Charlie Lee Mitchell v. Warden Gerald Mason

re- Rugiero’s response in Similarly, MITCHELL, Lee Charlie pages in withheld DEA quest, Petitioner-Appellee, with redac- released entirety and their support in affidavit tions. sim- summary judgment for DEA’s motion Respondent- MASON, mate- Gerald Warden of the withheld that none asserts

ply Appellant. None reasonably segregable. rial is any ad- offers exhibits supporting attached 99-1839. No. segregabili- regarding explanation ditional index Vaughn extensive ty. Nor does Appeals, United States considered agency even that the suggest Circuit. Sixth Therefore, also remand we the issue. 1, 2000. Dec. Argued court to deter- the district XI for Count withheld in any documents whether mine July Filed and Decided segreg- DEA contain entirety by the their un- disclosed should be able material

der the FOIA. Conclusion

VIII. reasons, we affirm the foregoing

For the in substan- district court

judgment remand for part, in part, reverse

tial (1) the “confi- apply proceedings

further under section standard

dentiality” DEA with-

552(b)(7)(D) documents (2) XI; to determine in

held Count withheld of documents

segregability and the EOU- the DEA entirety by

their jury grand pages

SA, excluding the 6(e) Rule pursuant withheld

materials remand, the district On

by the latter. normally tools all of the available

court has agency to ensure actions FOIA

available in obligations un- disclosure

compliance with ruling our recognize the Act. We

der produc- necessarily result

today will not part whole or documents

tion of these Rather, seek to ensure we Rugiero. governing le- with the compliance

agency information disclosing

gal standards the Act and think FOIA

under the disposition.

compels this Caminsky (argued

Jeffrey W. briefed), Wayne Prosecutor’s County of MI, Detroit, Respondent-Appel- Office, lant. MOORE, and DAUGHTREY

Before: CARR, Judge.* District Judges; Circuit J., opinion MOORE, delivered DAUGHTREY, J., joined. court, in which D.J., a CARR, delivered (pp.574-81), opinion. separate OPINION MOORE, Judge. Circuit Mitch- Lee Petitioner-Appellee Charlie in Michi- (“Mitchell”) was convicted ell second-degree murder of gan state court fifteen of ten to a term and sentenced Throughout his six- imprisonment. years’ awaiting tri- custody month confinement new counsel sought to have al, Mitchell he claimed his case because appointed to lawyer refused court-appointed to re- motion with him. Mitchell’s meet by the was addressed his counsel place jury day of second trial court state denied. subsequently selection of raised claim appeal, On direct counsel, which was of ineffective assistance Appeals of by Michigan rejected Supreme Court. then the remedies, his state Having exhausted for writ application an Mitchell filed district court in federal corpus habeas which Michigan, Eastern District We petition. Mitchell’s habeas granted for habeas petition that Mitchell’s believe the Michi- granted because must be relief unreasonably applied Supreme Court gan prece- Supreme Court clearly established claim. Mitchell’s briefed), in its review State dent (argued and Berg E. Rolf the district Therefore, AFFIRM Detroit, MI, we Office, Defender’s Appellate order. court’s Petitioner-Appellee. for * Ohio, by designation. Carr, sitting States United James G. Honorable District Judge the Northern for District Moore,

I. JURISDICTION fendant Antonio and several others present were apartment jurisdiction to hear We Warden p.m. around According 10:00 testi- appeal Mason’s the district court’s mony, fight broke out between Moore grant petition of Mitchell’s for cor- habeas and Harlin in Mitchell’s kitchen.3 The § pus under 28 U.S.C. only reason offered at trial for the start of fight was that Moore did not like the II. BACKGROUND way Harlin looking at him. After the Charlie Lee Mitchell was arrested and fight began, Tyrone Thompson and anoth- charged first-degree murder er individual Thompson, arrived. who was Harlin, Raymond death of who was killed prosecution’s witness, the principal testi- after a in fight broke out Mitchell’s kitchen fied that when he apartment arrived at the 3, 6, 1988, on October 1988.1 On October he in gun plain saw on view the window- Evelyn appointed Gerald K. was counsel sill and that he took it for fear that Mitch- Evelyn represented for Mitchell. Mitchell ell would use it to Thomp- shoot Harlin. preliminary at a examination on October son also testified that Mitchell said “shoot 14, 1988, during which he called one wit- in a hole thereby [Harlin’s] heart” and argued against ness and the denial of bail. thereafter, ordered killing. the Soon co- Mitchell, Evelyn represented next close to defendant Lamont Mason and Nehemiah later, four months at the final conference at apartment. Anderson arrived the Ma- 5, 1989, 1989. February April On son was another drug seller and Anderson suspended was practicing law purchase drugs. Thompson had come to in the of Michigan.2 State He was rein- by testified that the time Mason and 8, 1989, May day jury stated on selec- arrived, thought Anderson he the situation tion began for Mitchell’s trial. had calmed put gun down so he down. According by to the facts offered at trial At point, Mason then picked up the prosecution, Mitchell was the leader of gun and shot Harlin in the neck and back.4 a drug-trafficking ring and his Detroit Mitchell, Mason, and Moore were all

apartment served as a wholesale ware- charged first-degree Sepa- murder. house for several street-level sellers who juries rate heard Mitchell’s and Mason’s drugs lobby sold in building. of the cases, Harlin, deceased, opted while Moore for a bench trial. allegedly worked for Mason, killer, alleged acquitted Mitchell as a drug prosecu- seller. The Moore, trial. theory primary ag- tion’s was that Mitchell directed the who was the place gressor beating, pro- events that took in Harlin’s received apartment surrounding Harlin’s murder. On the bation for his conviction on as- felonious Mitchell, Harlin, night question, co-de- sault. woodcarving 1. The facts of the murder are set out full in knife. Mitchell also hit Harlin opinion, Court's see with his fists. Mitchell, People v. 454 Mich. 560 N.W.2d (1997), opin- and are summarized in this explanation 4.There is no in the ion. opinion Court's could how Mitchell killing prior have ordered to the killer’s why Evelyn

2. The record does not indicate apartment. 'arrival Mitchell’s See suspended. C.J., (Mallett, 560 N.W.2d at 616-17 dissent fists, 3. Moore beat ing). Harlin with his knuckles, bat, blackjack, brass a baseball Mitchell’s motion court denied trial, pres- not district Evelyn did At Mitchell’s prejudice. without did Mitchell argument. opening ent an Evelyn present testify, nor did trial, day of the sixth May On At behalf. on Mitchell’s witnesses that he had the court Evelyn informed case, Evelyn prosecution’s close filed Mitch- letter grievance received verdict. The a directed moved for Commis- Attorney Grievance ell with reducing the motion granted partially offered to He then May 1989. sion on murder. second-degree charge from the case. himself removed Evelyn argued closing arguments, During court, from the questions response to equivocal testimony was Thompson’s to, you like “I would then stated: Mitchell carried had not prosecution know, that the know, you grievance, cancel that jury convicted of proof. its burden everything motions and all the because May murder on second-degree Mitchell of answered.... have been requested that I by the sentenced Mitchell was at 192. satisfied, J.A. your Honor.” I’m years’ impris- to twelve to ten judge appeal as of filed an ten to resentenced and then onment challenging his Appeals Michigan Court to a mis- due imprisonment years’ fifteen appeal, In his and sentence. conviction original sentence. calculation his issues, including eight Mitchell raised by failing six trial, trial erred Mitchell wrote that the court to the claim Prior judge, the chief Mitchell trial substitute counsel. appoint to the to separate letters purposes counsel. for the requested a remand requesting new also judge, and others hearing, evidentiary known Evelyn holding had not visit- an of alleged Mitchell the effective as- hearing, he had the nor had as a Ginther prison him ed once People lawyer trial counsel. See sistance of his speak to opportunity Ginther, 27, 1989, days be- Mich. N.W.2d eleven April court. On (1973). Appeals the trial remanded begin, The Court of was jury fore selection hearing. “Motion a Ginther hearing on Mitchell’s allow Mitchell held a court at which of Counsel” for Withdrawal occurred before hearing, At which the Eve- on his own behalf. appeared Mitchell over the presided judge who had the same al- hearing, the for not lyn appear did testimony of trial, presented the Mitchell hearing, it. At had of the though he notice witnesses, including moth- Mitchell’s four he had court that Mitchell informed testified. Mitch- himself also er. Mitchell inform- from his counsel received letter call his trial appellate counsel did ell’s for a suspended he was ing him that counsel, Appellate Evelyn, to stand. lawyer new He asked month. also who had introduced two witnesses counsel to afford the trial of postponement and a apartment on present at Mitchell’s been case. to review his chance new Harlin’s murder establish night trial present, was not Evelyn Because and that material witnesses they were under advisement. held the motion court nor them called Evelyn neither contacted Mrs. Mitchell’s testify at selection, May them to trial. day jury On the second her nu- to establish testimony offered his motion 9, 1989, again renewed Evelyn and to to contact Evelyn, merous efforts point, At that for new counsel. other wit- before, him that there were inform day reinstated who had been Mitch- he interview. whom should wanted nesses that Mitchell informed efforts contact testified to his ell also to visit he had failed him removed because case with law- Evelyn and discuss his as prison promised. night him the before hearing, judge the trial formance and a yer. showing prejudice. After found that Mitchell had not demonstrated The court found because Mitchell had objective prejudice or as unreasonableness not adequately developed a record law and that he had required state hearing “regarding' Ginther what Mr. effective assistance of counsel. do, received Evelyn did or did not or whether Mr. alleged eyewitnesses,” knew the Appeals upheld Court of there factual was “no basis for a conclu- per conviction in a curiam deci- performance sion that counsel’s was con- Mitchell, People v. No. 118832 sion. See Mitchell, stitutionally deficient.” 1994). (Mich.Ct.App. January J.A. at adequate N.W.2d 609. Without an rec- ord, Evelyn’s failure to call the witnesses granted presumed to be trial strategy. Id. appeal Mitchell leave to file an on two Accordingly, the court found that Mitchell issues, only one of which is relevant to this prove could not either element of the case: whether defendant was denied his Strickland test. Id. at 610. The court right to counsel or effective assistance of concluded that “[a]n inference of constitu- 25, 1997, Michigan counsel. On March tional ineffectiveness cannot be estab- Supreme Court affirmed Mitchell’s convic- lished on the basis of the ‘circumstance’ of uphold three Mitch- tion: Justices voted thirty-day suspension during counsel’s conviction, abstained, ell’s two dis- two representation, seven months of without People v. sented. 454 Mich. any inquiry into the conduct of (1997). N.W.2d On Mitchell’s being developed record regarding claims, ineffective assistance of counsel preparedness counsel’s actual and its ef- Michigan Supreme that Court first found fect on the result.” Id. at 613. Evelyn’s suspension did not constitute a Finally, on Mitchell’s ineffective assis- “per during se” denial of counsel a critical appellate tance of counsel claim based on stage proceedings of the under United Cronic, appellate 648, counsel’s failure to call the trial States v. 466 U.S. 104 S.Ct. (1984). 2039, counsel as a witness at the L.Ed.2d 657 Ginther hear- 80 That court ing, Michigan Supreme held that rejected Mitchell’s contention that his case appellate counsel was not ineffective be- presumptive finding warranted a inef- of cause call Amendment, his decision to the trial fectiveness under the Sixth “obvious[ly] strategic” counsel was and concluding presented that Mitchell’s claim constitutionally therefore sufficient. Id. neither a circumstance in which it was unlikely any lawyer provide that could ef- dissented, finding Two Justices that counsel, fective assistance of a constructive Evelyn’s performance “per se” ineffec counsel, denial of nor an unconstitutional Cronic, tive under United States v. 466 grant failure to a continuance. See Mitch- 648, 2039, U.S. 104 S.Ct. 80 L.Ed.2d 657 ell, 560 at 607-08. N.W.2d (1984), States, v. 425 and Geders United 80,

According 1330, to the U.S. 96 S.Ct. 47 L.Ed.2d 592 Court, (1976), factors, Mitchell’s claims law- related his because of confluence of yer’s inadequate preparation including: Evelyn’s suspension, rendering and were properly analyzed completely thirty days therefore more under him unavailable for Washington, during stage pre-trial the Strickland v. 466 critical of U.S. inves tigation; 80 L.Ed.2d 674 the fact that failed to hold (1984), private meeting standard for ineffective assistance with the defendant dur counsel, requires per- ing period repre which deficient the seven-month of his rule and new constitutional would be a of the first-

sentation; gravity and to Mitchell. thus unavailable Mitchell. charge against degree murder 621-22. The N.W.2d at See standard applied court The district surrounding cir that concluded dissent developed had Circuit review the Sixth that unlikely it so made cumstances (6th Killinger, F.3d 352 in Nevers v. assistance of effective provide could Cir.1999), Supreme Court’s to the constructively Mitchell was that counsel Taylor, 529 U.S. decision Williams counsel.5 denied L.Ed.2d 389 S.Ct. (2000). court found that the The district 25, 1998, peti- filed a Mitchell March On delivery of indicated that “[f]rom facts the dis- corpus relief for habeas tion until to Mr. Mitchell discovery materials § 2254. under 28 trict U.S.C. trial, period approximately the time of grounds three habeas asserted Mitchell communi months, attorney never six first, court violated the trial that relief: Relying J.A. at 35. cated with his client.” failing appoint right to counsel States, 425 U.S. v. United on Geders continuance, counsel, when grant new (1976), the dis 47 L.Ed.2d days prior eleven judge informed prepa “[p]retrial that trict court concluded had not interviewed trial that counsel stage proceeding” ration is a critical practice suspended from him and was opportunity denial of the “[t]he and that second, trial; start of up of law to the attorney results revers an confer with or call to interview failure trial counsel’s J.A. at 40. error.” ible constitutional given fa- who would three witnesses Therefore, court concluded the district testimony constituted ineffective vorable constructively de had been third, counsel; ap- assistance of the Sixth purposes for the nied counsel was ineffective. pellate counsel conditionally granted Amendment response in its argued state petition for relief. habeas defaulted his procedurally Mitchell had district appeals from the Warden Mason adequacy of challenge the judgment. court’s call his trial he failed to counsel because hearing and other- Ginther counsel at the III. ANALYSIS record adequate make an failed wise of Review A. Standard claims; that the district court support properly court district court’s factual Whether by the state was bound corpus is a of habeas granted writ that none of witnesses determination review de novo. law that we question of hearing would have at the Ginther called (6th 722, 729 that, Brigano, trial and Doan of the 237 F.3d the result affected Cir.2001). Antiterrorism and Effec testimony, Mitchell trial counsel’s without (“AED- and, Penalty Act of 1996 final- tive Death findings; these could not rebut 104-132, PA”), Pub.L. No. Stat. ineffec- defense counsel ly, declaring § (1996), U.S.C. amended 28 suspension which thirty-day a per se for tive seeking play is to "Evelyn might performance. If truth some noted that while 5. The dissent justice system, defense in our criminal role very gifted who knows full a be attorneys some effort to exert least ex- must game,' this cannot well the 'rules that, exculpato- there is explore truth so if Defending preparation. lack of cuse the total client, their ry available in favor of first-degree trial is not evidence person in murder 560 N.W.2d they present can it.” representation must mean game. Effective good n. 7. giving a showing up more than J., petitions concurring). Court, all habeas filed after applies According to the 24, 1996, April may the effective date of the federal habeas court find that petition Act. Because Mitchell’s for habeas state court decision in an resulted “unrea- date, application after the effective AEDPA sonable of’ clearly was filed established Federal if governs our of this case. law “the state court identifies review governing legal principle the correct AEDPA, a Pursuant writ of habeas unreasonably this Court’s decisions ap- but corpus may granted respect not be plies principle to the facts of the adjudicated any claim that was on the prisoner’s case.” Id. at proceedings

merits State court unless Supreme 1495. The Court cautioned that adjudication of the claim— “a federal may habeas court not issue the (1) resulted in a decision that was con- simply writ because that court concludes in to, trary or an involved unreason- independent judgment its that the relevant of, application clearly able estab- state-court applied clearly decision estab- law, lished Federal as determined erroneously lished federal law or incorrect- the Unit- Rather, ly. that application must also be States; ed unreasonable.” Id. at 120 S.Ct. 1495. (2) resulted a decision that was The Williams decision also clarified that in based on an determi- unreasonable our review of judgment, the state court’s light nation of the facts may only holdings, op- we took to the as presented evidence in the State dicta, posed to the Court’s proceeding. decisions as of the time of the relevant state-court decision to determine whether 2254(d)(l)-(2). § 28 U.S.C. The federal unreasonably applied the state court clear- presume court must that all determina- ly established federal id. at law. See tions of factual issues made the state court are correct can unless defendant presumption by

rebut clear con- mind, guidelines these With we turn vincing evidence. See 28 U.S.C. question to the whether the district court 2254(e)(1). § properly granted petition for ha- corpus beas relief. question whether Mitchell was deprived of his to effective assistance B. Procedural Default of counsel is a question mixed of law and States, 224 Preliminarily, fact. Olden v. United F.3d we must address the War- (6th Cir.2000). case, argument a habeas den’s first that the district court apply application” by evaluating we the “unreasonable erred Mitchell’s ineffective 2254(d)(1) § prong question of to a mixed assistance of trial counsel claim instead of Ohio, Harpster rejecting procedurally of law and fact. v. it as defaulted (6th Cir.1997). 322, F.3d that Williams state court. Warden Mason asserts 362, 1495, 146 law, Taylor, v. Michigan U.S. 120 S.Ct. under when the effective- (2000), lawyer’s representation L.Ed.2d 389 the ness of a is chal- upon independent meaning lenged, elaborated the the called a must be as conveyed by “contrary the testify hearing to” and “unrea witness to at the Ginther application evidentiary of’ proper sonable clauses the stat order to create the rec- ute, Warden, analysis well as the According as distinct to be ord. to the Mitchell’s Williams, performed under each clause. failure to call his trial counsel at the Gin- 410, (O’Connor, hearing procedural 529 U.S. at 120 S.Ct. 1495 ther violated this state rule as procedural well-established state Therefore, was unable to Mitchell rule. re record that claim was factual time necessary the the establish claim. evaluate his appellate could review that court which viewed which barred Michigan the Su- that testimony asserts at The Warden counsel’s of trial the absence procedur- this state relied on preme Court argument At be hearing. oral a Ginther relief. deny to al rule court, counsel for Warden fore this case, v. very People pointed us to this first that argues a the state When 560 N.W.2d 600 454 Mich. federal claims has defaulted petitioner a (1997), Michigan has as evidence independent to an pursuant state court requir rule procedural firmly established rule, federal procedural adequate state and at to call defense counsel ing the defendant peti unless is barred review habeas de hearing procedurally or risk a Ginther for the default and can show cause tioner course, citing to faulting claim. Of alleged result of the as a prejudice actual to coun v. review is useless very law. Coleman case under of federal violation 722, 750, 111 S.Ct. to Thompson, 501 U.S. it is his burden demonstrate sel because (1991). For firmly 115 L.Ed.2d 640 already the rule was estab feder default to bar procedural doctrine time regularly followed as lished and however, firmly review, a established al the rule. See court invoked the state procedural followed state regularly and Ford, 423-24, 111 at S.Ct. 850. 498 U.S. claim petitioner’s to the applicable rule to a then cited Counsel for Warden exist, must have petitioner and must in another case one-paragraph order that rule. See Ford comply with to failed hearing, People v. a granting Ginther 423-24, 111 S.Ct. 498 U.S. Georgia, v. Williams, (1974), support 391 Mich. 832 (1991) (explaining 112 L.Ed.2d single, one-paragraph his contention. This independent state adequate an and to demonstrate utterly is insufficient order the consideration of procedural bar so procedural rule existence of state must have been claims “constitutional regularly followed” “firmly established regularly followed’ ‘firmly established and federal con may petitioner’s it bar a applied”) it to be of which is the time as claim on collateral review. stitutional Kentucky, 466 U.S. (citing James Ford, 423-24, 111 S.Ct. 498 U.S. (1984)). 1830, L.Ed.2d 346 348, 104 James, 348, 104 S.Ct. 466 U.S. at (quoting peti review the jurisdiction to We 1830). the last claim unless state federal tioner’s sought re petitioner from which no motion for there has been When firmly expressly invoked clearly and view case hearing, trial or a new Ginther rule as a procedural basis state established reviewing Michigan reveals law .that reject review of the for its decision of ineffective consider claims court will Coleman, 501 claim. petitioner’s federal will be forced of counsel but assistance U.S. trial record for examining limit itself errors, record has been devel- as no other review of on our Based Thus, its proge- oped.6 while Ginther law, that there was no we conclude case Snider, existing to the rec- See, Mich.App. review limited because is e.g., People 239 v. 6. 409, Williams, ord); 502, (where 393, (2000) People Mich.App. 223 v. de- 517 608 N.W.2d (1997) ("Because 649, there 652 566 N.W.2d for a new trial or failed to fendant has move hearing, review is limited our was no Ginther evidentiary for ineffec- hearing, his claim an record.”); People apparent the "largely to mistakes is forfeited” assistance of counsel tive

563 develop ing an stage proceedings, that it is crucial to critical the ny indicate failures record of trial counsel’s adequate prejudice presumed. must be In succeed, petitioner’s Williams, if claim is to we be- Supreme Court confirmed that have Michigan lieve that those courts vitality “per approach, of this se” not counsel rejected ineffective assistance of ing that while the Strickland v. Washing claims have done so on the merits of ton, 668, 2052, 466 104 U.S. S.Ct. 80 procedural claim and not due to default.7 (1984), L.Ed.2d 674 test for ineffective as no Because we conclude there was counsel, requiring proof sistance of of defi followed firmly regularly established and performance prejudice, provides cient rule inef- procedural state to bar Mitchell’s guidance resolving virtually all ineffec claim fective assistance when the claims, tive assistance of counsel there are case, this Supreme Court reviewed “a prejudice may few situations which in considering district court did not err Williams, 391, presumed.” be 529 at U.S. engage claim and we need not in a cause- Strickland, (citing 120 S.Ct. 1495 466 U.S. analysis reaching the and-prejudice before 2052). 692, at 104 recently S.Ct. We have of Mitchell’s claim. substance applied presumption-of-prejudice test to a claim of ineffective assistance of coun Application of AEDPA C. Olden, sel. 224 (prejudice F.3d 568 is question under threshold presumed during when counsel is absent AEDPA ap is whether Mitchell seeks to prosecution’s presentation of evidence that ply clearly a rule of law that was estab implicates defendant because such absence lished at the time his state court convic trial). during stage” occurred “critical Williams, final. tion became 529 U.S. at Thus, easily we reach the conclusion 390, 120 S.Ct. 1495. There is no doubt clearly it was established that the rule of law that Mitchell seeks to Court, as of the time that Mitchell’s case apply “per se” ineffective assistance —the court, was decided in state “com clearly of counsel rule —was established plete during denial of counsel a critical v. Court United States stage judicial proceeding of a mandates Cronic, 466 U.S. 104 S.Ct. 80 presumption prejudice.” Roe v. Flores- (1984). Cronic, In L.Ed.2d 657 the Su 1029, 1038, Ortega, 528 U.S. preme appeals Court held an (2000) Cronic, (citing L.Ed.2d 985 a criminal must reverse defendant’s con 2039). U.S. at any specific showing viction “without clearly Because there is established law prejudice to defendant when counsel was claim, applicable to Mitchell’s the next absent, totally prevented either question address whether we must is assisting during accused critical Cronic, Michigan Supreme reject- decision Court’s stage proceeding.” 25, 104 ing n. Mitchell’s ineffective assistance claim U.S. S.Ct. 2039. other words, totally application when counsel is dur- was “an unreasonable of’ that absent Dixon, case, Mich.App. 552 N.W.2d In this that, (1996) ("Defendant determined because failed to created testify hearing, called to at the Ginther it had a testimonial record in the trial court with "no factual basis for a conclusion that coun- regard to his claims of ineffective assistance. constitutionally performance sel's defi- appellate This failure forecloses review unless cient undermines confidence in the relia- support the record contains sufficient detail to bility 560 N.W.2d at of the verdict.” claims."). defendant's 609. This is a decision on the merits of Mitch- presented ell's claims as to the court. 75 L.Ed.2d on “an unrea- or was based law

established every (1983), proposition that “[n]ot for the light of the facts determination sonable opportunity ... to on counsel’s restriction in the presented State the evidence prepare for ... or otherwise to 2254(d)(1)- investigate § 28 U.S.C. proceeding.” court Amend trial violates a defendant’s Sixth (2). correctly argues that the The Warden counsel,” Michigan Su right ment Michigan review the failed to district that it was not preme Court determined the defer- findings under Supreme Court deny trial court for the state error mandated of review standard ential so that request for a continuance Mitchell’s court’s order did The district AEDPA. lawyer prior to could consult he with Michigan Su- whether not determine Mitchell, at 607 (quot 560 N.W.2d trial. objectively un- analysis was Court’s preme 11-12, Morris, ing 461 U.S. S.Ct. instead, reasonable; essentially reviewed it 1610). v. Cron Pointing to United States now, must de novo. We claims Mitchell’s ic, 648, 104 L.Ed.2d 466 U.S. therefore, appropriate review conduct the (1984), Michigan Supreme Court decision. Supreme Court’s Michigan thirty-day suspen Evelyn’s that then held not a constructive deni sion did constitute Ineffective Assistance of Mitchell’s D. Moreover, al of counsel. Claim Counsel declared, claim of inef Supreme Court Michigan Supreme Court Although the “stemming of counsel fective assistance Supreme Court acknowledged properly thirty-day suspension coupled with right that by noting “[t]he precedent not, preparation” does six-months time representation during extends to counsel Cronic, create a circumstance pursuant to proceedings,” stage’ ‘critical it any unlikely that could making soit. that to counsel concluded then constitutionally with provide the defendant provide state to require “does not Mitchell, 560 effective assistance. See at access to the with unlimited defendant at 609. N.W.2d that forti torney during “[a] the trial” and then eval- ori, a defendant ‘a guarantee it does to determine Evelyn’s performance uated during pretrial in-depth interview’ private it deficient under the familiar whether was choosing.” place of the defendant’s standard and conclud- two-part Strickland (internal n. 9 at 605 560 N.W.2d Id. The court first stated ed it was not. omitted). citations no factual basis for conclud- that there was “allega case as one about Framing this Evelyn’s performance was consti- ing that the Mich inadequate preparation,” tions of tutionally inadequate. See id. at 609-10. apply declined igan Supreme Court part of performed court then the first analysis to prejudice Mitchell’s se per rec- analysis based on the the Strickland suggestion rejecting the that after claim Evelyn’s it and determined that ord before presented case circumstances performance constitutional muster. met any lawyer unlikely it could made at 610-11. See id. representation,, effective provide counsel, rec thorough review of the After constructively denied Mitchell ord, undisputed that the we are convinced counsel combined that he was denied Evelyn spent amount of time with grant a continuance. See a failure to jury selection and the Michigan Supreme Court at 607. The id. approximately six minutes start of in inverse order. refuted these theories trial — separate meetings in spanning three Sloppy, 461 U.S. Relying on Morris v. 565 bullpen, light Evelyn’s when viewed in of unjustified.” 658, is case Id. at 104 S.Ct. month-long suspension practice im- 2039. Such circumstances include the mediately prior complete to trial —constituted a counsel, denial of as when coun- complete denial of at a counsel critical is totally sel either prevented absent or stage proceedings. accused, We conclude from assisting the at a critical that, in insisting evaluating on stage of 659, the proceedings. Id. at Strickland, under the claim standard for 2039. complete When a denial of counsel, occurs, ineffective assistance of the Michi- counsel the constitutional error is erroneously Court such a gan magnitude and un- of a that defendant need reasonably applied clearly specific not “show established Su- how errors of counsel law undermined preme reliability Court Cronic.8 of finding established

guilt.” Id. at n. 104 S.Ct. 2039. E. Constructive Denial of Counsel Michigan Supreme Court’s error Supreme Court analysis was to focus its Evelyn’s thir- general noted properly principles that ty-day suspension from practice of law ease, applicable important are to this most and frame this case as one about inade- ly to the assistance of coun quate preparation time. It is true that the the right sel is to effective assistance of Supreme Court has made clear that “ex- Cronic, counsel. U.S. ternal constraints” on per- trial counsel’s At 2039. issue is not the accused’s rela formance, such as the trial court’s refusal tionship such, lawyer with his as but the grant continuance, a give will not rise to integrity of the process adversarial and the presumption a of prejudice. Time con- right of the accused to “require prose do straints not obviate the need for an cution’s case to survive the crucible of inquiry individualized into trial counsel’s meaningful testing.” adversarial Id. at Cronic, performance each case. See 657 n. 104 S.Ct. 2039. As the U.S. at 662 n. 104 S.Ct. 2039. This observed, Court not, however, case is external about con- counsel, prove ineffective assistance straints on trial prepare: counsel’s time to typically defendant must demonstrate that the Michigan Supreme noted, as Court specific errors made trial counsel af trial counsel had at six least months to ability fected the investigate the defendant to re ready this case for trial. a fair ceive trial. The United States Su We believe the determinative issue is has, however, preme recognized whether, during the critical seven-month there are some period, “circumstances are so pre-trial trial counsel consulted likely prejudice Cronic, accused that client. of litigating particular

cost their in a effect per Court made clear there is se (6th Scroggy, In Dick v. F.2d apply must Strickland to Mitchell's claim. 1989), Moreover, panel Cir. applied this the facts of that case are distin- Dick, Strickland performance-and-preju guishable: deficient the defendant was inter- analysis dice to a lawyer defendant’s claim that his viewed 30-45 for minutes in constitutionally case, defense counsel was meeting, ineffec one while in instant Mitch- only tive because she him lawyer interviewed for 30- ell claims that he met with his night 45 minutes the before trial. The court spanning separate total of six minutes three Indeed, in Dick neither ap meetings. whether addressed Cronic heart of Mitchell’s plied specifically to the facts it before nor claim is that his never interviewed him it; rather, Therefore, rejected the court assumed that at all. on the based law and the facts, applied. Strickland reasoning The absence of controlling we conclude that is not Dick in that case does persuade authority. us that we if defen- “[e]ven that preme Court stated is “either counsel when of denial counsel fully creditable mother were and his absent, assisting from dant prevented totally only ... met with the stage of the and Mr. a critical during the accused times, not a ‘denial this is n. three at 659 defendant Id. proceeding.” Rather, during stage. that a critical we believe explain, of counsel’ As will we must, perfor- according allegations to of are deficient period these pre-trial the prece- meet Court that must the of mance counsel analysis close for Sixth Id. dent, “critical” considered Strickland standard.” be Therefore, Eve- purposes. Amendment has decided Supreme Court for consult with to lyn’s failure that make clear the cases that several minutes, coun- coupled with than six more of counsel appointment period between practice, from month-long suspension sel’s a “critical trial is indeed and the of start of per se denial considered must be purposes. In Amendment stage” for Sixth “totally ab- counsel was counsel because Alabama, of group v. which Powell of stage the during a critical ... sent raping of two African Americans accused Su- Michigan Id. proceedings.”9 un appointed counsel girls not white were contrary the decision to preme Court’s trial, Supreme Court the day til the of of application unreasonable represents an “requires a criminal defendant found that prece- Supreme Court clearly established every step hand of guiding counsel dent. him. against Without proceedings in the analysis sole- framing its erroneously By faces it, guilty, be not he though he thirty-day suspension, Evelyn’s ly around he does not of because danger conviction failed even Supreme Court Michigan his innocence.” how to establish know period con- pre-trial consider whether Alabama, 45, 69, 53 v. U.S. Powell proceed- stage of a “critical stitutes (1932). support 77 L.Ed. 158 Indeed, ings.” in that case finding that defendants of its was not that “[defendant Court concluded assistance of per were denied effective se of any stage critical during unrepresented counsel, noted that: the Court 560 N.W.2d proceedings,” peri- critical [DJuring perhaps the most represented at he 609 n. “was because these de- trial, examination, proceedings against od of the during preliminary of fendants, say, the time that is to from through sen- stages critical during all of beginning arraignment until the Moreover, their Michigan Su- tencing.” Id. lawyer was absent defendant's when counsel when an that we have held 9. We note due during taking the courtroom on defendant's attorney of evidence is absent government family is while a death in the guilt). guilt, then of defendant's presenting evidence stage during a critical counsel is absent acknowledges a de- dissent 10. Even the per se denial of proceeding, and there is a lawyer's to consult failure fense knowingly did waive if not counsel defendant Amend- trial violates the Sixth client States, v. United counsel. Olden Indeed, the dissent at 576. ment. See infra Cir.2000); (6th see also 224 F.3d Michigan Supreme Court’s concludes that Patterson, F.3d v. United States demonstrated holding Mitchell had not (defendant (7th Cir.2000) lawyer skips whose performance constitutionally deficient under client has multiple days trial where clearly "contrary estab- to ... Strickland per representation suffers agreed to substitute law, by the Su- as determined lished Federal Arn, counsel); 809 F.2d Green se denial of is, States,” which remand, the United preme (6th Cir.1987), 'd aff after course, granting habeas relief. (6th Cir.1988) basis (per denial one se 839 F.2d 300 trial, consultation, defendant, their when thorough- trial counsel cannot fulfill his going investigation preparation duty or her investigate. The Court vitally important, were the defendants stated that “[t]he reasonableness of coun- did not aid of counsel in may sel’s actions be determined or sub- sense, although they real stantially were as much influenced the defendant’s during entitled to such aid period as own statements or actions. Counsel’s ac- at the trial itself. based, usually tions are quite properly, on informed strategic choices made 57, Indeed, Id. at 53 S.Ct. 55. the Court defendant and on supplied by information that attempt remarked “[n]o made to the defendant.” Id. The Court went on to investigate. opportunity No to do so was emphasize significance further the of the given- Under the circumstances dis- input defendant’s into trial closed, counsel’s inves- we hold that defendants were not tigation: right accorded the of counsel in sub- otherwise,

stantial sense. To In particular, decide would what investigation deci- simply ignore be to actualities.” Id. at sions are depends reasonable critically Later, Cronic, 53 S.Ct. 55. the Su- on such [provided by information defen- preme if Court noted that no actual “assis- example, For dant]. when the facts that tance” for the provid- accused’s defense is support a potential certain line of de- ed, then the Sixth guarantee Amendment generally fense are known to counsel has been violated. According to the because of said, what the defendant has Court, begins ap- “[assistance with the the need for further investigation may pointment counsel, it does not end be considerably diminished or eliminated Cronic, there.” 466 U.S. at 654 n. altogether. And when a defendant has 2039; Burbine, Moran v. given counsel reason to pur- believe that cf. 412, 431, U.S. 106 S.Ct. 89 L.Ed.2d suing investigations certain would be (1986) (noting that defendant’s Sixth harmful, fruitless or even counsel’s fail- Amendment to counsel attaches “af- pursue ure to investigations may those ter the initiation of formal charges”). not later challenged be as unreasonable. short, In inquiry into counsel’s conversa- pre-trial period

The constitutes a may tions with the defendant be critical period” “critical it encompasses because proper to a assessment of counsel’s in- counsel’s constitutionally imposed duty to decisions, vestigation just may as it be Strickland, investigate the In case. proper critical to a assessment of coun- Supreme Court explicitly found that trial litigation sel’s other decisions. “duty counsel has a to investigate” and that discharge duty that “counsel has a Id. Supreme Because the Court has re- duty to make investigations reasonable or peatedly made clear that duty there is a to make a reasonable decision that makes incumbent on trial counsel to pre- conduct particular investigations unnecessary.” investigation, trial it necessarily follows Strickland, 466 U.S. at trial counsel cannot discharge this Supreme recognized duty Court also if he fails to consult with his or her pre-trial without consultation with the client.11 not, 11. This is as counsel for the Warden since at least when it handed down claims, a new rule of law. As our discussion Powell. A new rule of law "breaks new indicates, Supreme precedent ground Court imposes obligation" a new on the Supreme pre-trial Court has government. considered the states or the federal Alternative- period stage proceedings ly, to be a critical of the a court announces a new rule of law "if from this case. distinguishable completely recognize failure to its In addition ap- defender public the new Slappy, and the period pre-trial importance repeatedly as- case consultation to defendant’s lawyer-client pointed significance prepared he was Michigan trial court that during period, sured unreasonably relied his conferences erroneously and on the case based try 1, 103 S.Ct. study 461 U.S. he had Slappy, Morris v. defendant and with the (1983), denying trial L.Ed.2d investigation. made of the claims. assistance public ineffective de- the first noted that specifically Court, According case prepared” the “well fender had suggestion Slappy “demonstrates read the tran- counsel “had new that the was vio right to counsel that defendant’s hearing, and had preliminary script of the court should because the lated case, the mat- all reviewed ‘prepared is error.” a continuance granted and other items ters, pictures, obtained ” omitted). (footnote 607 560 N.W.2d at into evidence.’ produce to that intends he claimed a defendant who involved Slappy (internal quotation 103 S.Ct. 1610 Id. at ill and defender fell public that because omitted). “ himself stated that Trial counsel twen was substituted replacement counsel investigation that feeling is that ‘[m]y all effectively trial, was days he ty-five before that should be done done and to be needed trial. a new deserved unrepresented and could have possibly that been and quite ” noted, the Supreme Court Michigan As the (internal quota- done.’ Id. done has been the Court, rejecting defendant’s in Slappy omitted). tion on every claim, restriction “[n]ot held that the Ninth Circuit reviewed the When investigate to opportunity time or counsel’s holding case, relief after granted it habeas to or otherwise his client consult with or to included the the Sixth Amendment that a violates defendant’s for trial prepare attorney-client “meaningful rela to a right to counsel.... right Amendment Sixth Supreme Reversing, the Court tionship.” [Bjroad granted be must discretion relationship” re “meaningful rejected the continuances; only an courts on matters possi court could because quirement “[n]o upon arbitrary insistence unreasoning and devel a will defendant bly guarantee justifiable a in face of expeditiousness attorney with rapport kind of op the to the delay right violates request for thought part Appeals ... the Court 461 U.S. Slappy, of counsel.” assistance guarantee Amendment of the Sixth (internal citations 11-12, 13, 103 Slappy, 461 U.S. S.Ct. counsel.” omitted). 1610. however, for the merely stands Slappy, Mitchell, however, new did not seek limita- every external that not

proposition that he did not have ground on counsel ability prepare on trial counsel’s tion Evelyn; sought he “rapport” with good per se constitutes his client consult with his counsel re- Evelyn because to replace Slappy The facts in of counsel. denial trial. prior to consult with him fused to applying the guide offer lower courts of the note fact Slappy, the Court took it facts render holding, and the Court’s novel is a new or at least once his client by precedent exist- dictated the result not government being imposed obligation defendant’s conviction ing at the time Powell, Lane, Teague 489 U.S. Supreme Court’s cases became final.” or that 300-01, Strickland, compel S.Ct. L.Ed.2d this Cronic do (1989). argued that seriously be It cannot result. obligation to consult defense counsel's objections appeared justifiable request the defendant’s face of a delay.” for delay Slappy, 11-12, trial and to be tactics were not 461 U.S. at 103 S.Ct. 1610 (internal omitted). good made in faith. See id. at citations case, contrast, Supreme Slappy In this Court’s reliance on is ob- jectively sought light new for six unreasonable of the counsel facts in the record. only months to his trial. The reason question was addressed on the second that, analysis Our makes clear al day jury selection was because the trial though Michigan Supreme prop Court

judge failed to rule on of Mitchell’s erly appropriate identified the previous motions for new counsel. More- i.e., precedent, that counsel’s ab over, Slappy Court observed that de- during sence a critical stage pro of the fendant’s new counsel demonstrated “his ceeding per constitutes a se denial of coun study prompt investigation, his care- sel, it then erroneously and unreasonably prepared ful review of the materials ... applied precedent by failing to consid trial, [defendant], his conferences with pre-trial er whether the period was “criti representation and his to the court that ‘a cal.” Court also further continuance would not benefit me States, failed apply Geders v. United ” in presenting the case.’ Id. at which the Court held that S.Ct. 1610. right encompasses to counsel Slappy proposi- Geders, does not stand for the lawyer. confer with one’s 425 U.S. 80, 88-89, 1330, speak tion that trial counsel need never 96 S.Ct. 47 L.Ed.2d 592 (1976). trial; prior merely with his client it Geders held that a court order holds that there is no constitutional preventing re- counsel for the defendant from quirement develop consulting that defense counsel during with his client an over “rapport” night with his client.12 Instead of fall- in recess the midst of defendant’s ing squarely Slappy’s purview, testimony within per this constituted a se denial of closely case more resembles during those cases counsel a critical stage pro of the which there is “an unreasoning ceedings and arbi- in violation of the Sixth Amendm trary upon expeditiousness Court, insistence According Supreme ent.13 to the Likewise, Maroney, Appeals, investigated Chambers v. 399 U.S. the Court of which had 42, 54, (1970), performance, holding 90 S.Ct. counsel's did not err in L.Ed.2d 419 prejudiced by that defendant was not his law- proposition does not stand for the that de- yer's appointment later and that there was no speak fense need counsel not with his client per prejudice applied se rule of which prior to trial. The Warden cites for Chambers controlling defendant’s case. is not Chambers proposition Slappy, the same as that "[n]ot re-trial, because it involved a defendant's not every restriction on counsel's time ... to con- trial, directly his first and the issue before the prepare sult with his client or otherwise to appointment Court was a last-minute and the trial violates a defendant's Sixth Amendment ability prepare of counsel to for trial. More- right Slappy, to trial.” 461 U.S. at over, presum- Chambers's second Court, According Supreme S.Ct. 1610. to the ably privy investigation to the and research proposition Chambers stands for the prepared by lawyer, Chambers’s first whose "per requiring there is no se rule reversal of performance unchallenged. went evety following tardy appointment conviction Chambers, of counsel.” 399 U.S. at Michigan Supreme 13. The Court cited to Per- Chambers, appointed S.Ct. 1975. In counsel Leeke, ry v. 488 U.S. met with the defendant minutes before defen- (1989), support proposi- L.Ed.2d 624 the begin. dant's re-trial was about to The Su- right tion that the to counsel "does not re- preme rejected challenge Court defendant's quire provide the state to the defendant with counsel, adequacy concluding attorney during the of his unlimited access to the bullpen at in the Recorder’s place inten- often times of are recesses

“[s]uch Court, privacy. to be had no work, arguably tactical decisions he where sive to be reviewed. strategies simply relief is made and Mitchell’s claim for client obtain from his lawyer may need to attorney never consulted with day’s information made relevant trial. This him to the of claim start pursue inqui- may need to testimony, or he out the record. adequately is borne fully explored earlier. ry along lines least, very overnight recess At the Pre-Trial Contact With F. Mitchell’s a chance gives defendant during Attorney His significance counsel to discuss with argues that the The Warden dis Id. at 96 S.Ct. 1330. day’s events.” on factual based its decisions trict court to consult must be allowed If a defendant rejected by the state findings specifically recess, overnight lawyer during an with his 2254(e)(1), § which courts violation to con- surely has the defendant presume that all a habeas court to requires than lawyer for more six sult with his findings by a state court are factual made period. pre-trial during minutes the critical convincing absent clear and evi correct that the rule of do not believe law We contrary. to the See 28 dence U.S.C. Court, by Michigan put forth 2254(e)(1). presumption § correct guar- “does not that the Sixth Amendment not, however, to the does extend ness in-depth inter- private ‘a antee defendant conclusion legal Court’s place during pretrial view’ counsel that Mitchell was not without Mitchell, choosing,” defendant’s Thus, stage proceedings. critical 9,n. is an accurate reflec- at 605 N.W.2d pronounce Michigan Supreme Court’s prece- known tion of factual basis for a is no “[t]here ment dent, any way decide this nor does it in performance that counsel’s conclusion extravagant no case. Mitchell makes deficient,” constitutionally interview, “in-depth” an regarding claim not the deference at due N.W.2d is hinge on the complaint nor his fact does fact,14 pure finding to a of as this attorney all accorded meetings his took his Mitchell, support the much The case does not broader N.W.2d at 605 n. 9. trial.” may defendant proposition that have Perry with a assertion that dealt defendant's attorney during the access to his unlimited right presumptively his to counsel wa’s denied Indeed, by noting defendant trial. to allow him when the state refused court right” with his an absolute to consult "has lawyer during a fifteen-min- consult with his testify, attorney begins the Su- before he ute recess between direct and cross-exam- oppo- appears preme Court to have held Distinguishing between the fifteen- ination. Michigan Court's inter- site of in the case before minute recess at issue it pretation. Geders, overnight at issue in and the recess that “when Court observed rejects Michigan Su- 14. The dissent also witness, he has no defendant becomes con- record that the preme Court’s determination lawyer right to consult with his stitutional support that counsel's did not the conclusion testifying. He has an while he is absolute constitutionally performance was deficient. begins he right to such consultation Indeed, before the dissent con- at 577. See infra testify, nor his has a but neither he aspect Su- that this cludes testimony interrupted to have the an preme was "based on Court’s decision give the benefit of counsel’s order to him of the facts unreasonable determination Perty, U.S. at presented advice.” light in the State evidence added). holding granting (emphasis proceeding,” The Court's another basis for court (quoting 28 at 577 U.S.C. Perry a narrow one which is confined to habeas relief. is Infra 2254(d)(2)). § testifying. a defendant is period in which encompasses question until days statement mixed letters eleven before the start of fact, the trial. of law and which we review de novo.

Indeed, our conclusion is dictated our April 27, 1989, On the trial judge con- application of law to facts the state vened a hearing to discuss Mitchell’s mo- record, properly governed court which is appointment tion for of new counsel. At 2254(d)(1). by § the hearing, Mitchell informed the trial court that he had received a stating letter Although Michigan' Supreme Evelyn suspended had been from the regard- “[n]o stated that record was made law; practice of it appear does not that the do,” ing Evelyn what Mr. did or did not trial court was even that Evelyn aware had at that court N.W.2d suspended. Evelyn been did not attend noted that Mitchell “wrote six letters to hearing, presumably this because he was judge, judge trial the chief and others suspended practice point. this counsel,” requesting removal of id. at 603. judge postponed a decision on letters, part These which were of the rec- Evelyn Mitchell’s until motion was able to Court, ord before the present. be document Mitchell’s unsuccessful efforts to 9, 1989, May On day jury the second contact For attorney. example, selection, the trial court revisited the issue 8, 1989, February Mitchell wrote to the request for new counsel. court: Evelyn present at this time. At this up I have locked for 5 been months and hearing, Mitchell stated to the court: my lawyer not once have took time out Well, very beginning, you from the to talk to me .... 3 times after I went to know, Mr. promised to talk with my lawyer has told me that he me. He has failed to talk with me on me, would be over to talk to but never every promised. occasion that he He did.Every my since second month me, has failed to make motions for being my incarcerated I had mother, my and he’s failed to talk with go concerning mother over his office many which she has written letters and evidentiary hearing, an she have been calls, office, also, and went to his left times, many his office she has wrote secretary. word with his And he also many replied letters but he has never up an on my showed hour late final I I’m charged her.... know for some- by him letting conference and me know done, thing I I if I haven’t but know that yesterday going that he was to come can’t express to Gerald K. what by him failing over and talk with me and happen night on the this incentdent oc- that, just, just just to do I I feel it’s stradagy curd he will not know the best incompetent. fight of what and how to this at 174. court J.A. When the asked: case.... For 5 months I have waited “[n]ow, letters, question in those it was a patiently, tryed every way I I have can keeping appointments, seeing of his not or me, get to him to talk to I am tired of you many you’d as times as like to be seen being knowing dark in he’s jail; right?” in the is that Mitchell then your the dark... .So honor Please take replied: seeing me at all.” “Yes. Never him my repre- off case because he’s not added). (emphasis J.A. at 174 He further senting me at all. only time I him asserted meet “[t]he (Handwritten courtroom, J.A. at 108a—108b Letter is in the or brief discussion Mitchell). responded bullpen plenty people No one to his of other with sitting him in the seeing I recall courts just I don’t see how bullpen. t> courtroom, I him. the first time met true fairness.” J.A. say that that’s can hearing, hard of also who is preliminary examination? At the ¿0 wearing he was not that because claimed ¡> Yes. bullpen, he could not hearing aid in the And, him much contact with how <© saying of what his hear half you preliminary have before the did point, At one Mitchell him. J.A. at 184. examination? way I make it all the can “[H]ow asked: |> None. my Evelyn has never heard trial when Mr. ¡k ¡k sk # # # story.” at 185-86. of the J.A. true side Q: you your next see attor- When did this length during Evelyn testified ney? argument made the hearing. he While Well, bullpen him in A: I would see discovery materials that he had delivered courtroom, maybe about behind the process of work- Mitchell and was pro- three times —three different prosecutor sup- a deal with ing out ceedings. trial, evidence on the eve of press certain And, Q: proceedings those were later of Mitch- disputed the substance he never in Recorder’s Court? point At one he did allegations. ell’s “I to him [Mitchell] claim: talked A: Yes. examination, your Honor. [pre-trial] And, Q: roughly, you say how would out at least. We leaving

He’s one visit him you much contact did with have talked on numerous occasions.” J.A. proceedings? before the court statement, non-responsive at 186. This A: One or two minutes. however, only fact that is conclusive rjí í|í 5¡í íji í¡í had met in the courtroom he and Mitchell Q: you Evelyn at Did see Mr. appearances, which bullpen before Wayne County your Jail trial before acknowledged. Notably, when Mitchell in this case? presented opportunity with the to clear the No, I A: never did. judge, Evelyn the trial court record before disputed the substance of Q: you never was the first time saw When regarding the content of their jail, assertions him in if at all? communications. the first A: The second date —I mean day jury. picking out

At the Ginther also hearing, ‡ ‡ ‡ ‡ ‡ ‡ contact testified about the nature of his Evelyn prior to the trial. His testi- started, Q: your trial in the Before mony hearing at this is consistent with it, leading up to weeks or months substance of the letter he wrote to the contact, you attempt to con- did testimony court as well as his before your attorney? tact jury during trial court selection. Yes, I I him letters. A: did. wrote Q: your attorney was for this Who They accept telephone wouldn’t

case? calls. added). Attorney Evelyn.

A: Gerald (emphasis at 151-53 J.A. counsel was sus- this The fact that Mitchell’s Q: you you Do recall when saw practice of law for the preliminary pended from the person in relation to the to trial does not decide thirty days prior examination? that convincing and evidence Mitchell was case, contribute to it does this but thir- completely unrepresented for the last the evidence that demonstrates weight of ty days prior no consultation between to his trial. there was that attorney to trial. and his Mitchell Michigan The Court Supreme Court found Michigan The that, if it were to find the defen held even unrepresented during never Mitchell was his mother and assume dant and credible Ac- proceedings. any stage critical never contacted witnesses and court, Evelyn’s law cording to that because times, only with the defendant three it met for Eve- responsibility partner assumed find a denial of counsel at a would not suspension, “there lyn’s during cases at 609 stage. critical 560 N.W.2d of time when the defendant period was no Instead, Michigan n. 15. Mitchell, represented.” allegations found that of trial Michigan Su- at 609 n. 15. N.W.2d performance would have counsel’s deficient Mitchell presumption that preme Court’s of defi to meet the Strickland standard directly continuously represented is prejudice. performance cient Strick In a letter by the record. contradicted land, however, applies great deference to 10, 1989 inform- April to Mitchell on sent attorneys of con decisions defense out Evelyn advised suspension, him of his ing or rigid guidelines cern that a set of rules legal may wish to seek Mitchell: “You constitutionally “interfere with the would and, you in event elsewhere advice independence of counsel and re protected so, pick-up you may either choose to do counsel must have strict the wide latitude your attorney pick- new your file or have Strickland, making in tactical decisions.” you choose up your may, file. You should 2052. The de U.S. so, by our your case maintained to do have proving coun fendant bears the burden of case, firm; you in which must ex- law for sel’s ineffectiveness out of deference writing.” J.A. at pressly indicate same strategy. decisions and trial See counsel’s added). letter then (emphasis 108c illogic applying Strickland id. The you any questions states: “[S]hould there are no these facts is manifest concerns, please do not hesitate to con- strategic reasons for tactical or conceivable Sowell,” Myzell Evelyn’s partner. law tact to fail to consult with defense counsel The record does not indicate Id. meeting is prior to trial. Such client partner, nor Evelyn’s retained law develop competently if counsel is vital way consent- it indicate that he in does with his If counsel does not meet defense. Moreover, ed to a substitution counsel. time, minutes at a for more than two client appeared that no counsel we note truthful is to confide the defendant unable April Mitchell’s behalf know, lawyer and counsel will not ly in his court, which was hearing before the trial investigative leads to example, which for Evelyn’s suspension, on during conducted there are witnesses Thus, pursue, whether counsel. motion for new defense, the de kind of alibi that, or what despite conclude we may have.15 finding, there is clear fendant Supreme Court’s pre- progress opments the case and the speak with his Defense counsel's failure to promptly com- and should paring articulat- the defense violates several standards client also requests for information” ply with reasonable Criminal Justice. ed in the ABA Standards for "(b) explain de- Duty Keep Defense counsel should example, Client In- For "(a) reason- to the extent velopments in the case Defense counsel formed Standard states: necessary permit the client to make ably to keep of the devel- should the client informed 574 Cronic, Supreme stage. undisputed delineat- The record evidence

In the Court demonstrates that Mitchell’s counsel never exceptional circumstances ed those few consulted him and that he was com- likely prejudice to the defen- that are so pletely unrepresented during not exam- the entire reviewing that a court need dant lawyer’s clearly are of the con- month to his trial. These consequences ine the likely prejudice circumstances is the circumstances so to duct: one of these litigating of counsel to a criminal accused the cost of their complete denial pro- unjustified. stage particular a critical of the effect case is defendant at Cronic, Therefore, Michigan Supreme 466 U.S. at 104 Court ceedings. ease, by rejecting prejudice erred se per In this we have demon- S.Ct. 2039. that, Supreme analysis evaluating Mitch- according insisting strated Court pre-trial through consider the ell’s claim the lens of Strickland. precedent, we must reasons, For the we AFFIRM period purposes foregoing “critical” for of the Sixth Although alleged provisional grant the district court’s Amendment. during corpus. performance counsel’s trial writ habeas alleged he also that his inadequate, CARR, Judge, dissenting. District utterly during the sev- counsel was absent trial. period prior en-month Because respectfully I I dissent. believe alleges his Mitchell’s latter claim counsel’s expressed district court’s basis for its deci- during period, a critical total absence grant corpus (namely, sion to relief habeas should Michigan Supreme ap- Court petitioner’s right “private” that the com- Strickland, Cronic, plied than to his rather munication was breached when he met claim.16 jailhouse bullpen) with his in the is error, there is no such because CONCLUSION

IY. under the Sixth Amendment or otherwise. addition, In light Michigan Supreme disagree majority’s I with the pre-trial peri- can assumption Court’s conclusion that this case be decided on od, Cronic, during investigation which and consul- the basis of United States v. 466 occur, must tation with the defendant U.S. S.Ct. L.Ed.2d (1984). is, rather, proceedings, proper not a The stage” “critical standard unreasonably light of this court’s decision in Dick v. Court (6th Cir.1989), applied clearly Scroggy, established Court 882 F.2d prejudice precedent to the facts of this case. See 28 the cause and standard of Strick- 2254(d)(1). § Washington, U.S.C. land v. 466 U.S. (1984). long duty that there is a recognized

has L.Ed.2d that, investigate by failing petitioner having trial and not met his burden before under defendant, showing prejudice, counsel can- consult with the Strickland the dis- trict perform duty during this a critical court’s decision should be reversed. regarding attorney representa- informed he fails to call his trial as a witness decisions tion.” ABA 4- hearing, Standards for Criminal Justice at the we do not believe that Ginther (3d ed.1993). 3.8 appellate to call the trial counsel's failure attorney could be considered reasonable strat- Finally, although the district court did not egy strategy on the facts of this case. It is not ap- upon comment Mitchell’s claim that his attorney appellate for an to ask for a Ginther pellate constitutionally counsel was ineffec- hearing way it in then to conduct such tive, that, accept we were we to note legally preclude as to for the defendant. relief argument Warden’s that a defendant forfeits his ineffective assistance of counsel claim if

575 Right knows that his communications with his no I. There is Constitutional attorney private”). “Private” Communication are for the District express basis that attor constitutional assurance corpus grant habeas Judge’s decision ney-client “pri communications shall be “private” there had been no was that relief they in vate” the sense that are confi petitioner and between communication mean, however, does not dential “Mr. Mitchell’s lawyer prior to trial: his in they “private” must be the sense that private communication inability to secure they entirely always outside the are and trial rendered him counsel with physical presence persons. of other This in viola- representation at his trial without distinction is underscored this court’s (App.40). Amendment.” tion of the Sixth rejection only case cited Judge appears to have as- The District Judge-his District own earlier decision could “private” communication sumed Stine, F.Supp.2d Lakin v. 44 897 county bullpen not occur within (E.D.Mich.1999) proposition —for case, fact, may, in be the jail. such While requires that all the Sixth Amendment evidentiary support for this is no there and communication between counsel Judge, The District more- assumption. Stine, v. “private.” client be Lakin over, to evidence in the point failed to (Table, 229 F.3d 1152 Text WEST- the circumstances foreclosed record LAW), Unpublished Disposition, 2000 between the communication confidential (6th Cir.(Mich.), 13, Jul WL attorney. petitioner and his 2000), peti this court held that a habeas Amendment assures confiden- The Sixth right Amendment to coun tioner’s Sixth a defendant tial communication between abridged when the trial sel had not been Henry, v. lawyer. his United States request his to meet with court refused 295, 2183, 100 S.Ct. 447 U.S. presence attorney outside (“the (1980) Sixth Amend- L.Ed.2d 115 jail had stationed guards who been ment, course, protects the confidentiali- Abrams house conference room. Accord the accused ty of communications between (7th 485, 489-92 Cir. v. 100 F.3d Barnett, (Blackmun, J., attorney.” dissent- and his 1996), grounds, other vacated on Rosner, 485 F.2d ing)); States v. United 138 L.Ed.2d U.S. Cir.1973) (“the (2d essence of (1997) petitioner’s (rejecting habeas ... right privacy Amendment is the Sixth lawyer’s request claim that denial of counsel.”); see also communication to meet with the de private place for a 545, 554 Bursey, 429 U.S. Weatherford de during a noon-hour recess fendant (1977) n. 51 L.Ed.2d counsel.).1 him prived of his that “be- (noting government’s concession limited the circumstances Congress has Amendment’s assistance- cause Sixth grant- can be corpus in which habeas relief meaningfully can guarantee be of-counsel only if a criminal defendant ed: implemented Justice, The Defense Standards for Criminal the American Bar Association I note that Function, 4-3.1(c). op- Standard While that “to for Criminal Justice state Standards presence-and portunity to confer outside privacy for confidential ensure the essential client, hearing per- just other outside of between communication —of meaningful at- clearly to a sons is conducive adequate facilities should be available torney relationship and effective jails, prisons, private counsel and accused —client communication, courthouses, the ABA Standard states places where and other accused goal, desired not a constitutional norm. persons with counsel.” ABA must confer for a cor- can also application being

An writ habeas sion be read as based on the person custody of a in pus prejudicial Evelyn’s on behalf effect of failure to judgment the of a State pursuant petitioner have consulted with the in a granted respect not be with meaningful constitutionally court shall adequate adjudicated that was on claim the way. To the extent that the district court proceedings unless merits in State Evelyn’s that concluded conduct in that adjudication of the claim— the norms, regard fell below constitutional I (1) agree majority. disagree with the I in decision that was with resulted to, conclusion or involved an unreason- the of the district court and the contrary of, however, clearly majority, that application petitioner established the need able law, by as prejudiced by lawyer’s determined not show he was his Federal States; of the United Supreme Court failure to have consulted with him ade- prior or quately to trial. (2) resulted in decision that was significant There is no dispute between on an unreasonable determina- based number, extent, parties about the light tion of the facts of the evi- pretrial substance of the contacts between presented dence in the State court petitioner lawyer. and his Petitioner proceeding. Evelyn only asserted that him met with on 2254(d). §

28 U.S.C. three brief occasions to commence- As this court’s decision Lakin makes dire; Evelyn ment of voir stated clear, Circuit, precedent there is no in this petitioner may meeting, have missed one precedent emanating much from the less and that he had “talked” with his client Court, United States holds “on numerous occasions.” Amendment the Sixth is violated addition, petitioner repeatedly as- whenever a communication—no matter nothing serted that of substance was dis- a lawyer how confidential fact—between during sessions, cussed those three or four place in and his or her client takes and that him never talked to about presence persons.2 of other The district began. Evelyn’s case before voir dire impermissibly court’s decision extended conclusory peti- assertion that and the he constitutional doctrine violation of 28 tioner “talked numerous occasions” is 2254(d). § grant Its of habeas cor- U.S.C. simply responsive petitioner’s to the pus petitioner on relief to the the basis specific contentions about lack of sub- petitioner was unable confer stantive about conversation his case. was, privately attorney, according- ly, improper. erred, therefore, in finding its that there was “no

II. Defense Counsel’s Performance factual for a basis conclusion that counsel’s Fell Below Constitutional performance constitutionally defi- Norms cient....” 560 N.W.2d at 609. Because Although by ap- petitioner’s the district court erred contention about the number plying meetings a rule of law that has not been and content of his with his law- Court, uncontroverted, adopted by yer its deci- in the record and during only If the Sixth Amendment were violated sel and client trial could occur if cleared, physical presence persons the mere of other the courtroom were or a recess were conversing while a and client were taken. confidentially, every discussion between coun- investigation may further be need for on which a factual basis there was considerably diminished or eliminated could have evaluated Michigan courts has altogether. This And when defendant Evelyn’s representation. adequacy counsel reason to believe that given the decision aspect of is, investigations would be accordingly, pursuing “based on certain Supreme Court harmful, fail- of the facts fruitless or even counsel’s determination an unreasonable may pursue investigations in the those presented ure of the evidence light challenged as unreasonable. 28 United States not later be proceeding.” State short, 2254(d)(2). into counsel’s conver- inquiry In § may be criti- sations with the defendant also erred Supreme Court assessment of counsel’s proper cal to a Evelyn’s perfor- in its determination decisions, just may as it be investigation unreasonable. objectively mance was not proper assessment of coun- critical to a principle at 610. 560 N.W.2d decisions. litigation sel’s other prior a defendant to consult with failure is representation 691, 104 deficient trial constitutes Id. at juris- Amendment in Sixth embedded

well decision, lower fed Since the Strickland expressly endorsed prudence, and was consistently emphasized courts have eral In that in Strickland. Supreme Court adequate pretrial relationship between case, Court, fashioning in addition to Amendment and the Sixth consultation evaluating the constitu- standard for See, v. Dun e.g., to counsel. Turner perfor- attorney’s an sufficiency of tional Cir.1998) (9th can, F.3d 457 158 attorney mance, a defendant’s stated that (“Counsel’s spent that he admission duty to advocate the overarching has “the forty-five prior minutes with Turner most particular more cause and the defendant’s perfor to trial demonstrates deficient on with the defendant duties to consult shocking in especially ... [and is] mance keep and to the defen- important decisions charges”; of the light of the seriousness important developments informed of dant adequately consult with and the “failure to prosecution.” of the in the course testify did not meet his client to prepare elabo- further representa The Court Strickland competent the standard importance French, of ade- rated on the crucial tion.”); 134 F.3d Noland v. Cir.1998) (“Counsel a defendant (4th between quate duty consultation has lawyer: important and his de informed of keep her client and ‘to consult with velopments the trial of counsel’s actions The reasonableness decisions.”) important substantially in- the defendant on may be determined Strickland); ex United States (quoting by the defendant’s state- fluenced own (7th Lane, F.2d are rel. Partee actions. Counsel’s actions ments or Cir.1991) (“Defense counsel must do based, in- properly, on usually quite bring legal acumen to bear utmost to choices made strategic formed defendant; keep the de supplied on behalf and on information defendant developments fully informed particular, what fendant by the defendant. the defendant and consult with reasonable the case decisions are investigation ....”); made; major to be all decisions critically on such information. depends Ramseyer v. By Through and sup- Harris the facts that example, For when 1239, 1258-59 F.Supp. Blodgett, 853 potential line of defense port a certain (W.D.Wash.1994), sub nom. Harris known to counsel because generally are aff'd Wood, 64 Ramseyer v. said, By Through defendant has of what Cir.1995) (record (9th vestigation. showed F.3d 1432 Where there is little or no consultation, counsel met with defense defendant it apparent is that con capital for less than two hours sultation could have led to information trial; adequately failure to con “Counsel’s that would have affected counsel’s deci objective sult with fell below the his client sion-making process, effective assistance standard of reasonableness and amounted denied.”); Hopper, counsel is Gaines v. performance.”); to a deficient United (M.D.Ga.1977) F.Supp. DeRobertis, States ex rel. Cross v. 661 (“Effective representation requires further (N.D.Ill.1986), F.Supp. 691-92 rev’d that the discuss the results of his grounds, and remanded on other 811 F.2d client, investigation with his explain the (7th Cir.1987) (citations omitted) (rep it, legal consequences of and consult with inadequate resentation where brief meet possible approaches the client on to the ings between counsel and clients occurred case so that the client has some reason only bullpen; in crowded “The corner situation.”), understanding able of his stones of effective assistance counsel are (5th aff'd, 1147, 1149-50 Cir.1978) 575 F.2d potential informed evaluation of de (“Informed evaluation of potential defens criminal charges meaningful fenses to and charges es to criminal meaningful and dis discussion with one’s client of the realities cussion with one’s client of the realities Adequate client’s case. consultation his case are cornerstones of effective assis attorney between the and the client is an counsel.”); tance of Turner v. State of competent essential representa element (D.Md.1962) Maryland, 111, F.Supp. 206 114 defendant.”). tion of a criminal (4th Cir.1963) 'd, 318 F.2d 852 aff Federal courts had reached the same (“Counsel should consult with his client a See, prior e.g., conclusion to Strickland. sufficient length of time before the trial to Tucker, 576, United States v. 716 F.2d 584 facts, enable counsel to learn the interview (9th Cir.1983) (counsel prepare “failed to testimony witnesses might whose be his competently chent’s defense under the helpful, consider the wisest course of ac most tolerant standard of evaluation” tion, explain this to the client. Usual he, alia, legal- where inter “failed to obtain ly the failure to do so until less than half ly client; ”); relevant facts from his .... an hour before the time set for the trial Decoster, 196, United States v. 624 F.2d would inadequate representa amount to (D.C.Cir.1976) (“Realistically, 209 a de- tion.”). attorney develops fense in large his case doubt, There can be little accordingly, part from information supplied his that, as a matter of fundamental Sixth client.”); Peyton, Coles v. 389 F.2d jurisprudence, Amendment consistently as (4th Cir.1968) (“Counsel 226 must confer declared the United States with his delay client without undue and as courts, Court and pretrial lower federal necessary, often as to advise him of his consultation an attorney between and his rights and to elicit matters of defense or or her client “should be potential to ascertain that sufficient to defenses are un- deter- available.”); Green, mine all Maynor legally relevant information v. 547 1982) (“the Tucker, (S.D.Ga., known to F.Supp. 267 the defendant.” duty word, designed principle to consult is F.2d 581. In a to insure that a prior defendant’s counsel fulfills two basic func- failure to consult with one’s client tions: an trial “ investigative function and an in- violates the Sixth Amendment is not ” function”; formative among jurists.’ “consultation is ‘debatable reasonable particularly (6th useful in- pretrial method of v. Killinger, Nevers 169 F.3d Johnson, trial, only and lasted Cir.1999) night on the before v. Drinkard (quoting minutes). Cir.1996)). thirty forty-five (5th To 97 F.3d extent, therefore, Michigan courts that the Strickland, apply circuits likewise Other had not petitioner concluded Cronic, than where counsel has rather fell Evelyn’s performance that his shown duty fulfill to consult with his failed to norms, decisions their constitutional below By Harris client to trial. clearly ... established “contrary to

were Wood, Through Ramseyer v. 64 F.3d law, by the Su- Cir.1995) as determined (9th Federal (applying Strickland of the United States.” preme Court where, pre- among failings, other counsel’s 2254(d). § meetings petitioner U.S.C. lasted less hours; the state con-

than a total of two that such constituted deficient assis- ceded Failed to III. Petitioner counsel); ex rel. United States tance Prejudice Show DeRobertis, 811 F.2d Cross concluded Michigan Supreme Court Cir.1987) (7th (applying Strickland inef- to show petitioner required based, alia, claim inter fective assistance relief on in order to obtain prejudice petitioner failure to meet with the ex- of counsel. ineffective assistance claim of jail bullpen).3 in a cept on brief occasions noted, that court at 610. As 560 N.W.2d agree I with the that the rejected the contention expressly petitioner conclusion that the Court’s Cronic, majori- which the rule of on per se preju- showing his of failed to meet burden decision, at applicable. Id. ty its was bases at that four witnesses called dice. The the any light to shed hearing failed peti- that a habeas This court has held of that arose as a result questions critical where, in prejudice peti- as must show to consult with the Evelyn’s tioner failure case, Evelyn contact be- know only meaningful namely, what did this the tioner: lawyer began, and his oc- as the trial what petitioner the about the case tween through learned ade- of trial. Dick more could he have curred on the eve (6th Cir.1989) petitioner, quate consultation with 882 F.2d Scroggy, knowledge have would such a claim that a what effect to (applying Strickland the trial. Without on the outcome of occurred had lawyer’s only pretrial interview Dick, to proceeding.” Nor does the failure disregard I Id. properly could 3. Even if we Strickland, prior automati- client to trial nonetheless conclude meet with one's would Cronic, proper standard. than is the cally [can rather "the likelihood that counsel make client Although the failure to meet with one's adversary ... so re- perform] as an effective inexplicable unjustifiable, it does appears inherently trial unfair.” [make] mote as to Cronic, not, required by present "circum- as Id. at 104 S.Ct. 2039. likely prejudice the are so to stances that Here, though Evelyn to assist the failed litigating their effect accused that the cost of stage pro- during of the petitioner a critical unjustified.” 466 U.S. particular case is in a doing prevented from so ceeding, he was not Claims of ineffective- 104 S.Ct. 2039. agen- any external trial court or other per- to the failure of counsel ness based on Though challenge to the state's case cy. adequately prior to trial her duties form his or taken may effective had he have been more routinely litigated federal in state and are could from the to learn what he the time conclude, required as un- Nor can I courts. subjected the state’s petitioner, he nonetheless Cronic, Evelyn "entirely to fail[ed] der meaningful challenge, as shown case to meaningful subject prosecution’s case reduction, motion, charge from on his "prevented testing,” from adversarial or was degree murder. during stage first to second assisting a critical the accused answers somewhere the record to those Even more inexcusable is the failure of prevail. questions, petitioner cannot the trial taken the time have commencing degree before a first murder explained For reasons that are not inquire effectively trial to into the circum- record, from and cannot be deduced stances, and to have ensured that peti- petitioner neither the nor testified reasonably tioner’s counsel pre- well result, the Ginther hearing.4 As no pared to defend his client. The trial developed at hearing evidence was failure, in petition- court’s the face of the regard to the determinative issues er’s unanswered claims of lack of contact Consequently, petitioner this case. attorney with his lawyer’s and the eve-of- carry failed to showing his burden of suspension practice, grant prejudiced he as a result of his law- is, word, short continuance yer’s incompre- failure to have duty fulfilled his compulsion hensible. The consulting with him to his to maintain a trial. never, tidy docket clearly should as it so Conclusion here, place did fundamental rights at risk. delay really Would week’s mat- The district court erred when it conclud- tered? petitioner ed that the was entitled to relief because his communications with counsel message of this case is not that private. were not federal courts quick are to intervene into Court erred when it concluded that is, rather, state proceedings; message petitioner deprived was not that the state trial court in this case could effective assistance of counsel when his job and should have up- done a better failed consult with him in holding the Constitution. Had it taken but meaningful way prior to his trial. But that petitioner’s few moments to consider the correctly court petitioner held complaints meaningfully, or post- had it not entitled to relief because he failed to poned period for a brief to make prejudice lawyer’s show from his manifest Evelyn certain that truly ready incompetence. trial, this case would not be here. The said, That being acknowledge I that this time the trial may have saved has led is a close case. I disagree While with the great to a and unnecessary otherwise ex-

majority’s view that its outcome is con- penditure part of time on the of the Michi- Cronic, Strickland, trolled rather than gan review, court, courts of the district it which, is hard to fault impulse, and this court. candor, share, I to find that the facts Nonetheless, compel Evelyn’s reversal. ap- though petitioner conduct even inexcusable, pears particularly in was not quality view of afforded the kind and the fact that one of petitioner’s representation prior code- to his trial that he acquitted fendants was and the every other re- deserved—and defendant de- probation. ceived serves—he failed to meet his burden of Contrary argument, 4. to the Warden's I attorney do fails to call his former at a Ginther petitioner's not find that failure to call dissent, hearing. opinion, my That un- hearing at the Ginther waived his claim of derscore, however, petitioner the risks that a not, ineffective assistance of counsel. I do foregoes calling runs when he his former moreover, opinion read the counsel, especially where the determinative holding Court as that claims of inef- issue is what the knew and did with fective assistance will be deemed defaulted knowledge began. before the trial so, petitioner, though whenever a able to do should, conviction His prejudice. showing therefore, I, re- affirmed.

accordingly, be

spectfully dissent. America, STATES

UNITED

Plaintiff-Appellee, JOLIVETTE, Miguel

Fabien

Defendant-Appellant.

No. 99-6492. Appeals, States

United

Sixth Circuit. 2, 2000.

Argued Nov. July Filed

Decided

Case Details

Case Name: Charlie Lee Mitchell v. Warden Gerald Mason

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jul 12, 2001

Citation: 257 F.3d 554

Docket Number: 99-1839

Court Abbreviation: 6th Cir.