based on an unreasonable ing the Sixth Amendment claim he now determination of the in light facts of the advances support of his petition. habeas presented evidence in the State court The Michigan Court of rejected Appeals proceeding. error, only for clear but normally re- reviewed Supreme Court States

The United statute, in a ha- court’s decision specifically when the district interpreted this cently deci- transcript between the distinction case is based on addressing beas “un- involving trial, “contrary to” and court dis- petitioner’s sions state clearly estab- of application” credibility reasonable makes ‘no trict court thus deter- Taylor, fact,’ federal law. Williams lished finding of apparent mination or other L.Ed.2d findings factual re- the district court’s are that a explained The Court ”) (citations omitted.); viewed de novo clearly “contrary to” decision is state court Carlton, Moore “if the state court federal law established Cir.1996) (“The district court made to that opposite at a conclusion arrives apparent or other credibility determination aon Supreme Court] [the reached fact; upon its decision was based finding decides law if the state court question such, it Moore’s trial. As transcript differently than [the case novo.”). re- We therefore is reviewed de materially indistin- on a set of has Court] de findings factual view the court’s district Id. at facts.” guishable novo. contrast, court decision In a state Ill application of an unreasonable involves says trial petition, only where federal law clearly established Braverman, counsel, so Eric made errors law application of such the state court’s function he ceased to serious that unreasonable.” Id. “objectively under the Sixth guaranteed counsel A federal habeas S.Ct. 1495. Const, amend. VI Amendment.3 adjudication a state may not find court (“In the accused prosecutions, all criminal that court “simply because unreasonable ... to have the As- enjoy right shall judgment that independent in its concludes defence.”). for his signment of Counsel clearly estab applied decision the relevant incompetently failed He insists Braverman erroneously or incorrect federal law lished of the suppression cocaine to move for “Rather, 411, Id. at 120 S.Ct. ly.” Ac- him at trial. against evidence used also be unreason application must discovered Northrop, cording Id. able.” unlawful seizure during an this cocaine reviewed The court below district search. rec upon the petition habeas “un- prohibits Amendment The Fourth The the state developed at court. ord seizures.”4 U.S. reasonable searches evidentiary court conducted district Const, Evidence recovered IV. amend. a a court decides hearing. When district is illegal from an search inadmissible. hear evidentiary petition without habeas States, 383, 398, 232 v. U.S. Weeks United factual that district court’s ing, we review (1914). 341, 346, L.Ed. 652 58 34 S.Ct. Brigano, 232 v. de novo. findings Wolfe indirectly Further, Cir.2000) recovered evidence 499, (“Any findings 501 F.3d seizure also search or is illegal are from an by the district court fact made Amendment, the Fourth 4. Like the Sixth applies the States Sixth Amendment 3. The through the applies to the States Amendment Gideon through the Fourteenth Amendment. Ohio, 367 Mapp v. Fourteenth Amendment. 342-45, 335, Wainwright, 83 S.Ct. 372 U.S. 1684, 643, 655, 1081 6 L.Ed.2d 81 S.Ct. U.S. 792, (1963). 9 L.Ed.2d 799 (1961). 378 poisonous as “fruit of the never

inadmissible submits would have States, Segura tree.” v. United 468 U.S. discovered the cocaine in the duffel bag. 804, 3380, 104 82 L.Ed.2d 599 cocaine, S.Ct. according Northrop, States, (1984); Wong v. United Sun illegal thus as fruit of the inadmissible 471, 484-85, U.S. 83 S.Ct. 9 L.Ed.2d seizure. (1963); Silverthorne Lumber Co. v. And insists Braverman’s defi- States, 385, 392-93, United 251 U.S. performance cient resulted in prejudice. (1920). 64 L.Ed. 319 If Braverman had moved for suppression,

But a defendant must seek the ex Northrop says the trial court would have clusion of such evidence at trial or on acquit- excluded the cocaine evidence and appeal. direct Because questions regard ted him possession. of cocaine ing admissibility of otherwise relevant Northrop raised this Sixth Amendment upon jus evidence seldom touch the “basic claim on direct appeal. denying the conviction, tice” of claim, Michigan Appeals Court of bars Fourth Amendment claims ha found that Braverman made an acceptable Wilson, beas review. Kuhlmann v. strategic choosing decision in not to seek 436, 447, 106 S.Ct. 91 L.Ed.2d suppression of the cocaine evidence: (1986); Powell, Stone v. 428 U.S. This Court is convinced that defendant L.Ed.2d 1067 was not denied his right constitutional (1976). effective assistance of counsel as However, a petitioner may habeas apparent proceedings from the that de- assert Sixth Amendment claim based on fense counsel considered motions to sup- his counsel’s failure to sup move evidence, press convinced, but was after pression of evidence that should be exclud his conversations with defendant and ed under the Fourth Amendment. Kim investigation, other that such motions Morrison, 365, 382-83, melman granted, would not be and that the most 91 L.Ed.2d 305 To effective trial tactic was to make the claim, establish Sixth Amendment defense that the luggage was not that of petitioner per must show his counsel the defendant. formed deficiently and that the deficient granting Northrop’s petition, the dis- performance prejudice. resulted in Strick trict court ruling held that this fell “out- 668, 687, Washington, land v. 466 U.S. side plausible, the universe of credible 2052, (1984). 80 L.Ed.2d 674 outcomes.” The district court found no Here, Northrop says per- Braverman’s excusing reasonable basis for Braverman’s formance prejudi- was both deficient and failure move suppression to for of the co- cial. Northrop argues that Braverman caine evidence. According to the district performed deficiently by seeking not sup- court, subject the cocaine suppres- pression of the cocaine says evidence. He sion because the officers discovered it the Fourth provided Amendment two performing while an invalid search inci- grounds First, excluding for the cocaine. dent to arrest. says illegally the officers bag, disagree. Although, searched the duffel We rendering explained thus below, the cocaine affirm bag grant discovered the district court’s Second, inadmissible. of habeas grounds, contends relief on other we find illegally the officers him in seized the district court in ruling erred the offi- so, bus station. Had the officers not done cers’ search unconstitutional. Here, Amendment, bag had the duffle a the Fourth

Under on his shoulder as Jackson Collins unrea per se a warrant absent search Observing coming them to approached. sonable, specifically a few “subject only to him, bag ward removed excep and well-delineated established it at feet. Col placed his shoulder and States, 389 U.S. Katz v. United tions.” stopped Northrop bag. near the Col lins 347, 357, 19 L.Ed.2d 576 88 S.Ct. under placed Northrop lins then arrest (1967). is for searches exception such One bag The was searched this same location. v. Cal a lawful arrest. Chimel incident to immediately. almost 752, 762-63, 89 S.Ct. ifornia, 395 U.S. circumstances, Jackson and Under these 2034, L.Ed.2d 685 lawfully the duffel Collins searched Thus, Northrop’s arrest. incident to a inci conducting search When Appeals properly of found Michigan Cburt arrest, items may search dent perform Braverman did not ineffec- per “immediate control” of the within challenge the search. tively failing to Id. at 89 S.Ct. 2034. arrested. son has construed the But find that the Michi- we nevertheless immediate control person’s within area Appeals unreasonably applied gan Court he “area from within which denying to include the law in clearly established federal weapon or de claim.5 Sixth Amendment might gain possession lacked sufficient basis and Collins evidence.” Id. Jackson structible Northrop. Braverman should stopping However, an cocaine right sought suppress to search have thus prejudiced failure to do so evidence. His exists even if that item incident to arrest Northrop. accessible to the defen longer item is no long as at the time of the search. So dant po limits The Fourth Amendment im within his had the item the defendant authority to detain individuals. lice officers’ arrest, time of his control near the mediate Const, (“The right IV amend. U.S. subject inci remains search the item ... persons their people to be secure Belton, 453 New York v. dent to arrest. ... ... unreasonable seizures against 461-62 n. 101 S.Ct. violated.”). Specifically, not be shall (1981) search of (upholding L.Ed.2d 768 absent cannot arrest an individual officer in vehicle where defendant jacket located i.e., cause, probability” a “fair probable arrest); United States just prior sat has either committed that the individual Nelson, F.3d Cir. a crime. United States intends to commit 1996) of the defendant’s (upholding search 1, 7, Sokolow, agents (1989). Further, had removed bag after an officer shoulder 104 L.Ed.2d him to another room from him and taken an individual briefly cannot even detain Mitch reasonably suspects States v. questioning); United the officer unless (7th Cir.1995) ell, in criminal 1110-11 been involved individual has 1, 21-22, Ohio, activity. Terry v. of item after defendant (upholding search handcuffed). L.Ed.2d Accordingly, we denying claim. pies in Northrop not chal- petition, does In this Michigan Ap- Court decide whether the Michigan Appeals' articula- lenge Court of controlling prece- unreasonably applied peals legal principles applicable to his tion of the Instead, finding Northrop had to show failed Northrop dent in claim. Sixth Amendment ineffectively. performed legal princi- Braverman misapplied court those insists the circumstances, question person There that Jackson and “a reasonable would is Northrop. Although not Collins detained requests feel free to decline the officers’ or arrested, immediately Northrop was sub- otherwise terminate the encounter.” Id. jected type investigatory of brief the.

stop Terry. described Here, person a reasonable in Nor throp’s position would not have felt free to ex Terry, terminate the encounter with and Jackson plained investigatory stop that an occurs Northrop Collins. sought to leave the when use some form of coercion: area before Jackson directed Collins to all “Obviously, personal not intercourse be stop him. has testified Jackson that he policemen tween and citizens involve sei Northrop away would not have let walk officer, Only persons. zures of when the ”6 “during my investigation of him.... by physical means of force or show And the gave Northrop officers a clear authority, way has some restrained the indication that he was not by free to leave liberty may of a citizen that a conclude asking him produce identification and seizure has occurred.” Id. at 19 n. (internal omitted). quotations empty pockets.7 5.Ct. 1868 then The evidence whether, considering test all of the before the Michigan Courts and the dis hearing 6. Jackson at activity being testified the trial court's such conducted Northrop's Northrop on ineffective assistance of coun- gentleman Mr. this or other Ginther, People outfit, sel claim. 390 Mich. green you? in the Used had (1973) (establishing 212 N.W.2d A. No. proceeding Q. state court for claims of ineffec- So, up, after Mr. stood did he counsel). tive assistance of proceed anywhere? walk A. Yes. challenges argues 7. The dissent this and Q. proceed did Where he to walk to? Michigan reasonably Courts could find myself A. Walk way my- towards and the that no law enforcement officer restrained self and Mr. [Officer] Collins had came Northrop. Contrary to the dissent’s asser- in. tion, supports Northrop's the record claim Q. you anything Had said to Mr. Nor- stopped Northrop that Officer Collins after throp, you your partner or at this Northrop attempted to exit the bus station as point? approached. Officers Collins and Jackson A. No. wrong suggesting The dissent is also Q. So, Had—strike that. did Mr. Nor- Northrop approached the Officers at the Offi- throp past you your partner? walk request. cer's A, No. Q. hearing, At the Ginther Officer Jackson tes- anyone stop Did Mr. tified: walking past you your partner? Q. You didn’t talk to Mr. while my A. partner stop Yes. I advised Mr. he was seated? Northrop. Q. A. No. stop You told Officer Collins to him? A. Yes. Q. Did Officer Collins do that. Q. Northrop get How did Mr. out of his A. Yes. seat? Q. Otherwise, Mr. would have up. A. He stood Q. kept walking? you your partner asking Without so, yes. A. I assume telling up? him or him to stand 9-11, Hearing Appendix Ginther III at Joint A. Correct. Q. also, So, Hearing at 404-06. See point Ginther III at prior this to Mr. (Officer own, Appendix Joint just standing up up at 427-28. you on his testifying your partner and Jackson that he had not conducted "wouldn't have let any personal you surveillance him leave your to determine until were satisfied inves- concluded.”) selling if were tigation there narcotic had been (1990). However, any anonymous because the dissent’s support not court do trict responsibility informant does not bear the repeatedly said that “Collins assertion having to Nor of to answer for misinformation initially talking was partner ” harass, anonymous tip to an must ‘sitting designed was there.’ while throp reliability. some evidence of at 386.8 bear Courts Infra reliability anonymous tip the an assess of to a subjected was Because totality under the of circumstances. turns to whether Terry stop, question Gates, 213, 230-31, Illinois v. 462 U.S. justifi- had a and sufficient Jackson Collins (1983). Typi 76 L.Ed.2d 527 stop. They did making for such cation cally, suspi courts have found reasonable not. stop only police cion for a when the know initiate an may officers Police tip tipster to be reliable or when they have only if investigatory detention independently contains verifiable details activity. criminal suspicion reasonable See, showing knowledge. e.g., United 21-22, An officer Id. at 88 S.Ct. 1868. (1st Taylor, v. 162 F.3d 19-20 States and artic point specific able to must be Cir.1998) (finding suspicion reasonable facts, infer with rational together ulable known, tip car because stop suspect’s facts, that reason ences drawn from those provided specifics informant as to reliable activity has occurred ably suggest criminal car, registration color of its make and suspicion Reasonable or is imminent. number, and description occupants, totality of the circumstances on the based making where were neighborhood “articu requiring and has been defined Villalobos, drops); United States drug and particularized and “a lable reasons” Cir.1998) (find (5th 290-91 objective suspecting partícu basis stop suspect’s ing suspicion reasonable activity.” Unit ... of criminal person la!’ described, anonymous tip vehicle because 417-18, Cortez, 449 U.S. ed States corroborated, vehicle, its and 690, L.Ed.2d 621 States, and its entry into United point Harris, route); F.3d States v. anony an United Information from Cir.1994) (finding reason may provide reasonable mous informant stop a driver because suspicion de able investigatory suspicion to conduct and White, suspect informant described reliable Alabama v. tention. action); future correctly predicted 326-27, L.Ed.2d 301 car and Q. came, trial, your Okay. you, you But didn't only gave Officer Collins 8. At the Waiver partner over to where this other come testimony stop. about the Officer substantive Northrop] was? person [Petitioner testimony, In his trial Offi- Jackson did not. told, I entered the bus A. When I when general that: Collins did make reference cer Northrop, sorry, I’m station I asked Mr. Northrop to come here "when we asked Mr. subject me. to come to I asked the other had, slip question he I observed him him believe, went to Mr. My partner, I he up place under the off his arm Northrop. testimony up trial shows But follow seat.” part- Collins did not observe that Officer Q. you Okay. you, when were And did Jackson's, ner, with initial contact Officer individual, you did see talking to this Northrop: partner anything in relation- your do Q. were, your partner you you and And ship at all? to Mr. investigating to each other? were next A. I don’t remember. I My partner green I weren't next to each subject A. in the outfit. Appendix through at 53- different Joint other. We came in Waiver trial doors. 382 (2d Walker, suspicion The police 7 F.3d S.Ct. 1375. officers’

United States Cir.1993) (finding suspicion weapon reasonable to that J.L. had a did not come from solely in- a stop individual based on corroborated their own observations but from informant re- anonymous formation from call made from an unknown location an travel appearance individual’s and garding gave pre- unknown caller. Because plans). dictive information that would allow the knowledge to test the informant’s officers White, the example, Supreme For the indi- credibility, tip lacked sufficient tip sup- could anonymous Court found an reliability provide cia of the reasonable only because the port investigatory stop an suspicion Terry stop: needed to make a predictive informa- tip contained sufficient description subject’s “An accurate of a reliability. tion to show its readily appearance location and observable 331,110 anonymous 2412. The infor- is of in this limited sense: course reliable police mant told that the defendant would police identify It help correctly will the the particular apartment particu- leave a at a the person tipster whom means to accuse. vehicle, particular lar time in a that she however, tip, Such a does not show that motel, a going particular would be tipster knowledge the has of concealed that of cocaine. possession she would be Id.; activity.” criminal see also United Because the information was corroborated (6th Payne, States v. work, by independent police the Court Cir.1999) (“The tip in this case had none of that, case,” found while a “a close the reliability the indicia of that tradi- courts corroborated, anonymous tip, “as exhibited was, tionally examine. It so far as the reliability justify sufficient indicia of the reveals, record It anonymous. lacked de- investigatory stop.” Id. predict any tail and failed to future events J.L., In Florida v. provide could be monitored to corrob- (2000), 146 L.Ed.2d 254 Wells, oration.”); United States found insufficient evidence Cir.2000) (“An anony- F.3d suspicion to create necessary reasonable however, tip, mous is insufficient in itself Terry for a stop under circumstances simi- cause.”). support finding a of probable presented lar to those this case. An anonymous reported police caller that a Here, Jackson and stopped Collins male, shirt, young wearing plaid black a solely based a tip standing particular stop was at a bus anonymous source. The officers knew carrying gun. a Officers went to the bus nothing about the informant. in giv And stop and saw three black males. One of ing tip, only informant told the J.L., males, wearing plaid a shirt. males, police wearing that two black one Although the officers did not observe particular type clothing, of name brand suspicion other evidence that raised of ille- selling drugs Greyhound were in the Bus conduct, gal one of the officers frisked J.L. tip did not further Station. describe gun pocket. and seized a from his Northrop. tip provide any Nor did the finding stop illegal, predictive this the Court information to allow the officers anonymous tip indicating Further, held an a person reliability. to assess its offi not, more, carrying gun is without any suspicious cers did not observe behav justify justified sufficient to officer’s stop stop ior would have inde person. and frisk of that Id. at pendent tip.9 of the hearing, edged tip provided 9. At the Ginther Jackson acknowl- only basis for the stop notice that the unlawful made the ple did not have the officers Accordingly, cocaine evidence inadmissible. necessary stop suspicion the reasonable Terry. leads üs to under This any file Attorney Braverman did not ren- illegal this seizure whether decide question- or challenging motion the seizure evidence inadmissible. the cocaine dered background, it ing Northrop. Given the find that does. We imagine what tactical advan- is difficult cost, justify could Braverman’s tage, noted, poi fruit of the As the go without chal- stop decision to let that evi provides tree doctrine sonous Strickland, at lenge. 466 U.S. of a as the indirect result dence discovered (“In (1984) any presenting case S.Ct. 2052 violation is inadmissi Fourth Amendment claim, performance an ineffectiveness Here, officers seized ble. counsel’s assis- inquiry must be whether After the Fourth Amendment. violation of considering all the tance was reasonable seized, Northrop confessed being illegally circumstances.”). marijuana. This admission possessing Attorney Braverman finding arrest, provided which Northrop’s led to the dis- gave representation, reasonable searching the duffel justification for upon testimony Braverman’s sent relies Thus, not have the officers would bag. subject that he did not feel in the duffel the cocaine discovered Terry But involuntary an seizure. as illegal seizure. The co Northrop’s absent explains: fruit was therefore inadmissible caine that the Fourth Amend- quite plain It is tree. poisonous the person ‘seizures’ of governs ment trip in a to the do not eventuate which Braverman should have rec And prosecution house station knew the officers as much. He ognized terminolo- crime—‘arrests’ in traditional on a non- solely based stopped that whenev- gy. recognized It must be to Nor anonymous tip. Prior predictive officer accosts an individual police er a trial, suggested throp’s away, walk and restrains his freedom to support a could not tip generally such a that person. he has ‘seized’ White, at Terry stop. 496 U.S. at 88 S.Ct. 1868. 392 U.S. Indeed, stop finding 2412. anonymous tip a’non-predictive At- based even if one credits important, More in J.L. unlawful, applied stan the Court recollection torney Braverman’s uncertain from White and other Northrop, dards- discernable with of his conversation J.L., 270-71, at a motion cases. 529 U.S. make his failure to file earlier still do not the fruit of Finally, because seizure reason- challenge Braver- long representation, has ex During tree doctrine able. poisonous arguably seized as a result of knew that had evidence recovered man cluded seizure, than an Segura, upon based no more unlawful Sim, ver- Wong 3380; tip supporting without anonymous 371 U.S. at 104 S.Ct. this, filing of a Against had am- detail. Braverman ifiable A. Yes. stop: Q.The you received as a information was, effect, the radio run result of Q. you were that's all the information And selling suspected two narcotics, males black operating on? green in a Used one dressed A. Yes. jean outfit? accompanying prejudiced had sion motion could not have Nor- suppress motion to attorney would throp. tactical cost. A reasonable Collins and Jackson’s have tested Officers In support argument, Respon of this stop. opinion on Supreme dent relies Court’s Having representa found Braverman’s Fretwell, in Lockhart v. 506 U.S. 113 deficient, next whether tion we address 838, 122 L.Ed.2d 180 In that S.Ct. Nor performance prejudiced Braverman’s case, trial the Court found counsel’s failure prejudice, Northrop To throp. establish object in a aggravating that an factor that, probability a reasonable must show penalty unconstitutionally du death case conduct, unprofessional “but for counsel’s plicated underlying an element of the felo would have proceeding the result of the ny-murder charge did not constitute the Strickland, 466 at been different.” U.S. “prejudice” required show ineffective “[wjhere Specifically, 104 S.Ct. 2052. Rather than assistance counsel. focus litigate defense failure to a counsel’s ing on whether the ultimate outcome competently Fourth Amendment claim might changed, have Lockhart said habeas ineffectiveness, principal allegation courts should on focus whether error prove the defendant must also that his of trial counsel rendered the trial unrelia Fourth Amendment claim is meritorious proceeding ble or unfair: probability and that there is a reasonable Thus, analysis focusing solely an

that the verdict would have been different determination, mere outcome without at- absent the excludable evidence order to pro- tention to whether the result of the Morrison, prejudice.” demonstrate actual ceeding fundamentally un- unfair or 375, 106 477 at U.S. S.Ct. 2574. reliable, is defective. To set aside already We have found that solely conviction or sentence because the merit. Fourth Amendment claim had outcome would have been different but Thus, only if the at we need decide verdict may grant for counsel’s error the defen- Northrop’s trial “would have been differ- ” dant windfall to which the law does not ent absent evidence.... excludable entitle him. Id. 369-70, 838; Id. at see also Hol Michigan convicted of cocaine v. Page, man 490 Cir. possession. co- Without inadmissible (“[I]n 1996) the context of an ineffective evidence, Michigan obviously caine would claim, ‘a good assistance Fourth Amend proving have failed to meet its burden of ment claim alone will not prisoner earn a Thus, Northrop possessed cocaine. Brav- federal habeas relief. There must be suppres- erman’s failure to move for the Something more. must call question into prejudiced sion of the cocaine evidence ”) validity or fairness of the trial.’ Northrop. Morrison, (quoting 477 U.S. at But Respondent-Warden Trippett 2574). S.Ct. says Northrop must show more to estab However, Court has prejudice. Respondent says lish Bravei' recently made clear that the outcome-de representation prejudiced Northrop man’s terminative only deprived if it him test set forth Strickland of a fair or reliable generally trial. determines trial suppression Because the of other whether coun performance wise prejudiced pe admissible evidence does not enhance sel’s a habeas verdict, Williams, reliability Respondent of a titioner. U.S. at (“Cases says suppres- Braverman’s failure to file a 120 S.Ct. 1495 such as ... Lock- justify departure Although recognize “[j]udicial from a hart ... do not scrutiny of Strickland straightforward application performance of counsel’s must be deferential,” Strickland, the ineffectiveness of counsel does highly when of a substantive or deprive the defendant we can think of no which the law entitles procedural right to possible strategic merit in neglecting to States, him.”); v. United Glover suppression damning seek evidence 696, 700, 148 L.Ed.2d a stop solely upon discovered after based (2001) (“The Term explained last anonymous tip lacking predictive detail. sup in LockhaH did not holding that our Likewise, analysis.”).

plant the Strickland IV. Conclusion recognized court has that Strickland’s this above, For the reasons set forth we to habeas prejudice applies petitions. test still AFFIRM judgment the of the district Bell, 581, v. 591 Car ter court. Cir.2000). in analysis The fairness discussed Lock- DISSENT supplants analysis haH the Strickland BOGGS, Judge, Circuit dissenting. For ex only very limited circumstances. ample, though a defendant’s false testimo I fully concur with the court’s conclusion jury the to ac ny might persuaded have that lawfully the was searched incident him, quit fundamentally not unfair to arrest, rejection with of the prejudiced by conclude that he was not finding district court’s basis violation counsel’s interference with his intended However, I of the Sixth Amendment. con- Whiteside, perjury. Nix v. 475 U.S. wholly inadequate sider as the court’s al- 175-76, L.Ed.2d 123 for finding ternative basis ineffectiveness (1986). effect, LockhaH, To similar of counsel. Court decided that the likelihood of a dif case, affirming In the writ in this ferent outcome attributable to an incorrect respect not high court does bar potential of the law was a interpretation for claims such Northrop’s. has been set “windfall” to the defendant rather than the grant In order for us to affirm the of the legitimate “prejudice” contemplated by writ, attorney find Brav- only we must not Lockhart, at Strickland. 506 U.S. incompetently erman to have acted based S.Ct. time, he had at the on the information case, In this we find no reason to set opposing interpretation find the un must aside the standard set forth in Strickland Strickland, which accords wide defer der determining and Morrison for whether presumption competence ence and a of performance deficient caused counsel’s counsel, trial so far-fetched that no be prejudice. perfor- Because Braverman’s it. reasonable court could credit See standard, prejudicial mance was under this 362, 411, Taylor, Williams Amend- we find merit Sixth Even 146 L.Ed.2d 389 ment claim. AEDPA, the existence of a valid prior to otherwise, claim not raised at finding Michigan Fourth Amendment unreasonably trial was insufficient for federal habeas Appeals applied Court of Morrison, 477 law. That court relief. Kimmelman v. clearly established federal See 365, 382, 106 91 L.Ed.2d Braverman’s decision not to seek U.S. decided (1986). “Only petitioners habeas the cocaine evidence fell 305 those suppression of they strategy. prove of trial who can under Strickland within the bounds sound however, “events,” and insufficient for us by gross a fair trial have been denied findings of the attorneys contrary will be to alter the of their .factual incompetence The provisions Ibid. court and the state courts. granted the writ....” district unreasonableness requiring of AEDPA appeal, Although Northrop, Mr. decision, the court in its by cited a state to have been restrained from leav- claims discussion, applied but supra initial stop by initial Officers Jack- ing during his conclusory manner to the decision only in a Collins, the district court made no son and Appeals, People Michigan finding. The district court describes such Mich.App. Northrop, the initial encounter thus: (1995), an even place N.W.2d peti- testified at “Officer Oliver Collins than the petitioner on the heavier burden carry- trial that Petitioner was tioner’s imposed one Morrison. bag on arm when the ing a brown pre- have been Taking the facts as him. After approached officer Officer us, Northrop cannot take sented to partner and his asked Petitioner Collins burden, meeting his be- step first toward questioning, them for Peti- approach not have a valid Fourth cause he does even the off his arm and slipped bag tioner initial en- claim based on his Amendment question- The kicked it under the seat. A as police. Terry stop, counter the with ing thirty away occurred ten to feet court, requires the coercion that by noted bag where the was located under liberty of the citizen. Two restrains the the seat.” sup- of coercion are adduced to instances (Dist. 381). at court’s Northrop Op., that was seized. Ct. The district port finding (and opinion presented the evidence at Primarily, Northrop’s the court relies on trial) “sought Northrop’s provide support to leave the no for being stopped as he that he Secondarily, Northrop’s at it re- current claim was re- Supra, area.” when supposed compulsion placed leaving on strained from the bus station lies on up he from his chair and answered Northrop empty pockets pro- to his and stood Any The record at the summons of the officers.1 reason- duce his identification. is interpretation able of the district court’s ambiguous best as to both these (Trial under the Tr. at 1. This should not be misconstrued as a claim kick it seat. support anywhere petition- added). 59) that there is no (emphasis J.A. testimony er. Officer Jackson's at the Ginther completely with Nor- This is inconsistent incident, hearing years three after the al- any throp attempting slip away prior to court, though upon by relied was contra- apparently Officer was interview. Jackson only by recollection dicted not Braverman's later, comparison years confused three incident, Northrop of what told him about the shows, conflicting testimony over which testimony at Nor- but also Officer Collins’s partners of the had done what to which of the trial, throp's a few months after the arrest. testimony ap- suspects, and does not two his repeatedly partner that Collins said his was pear any previous to have formed the basis of initially talking Northrop while adjudication. I see no reason for the court there,” 54), (Trial “sitting at J.A. was Tr. pick now to from the record this version of “brought partner and that him over to his facts, power if it do even had the so- me,” (Trial 57), atTr. J.A. after Collins's Greyhound exactly what occurred at the sta- Northrop’s compatriot. with discussion perhaps tion uncertain and unanswerable. Q Braverman, (By continuing): Mr. matter, Fortunately, be- .the answer does not Now, "Okay. Northrip didn't [sic] Mr. only question cause the relevant is Braver- you, have this when he came over to knowledge man’s and even new infor- right? given perhaps by Officer mation Jackson Northrip got up with [sic] A "When Mr. my partner, I ... cannot affect this determination. that's when saw him defen- choosing between refuse to return the ticket to the view it as opinion would dant, con taking of the incident the ticket did not constitute alternate accounts seizure.”). making only and not tained in the record (as fact” discussed finding of “apparent question then what evi- becomes 377), supra at but an Wolfe, in Moore and dence exists or existed that officers’ the officers called to finding, actual that conveyed message statements and came up and that he stood Northrop’s compliance required. they wanted. We review over to see what There is and was none. Officer Jackson findings factual on ha- the district court’s equivocated about whether he would have error, v. Riv only for clear DeLisle beas anything done had refused to (6th Cir.1998) (en ers, comply. Compare statement Jackson’s banc), majority has not found the and the “probably that he would have done noth- account, which omits district court’s (Ginther III, 425), ing,” Hr’g J.A. leave, seeking to mention of quoted by majority, with his statement clearly be erroneous. supra saying at 381 n. he would not concluding Terry stop that a Although away during have let walk legal conclusion to which had occurred—a course, investigation. Of no one-even Offi- court also no deference is due—the district cer Jackson —knows what he would have finding no that the officers had com- made done, only peripheral and it is an issue of empty pockets, pelled importance. What the record discloses the tone, the officers’ man- findings about explain officers did do is to had ner, or show of force. We cannot assume tip, questions, received a ask some per se. Florida v. Bostick held compulsion would,” Northrop, emp- that “if he request occurs when ask that no “seizure ty pockets. Depending way his on the individual, ask to examine questions of behaved, a might officers this constitute identification, request and individual’s not, Terry stop, might but it and her luggage consent to search his or —as it evidently led Braverman to believe that convey officers do not a mes- long as the did not. requests with their is sage compliance that Even were there sufficient record evi- 2382, required.” 501 U.S. violation, Terry support finding dence to (1991) (citation 115 L.Ed.2d 389 and inter- whether, adjudicate we are not asked to omitted). In a quotation nal marks case universe, sup- a successful a counterfactual one, factually similar to the current we made pression motion could have been engage stated that “officers did not Northrop’s petition in 1990. overbearing activity making or coercive of supposed on the utter failure based and that a consensual en- requests these litigate Braverman to an obvious and deci- find that there is counter occurred. We But sive Fourth Amendment claim. based that con- nothing to indicate officers what told Braverman about on veyed message compliance that with encounter, to Braverman had no reason his with request speak their defendant and Terry believe that a claim would be suc- required, examine his ticket was and no evaluating com- purposes cessful. For of Terry stop occurred.” United States Amendment, are with the Peters, Cir.1999); pliance Sixth 194 F.3d Frazier, strongest in the terms from sec- forbidden see also United States (6th Cir.1991) (‘We on ond-guessing counsel’s conduct based that be- hold by more than the what has been discovered voluntarily gave cause the defendant officer, “A fair proceedings. and the not decade of further ticket to the officer did time,” “perspective perspec re his at the attorney performance assessment con judge be made to elimi we are to his every that effort tive from which quires Strickland, hindsight, to at distorting effects of duct and choices. nate the counsel’s “Taking circumstances of all the infor reconstruct the S.Ct. 2052. conduct, consideration, to evaluate the challenged including and I into got mation at the perspective relayed way counsel’s way [Northrop] conduct from Mr. Strickland, at time.” I not feel Mr. happened, [Nor this did involuntarily. throp] doing anything was (Gin I it.” way perceived That was the hearing afforded In the ineffectiveness 283). I, A Hr’g at J.A. more ther Braverman testi- Northrop by Michigan, aggressive, insightful, attorney or devious Northrop’s told about fied to what he was might quick equate not have been so “attempt to leave.” Braverman believed client’s characterization of “voluntariness” to come over Northrop had been asked Nevertheless, legal with the definition. it officer, speak to the and compe minimum range is within the by what “looks prompted movement was weak, a claim when perceive tence as and taken in connection with request like a compulsion, that claim is based on [Northrop], Mr. my conversation with that he your own client indicates acted (Ginther I, request.” Hr’g like a appeared freely. 256). J.A. never told trying. Braverman that he had been patently obvious the court treats as stopped by police. leave and had been involuntary presence prior of an detention rely Northrop’s being The court cannot marijuana pos- admission Braverman’s stopped evaluating per- when session, stating question “[t]here is It is not a fact we “know” formance. Northrop.” and Collins detained Jackson today, and even less a fact that Braverman Supra at 380. Even with the benefit of privy deciding was to when whether to I years’ hindsight, ten do not think there is suppression make a motion.2 this, I have question” “no about dis- Certainly, that he Braverman did not attorney told his cussed. officers, question” that there “no approach perceive asked to conversa- matter, officers, primarily occurred between the about because in tion empty that one of them asked did not believe he had been pockets during questioning. his “if he would.” said detained his initial (Ginther I, Hr’g rely “sure” and did so. at 62- Braverman could not on Mr. 280-84). Amendment, expert J.A. Braverman made clear as his Fourth court, questioning, responses voluntary, 2. As to the initial the state to the were but it spoken imposes hearing, unarguable, after the Ginther then has these constitutional Michigan emphati- duty matters. The trial court for counsel to disbelieve his client and cally pursue stated "that Mr. Braverman understood claims inconsistent with his client’s ..., Otherwise, through apparently, his interview with Mr. statements. he is “not [Nor- throp,] [Northrop] voluntarily emp- acting that Mr. as counsel” Strickland. The under pockets, holding mandating that [had] tied his advised that he bud in court’s comes close to my finding.” challenge part his sock and the like. That’s a Fourth Amendment be V, (<Ginther 523). Hr’g every proceeding evi- J.A. AEDPA criminal where there suppressed, something goes demands that "a determination of a factual dence to be by presumed beyond issue made a State court shall be well what the Sixth Amendment re- 2254(e)(1). § quires, and cannot ends of to be correct.” 28 U.S.C. which serve the apparently agrees judicial system provide appropriate court that we must deem counsel. to have told Braverman that his latitude to defense gross legal incompetence on him as to find cir- necessarily but he relied these cumstances, certainly own state of mind and as to the and I do not believe of the officers’ conduct. Be- Michigan coerciveness was unreasonable that Terry that a cause Braverman believed courts failed to find it. occurred,3

stop had not and it is not unrea- I respectfully therefore dissent. range within the sonable find belief his failure to professional competence, meet the suppression file a motion cannot ineffectiveness

standard of constitutional habeas, on federal and Nor-

required

throp’s Amendment claim must fail. Sixth that, granting me appears It YEAGER, Plaintiff-Appellant, Lee writ, the court has filtered the factual rec- through ord the lens of the current asser- of the and contradicted petitioner, tions CORPORATION, GENERAL MOTORS

Morrison’s Strickland’s Sixth Amend- Defendant-Appellee. jurisprudence, ment as well as the more No. 00-3026. Taylor of Williams teaching recent as to judicial limits on our of state deci- review United of Appeals, States Court my colleagues repre- sions. Had either of Sixth Circuit. petitioner, might sented he well have suc- Argued Jan. 2001. suppressing ceeded in the evidence that Unfortunately led to his conviction. Sept. Decided and Filed 2001. petitioner, upon we are not called to decide Rehearing En Banc Denied Nov. solely if there was error in what was done Jackson, Attorney Officers Collins and Braverman, Michigan judicial or even the

system, much less whether we could have AEDPA,

done better. Under the neces-

sary inference of the court’s opinion is

all reasonable courts would find Braver- “grossly incompetent” believing

man compulsion

client’s claim that he felt no

accede to the requests. officers’ This is

client who obligingly also volunteered the

information that he had “bud” hidden in sock, response pro to a forma re-

quest any drugs. about whether he had may

Whatever we think about Mr. Braver- acumen, legal

man’s overall he cer-

tainly in the Mr. position best to assess credibility he when described police.

his encounter with the I cannot Terrystop. 3. This makes it irrelevant whether Braverman cient basis for a recognized have insuffi- should there was an

Case Details

Case Name: Charles Northrop v. David Trippett, Warden

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Sep 7, 2001

Citation: 265 F.3d 372

Docket Number: 08-4584

Court Abbreviation: 6th Cir.