Debra Dando v. Joan Yukins, Warden

majority’s observation with the agree I factors each dispositive the two injury for the potential are cases

these (2) the need or others officers Unfortunately, neither

for action. swift case, given factors

these injury” purely “potential Here, po- quite simply, the

hypothetical. might there suspicion officers’

lice injured person inside been an

have was in need of aid might who

house or unsubstanti-

nothing more than hunch this court suspicion type of the

ated to create held is not sufficient

previously entry officers’ exigency. Because the any objec- upon was not based this case believing that

tively basis house and need inside the

someone was assistance, I reverse

of medical sup- denial motion

district court’s proceedings. remand for further

press and Petitioner-Appellant, DANDO,

Debra Warden, Respondent- YUKINS,

Joan

Appellee. 04-1691.

No. Appeals, Court of

United States

Sixth Circuit. 28, 2006.

Argued: April Aug. Filed:

Decided and anyone was justify a could not determine can threat citizens immediate search, breaking the threshold war- inside without thus that the warrantless Arcobasso, 882 doorway); justified United States entry where at issue rantless Cir.1989) (warrantless entry F.2d 1304 night-time call police responding to were residence, persons jus possibly injured search from within of shots fired responded to a call of police where tified they an individual who where observed observed investiga- within a residence shots fired separate criminal target of a dry- occupant open through an window the officers knew exit the house and tion police house, occupant gun; stated to firing a man did not own that the house). person in the another that there was the house but noise inside the officers heard January Petitioner On Debra boyfriend Dando and her Brian a string committed of armed robberies in County, and assaults Oakland Michi- a.m., gan. approximately, At 6:10 Peti- ride requested George tioner from Township. in Lake Cubitt White Mr. Kroger Cubitt drove Petitioner requested. store in Lake as White she Doyle Mr. followed Cubitt and Petition- Columbus, Wright, ARGUED: Carol pickup in truck. When Mr. er his Cu- VanCleve, Ohio, Appellant. Janet A. for store, Kroger at stopped Doyle bitt General, Attorney Lansing, Office him confronted with sawed off shot- for ON BRIEF: Michigan, Appellee. of his gun. Mr. Cubitt was robbed wal- Ohio, Columbus, Appel- Wright, Carol keys and let and car Petitioner and Campbell, lant. Office of William C. Doyle’s Doyle fled in truck. General, Attorney Lansing, Michigan, a.m., approximately At 6:46 Petitioner Appellee. attempted to use two Mr. Cubitt’s MARTIN, GUY, CLAY, and Before: at an Amoco stolen credit cards Gas Judges. pur- Circuit Township Station in Waterford gasoline. chase Both of the credit cards MARTIN, J., opinion delivered the rejected by Amoco and were station court, CLAY, J., joined. which gas and fled Doyle Petitioner station 802-805), GUY, (pp. delivered a J. paying in their truck with [out] separate dissenting opinion. gasoline. 32.00 $ a.m., Doyle 7:15 at- approximately At

OPINION tempted robbery Cheryl the armed MARTIN, JR., F. Circuit BOYCE gas at the Mobil station Pon- Gibbons Judge. Doyle and were inside tiac. Petitioner gas parking at station their truck appeals the district court’s Debra Dando Gibbons, the gas a customer of lot. Ms. corpus petition. Dan- denial of her habeas station, had re-entered her motor vehi- spree in a crime do had been involved and Doyle approached put her cle when pled no contest to sev- boyfriend, her shotgun her cheek. the sawed off robbery charges. eral and related counts move over Doyle told Ms. Gibbons unsuccessfully later to va- sought car, Ms. Gibbons re- inside of her but petition chal- plea. cate her Her habeas her vehicle. comply and exited fused to courts’ denial lenged Michigan state give at him Doyle yelled Ms. Gibbons for a mental health request Ms. Gibbons refused money. When coun- of ineffective assistance of claim Doyle back to the truck ran comply, reasons, following we reverse sel. For him away with and Petitioner drove her habeas court’s denial of district station. gas from the petition. a.m., approximately 9:06 Scott Coo-

At I. sitting in his motor vehicle per was lot Lakes Cross- following parking the Great district court found in Auburn Hills. Pe- ing Mall Shopping the crimes to regarding uncontested facts parked Doyle’s truck titioner drove pled no which Dando contest: Cooper’s Doyle plead vehicle. ex- contest all charges. behind Mr. no Ac- put Dando, the truck and the sawed-off cording ited she informed attor- shotgun face Cooper’s to Mr. and robbed ney that she had a long of violent Doyle him keys. and car his wallet physical Doyle sexual and abuse the truck and Petitioner re-entered beat her and to kill threatened her imme- away from the crime scene. drove diately participated before she in the rob- approximately p.m., At 12:30 Petitioner requested beries. She that counsel seek a Doyle Shanigan’s drove restau- mental health before she enter a no rant Pontiac. entered the allegedly contest Counsel refused to pointed restaurant sawed-off assistance, request expert explaining that waitress, shotgun at San- Jennifer expert an would cost money. too much chez, demanding money. her Ms. San- allegedly Counsel also continued to insist to with comply chez refused this de- that Dando enter a no plea. contest On mand and ran into the kitchen call to 12, 2000, March Dando followed attor- police. Doyle obtaining the left without ney’s pled advice and no contest to three any money he and Petitioner drove robbery, counts armed one count of nearby to a store. party conspiracy robbery, to commit armed two walking Petitioner seen party was into a counts of with assault intent to while rob Figa working store where Mitchell was armed, and two counts of posses- unlawful behind the counter. Petitioner asked sion or use aof financial de- transaction Figa only if he Mr. was the plea vice. The was pursuant entered to a present Doyle and then left. entered agreement, whereby Cobbs the circuit robbery the store committed armed agreed to sentence Dando at the low Figa shotgun, of Mr. sawed-off sentencing end the state’s guidelines. obtaining Figa. from Mr. Peti- $100.00 2000, April 24, On the circuit court sen- away party tioner drove from the store. thirty years impris- tenced Dando to ten to agencies Several law enforcement be- onment, explaining: engaged attempt came in an appre- 30, Miss certainly Dando’s sen- by Doyle. hend Petitioner and During tencing guide- her at the low end 28, 2000, afternoon January late hours of lines we recognizing are the fact that Doyle Petitioner and spotted were she was apparently misused by Mr. their truck Township Waterford Doyle, but I’ve on indicated the record police stop officer. A traffic of the truck already she had opportunities several attempted was and Petitioner exited the remove from that herself and cease in began truck and to flee. The officer was agreement perpetrate these subsequently confronted who crimes ... was still in possession of the sawed-off shotgun. Doyle fatally Sentencing Hr’g was shot Tr. at 13. officer who was act in self- forced May 22, On Dando obtained new apprehended defense. Petitioner was appeals counsel for process. On Janu- flight on foot a short while later. ary appellate counsel Op. D. Ct. at 2-4. in Michigan moved circuit court for the appointment of an expert

After Dando on Battered apprehended on Janu- ary Syndrome ap- waived Miranda assist with the rights process. peals confessed to participating in the motion indicated robberies. She received appointed coun- Petitioner considering whether sel, who subsequently recommended that move to withdraw her enter petition Dando filed a for writ habeas Battered Wom- based on duress defense motion, July on 2002 with the United corpus Along with Syndrome. an’s States District Court for Eastern Dis- affidavits, one from three submitted Dando claiming trict “the trial court Michigan, Ditch, aunt, from a one Barbara abused its discretion when denied friend, Early, and one from herself. Luther payment motion for of a Battered Wom- documented The affidavits expert an’s appeal.” abuse. physical sexual district court noted that abuse dis- hearing on the circuit court held cretion claim based on the state’s rules of At the hear- January motion on recognized is not a for ha- basis that she explained counsel ing, appellate relief, only question beas as it involves a needed an assess D. if Op. law. at 10. However state Ct. withdraw her no contest move to should rulings courts’ amounted to “a func- state court construed re- The circuit right tional denial of with an one for an assist quest as defense,” meaningful the decision consti- claim, pre- of counsel ineffective assistance of Dando’s Sixth Amend- tuted a violation such a Dando would need sumably because rights, presented ground ment a for The circuit plea. claim to withdraw Further, Id. Dan- federal habeas relief. holding that request, this court denied do’s claim that her trial counsel was inef- received ineffective assis- had not Dando failing investigate for to. a duress fective that The court reasoned tance of counsel. cognizable ground for defense another strategic made a trial counsel had Dando’s relief under Strickland v. federal habeas plea and to recommend a no contest choice 668, 104 Washington, 466 U.S. S.Ct. “very appro- strategic that choice was this (1984). 80 L.Ed.2d 674 Id. light in of the lessened sentence. priate” however, Ultimately, the district court a Dando filed “de- On March writ, reasoning that duress was denied to a layed appeal” for leave application defense the facts of Dan- a tenable on to permit to remand Petitioner “motion Consequently, at 11-17. do’s case. Id. Michigan plea” with the withdraw that Dando the district court determined application In the for Appeals. Court of prejudiced either her counsel’s was not argued that appeal, Dando leave defense, or the pursue duress failure denying its trial court abused discretion expert, and that denial of mental health expert an on Battered her motion for habeas relief grant there was no basis Syndrome because counsel need- The ground. Id. at 17-18. dis- either ed the assistance a Battered Woman’s court reasoned since du- trict also determining expert hopeless,” “would have been ress defense plea. move to withdraw she should grounds to con- legitimate had no Dando that Dando’s expressly The motion stated sought plea. test her Id. 20-24. failing trial counsel was “ineffective district court’s decision appeal prior an witness to deter- request expert the district court Although this Court. proceed.” ap- how Dando should a certificate mining request Ms. denied her Michigan Appeals subsequently granted denied pealability, The Court of it was motions, stating application this Court. both “for lack of appeal was denied leave II. grounds presented.” in the merits court’s de- de- Court reviews a district Supreme subsequently Court This corpus de novo. nial of a writ of habeas to appeal. nied leave F.3d Brigano, III. Wolfe Cir.2000). Factual determinations are from appealability certificate error, clear generally “except reviewed for defined claim presenting Court as where the district court made factual (1) questions: two whether the sentencing its trial determinations based on review of denying court abused its discretion in Dan- transcripts other records.” witness, motion for an do’s Russell, Mackey Appx. 148 Fed. whether trial counsel was ineffective for (6th Cir.2005). cases, such In failing to pursue duress Al- defense. credibility findings no determination or though the certificate of appealability required, fact are factual conclusions are framed the issues involved here as sepa- Wolfe, reviewed de novo. 232 F.3d at 501. questions, they inherently rate are inter- Under the and Effective Antiterrorism twined one another. Dando did not (“AEDPA”), Penalty Death Act writ help seek the entering an before corpus may granted habeas “with re- plea Rather, her no contest state court. spect any adjudicated claim on in proceeding, a collateral state she re- the merits in if State court” quested expert to assist deter- “contrary to, court’s or in- decision was mining whether or not she should seek to of, volved application an unreasonable only withdraw her relevant fed- law, clearly established Federal as deter- eral hook require constitutional that would mined Court Supreme of the United allowing Dando to withdraw her is a 2254(d)(1). States.” U.S.C. Under claim that her counsel was ineffective in “contrary to” provision, federal habe- advising plead her to no contest under Hill grant as court writ “if should the the state v. Lockhart. 474 U.S. 106 S.Ct. court ‘opposite arrived at a conclusion to 366, 88 L.Ed.2d 203 (stating that Supreme] that reached [the Court on a when “a represented by defendant is coun- question of law or if state court the decides during plea process sel the and enters his differently case than Supreme] [the plea upon counsel, the advice of the volun- Court on a materially set of indistin- tariness of plea depends the on whether ” guishable Wolfe, facts.’ 232 F.3d at 501 counsel’s range advice was within the of (quoting Taylor, Williams v. 529 U.S. competence attorneys demanded of in (2000)). 120 S.Ct. 146 L.Ed.2d 389 cases.”). Thus, criminal request for a The district court should issue the writ mental health help her decide the application” “unreasonable whether or not to withdraw her clause where “the state court the identifies of claim ineffective of assistance coun- correct governing legal principle [the from sel are one in presented the same. As Supreme] Court’s but decisions unreason- her federal habeas claim now before this ably applies that principle the facts of Court, the issue can be articulated as fol- prisoner’s case.” Id. Where a state lows: was it an application unreasonable of law, court § fails address federal 2254 reject federal law to Dando’s claim inef- apply, does not and the decision is re- fective assistance of counsel based on her Carter, viewed de novo. Clinkscale v. 375 trial counsel’s failure to an expert consult Cir.2004) F.3d (finding the investigate and otherwise validity of a 2254(d) § inapplicable standard where duress defense based on Battered Wom- state courts did not address federal issue Syndrome? an’s “[b]y terms, provision only because its applies ‘adjudicated to claims that were It is clear from the that record ”). merits proceedings.’ Michigan State court state courts and the district Dan- to be The state also contends that these two issues court understood do’s ineffective of counsel intertwined, assistance and addressed inherently claim defaulted procedurally is together accordingly. Dando’s questions proce she failed follow the correct motion state initial post-sentencing presenting it to the state courts. dures styled payment “motion for Carter, See Clinkscale 375 F.3d fees,” in Dando made which expert witness (6th Cir.2004) (“[a] federal court “considering clear she considering from an is generally barred asserting plea and withdraw arising judg sue federal law from the Syn- from Battered suffered judg ment court if state the state explicitly The motion stated drome.” ground ment ‘rests on a state-law “[tjrial was therefore ineffective counsel “independent” the merits of the both witness.” failing request “adequate” federal claim and an basis motion, the state hearing At the on this ” (quoting court’s decision.’ [state] ineffective judge acknowledged trial Huffman, Frazier v. F.3d of counsel was basis for assistance (6th Cir.2003)). Specifically, “[ijsn’t by asking prosecutor motion Michigan points appellate rule of appeal claim then on ineffectiveness briefs, procedure regarding the format of prosecutor replied, counsel?” requires ques which statement “[tjhat’s . essentially what we have.” After involved, for appeal tions with each issue motion, trial court denied this R. separately numbered. Mich. Ct. Appeal, for Leave to filed with Application 7.212(C)(5). claims that be state Appeals, included Court of cause Dando the ineffec did not about trial coun- the exact same sentence tive assistance counsel claim with assistance, ap- did her sel’s ineffective as title, separate preceding number in the plication Michigan Supreme to the Court. procedurally claim has been default discretionary of these applications Both ed. summarily denied. appeal were of ineffective as Because Dando’s claim Despite inseparability of Dando’s re- effectively insepara sistance of counsel is expert an and ineffective quest for her ble from her claim for a mental health claim, now assistance of counsel the state expert, it far from clear that she would of that the ineffective assistance contends her separately have had to number presented counsel claim was never to requirements brief to meet the of the state courts, appellate and that the dis- state’s Michigan court rule. Both Court this trict court should not have entertained Supreme Court de Appeals Dando failed to claim because meet Applications nied for Leave Dando’s requirements exhaustion of 28 U.S.C. an so we Appeal issuing opinion, without 2254(b) (c). § Given our determina- way inade have no to know whether some from the certificate tion that two issues filings have amounted quacy of these could appealability are fact one in same “independent” “adequate” an basis adequately and that Dando referenced rejection attempt appeal her ineffective assistance counsel claim under our the state trial court’s decision filings, precedent. her state court we conclude See procedural default Clinks cale, Moreover, claim the close present Dando did indeed this at 430. 375 F.3d re has thus of Court state courts. She “exhausted look at the Rules by the state in the courts of the veals that the rule identified remedies available state was not even relevant Dando’s required as under section 2254. State” 57-59, explicitly governs filings. This rule Id. at 366. In S.Ct. the context appeal. filed the format for See of challenge plea, to a guilty the defen- briefs § Mich. Ct. R. 7.212. Dando never had an dant must show that “but for counsel’s brief, an opportunity appellate to file be- errors, pleaded guilty he would not have appellate cause the state courts' denied and going would have insisted on to trial.” applications both for leave to file a Id. at Supreme S.Ct. 366. discretionary appeal. separate A Michi- Court preju- added an assessment of gan filing of governs Appli- Court Rule prediction likely dice must include a of the Appeal. cations Leave See Mich. Ct. outcome at trial. In Id. the case §R. any 7.205. The state has not identified unexplored affirmative defense or undis- shortcomings Application of Dando’s evidence, covered prediction this rule, nor our does review Dando’s likely outcome at trial is relevant to deter- filing any and the text of make the rule potential mine whether or not the defense such shortcoming apparent. Because Dan- or have caused counsel to properly do has done all she could to raise change the recommendation as to the courts, claim in the state Id. defaulted, claim is not procedurally Dando’s counsel failed here to requirement met exhaustion of 28 adequately investigate availability oí a 2254(b) (c), U.S.C. claim and her as duress defense and possibility the related articulated properly above is before us.1 that Dando suffered from Battered Wom Syndrome.

rv. en’s informed at torney long that she had a of vio trial claim that her coun abuse, lent sexual and physical sel’s failure to seek a mental expert health beat her and to kill threatened her imme explore potential defense based diately participated before she in the rob on duress and Battered Syn beries, even requested a consultation governed by drome the standard set with a mental health before enter forth in Hill. 106 S.Ct. U.S. ing her plea. attorney refused to seek Supreme Court stated in Hill that the assistance from an expert, informing Dan- two-part test to establish ineffective assis do that it costly. would be too This advice counsel, tance articulated earlier flatly incorrect, as Dando would have v. Washington, Strickland 466 U.S. been entitled to have the state pay for a (1984), 104 S.Ct. 80 L.Ed.2d 674 mental Supreme under the Court’s “applies challenges guilty pleas based Oklahoma, in Ake holding 470 U.S. on ineffective assistance of counsel.” 474 83, 1087, 58, 105 S.Ct. 84 L.Ed.2d U.S. at 106 366. 53 test, S.Ct. that Under (holding a that “when defendant must a defendant demon per show that counsel’s strates to the trial objective judge sanity formance fell an that below standard his at reasonableness, of and that time of the the defendant offense is to be a significant the prejudiced by attorney’s trial, the must, error. factor at the State at a mini- Additionally, 1. argues that ability expert Dando of a defense an and of becomes right expert waived her seek an and assert determining relevant Hill by pleading guilty. argument a defense This or not prejudice. the defendant suffered See availing. Although is might not a defendant 542, 551(6th Magana Hofbauer, v. 263 F.3d generally right waive put her aon defense Cir.2001). application here of the waiver contest, expert by and an pleading seek no approach suggested by the state would in plea challenged through where the is an inef- stead Hill a nullity. render claim, fective assistance of counsel the avail-

799 by professional tegic supported to a decisions mum, the access assure defendant judgment, investigate a failure to where who conduct an will competent psychiatrist professional judg- does not reflect sound and assist in eval- examination appropriate ment, appropriate. such deference is not uation, and of preparation, presentation Id. The in this that suggests case defense”).2 Investigation po- of this the not attorney’s the decision was an exercise requirement a minimal tential defense was professional judgment it re- at adequate representation providing misunderstanding flected a law re- stage, particularly since plea garding availability a mental health attorney her told her about herself expert. The state courts’ determination abuse, suggested the need for and even that counsel’s performance a health See O’Hara expert. mental inadequate misapplied clearly estab- Cir.1994) 823, 24 F.3d Wigginton, 828 Supreme precedent lished Court re- (“counsel duty a to make reasonable quired investigate counsel to adequately or make a de- investigations potential defenses. investigations particular that makes cision Strickland, unnecessary” (quoting relatively 466 U.S. that Dando a fact received 2052)). 690-91, Although exchange 104 sentence in her no at S.Ct. lenient typically required plea to show contest does not render failure to courts are attorney’s investigate to an stra- Battered Women’s heightened deference Ake, 79, balancing U.S. prong test of criminal cases.” at employed 2. Ake the three Eldridge, Finally, 424 U.S. test from Mathews S.Ct. risk an inaccurate (1976), 96 S.Ct. L.Ed.2d 18 plea a result in the form of that is not know- process required a due determine whether ing signifi- voluntary presents an issue and trial, expert pay a at state to for mental health cant concern. See Tollett v. constitutional opposed during guilty consideration a as Henderson, U.S. S.Ct. Ake, 470 U.S. at 105 S.Ct. 1087. The (1973) ("we pre- great take 36 L.Ed.2d 235 inquiry are the three relevant factors results, against unsound and we cautions stake, governmental private at interest so, to do whether conviction should continue interest, and the risk of an erroneous result trial.”). where plea or In cases safeguard question. Id. These without the potential a issue defendant's mental health is greater apply equal, if not considerations trial, necessarily undermine the could force, guilty plea A defen- context. voluntary plea, knowing nature guilty plead dant’s decision to and waive expert providing consultation would seem al- right jury put on a defense a trial and . ensuring a accurate most more critical significant private implicates liberty inter- plea validity guilty result. Because est, consequences, given en- relevant the de- centrally involves the mental state of suring plea knowingly is entered jury even more than does verdict in fendant voluntarily presents weighty private in- as voluntary, knowing be it must ensuring as accurate result at trial. terest an expert Further, would essential would seem that an considerably less of a burden there potentially mental health is rele- providing whenever the state in trial, culpabili- regarding as all the guilty context than at vant issue defendant's initially would be to ty. requirement have to do of an indicated Ake's As defendant, presumably expect consult with expert, not be realistic to it would any as to relevant find- advise defense counsel or with mental issues defendant health ings. relatively of work is a small subset This attorney to assess these issues on their own. expert, required the trial what would be reasons, require Ake would that the For these significantly preparing not does include expert a to advise appoint state mental health only testifying trial. is the for or at Not plea regarding whenever a defendant context, plea but financial burden less in showing is a a that mental health there is prevail- this burden and the state’s interest in guilt. as to her relevant concern tempered by ing “necessarily at its trial are adjudication interest in the fair and accurate professional judgment. a duress sound V. praised The the decision state remaining question is whether in trial counsel to raise Dando’s abuse prejudiced by inadequate Dando was However, obtaining a shorter sentence. representation deciding she received in investigated potential had counsel de- guilty. To plead prejudice meet the re trial, pursued fenses and them at Dando quirement, Dando “must show that there have a be acquitted would had chance to probability that, is a reasonable but for only altogether, or convicted of some of the errors, counsel’s would [s]he not have charged acquitted counts of others pleaded guilty and have would insisted on (perhaps jury if the found the duress to be Hill, going trial.” 474 U.S. at during portions more particular immediate S.Ct. 366. This determination depends spree). possibility, the crime this Given “on part discovery the likelihood that is a there likelihood that Dando would the evidence would led have counsel to have plea, entered a and that failure to change plea” his recommendation as to the investigate knowing undermined inquiry and the related “whether the voluntary showing nature In evidence likely changed would have plea deference the decision to seek a outcome of argues a trial.” Id. Dando sentence, bargain with a lower would pled not have guilty had counsel essentially courts what conflated were two investigated and discussed with her the critical attorney decisions Dando’s into possibility of presenting a duress defense one. an obligation Counsel had both to on Syndrome. based Battered Woman’s defenses, investigate potential and to sub- rejected district court approach this sequently ensure Dando’s history based on its determination that evidence abuse was sentencing. accounted at If suffering Dando was from Battered Wom- attorney had possible assessed defens- an’s supported not have es, still recommended a duress defense. elements duress judgment long his the defenses were law are: shots, negotiate his choice lower sen- A) The threatening conduct suffi- was tence based Dando’s of abuse cient to create the mind of a reason- forego potential and to defense would able the fear of death or serious sound, or at least entitled to some bodily harm; deference. simply However because he B) The conduct in fact caused such fear possible defense, failed to assess a due of death bodily or serious harm in the part to his incorrect understanding of the defendant; mind of the law regarding provision of a mental C) The fear or was operating duress expert3, health advocacy sentencing his at upon the mind of the defendant at the does not shortcomings insulate the at alleged act; time of the plea stage. shortcomings, Given these Dando has requirement D) met the first The defendant committed the act to Hill. avoid the threatened harm. attorney informed her that she was proceed defendant determine whether to expert prior not entitled to a mental health case, to trial. See at note 2. In this infra entering guilty plea. This is incorrect. Un- expert clearly mental health needed for Ake, 17-79, der U.S. 105 S.Ct. purpose, and thus entitled to defendant is to a entitled mental health expert. assistance of mental health if a necessary help mental health

801 234, 247, Lemons, reasoning clear that the 562 This makes the- 454 Mich. People v. (Mich.1997). Additionally, Syndrome ory 447 of Battered is not N.W.2d Woman’s of compul- conduct or act threatening require- “the at odds with reasonableness “ imminent, im- and 'present, sion must anything, evidence of Battered ment —if injury is not threat of future pending!;,][a] potentially can Syndrome Woman’s bolster ‘must have aris- and threat enough,’ [ ]the argument that a defendant’s actions of the negligence or fault en without Although were fact reasonable. those ” upon it as defense.’ person who insists not so have of us who are unfortunate to to Merhige, Mich. (quoting People Id. constant, imminent threats of vio- live (1920)). 601, 610-11, 180 N.W. might of a lence look the actions defen- that Dando would have district court found in Dando’s situation from the relative dant to a duress defense unable establish been judge’s jury of a chambers or a comfort to opportunities she had several person and what box wonder be- during spree, the crime and escape Doyle’s shocking facilitated would have de- requirement for a duress cause the spree, crime evidence Battered Wom- a fear in threat create fense Syndrome explain why can a reason- an’s person precludes the mind of a reasonable might able resort actions such Syn- of Battered Woman’s use of evidence of violent abuse given drome, subjective. inherently which is Additionally, as imminent violent threats. disagree with district We noted, this court evidence is the Wilson Bat that evidence of court’s conclusion did not why relevant to show defendant to a Syndrome is irrelevant tered Woman’s company For leave abuser. Al Michigan law. duress defense reasons, that evidence of these we believe found, the parties we not though have Syndrome poten- Battered could Woman’s cited, have a case that addresses the to all of the ele- tially have been relevant Michigan Court of way, issue either ments a duress defense under Appeals has allowed evidence Battered law. Syndrome to the related Woman’s show experience of abuse is itself Dando’s In defense of self-defense. affirmative shocking, potentially and would Wilson, People Mich.App. on Bat- compelling duress defense based (Mich.Ct.App.1992), N.W.2d Syndrome. moth- Woman’s tered Appeals endorsed the Michigan Court of addict, would “lend out” drug er was who of a defendant’s introduction for months at a drug dealers Syndrome explain “to Woman’s Battered debts, from the pay drug off her time reacts to the batter spouse how a battered old she years was six until time Dando er, explain the reasonableness sex perform Dando was forced twelve. spouse’s danger perception battered parents upon the Her acts dealers. imminent, bodily also great or harm is sexually, physically both abused her inference that the prosecution’s rebut of her photographs took father than left rather the defendant could have as shock- court described which the state In the con spouse.” kill the self defense husband Dando’s first ing appalling. text, with the defendant agreed point her to the have abused seems of Battered the evidence him.” where she was “scared death jury introduced could be Dando, and Doyle violently also abused question to the “because relates by an ac- submitted one.of the affidavits her life was reasonably believed Doyle he was (em claimed that said quaintance danger.” Id. at 487 N.W.2d 822 added). and hit “selling” Dando. threatened phasis offenses, morning of the Dando on the VI. her a concussion and re-

possibly giving reasons, For the foregoing the district medical quiring her to seek attention. denying court’s order Dando’s writ of ha- Doyle’s reckless and violent behavior is corpus beas is reversed. The case re- brandishing of exemplified also his court, manded to the district with instruc- shotgun, robbery attempts, repeated tions to issue writ requiring po- eventual armed confrontation with the guilty plea. vacate Dando’s lice that resulted his death. GUY, JR., RALPH B. dissenting. help from an With on Battered I agree question that is whether Syndrome, Dando have in- could petitioner was denied effective assistance troduced evidence of all the elements of counsel, claim was not prior a duress defense. Just embarking dissent, however, I respectfully waived. spree, on the crime Doyle had threatened from the result reached the court. life if cooperate. she did not Given A claim of ineffective assistance of coun- violence, Doyle’s propensity for with which sel requires proof perform- that counsel’s sadly familiar, Dando had become too ance was deficiency deficient that the in her situation would prejudiced the defense. Strickland v. likely have or bodily feared death serious 668, 687-88, Washington, 466 U.S. testimony harm. Dando’s could also sup- (1984). S.Ct. 80 L.Ed.2d 674 port conclusions that threats fact trial only court was the state court caused her to fear or bodily death serious on address this claim the merits. While harm, operating this fear upon parsed out under the Strickland her mind at cooperation the time of her framework, the trial court made the follow- Doyle, and that she cooperated with (1) ing findings: that the to aban- decision Doyle to avoid threatened harm. Evi- potential don exchange defenses in for a dence of Battered Woman’s sentencing agreement favorable com- would also have been relevant explain (2) that, strategy; mon defense as a factu- why may have felt escape unable to matter, al Dando had opportunities several the situation. to remove from spree, herself the crime not; but did that trial had counsel purposes

For of evaluating prejudice un- appropriately acted “very and secured a Hill, der we need not determine to an good break” on Dando’s sentence as a certainty absolute that a jury would have result plea. acquitted Dando based defense Rather, only duress. we need find likeli- Arguing rejec- first that the state court’s hood a favorable outcome at trial such tion of this claim was on an based unrea- given Dando’s counsel would not have sonable determination of the facts under the same recommendation likely and she 2254(d)(2), Dando focuses on the trial rejected guilty have We judge’s explanation that the decision to find there to abe sufficient likelihood here enter the “a made choice there to establish ineffective assistance coun- attorney her, in counseling they sel under Hill. Because state courts both made a together choice that it would failed apply this well established Su- plead onward, be best for her to and move preme Court precedent, the writ of habeas setting rather than going up trial and corpus granted by should be the district may the defenses that have been available court. Specifically, to her.” she claims it was

803 521-22, 510, 2527, 123 “they find that both made U.S. S.Ct. 156 unreasonable (2003). alleged 471 it L.Ed.2d When it was contra- together” the choice defendant was prejudiced that that the sentencing at dicted insistence him possi- failure of counsel to advise of a not trying prove that she did she was before he pleaded guilty, ble defense joining in the have a about crime choice prejudice inquiry depend largely will on finding, significance The this spree. “likely defense would have however, they had made the was not that Lockhart, succeeded at trial.” Hill v. 474 rather, together but, that coun- decision 366, 106 88 U.S. S.Ct. L.Ed.2d 203 pursue possible sel’s failure to defenses (1985). both the Because reasonableness strategic was a decision. strategic prej- of counsel’s decision and the application Under the unreasonable inquiry udice are informed the likeli- 2254(d)(1), it is not sufficient clause of that a hood duress defense would have reviewing indepen- court find in its that a trial, at one begin been successful must judgment that the state court deci- dent Michigan law. with the relevant clearly law errone- applied sion established Michigan, In duress is a common-law ously incorrectly; application or must that affirmative defense arises in situations objectively also unreasonable. be great- where the crime committed avoids a 362, 411, 120 Taylor, v. 529 U.S. Williams Lemons, (2000). People er harm. v. 454 Mich. 1495, 146 389 In S.Ct. L.Ed.2d (1997). 453 To enti- N.W.2d case, the claim is that trial counsel to an instruction on the tled defense of constitutionally provided defective assis- duress, the defendant bears the burden pursue a duress tance because he failed some from produce evidence which accept advising defense before jury that could conclude each the follow- plea-bargained Specifically, sentence. ing (1) present: elements are failing faults petitioner counsel A) records; threatening room emergency obtain The conduct was suffi- cient to in the mind of a failing request payment create reason- syndrome. The able the fear of death or serious expert on battered woman harm; bodily examining district court concluded after admissibility B) law on duress and The conduct fact caused such fear testimony from an on battered bodily of death or harm the serious syndrome, that the state court de- defendant; woman mind of the objectively cision was not unreasonable be- C) operating fear The or duress cause it would have been fruitless for trial upon the mind of the defendant pursued to have a duress defense counsel act; time alleged at trial. D) defendant committed the act to avoid harm. the threatened Supreme Court has made clear that “strategic less than Luther, choices made after v. (quoting People Id. 394 Mich. complete investigation pre- (1975)). are reasonable 232 N.W.2d cisely profes- to the that reasonable extent Michigan Supreme Court elaborated “ conduct, judgments support sional the limitations ‘pres- threatening must be words, investigation. imminent, ”; In ent, other counsel impending’ “ duty ”; investiga- enough’ has a to make reasonable injury ‘threat of future is not tions or make reasonable decision and that “‘the threat must have arisen per- particular investigations negligence unneces- or fault of the makes without ” Strickland, 690-91, Id. sary.” upon 466 U.S. at 104 son who insists as defense.’ 2052; Smith, (quoting People Merhige, at 454 Wiggins S.Ct. see also (1920)). 418, 422 adopting syn Mich. 180 N.W. Short of battered woman Also, may drome, Michigan Supreme a defendant forfeit duress Court has to use defense when he fails a reasonable held that opinion regard if it opportunity escape may undu- ing syndrome be admissible when ly expose bodily him to or serious death explain relevant to that would behavior be injury. (citing Id. at n. LaFave & incomprehensible person. to the average Law, Scott, 5.3, pp. Criminal Christel, Substantive People v. 449 Mich. 619-20).1 (1995). typi N.W.2d Such evidence is cally charged offered when a defendant were, by

The court and counsel all ac- killing with claiming is abuser self counts, lifelong history aware of Dando’s defense, or a complainant when files being abused and she had been against years charges her abuser after by Doyle emergency abused well. as tolerating the Id. at abuse. 202. Even concerning room records the treatment then, however, expert may testify in the hours before the received crime that the individual suffered from battered spree not obtained trial were counsel. syndrome, may woman explain but attempt No made to been demonstrate generalities or syn characteristics might supported how these records have explain specific drome to brought behavior if they pro- duress defense. Even to were out at trial. Id. at 201. Petitioner has not Doyle vide an account of abuse before indicated what an expert on battered wom spree began, the crime a successful duress syndrome might have contributed to defense would require evidence Dando her defense. This not a typical case in committed the crimes present, im- which syndrome minent, characteristics impending threat of death or relevant, might an expert be would not bodily past serious harm. Neither abuse likely been permitted testify have nor the fear of future abuse at hands Dando suffered from syn battered woman Doyle would be sufficient. drome at time of the offenses. See support facts as admitted People Neff, v. No. 2000 WL the trial finding court’s factual that she 2000) Jan.11, (Mich.App. (unpub opportunities had several to remove her- lished) (holding exclusion of evidence of spree, self from the crime but did not. battered woman syndrome not deny did undisputed facts are that Dando rode defense). defendant the right present alone victim first before he was questionable It is robbed, also went in alone to whether evi- party “case” the robbed, dence would be store where the relevant the defense of cashier was duress. requires objective waited truck Because duress alone while con- being fronted other victims. That reasonableness —that the threat be suffi- case, it is cient imagine person hard to that a to cause duress reasonable to fear likely would death bodily injury defense or serious succeed trial. and the ab- This question leaves the sence of a counsel’s fail- reasonable opportunity avoid request ure to payment of an violating the law—I agree with the district woman syndrome. battered court that evidence that suf- defendant out; (3) 1. The Court also indicated that the elements opportunity lack of a reasonable required to establish defense in Lemons, escape the threatened harm.” substantially required were similar to those (citing 562 N.W.2d at 454 n. 19 United States “(1) federal court: an immediate threat of Beltran-Rios, 878 F.2d 1208 Cir. bodily injury; death or serious a well- 1989)). grounded fear that the threat bewill carried syndrome battered woman fered from America, one UNITED STATES defense. As duress

not relevant Plaintiff-Appellant, explained: is not addressed Such firmness COLLINGTON, F. Samuel to the level have succumbed Defendant-Appellee. cir- in a set of given coercion No. 05-4054. contrary, Quite the such cumstances. usually explain consulted evidence is of Appeals, United States Court particular defendant suc-

why this Sixth Circuit. person with- cumbed when a reasonable Argued: 2006. background being battered June out a battered Specifically, not have. might Aug. Decided Filed: to es- syndrome evidence seeks woman’s that, psychological tablish

condition, unusually the defendant to the coercion.

susceptible Willis, 170, 175 States F.3d

United Cir.1994).

Despite having reason to believe not by Doyle, was

had been abused for counsel to decide not

unreasonable based on battered

pursue a duress defense undisputed cir syndrome given the

woman crime and the spree

cumstances of the limited admis

questionable relevance and testimony. ob

sibility such It was not

jectively unreasonable to abandon

to find that counsel’s decision plea

possible duress defense favor strategic decision. Nor not that she would petitioner averred fully if

have entered the counsel had I the duress defense. conclude

pursued petition

that the state court’s decision assistance of

er was not denied effective not

counsel did involve an unreasonable precedent.

application Supreme Court States, Gumangan v. United F.3d

See (8th Cir.2001) (holding no ineffec did ad

tive where counsel assistance possible of a defense based

vise defendant syndrome). and battered woman

on duress

Case Details

Case Name: Debra Dando v. Joan Yukins, Warden

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Aug 30, 2006

Citation: 461 F.3d 791

Docket Number: 04-1691

Court Abbreviation: 6th Cir.