Charlie Lee Mitchell v. Warden Gerald Mason

MOORE, Before DAUGHTREY CARR, Judge.* District Judges; Circuit J., opinion of MOORE, delivered J., DAUGHTREY, joined. court, in which CARR, D.J., 748-49), delivered a (pp. opinion. dissenting separate OPINION MOORE, Judge. Circuit Mitch- Lee Charlie Petitioner-Appellee (“Mitchell”) a Michi- was convicted ell murder second-degree of gan state ten to fifteen to a term sentenced * Ohio, designation. sitting by Carr, States United James G. Honorable District Judge the Northern District years’ imprisonment. Throughout six- not testify, nor did Evelyn present any in custody month confinement tri awaiting witnesses Mitchell’s behalf. At al, sought to have new counsel prosecution’s close of the appointed to his case because he claimed moved for a directed verdict. The court court-appointed lawyer that his refused to partially granted the motion by reducing meet with him. Mitchell’s motion to re the charge to second-degree murder. place his counsel was addressed the During closing arguments, Evelyn argued state trial court on the second day jury that Thompson’s testimony equivocal selection and subsequently denied. prosecution and that the had not carried Mitchell’s claim of ineffective assistance of proof. its burden of The jury convicted rejected in appeals counsel was his direct Mitchell of second-degree May murder on courts, but the federal 17, 1989. Mitchell was sentenced district court the Eastern District of judge to ten years’ impris- to twelve Michigan granted peti Mitchell’s habeas onment and then resentenced to ten to tion on the ineffective assistance claim. years’ fifteen imprisonment due to a mis- affirmed, Mason, We Mitchell v. 257 F.3d original calculation his sentence. (6th Cir.2001), but the vacated our decision and remanded the trial, Prior to the Mitchell wrote six case for our further in light consideration separate letters to the trial judge, the chief Cone, 685, of Bell v. judge, and others requesting new counsel. 1843, (2002). Although alleged Mitchell that Evelyn had not visit- Bell changes analysis, our it does not him prison ed once in nor had had Mitchell change our conclusion that Mitchell was opportunity speak lawyer with his counsel, denied the effective assistance of 27, 1989, April court. days On eleven be- and we AFFIRM the district court. jury fore selection was begin, the trial court held a hearing on Mitchell’s “Motion I. BACKGROUND for Withdrawal of Counsel” at which Charlie Lee Mitchell was arrested and appeared Mitchell on his own behalf. Eve- charged with first-degree murder for the lyn appear did not hearing, for the al- Harlin, Raymond death of who was lolled though he had notice of it. At the hearing, fight after a broke out in Mitchell’s kitchen Mitchell informed the court that he had 3, 6, 1988, on October 1988. On October received a letter from his counsel inform- Evelyn Gerald K. appointed was him suspended that he was a for for Mitchell. Evelyn represented Mitchell month. lawyer He also asked for a new preliminary at a examination on October postponement and a of the trial to afford a 14, 1988, during which he called one wit- lawyer new the chance to review his case. argued against ness and the denial of bail. Evelyn present, Because was the trial Evelyn represented next close to court held the motion on advisement. later, four months at the final conference February 5, 1989, on April 1989. On selection, day jury May On the second Evelyn suspended from practicing law 9, 1989, again renewed his motion in the of Michigan.1 State He was rein- for new point, Evelyn, counsel. At that 8, 1989, May stated on day jury selec- before, day who had been reinstated the began tion trial. Mitchell’s informed the court that Mitchell wanted trial,

At him removed he Evelyn pres- Mitchell’s did not because had faded to visit opening argument. ent an night prison promised. Mitchell did him the before 1. The why Evelyn suspended. record does not indicate Mich. 560 N.W.2d motion court denied district On Mitch- conviction. affirmed Mitchell’s prejudice.

without of counsel ineffective assistance ell’s day of the sixth May On first claims, he had court that informed did not Evelyn’s suspension found by Mitch- filed letter grievance received counsel dur- “per denial of se” constitute Grievance Commis- Attorney with the ell proceedings un- stage of the ing a critical He then offered May sion Cronic, 466 U.S. United States v. der case. from the removed himself L.Ed.2d 657 court, from the questions response rejected Mitchell’s contention That to, stated, you “I would like Mitchell then presumptive case warranted that his know, you know, cancel that grievance, under the Sixth finding of ineffectiveness everything the motions all Amendment, that Mitchell’s concluding answered.... have been requested that I a circumstance in presented neither claim satisfied, at 192. your J.A. I’m Honor.” lawyer unlikely any it was granted Mitchell was appeal, On direct of coun- assistance provide could effective as a Gin- evidentiary hearing, known an counsel, sel, nor an a constructive denial assistance on the effective hearing, ther grant failure to a continu- unconstitutional Ginther, People v. trial counsel. See Mitchell, at 607-08. 560 N.W.2d ance. See (1973). At 436, 922 212 Mich. N.W.2d 390 thus ana- Michigan The the occurred before hearing, which under the Strick- lyzed Mitchell’s claims over the presided judge same who 668, Washington, 466 U.S. 104 v. land four testimony of presented the Mitchell (1984), 2052, 674 stan- 80 L.Ed.2d witnesses, including Mitchell’s mother. of counsel assistance dard for ineffective Mitchell’s himself testified. Mitchell also performance and deficient requires trial coun- did not call his appellate counsel and it found that showing prejudice, Appellate coun- sel, to the Evelyn, stand. adequately devel- had who had been introduced two witnesses sel hearing at the Ginther “re- oped a record apartment on present at Mitchell’s Evelyn Mr. did or did not what garding murder to establish of Harlin’s night do, Evelyn knew of the whether Mr. or and that material witnesses they were “no there was fac- alleged eyewitnesses,” nor called them Evelyn neither contacted that counsel’s tual basis for conclusion Mrs. Mitchell’s testify at them to trial. constitutionally defi- was performance her nu- offered to establish testimony was Mitchell, at 609. The N.W.2d cient.” 560 Evelyn and to merous efforts contact inference of “[a]n court concluded that wit- were other him there inform cannot be constitutional ineffectiveness es- Mitch- he interview. nesses whom should of the ‘circumstance’ tablished on basis to contact testified to his efforts ell also during thirty-day suspension of counsel’s with his law- Evelyn and discuss his representation, without months of seven judge trial hearing, yer. After trial or any inquiry into conduct not demonstrated that Mitchell had found regarding being developed any record prejudice objective unreasonableness and its ef- preparedness actual counsel’s had and that he required by state law Id. at 613. fect on the result.” of counsel. received effective assistance dissented, finding that Two Justices Appeals, see “per se” ineffec- (Mich.Ct. Evelyn’s performance Mitchell, 118832 People v. No. v. under United States tive 5, 1994), Michigan Su- App. Jan. and L.Ed.2d Mitchell, Court, U.S. preme People see (1984), States, and Geders v. United 425 122 47 L.Ed.2d 592 Upon consideration, careful we affirm the

(1976), because of a confluence of factors district court.

including Evelyn’s suspension, which ren- him completely dered unavailable for thir- II. ANALYSIS

ty days during critical stage pre- A. Standard of Review investigation; the fact private failed to hold a meeting with the Whether the district court properly during period defendant the seven-month granted the writ of corpus habeas is a representation; of his gravity of question of law that we review de novo. the first-degree charge murder against Brigano, (6th Doan v. 237 F.3d Mitchell. See N.W.2d Cir.2001). The Antiterrorism and Effec 621-22. The dissent concluded that (“AED- Penalty tive Death Act of 1996 surrounding circumstances made it un- so PA”), 104-132, L. Pub. No. 110 Stat. 1214 likely any lawyer provide could effec- § which amended 28 U.S.C. tive assistance of counsel that Mitchell was applies petitions to all habeas filed after constructively denied counsel.2 April 24, 1996, the effective date of the 25, 1998, On March peti- Mitchell filed a Act. Because petition Mitchell’s for habeas tion for corpus habeas relief with the dis- date, was filed after the effective AEDPA trict court under 28 U.S.C. assert- governs our review of this case. ing that he was denied his right to the AEDPA, Pursuant a writ of habeas effective assistance of counsel. The dis- corpus may not granted be. respect with granted trict court petition, any claim that adjudicated 12, 2001, on the July affirmed, reasoning merits in court proceedings State that because unless constructively Mitchell was adjudication denied the assistance of of the claim— during counsel pre-trial period, the state courts’ (1) in a resulted decision that was con- grant refusal to him relief was an unrea- to, trary or involved an unreasonable application sonable of United States v. of, application clearly established 648, 2039, 466 U.S. 80 law, Federal as determined L.Ed.2d 657 After the States; Supreme Court of the United Cone, 685, Court decided Bell v. 535 U.S. 122 (2002), S.Ct. (2) in resulted a decision that was based explicated further the line between on an unreasonable determination of claims based United States v. Cronic light the facts in of the evidence and claims based on Strickland v. Wash- presented in the pro- State court ington, 466 U.S. 80 ceeding. (1984), L.Ed.2d 674 the Court vacated our 2254(d). § in U.S.C. The federal court decision this case and remanded the presume case to us for further must that all light consideration determinations of Mitchell, Bell. Mason v. 536 U.S. factual issues made the state court are 2. The dissent "Evelyn might performance. noted that while seeking play If truth is to some very gifted lawyer be a who justice system, knows full role in our criminal defense game,' attorneys well the 'rules of the ex- cannot must exert at least some effort that, preparation. cuse Defending explore the total lack of exculpato- the truth so if there is client, person first-degree ry in a murder trial is not a evidence available in favor of their game. representation they present Effective must mean can it.” 560 N.W.2d at showing up giving good more than and 622 n. 7. mind, we turn guidelines these With can rebut the defendant unless

correct the district court whether question to the convincing by clear presumption that ha- 2254(e)(1). petition for granted Mitchell’s properly § See U.S.C. evidence. corpus relief. beas Mitchell was whether question The effective deprived right of his assistance Procedural Default B. of law and question mixed is a of counsel opinion, first we must As we did our States, 224 F.3d v. United fact. Olden that argument initial address Warden’s Cir.2000). (6th In a habeas by evaluating court erred the district application” apply the “unreasonable of trial assistance Mitchell’s ineffective 2254(d)(1) mixed question to a prong of rejecting it claim instead Ohio, 128 v. Harpster fact. of law and in state court. procedurally defaulted Cir.1997). (6th Terry F.3d under Michi- Warden Mason asserts 362, 120 S.Ct. Taylor, 529 U.S. Williams law, of a law- effectiveness when the gan L.Ed.2d 389 law- challenged, representation yer’s independent upon the elaborated testify as a witness yer must be called “contrary to” conveyed by the meaning to create hearing order at the Ginther of’ clauses application and “unreasonable evidentiary According record. proper statute, analy the distinct as well as Warden, failure call to the under each clause. performed to be sis hearing violat- trial counsel at the Ginther Williams, Therefore, procedural rule. this state ed Court, habeas a federal According to the unable to establish the neces- Mitchell was court deci may find that the state court that court record from which sary factual applica in an “unreasonable resulted sion claim. The Warden as- could evaluate his if established Federal clearly of’ tion Supreme Court serts gov identifies the correct state court “the procedural deny rule to on this relied state principle from this Court’s erning legal relief. unreasonably applies decisions but argues state prisoner’s When principle to the facts defaulted his federal claims petitioner has Id. at case.” independent to an pursuant that “a federal state cautioned rule, procedural federal simply adequate the writ state may not issue habeas court unless the peti review is barred inde habeas court concludes its that and for the default tioner can show cause the relevant state- pendent judgment that alleged of the a result prejudice actual as applied clearly established court decision v. law. Coleman incorrectly. violation federal erroneously or federal 722, 750, 111 501 Rather, Thompson, un U.S. S.Ct. must also be application that 2546, 411, L.Ed.2d 640 For 115 at reasonable.” Id. procedural default to bar feder that in doctrine of also clarified The Williams decision however, review, firmly established judgment, al court’s our review of state procedural followed state op regularly and may only holdings, as look petitioner’s claim dicta, applicable rule posed to the Court’s exist, must petitioner must of the time of the relevant decisions comply that rule. See Ford failed to with to determine whether decision state-court 423-24, 411, 111 Georgia, 498 unreasonably applied clear v. U.S. the state (1991) 850, (explaining 112 935 L.Ed.2d law. See id. at ly established federal independent adequate an state 120 S.Ct. 1495.

739 procedural bar to the consideration of Counsel for the Warden then cited to a one-paragraph “constitutional claims must have been order in another case ‘firmly regularly established and granting followed’ a Ginther hearing, People v. Williams, applied”) the time as of which it is to be 391 Mich. 832 support (citing Kentucky, James v. single, contention. This one-paragraph (1984)). order utterly insufficient to demonstrate jurisdiction peti We have to review the procedural existence of a state rule so tioner’s federal claim unless the last state “firmly regularly established and followed” petitioner court from which the sought re that it may petitioner’s bar a federal con- clearly view and expressly firmly invoked a stitutional claim on collateral review. procedural established state rule as a Ford, basis 423-24, U.S. 111 S.Ct. 850 reject for its decision to review of the James, (quoting 466 U.S. at Coleman, petitioner’s federal claim. 1830).

U.S. S.Ct. 2546. When there has been no motion for a new trial or a hearing, Ginther the case Based on our review of Michigan law reveals that a law, Michigan reviewing we conclude that there was no court will consider claims of ineffective procedural well-established state rule as of assistance of counsel but will be the time that Mitchell’s claim forced to was re limit itself to examining the trial appellate viewed barred review in the record for errors, as no other record absence of trial has been devel- testimony counsel’s at a Thus, oped.3 hearing. At while Ginther argument proge- Ginther oral before and its court, ny indicate that it develop counsel for the Warden first is crucial to an pointed case, very adequate us to this record of trial People v. counsel’s failures petitioner’s succeed, 454 Mich. if 560 N.W.2d 600 claim tois we be- (1997), as evidence that Michigan Michigan has a lieve those courts that have firmly procedural requir rejected established rule ineffective assistance of counsel ing the defendant to call defense counsel at claims have done so on the merits of the hearing procedurally Ginther or risk claim procedural de and not due to a default.4 course, faulting the claim. citing Of to the Because we conclude that there was no very case under review is firmly useless because regularly established and followed it is the Warden’s burden to procedural demonstrate state rule to bar Mitchell’s inef- the rule already firmly estab fective assistance claim when the lished and regularly followed as of the time Court reviewed this the state court invoked the rule. district in considering See court did not err Ford, 423-24, S.Ct. 850. claim and engage we need not a cause- See, Snider, e.g., People Mich.App. appel- live assistance. This failure forecloses (2000) (holding 608 N.W.2d late review unless the record contains suffi- that where defendant has failed move for a claims.”). support cient detail to defendant's evidentiary hearing, new an his claim "largely for ineffective assistance of counsel is case, Michigan Supreme In this Court forfeited” because review is limited to the that, determined was not record); Williams, existing People v. 223 testify hearing, called to at the Ginther it had 409, 649, (1997) Mich.App. 566 N.W.2d 652 "no factual basis for a conclusion that coun- ("Because hearing, there was no Ginther our performance constitutionally sel’s defi- apparent review is limited to mistakes on the cient and undermines in the relia- confidence record.”); Dixon, People Mich.App. v. bility of the verdict.” 560 N.W.2d at 400, 663, (1996) ("Defendant 552 N.W.2d 609. This is a decision on the merits of Mitch- failed to created a testimonial record in the presented ell’s to the claims as court. regard trial court with to his claims of ineffec- Supreme by the clearly established it was reaching the analysis before

and-prejudice Court, time that Mitchell’s claim. as of the Mitchell’s of substance court, that the “com in state was decided Application AEDPA C. during a critical of counsel plete denial under question The threshold mandates judicial proceeding stage of ap Mitchell seeks AEDPA is whether v. Flores- prejudice.” Roe presumption of clearly estab of law that ply a rule 1029, 470, 483, 120 S.Ct. 528 U.S. Ortega, court convic his state at the time lished (2000) Cronic, 466 (citing 145 L.Ed.2d Williams, at 529 U.S. final. tion became 2039). U.S. no doubt 1495. There is 120 S.Ct. clearly established Because there is seeks to law that Mitchell the rule of claim, next to Mitchell’s applicable ineffective assistance “per se” apply—the whether the must address is question we clearly established rule —was of counsel reject- Supreme decision Michigan v. Court’s States United Court claim Cronic, 104 S.Ct. ineffective assistance 466 U.S. (1984). In the Su application L.Ed.2d 657 of’ unreasonable was “an appeals that an court held preme Court unrea- on “an law or was based established defendant’s con reverse a criminal must in light of the facts determination sonable specific showing any “without viction in the State presented of the evidence counsel was to defendant when prejudice 2254(d)(1)- 28 U.S.C. proceeding.” absent, prevented from totally either correctly argues that The Warden a critical during assisting the accused failed to review district court Cronic, 466 proceeding.” stage of the the defer- findings under Supreme Court In other at 659 n. of review mandated ential standard words, totally absent dur counsel is when did court’s order AEDPA. district proceedings, stage of the ing a Michigan Su- whether the not determine presumed. prejudice must be un- objectively preme analysis was Court’s Williams, confirmed reasonable; instead, essentially it reviewed approach, not vitality “per of this se” now, novo. We must Mitchell’s claims de Washing ing that while the Strickland therefore, review appropriate conduct the ton, 466 U.S. decision. Michigan Supreme Court’s for ineffective as L.Ed.2d 674 test counsel, requiring proof of defi sistance of Ineffective Assistance D. Mitchell’s provides prejudice, performance

cient virtually all ineffec Claim resolving Counsel guidance claims, are counsel there tive assistance of Michigan Supreme Court Although the prejudice may “a few situations properly acknowledged Williams, presumed.” 529 U.S. be right by noting that precedent “[t]he Strickland, (citing 120 S.Ct. 1495 representation during extends to 2052). recently We proceedings,” it stage’ of the any ‘critical test presumption-of-prejudice applied the to counsel right that the then concluded assistance of coun to a claim of ineffective provide the require the state to “does not Olden, (prejudice 224 F.3d at 568 sel. at- unlimited access to the defendant with during counsel is absent presumed when forti- during “[a] the trial” and that torney of evidence prosecution’s presentation ori, ‘a guarantee it defendant does such absence implicates defendant because during pretrial trial). in-depth interview’ private stage” of during occurred “critical choosing.” place of the defendant’s Thus, that reach the conclusion easily Mitchell, (internal 560 N.W.2d at 605 n. 9 ed it not. Id. The court first stated omitted). citations that there was no factual basis for conclud- ing that Evelyn’s performance was consti- Framing this case as “allega one about tutionally inadequate. See id. at 609-10. of inadequate preparation,” tions the Mich The court performed then part first igan Supreme Court apply declined to a the Strickland per analysis based on prejudice analysis se the rec- to Mitchell’s ord before it claim rejecting after determined that suggestion Evelyn’s that performance Mitchell’s presented met circumstances constitutional muster. that it unlikely made See id. at any lawyer 610-11. could provide representation, effective After a thorough review of the rec Mitchell was constructively counsel, denied ord, we are convinced that undisputed or that he was denied counsel combined amount of time Evelyn spent with with a to grant failure a continuance. See prior to jury selection and the id. 607. The Michigan Supreme Court start of approximately six minutes trial — rejected these theories in inverse order. spanning separate three meetings in the Relying Slappy, Morris v. 461 U.S. bullpen, when viewed in light Evelyn’s 11-12, 103 S.Ct. 75 L.Ed.2d 610 month-long suspension from practice im (1983), proposition for the every “[n]ot mediately prior to trial —constituted a restriction ... on counsel’s to opportunity complete denial of counsel at a critical investigate ... or otherwise prepare for stage of the proceedings. The Michigan trial violates a defendant’s Sixth Amend Supreme Court’s evaluation of Mitchell’s counsel,” ment right to the Michigan Su ineffective claim assistance under preme Court that it determined was not Cronic standard per se prejudice re error for the state trial court to deny flects a misunderstanding misapplica request for continuance so that tion Supreme of that Court precedent. he could with lawyer consult prior that, We conclude in insisting on evaluat Mitchell, trial. at 607 (quot N.W.2d ing Mitchell’s claim under the Morris, Strickland 11-12, 461 U.S. at standard for 1610). ineffective assistance of coun Pointing to United States v. Cron d sel, ic, Michigan Supreme Court errone 80 L.Ed.2 ously and (1984), unreasonably applied clearly es Michigan Supreme Court Supreme then tablished held that Court set forth in Evelyn’s thirty-day suspen Cronic. sion did not constitute a constructive deni al Moreover, of counsel. the Michigan E. Constructive Denial of Counsel declared, a claim of inef

fective assistance of counsel “stemming Cone, Bell v. from a thirty-day suspension coupled with preparation” not, six-months time for does Court defined the differences between pursuant Cronic, create circumstance governed claims by Strickland and claims making it unlikely so that any lawyer could governed by If Cronic. a claim gov- provide the defendant with constitutionally Strickland, erned by a defendant must effective assistance. See 560 typically demonstrate that specific errors N.W.2d at made ability counsel affected the

The Michigan Supreme Court then eval- defendant to receive a fair If trial. performance uated Evelyn’s governed by however, determine claim is whether it was deficient under the familiar the defendant need not any demonstrate two-part Strickland standard and prejudice conclud- resulting from the lack of effec- for counsel cases, Mitchell’s entreaties ignored the Sixth counsel; in some

tive a defense. prepare properly likely who would are “so to violations Amendment liti- of that the cost the accused prejudice § we case under analyzing In case particular is effect their gating of those cases this is one note that Cronic, at unjustified.” described, it which, the Williams Court types of cases warrant Three S.Ct. 2039. involv a decision distinguish to is “difficult analysis. presumption-of-prejudice Cronic’s legal extension of ing an unreasonable counsel, of complete denial the The first is un relief which would warrant principle,” pres- the is denied “the accused in which application” § der 2254’s “unreasonable ” Bell, stage.’ ‘a critical at ence of counsel that arrives at a decision provision, “from U.S. (quoting at 1851 reached to that opposite a conclusion 2039). The second is 659, 104 S.Ct. at law,” which question of this Court “ subject ‘entirely fails to the counsel when “con under 2254’s relief would warrant meaningful adversari- to prosecution’s Williams, 529 provision. See trary to” ” Cronic, 466 U.S. Id. testing.’ (quoting al omit (quotation 2039). when The third is 104 S.Ct. ted). is, Supreme Court’s despite the That in which circumstances placed in counsel is gov are of law questions instruction could not very likely counsel competent and “contrary provision to” by the erned Id. assistance. render application of involving the questions pres- was denied Because by the “unreasonable governed are to facts pre-trial during the ence of unclear wheth provision, it is application” be reviewed should Mitchell’s claim stage, catego better as this one is er a case such way analyzing to its under On Cronic. exten involving an unreasonable rized as Strickland, under Mitchell’s claim the facts hand sion of Strickland focus- erred Court Michigan Supreme refusing of law incorrect choice an immedi- thirty-day period solely on the Monaghan, P. Henry apply See Cronic. in which Mitchell’s ately preceding trial Review, L. Colum. Fact Constitutional practicing from suspended counsel was (1985) (describing ques Rev. 233-35 entirely an issue as Framing law. fact, law, and mixed questions of tions of time, the state court preparation of issue of law to fact questions application as a chal- challenge interpreted Mitchell’s distinctions). Re admitting of clear as not the de- aspect particular lenge to one Williams, as the Court did gardless, under Strick- the claim analyzed fense for, as in question, to resolve this decline period were thirty-day If this land. Williams, is both decision state court’s proper issue, have been only might it unreasonable and involves an contrary to analysis, for as Bell the Strickland apply precedent. application particular in- notes, counsel’s failure Williams, 529 U.S. at under Strickland. is evaluated stances Bell, Supreme Court identi However, Bell, at 1851-52. See by looking previ stage[s]” fied “critical through- extended the absence of counsel so characterized in which it had ous cases only pre-trial period; out the proceedings. stages of criminal various suspended from the Mitchell’s counsel period reasoning, pre-trial By this immediately month of law for the practice of coun the denial stage, indeed a critical trial, Mitchell’s counsel also but preceding analy a Cronic supports during sel than for no more six met with Mitchell cases Supreme Court’s sis. Several period be- minutes over the seven-month ap- period between repeatedly demonstrate trial court fore 743 pointment of counsel and the trial pre-trial start of The period consti is indeed a “critical stage” for Sixth tutes a “critical period” because it encom purposes. Amendment The passes counsel’s constitutionally imposed Alabama, 45, Court Powell v. 287 U.S. duty investigate the case. In Strick (1932), land, 53 S.Ct. L.Ed. 158 de- the Supreme Court explicitly found pre-trial period “perhaps scribed the as that trial counsel “duty has a to investi period the most critical proceedings gate” and that discharge duty, that say, ... tois from the time of their duty “counsel has a to make reasonable arraignment until beginning of their investigations or to make a reasonable de consultation, when in- thorough-going cision that particular makes investigations vestigation preparation vitally were Strickland, unnecessary.” 466 U.S. at important.” The Court ruled a defen- 691, 104 S.Ct. 2052. The provided dant must be “every counsel at also recognized that pre-trial without con him,” step in the proceedings against defendant, sultation with the trial counsel which the Powell ruling suggests includes cannot fulfill duty his or her to investigate. pre-trial period at issue here. Id. at The Court stated that “[t]he reasonable 69, 53 S.Ct. 55. ness counsel’s may actions be deter mined or substantially by influenced Bell confirms that the “critical defendant’s own statements or actions. stage[s]” at which present counsel must be based, Counsel’s usually actions are quite appearances are not limited to formal be properly, on strategic informed choices is, judge. fore a That although a defendant made the defendant and on information may not a right to consult with coun supplied by the defendant.” Id. The sel while the defendant testifying, “[h]e emphasize Court went on to further the an right has absolute to such consultation significance of the input defendant’s into begins before he to testify.” Perry v. trial investigation: counsel’s Leeke, 272, 281, 488 U.S. particular, In what investigation deci- L.Ed.2d 624 The Bell Court cites sions are depends reasonable critically States, 80, 91, Geders v. United 425 U.S. [provided on such information by defen- dant], example, For when the facts that which a defendant was not allowed to ac support a potential certain line of de- during cess counsel a seventeen-hour over generally fense are known to counsel recess, night example as an of the denial of said, because of what the defendant has stage counsel at a critical pur for Cronic the need for investigation may further Bell, poses. See at S.Ct. 1851 n. 3. be considerably diminished or eliminated important, recess was according to altogether. Geders, And when a defendant has recesses are “[s]uch often given counsel reason to work, pur- believe times of intensive with tactical deci suing investigations certain sions to would be strategies be made and to be harmful, fruitless or even fail- lawyer may reviewed. The counsel’s need to obtain pursue from ure to investigations may his client information those made relevant not later be day’s testimony, challenged as may or he need to unreasonable. short, pursue inquiry into inquiry along fully lines not counsel’s conversa- ex Geders, plored earlier.” tions with the defendant bemay critical Powell, proper S.Ct. 1330. Bell’s reliance to a on both assessment of counsel’s in- Bell, Geders, decisions, see vestigation just see it may be id. at 1851 n. proper confirms that “a critical ato assessment of coun- stage” pre-trial preparation. includes litigation sel’s other decisions. Amend- Sixth a defendant’s trial violates re- has

Id. Because counsel,” Slappy, duty right to there is a ment clear made peatedly no effort to pre- to conduct trial incumbent made. client necessarily follows with the it consult investigation, discharge this cannot trial counsel that more guarantees Amendment The Sixth or to consult with fails if he or she duty between the forma pro than a encounter client.5 her counsel, minutes of and six and his accused in Morris v. counsel the defense Unlike meetings over three spread consultations 75 461 U.S. Slappy, “Assis requirements. satisfy its do not Scroggy, Dick v. and 610 L.Ed.2d of coun appointment with the begins tance Cir.1989), (6th coun- defense 192 F.2d sel, end there.” it does not during the his client utterly failed here sel 11, 104 2039. When n. S.Ct. U.S. the Slappy, period. pre-trial never consults appointed but is counsel as- an ineffective rejected Supreme Court prac from suspended client and is with his public a defender on claim based sistance preceding the month ticing law for to replaced prior ill was and who became in this construc acquiesces court the pointed out Slappy in trial. The Court the de by ignoring of counsel tive denial all had read replacement that the assistance, for repeated requests fendant’s transcripts, obtained the relevant of Michigan Supreme governs. Cronic materials, and the relevant all of reviewed contrary to and was both decision Court’s times defendant several with the had met Supreme of application an unreasonable Slappy, See interviews. for extended Williams, 529 U.S. See precedent. Indeed, 5-7, coun- the trial assured repeatedly Slappy sel to the prepared try was that he court Contact With F. Pre-Trial with the defen- on his conferences based Attorney His had made of the study he and the dant argues that Finally, the Warden 6-7, 103 S.Ct. 1610. Id. at investigation. decisions court its on the based district inef- the defendant’s Similarly, Scroggy, rejected by the findings specifically factual rejected be- claim fective assistance 2254(e)(1), § of courts violation state fact, had, the interviewed cause counsel presume a court requires habeas thirty forty-five-minute in a defendant by made state findings all factual that F.2d at 197. Scroggy, meeting. See clear and convinc correct absent court are here, gives guidance of cases Neither these contrary. See 28 to the ing evidence however, it is true that although 2254(e)(1). However, pre U.S.C. time counsel’s every on restriction “[n]ot protects that state sumption of correctness investigate or to consult opportunity or not extend to of fact does findings prepare otherwise with his client or not, conviction ing at time the defendant's Warden for the as counsel 5. This is Lane, claims, Teague As our discussion of law. final.” a new rule became indicates, 300-01, precedent pre-trial considered the Supreme argued Court has seriously cannot be It proceedings stage period to be critical obligation to consult with counsel's defense down when it handed at least since onc,e a new or novel at least is his client "breaks new rule of law Powell. A new government being imposed obligation obligation” on the imposes a ground or new Powell, Supreme cases in Court's government. Alternative- states or federal Strickland, compel not and Cronic do "if a new rule of law ly, a court announces result. by precedent exist- dictated the result not Michigan legal being Court’s con- the dark and knowing he’s in clusion that Mitchell was not without coun- your dark.... So honor Please take stage proceedings. sel at a critical him off my case because he’s repre- Thus, pro- Court’s senting me at all. no factual “[t]here nouncement ba- (Handwritten J.A. at 108a-108b Letter perfor- sis for a conclusion counsel’s Mitchell). from responded No one to his deficient,” constitutionally mance was letters until days eleven before the start of 560 N.W.2d at is not due the the trial. pure deference accorded to a finding of 27, 1989, April On the trial judge con- fact, as encompasses this statement vened a hearing to discuss Mitchell’s mo- fact, question mixed law and which we tion for appointment of new counsel. At Indeed, de novo. review our conclusion is the hearing, Mitchell informed the trial by application dictated our of law to facts court that he had received a letter stating record, court properly the state which is that Evelyn suspended had been from the 2254(d)(1). governed by § law; practice appear it does not that the Although Michigan Supreme Court trial court Evelyn was even aware that had stated that record regard- “[n]o was made suspended. been Evelyn did not attend do,” Mr. Evelyn what did or did not hearing, this presumably because he was Mitchell, 560 N.W.2d at that court suspended practice from at this point. noted that Mitchell “wrote six to letters judge postponed The trial a decision on judge, the trial the chief judge and others Evelyn Mitchell’s motion until was able to counsel,” requesting removal of id. at 603. present. be letters, part These which were of the rec- Court, Michigan Supreme

ord before the 9, 1989, May day On the second of jury document Mitchell’s unsuccessful to efforts selection, the trial court revisited the issue attorney. example, contact his For on of Mitchell’s request for new counsel. February Mitchell wrote to the Evelyn present at this time. At this court: hearing, Mitchell stated to the court: I up have been locked for 5 months and Well, very from beginning, you my lawyer not once have took time out know, Evelyn promised Mr. to talk with ... to talk to me .3 times after I went to me. He has to talk with failed me on my lawyer has told me that he every promised. occasion that he He me, would talk be over to to but never me, has failed any to make motions for did.Every my since second month mother, my and he’s failed to talk with being I my incarcerated have had many she has written letters and mother go concerning over to his office calls, office, also, and went to his left evidentiary hearing, an she have been at secretary. word with his And he also times, many his office she has wrote up showed an hour my late on final many replied letters but he has never conference and him me letting know charged her.... I know I’m for some- yesterday that was going he to come done, thing I haven’t but I if I know that over and talk failing with me and him express can’t to Gerald K. what that, just, just just to do I I feel it’s happen night on the this incentdent oc- incompetent. curd will stradagy he not know the best J.A. at 174. the court asked: When of what and how fight this “[n]ow, letters, it question those was a case... .For 5 I months have waited keeping appointments, of his not patiently, tryed every way seeing I have I can me, get him to talk to I am you many you’d tired of times as like to be seen you saw this Q: recall when you Do Mitchell then right?” is that jail; in the preliminary all.’’ in relation to the seeing person me at Never ‘Tes. replied: added). further He (emphasis at 174 examination? J.A. I him time meet only “[t]he asserted sitting in the seeing him A: I recall courtroom, discussion or brief in the I him. courtroom, time met the first people plenty of other bullpen with Q: preliminary examination? At the how courts just I don’t see bullpen. true fairness.” J.A. that’s say can A: Yes. also hearing, hard of who is And, him did Q: much contact with how wearing was not he that because claimed ex- preliminary you have before bullpen, he could in the hearing aid

his amination? saying to lawyer half of what hear point, At one him. J.A. at A: None. way it all the asked, can I make “[H]ow my Evelyn has never heard Mr. trial when story.” J.A. 185-86.

true side attor- your next see Q: you did When length during ney? Evelyn testified argument made the he hearing. While Well, bullpen him in the I would see A: discovery materials that he had delivered courtroom, maybe about behind process of work- and was to Mitchell proceed- three times—three different sup- prosecutor with the out a deal ing ings. on the eve of evidence press certain And, proceedings Q: those were later Mitch- the substance of disputed he never Recorder’s Court? claim, he did point At one allegations. ell’s prior to the him [Mitchell] “I talked to A: Yes. examination, your Honor. He’s [pre-trial] And, how Q: you say would roughly, out at least. We leaving one visit have with him you contact did much numerous occasions.” J.A. talked on proceedings? the court before statement, how- non-responsive 186. This ever, the fact that he only conclusive is A: or two minutes. One had met the courtroom and Mitchell bullpen appearances, before Notably, when acknowledged. Evelyn at Q: see Mr. you Did to clear the opportunity with the

presented your trial Wayne County Jail before judge, Evelyn the trial court record before case? this the substance of Mitchell’s disputed never No, A: I never did. théir the content of regarding assertions him you saw Q: was the first time When communications. jail, if at all? in the also hearing, Mitchell At the Ginther contact the nature of his testified about the first A: The date —I mean second trial. His testi- Evelyn prior to the with picking jury. out the day of with the mony hearing at this is consistent to the trial the letter he wrote

substance of started, testimony as his before Q: court as well your Before during jury it, selection. up trial court did leading or months weeks contact, attempt this case? to contact Q: your attorney you Who attorney? your Evelyn. Attorney A: Gerald Yes, I A: I did. wrote him letters. during Evelyn’s conducted suspension, on

They accept telephone Thus, wouldn’t calls. motion for new counsel. that, despite conclude Michigan added). (emphasis J.A. at 151-53 Supreme Court’s finding, there is clear The fact that Mitchell’s counsel was sus- and convincing evidence that Mitchell was pended practice from the of law for the completely unrepresented for the last thir- thirty days prior to trial does not decide ty days prior to his trial. it but does contribute to the The Michigan Supreme Court weight the evidence that demonstrates that, held if it even were to find the defen there was no consultation between dant and his mother credible and assume attorney prior Mitchell and his to trial. never contacted witnesses and Michigan Supreme Court found that only times, met with the defendant three it unrepresented Mitchell was never during would not find a denial of counsel at a any stage proceedings. critical Ac- Mitchell, stage. N.W.2d court, cording Evelyn’s to that Instead, n. 15. Michigan Supreme partner responsibility assumed for Eve- Court found that the allegations of trial lyn’s during suspension, cases “there performance counsel’s deficient would have period was no of time when the defendant to meet the Strickland standard of defi represented.” was not performance prejudice. cient Strick N.W.2d 609 n. 15. The Su- land, however, applies great deference to preme presumption Court’s that Mitchell decisions attorneys defense out of con continuously represented directly rigid guidelines cern that a set of or rules contradicted the record. In a letter would “interfere with constitutionally April sent to Mitchell on 1989 inform- protected independence of counsel and re suspension, him of his Evelyn advised strict the wide latitude counsel must have may Mitchell: ‘You wish to legal seek Strickland, in making tactical decisions.” and, advice elsewhere you the event 466 U.S. at 104 S.Ct. 2052. The de so, you may pick-up choose to do either fendant bears the burden proving of coun your your file or have new attorney pick- sel’s ineffectiveness out of deference for up your may, file. You you should choose counsel’s decisions and trial strategy. See so, to do your have case maintained our illogic applying id. The of Strickland to firm; case, law you in which must ex- these facts is manifest in that there are no pressly indicate same writing.” J.A. at conceivable tactical or strategic reasons for added). (emphasis 108c The letter then defense to fail to counsel consult with a states: you any questions “[S]hould have prior client to trial. a meeting Such is concerns, please do not hesitate to con- if competently develop vital is counsel to Sowell,” Myzell Evelyn’s partner. tact law defense. If does not counsel meet with his Id. The record does not indicate that time, client for more than two at a minutes Evelyn’s partner, Mitchell retained nor the defendant is truthful unable confide way does it indicate that he in any consent- know, ly lawyer in his and counsel will not Moreover, ed to substitution counsel. example, for which investigative leads to appeared we note that no counsel on pursue, whether there are witnesses for April Mitchell’s defense, behalf the 1989 the or what kind of alibi the de court, hearing before the trial which was may fendant have.6 states, "(a) speak 6. Defense counsel’s failure to with his formed Standard Defense counsel client also keep violates several standards articulat- should the client informed of the devel- opments ed in the ABA progress pre- Standards for Criminal Justice. in the and the of example, Duty Keep For paring promptly the Client In- the defense and should com- record evidence undisputed stage. The delineat- Cronic, Court Supreme the In never Mitchell’s circumstances counsel exceptional demonstrates few ed those the defen- prejudice he com- likely him and that was that are so with consulted not exam- court need reviewing the entire unrepresented during dant pletely con- lawyer’s of the consequences ine the clearly are trial. These prior to his month the is duct; these circumstances one of the likely prejudice so circumstances criminal counsel to a of complete denial litigating their the cost of accused that pro- the stage at a defendant unjustified. case is particular in a effect Cronic, 466 U.S. ceedings. Therefore, Supreme Court Michigan case, have demon- we In this S.Ct. prejudice rejecting per se erred Supreme that, according to Court strated evaluating Mitch- insisting analysis and pre-trial must consider precedent, through the lens of Strickland. claim ell’s of the Sixth purposes period “critical” reasons, we AFFIRM foregoing For the alleged Although Mitchell Amendment. provisional grant of court’s the district during trial performance his counsel’s corpus. writ of habeas alleged that his he also inadequate, during the sev- utterly absent CARR, dissenting. Judge, District Because prior to period trial. en-month alleges his counsel’s latter claim majori- to concur in the I remain unable period, the during a critical total absence previously for the reasons ty’s judgment ap- should Michigan my original dissent. expressed Strickland, to his than plied rather I continue to be F.3d 574-80. claim.7 light particularly view that Cone, Bell v. III. CONCLUSION 914, (2002), governed by L.Ed.2d Michigan light of prejudice standard of Strickland cause and pre-trial peri- assumption that Court’s 668, 104 S.Ct. Washington, 466 U.S. v. consul- od, investigation and during which than L.Ed.2d 674 rather occur, was the defendant must tation with Cronic, 466 per standard U.S. se proceedings, of the- stage” not a “critical L.Ed.2d 657 unreasonably Supreme Court (1984). While, peti- unquestionably, clearly established applied ade- attorney failed to consult tioner’s of this ease. See 28 precedent to the facts prior petitioner the to quately with 2254(d)(1). The U.S.C. support not the conclusion does record duty is a to recognized that there long has he, under grant to relief required as that, by failing trial and investigate before to sub- “entirely fail[ed] Bell and defendant, can- to with the consult meaningful ject case prosecution’s duty during a perform not that, tive, accept the were we to we note requests information” ply with for reasonable argument "(b) that a defendant forfeits explain de- Warden’s Defense counsel should if of counsel claim extent reason- assistance velopments the case to the his ineffective in attorney ably necessary permit the client to make call his a witness he fails to hearing, regarding representa- we do not at the believe decisions Ginther informed Justice 4- to call the trial appellate counsel’s failure ABAStandards Criminal tion.” 1993). (3d strat- attorney ed. be considered reasonable 3.8 could strategy egy case. It is not on facts of this attorney to ask for Ginther a appellate for an Finally, although district court did 7. way hearing it in such a and then to conduct ap- upon that his Mitchell's claim comment defendant. preclude relief for the constitutionally as to pellate ineffec- counsel was testing. part adversarial 466 U.S. at of the Michigan courts of re- view, court, 2039. the district and this court. 257 F.3d at 580. persuaded I also remain that we are Respectfully, I dissent. bound to abide the decision of another panel are, in a presenting facts that view,

my substantially indistinguishable Scrog

from the facts of this case. Dick v. 192, 197(6th Cir.1989).

gy, 882 F.2d

Though my foregoing views have expressed

been amply my original dis- sent, here, repeated and will I not be will LEE, Earl Petitioner, repeat the following from that observation opinion, in I fault the trial court for inexplicable its failure NATIONAL LABOR RELATIONS BOARD, Respondent, taken the time have before commenc- a degree first murder trial to inquire Union, International United Automo- circumstances, effectively into the and to bile, Aerospace Agricultural Imple- & petitioner’s have ensured coun- ment America; Workers of UAW Lo- reasonably prepared sel was well to de- cal Intervenors. failure,

fend his client. The trial court’s No. 01-1434. petitioner’s the face of the unan- swered claims of lack of contact with his United States Court Appeals, attorney lawyer’s and the eve-of-trial Sixth Circuit. suspension practice, from grant Argued: Sept. is, word, short continuance incom- prehensible. compulsion The to main- April 8, Decided and Filed: never, tidy tain a docket should as it so here,

clearly place did fundamental

rights risk. delay Would week’s really mattered? message of this case is not that quick

federal courts are to intervene into is, proceedings;

state message rath-

er, that the state trial this case

could and should job have done a better upholding the Constitution. Had it

taken but a few moments to consider the

petitioner’s complaints meaningfully, or it postponed

had the trial for a brief

period to make certain

truly ready this case would not

be here. may The time the trial court

have saved a great has led to and other- unnecessary expenditure

wise of time on

Case Details

Case Name: Charlie Lee Mitchell v. Warden Gerald Mason

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Apr 7, 2003

Citation: 325 F.3d 732

Docket Number: 99-1839

Court Abbreviation: 6th Cir.