Bruce GUILMETTE, Petitioner-Appellee, v. Carol R. HOWES, Warden, Respondent-Appellant.
No. 08-2256
United States Court of Appeals, Sixth Circuit
Argued: Oct. 16, 2009. Decided and Filed: Jan. 12, 2010.
Rehearing En Banc Granted, Opinion Vacated March 12, 2010.
624 F.3d 286
Argued: July 29, 2009. Decided and Filed: Jan. 19, 2010. Rehearing and Rehearing En Banc Denied March 17, 2010.
The evidence supports the finding that Humphry possessed firearms and kept them at the residence that he used as a hub for his drug trafficking activities. Further, Benson knew or could have reasonably foreseen that Humphry, a major drug trafficker, possessed weapons in the residence where he kept a significant drug supply and thousands of dollars in currency. Therefore, the application of the two-level enhancement for the possession of a firearm was not clearly erroneous as it was reasonably foreseeable that Benson knew the weapons would be used in furtherance of the conspiracy.
B. Sentencing Disparities
Benson argues that his sentence is unreasonable because he received a lengthier sentence than his co-defendants. He especially challenges the sentence of Shank, who was convicted of three more counts, but received less time in prison. He does not challenge the procedures of implementing his sentence, but argues his sentence was substantively unreasonable.
Section
Here, Benson was sentenced within the Guidelines range and, thus, his sentence is presumably reasonable. Williams, 436 F.3d at 708. Unlike Benson, many of his co-defendants accepted responsibility and pled guilty, which resulted in sentencing departures for lower sentences. Since this court is not concerned with sentences of co-defendants, but only those of defendants with similar backgrounds on a national level, see Simmons, 501 F.3d at 623, Benson‘s argument that Shank received a lower sentence does not render his sentence unreasonable. Further, Shank had a less substantial criminal history than he did. As the entirety of the Benson‘s argument rests on the proposition that his sentence is unreasonable as compared to his co-defendants, his argument must fail.
AFFIRMED.
ARGUED: Janet A. Van Cleve, Michigan Attorney General‘s Office, Lansing, Michigan, for Appellant. Kimbеrly Thomas, University of Michigan, Michigan Clinical Law Program, Ann Arbor, Michigan,
Before: MARTIN, ROGERS, and COOK, Circuit Judges.
ROGERS, J., delivered the opinion of the court, in which COOK, J., joined. MARTIN, J. (pp. 512–17), delivered a separate dissenting opinion.
OPINION
ROGERS, Circuit Judge.
A Michigan jury convicted petitioner Bruce Guilmette of first-degree home invasion. In a petition for a writ of habeas corpus, Guilmette alleges that his trial attorneys provided constitutionally ineffective assistance. The district court found that this claim was not procedurally defaulted and that petitioner‘s counsel were ineffective, and the district court therefore granted petitioner a conditional writ. Because our precedents dictate that petitioner procedurally defaulted his ineffective assistance of counsel claim, and because petitioner has not established cause and prejudice for that default, habeas relief was not warranted in this case.
At approximately noon on January 7, 1999, Joan McCormick was alone in her home in Howell, Michigan. A man walked past her window, approached her front door, and then repeatedly rang the doorbell. McCormick did not answer the door. The man went out past a van he had parked in McCormick‘s driveway, and she lost sight of him for a few minutes. He then returned to the front door, and, after again repeatedly ringing the doorbell, began banging on the door. After what McCormick described as “a lot” of such banging, she saw her doorknob move, and then the locked door came “crashing open.” McCormick screamed and attempted to run away from the door. She tripped and fell, and when she then glanced back at the door, the man had disappeared from the doorway. From her window, McCormick saw the man circle the van from the passenger side to the driver side, enter the van, and drive away. McCormick identified the van as a gray Chevy Astro with a red pinstripe.
Just after she fell, McCormick called 911 and described both the man and his vehicle to the operator. Trooper Jennifer Coulter responded to the call, and when she arrived at McCormick‘s residence, Coulter noticed footprints in the snow leading up to the front door. After interviewing McCormick, Coulter photographed the best footprint she could find. Later that day, McCоrmick independently photographed a footprint in the snow on the threshold of her doorway. McCormick identified the petitioner, Bruce Guilmette, out of two photographic lineups during the next few weeks.
Guilmette was charged with home invasion. At the preliminary hearing on February 24, 1999, McCormick stated that Guilmette resembled the man she had seen at her door but said that Guilmette‘s brother, who was present at the hearing, bore a similar resemblance. She also described the man at her door as having hair that protruded from underneath his hat, probably by one or two inches.
At Guilmette‘s trial for first-degree home invasion, McCormick testified to the events of January 7 and stated that the man at her door “look[ed] a lot like” Guilmette. She also testified that the man she identified in the lineups—Guilmette—was the man at her house. A poliсe officer testified that McCormick had identified a picture of Guilmette‘s vehicle, a gray Astro with a red pinstripe, as the vehicle in which the man had driven away. The prosecution additionally introduced into evidence both Trooper Coulter‘s photo-
The defense maintained that Guilmette had been mistakenly identified, relying primarily on three arguments. First, the defense presented evidence that the driver-side door on Guilmette‘s van was inoperable, such that Guilmette could not have entered the van in the way that McCormick described. Second, the defense offered testimony and photographic evidence that, at least as of Christmas, 1998, Guilmette had short hair. They argued that this contradicted McCormick‘s testimony from the preliminary hearing that the man at her door had longer hair. Finally, the defense offered a time-stamped receipt from a methadone clinic that indicated that Guilmette was at that clinic, which was approximately fifty miles from McCormick‘s home, at 12:38 p.m. on the day of the alleged home invasion.
In rebuttal, the state presented evidence that Guilmette had previously pled guilty to a home invasion and larceny with a similar modus operandi and in connection with which Guilmette had been driving a similarly described van. The court instructed the jury to consider this testimony only for identification or as evidence of a scheme and pattern. The prosecution also elicited testimony that the clock in the computer that generated the methadone clinic receipts was often inaccurate and that nineteen days after the incident, the clock was running eighteen minutes slow. The prosecution finally offered testimony of a detective who had driven from McCormick‘s home to the methadone clinic in forty-five minutes, driving eighty to eighty-five miles per hour on the freeway and despite a six minute delay for road construction.
The jury convicted Guilmette of first-degree home invasion, and Guilmette was unsuccessful in his direct appeal. On state collateral review, Guilmette argued for the first time that his trial counsel were ineffective for failing to discover that the photographs of the two footprints admitted at trial apparently did not match. He argued that this constitutionally ineffective representation was prejudicial because the footprint from the dоor‘s threshold was the only proof of entry, a required element of first-degree home invasion. See
Guilmette then filed a habeas petition seeking relief for the same alleged violation. The district court granted a conditional habeas writ, finding that Guilmette‘s trial counsel were constitutionally ineffective because they failed to investigate the differences between the two photographs. The warden now appeals, arguing that this ineffective assistance claim was procedurally defaulted and that Guilmette has failed to establish cause and prejudice for that default.
Guilmette‘s ineffective assistance of counsel claim is procedurally defaulted because, although the state trial court on collateral review addressed the merits of Guilmette‘s claim, both the state appellate and supreme courts denied the claim pursuant to
This result is consistent with Abela v. Martin, 380 F.3d 915 (6th Cir. 2004). In that case, both the Michigan trial court and the Michigan Court of Appeals denied the petitioner‘s collateral claims on the merits before the Michigan Supreme Court denied review pursuant to Mich. Ct. R. 6.508(D). Id. at 920. In part because the lower state courts had “repeatedly ruled on the merits,” we concluded in Abela that the invocation of
This conclusion is supported by five of this court‘s other cases, three of which post-date Abela, and all of which hold that habeas claims were procedurally defaulted in situations materially indistinguishable from the present case. See Alexander v. Smith, 311 Fed.Appx. 875 (6th Cir. 2009) (post-Abela); Spencer v. Booker, 254 Fed.Appx. 520 (6th Cir. 2007) (post-Abela); McCray v. Metrish, 232 Fed.Appx. 469 (6th Cir. 2007) (post-Abela); Burroughs v. Makowski, 282 F.3d 410 (6th Cir. 2002) (pre-Abela); Luberda v. Trippett, 211 F.3d 1004 (6th Cir. 2000) (pre-Abela). In each, the state trial court on collateral review denied the petitioner‘s claims on the merits, and then both the state appellate and state supreme courts denied the claims pursuant to
Because Guilmette‘s ineffective assistance of counsel claim is procedurally defaulted, he must show cause and prejudice to excuse that default. Munson, 384 F.3d at 315. He cannot do so because his trial counsel were not constitutionally ineffective and because any error by those counsel did not prejudice him. See Strickland v. Washington, 466 U.S. 668, 687 (1984). Guilmette argues correctly that ineffective assistance of appellate counsel can constitute cause to overcome a procedural default. Howard v. Bouchard, 405 F.3d 459, 478 (6th Cir. 2005). Where ineffective assistance of appellate counsel is presented as a possible cause to excuse the default of a claim of ineffective assistance of trial counsel, a court in some circumstances “must examine the merits of [the petitioner‘s] ineffective-assistance-of-trial-counsel claim.” Ivory v. Jackson, 509 F.3d 284, 294 (6th Cir. 2007). Guilmette argues that his trial counsel were ineffective for failing to notice that the two footprint photographs introduced by the prosecution at trial—one taken by Trooper Coulter and the other taken by McCormick on the threshold of her door—apparently did not match. He argues that had his counsel noticed this discrepancy, they could have argued that the footprint on the threshold was not Guilmette‘s, and thus that the state had failed to establish entry. See
This argument fails because it relies upon the improbable suggestion that Guilmette could have broken open McCormick‘s door without satisfying the element of entry, which is defined in Michigan as “any part of defendant‘s body [being] introduced within the house.” See People v. Gillman, 66 Mich.App. 419, 239 N.W.2d 396, 401 (1976). Guilmette‘s counsel had a promising mistake-of-identity defense based upon the victim‘s questionable identification, Guilmette‘s plausible alibi, and the inconsistency between thе victim‘s description of Guilmette‘s actions and the testimony regarding Guilmette‘s inoperable driver-side door. By contrast, a defense on the element of entry required the jury to believe that Guilmette could break open a locked door without having any part of his body enter into the house. Guilmette‘s trial counsel were not required to make—or to investigate facts relevant to—this implausible argument, in order to be effective. “[S]trategic choices made af-
This is all the more true because, if Guilmette‘s counsel had contested entry, it might have either removed the focus from or undermined the credibility of the defense‘s misidentification argument. See United States v. Ryan, 23 F.Supp.2d 1044, 1050-51 (S.D. Iowa 1998). Indeed, statements by Guilmette‘s trial counsel during closing argument support the conclusion that a focused identification defense was chosen in part to support the credibility of the defense. In that closing, Guilmette‘s counsel relied specifically on the consistency of the defense‘s case as a reason for the jury to find it credible. Attorney Gatesman argued, “At no time has anyone on the defense stood up, tried to persuade, presented to you, presented a question to a witness, that would try to persuade you that what Ms. McCormick said up there happened around January 7, 1999, didn‘t happen.” Defense counsel also argued that the prosecution‘s inconsistent alternative arguments undermined the credibility of the case against Guilmette. In rebutting the defense‘s alibi evidence, the prosecution suggested both that someone might have impersonated Guilmette at the methadone clinic to generate the receipt and that, even if the receipt was genuine, Guilmette could have traveled from the crime scene to the methadone clinic in the time between the crime and the issuance of the receipt. In response to these alternative arguments, the defense counsel stated, “And I think the prosecution thinks he was at the methadone clinic. And I‘ll tell you why I think they think that. Because, they investigated and they presented their positions on what we‘ve presented.” In other words, the fact that the prosecution presented detailed evidence and arguments regarding the time line undermines the credibility of their argument that someone else might have been impersonating Guilmette at the clinic. Together, these arguments suggested that the jury ought to find the defense more credible because defense counsel, unlike the prosecutor, had refrained from making inconsistent alternative arguments. Counsel‘s limited investigation of the evidence related to entry “must be directly assessed for reasonableness” in light of this strategy, “applying a heavy measure of deference to counsel‘s judgments.” Strickland, 466 U.S. at 691. Applying that deference, it cannot be said that counsel‘s choices constituted “errors so serious that counsel [were] not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687.
This conclusion does not conflate the element of entry with the element of breaking. It is possible to satisfy the element of breaking without satisfying the element of entry in other factual situations, as when someone uses a crowbar to break into a dwelling. Cf. People v. Rodg-
For these reasons, Guilmette has not shown that his trial counsel were ineffective, and he cannot establish that he was prejudiced by the alleged ineffectiveness. His appellate counsel was therefore also not ineffective, for ““appellate counsel cannot be ineffective for a failure to raise an issue that lacks merit.“” Willis, 351 F.3d at 745 (quoting Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir. 2001)). Guilmette has therefore failed to establish cause and prejudice for his procedural default of his claim of ineffective assistance of trial counsel, and thus he is barred from raising that issue on habeas review.
We therefore REVERSE the judgment of the district court and REMAND for further proceedings consistent with this opinion.
BOYCE F. MARTIN, JR., Circuit Judge, dissenting.
The majority has found that Guilmette procedurally defaulted by not bringing his claim of ineffective assistance of counsel immediately and that, even if he had, he cannot succeed on the merits of his claim. I disagree with both conclusions and, therefore, respectfully dissent. As to the alleged procedural default, neither the final state court ruling on the merits of this case nor the courts that heard the case on appeal mentioned a procedural bar. Thus, under this Court‘s holdings in Abela v. Martin, 380 F.3d 915 (6th Cir. 2004), and Ivory v. Jackson, 509 F.3d 284 (6th Cir. 2007), cert. denied, 552 U.S. 1322 (2008), Guilmette‘s claims for ineffective assistance of counsel are not procedurally defaulted. As to the ineffective assistance claim, under the Strickland analysis, Guilmette‘s attorney‘s failure to conduct an adequate investigation constituted ineffective assistance of counsel at trial. He neither cross-examined the state‘s experts nor conducted a reasonable investigation into a single photograph of a footprint, taken by a witness after the state trooper had left the scene, that constituted the only evidence of entry into the house, a necessary element of the charge of home invasion.
A. Guilmette is not procedurally barred from bringing his habeas claim
Guilmette first raised his ineffective assistance claim during state collаteral proceedings. The majority contends that, because the claims raised by Guilmette in his habeas petition were raised for the first time in his state post-conviction motion for relief from judgement—and not on direct appeal—federal review of his claims is barred by procedural default. See supra at 508-09. To be sure “[i]t is well-settled that when a state prisoner has ‘defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred’ unless the petitioner can show cause for the default and prejudice because of it, or a fundamental miscarriage of justice.” Abela, 380 F.3d at 921 (citing
The Michigan Court of Appeals and the Michigan Supreme Court denied leave to appeal on the ground that Guilmette failed “to meet the burden of establishing entitlement to relief under [Michigan Court Rule] 6.508(D).” The majority errs in construing the Michigan Supreme Court‘s order—and the citation to M.C.R. 6.508(D) generally—as an invocation of the procedural default provision set forth in
As noted above, our task is to determine whether the state court “clearly and expressly stated that its judgment rested on a procedural bar.” Sparkman, 94 F.3d at 202. Here, as with Abela, the Michigan Supreme Court only referenced
The majority attempts to distinguish Abela from the case at hand by noting that, here, both the Michigan Court of Appeals and the Michigan Supreme Court invoked
The majority relies heavily on Munson v. Kapture, 384 F.3d 310 (6th Cir. 2004), because in that case, as in this case, both the Michigan Court of Appeals and the Michigan Supreme Court invoked
The last reasoned state-court opinion issued in both Abela and in Guilmette‘s case, by contrast, explicitly adjudicated the case on the merits without any rеference to procedural issues. Thus, as with Abela, the Michigan Supreme Court‘s summary order cannot possibly be interpreted solely to rely on a procedural bar, as opposed to the non-procedural reason that Guilmette simply failed to meet his burden of “establishing entitlement to the relief requested.” Indeed, given the line of prior merits determinations in Guilmette‘s case, it is much more reasonable to presume that the Michigan Supreme Court‘s reference to
B. Guilmette successfully showed ineffective assistance of counsel at trial.
The majority also errs in its finding that Guilmette could not show ineffective assistance of counsel. Guilmette trial counsel
As the majority noted, the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), governs our analysis. It is well-established that “[c]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691. The duty to investigate derives from counsel‘s basic function, which is ” to make the adversarial testing process work in the particular case.” Kimmelman v. Morrison, 477 U.S. 365, 384 (1986) (quoting Strickland, 466 U.S. at 690). “The relevant question is not whether counsel‘s choices were strategic, but whether they were reasonable.” Roe v. Flores-Ortega, 528 U.S. 470, 481 (2000). A purportedly strategic decision is not objectively reasonable “when the attorney has failed to investigate his options and make a reasonable choice between them.” Combs v. Coyle, 205 F.3d 269, 288 (6th Cir. 2000) (citing Horton v. Zant, 941 F.2d 1449, 1462 (11th Cir. 1991)).
Courts have not hesitated to find constitutionally ineffective assistance when counsel fails to conduct a reasonable investigation into one or more aspects of the case and when that failure prejudices his or her client.4 Guilmette‘s trial counsel‘s failure to conduct a reasonable investigation into the facts surrounding the photographs of the footprints that the state introduced into evidence similаrly violated his Sixth Amendment right to effective assistance of counsel. Guilmette has thus successfully satisfied both the deficiency and prejudice prongs of Strickland.
With regard to the deficiency prong, the facts demonstrate that counsel did not investigate the facts surrounding the footprints. These photos were the only evidence presented of entry, a necessary element to the charge of home invasion. Joan McCormick, the only eyewitness, did not see the perpetrator enter the house though she looked after she tripped and
It was not until after Trooper Coulter left that McCormick took a photograph of a snowy footprint on the threshold of her front entrance; this photograph was the only evidence at trial to purport to show that the perpetrator had entered the home. Guilmette‘s trial counsel never even looked to see if the two photographed footprints were the same, or even similar. Guilmette‘s current attorney contends that the photographs do not correspond to one another and that even a cursory investigation into the photographs would have revealed this discrepancy. Additionally, Guilmette‘s trial counsel should have been on notice that he should compare the two photographs based on the fact that the second was taken by McCormick after Trooper Coulter had left and it could have been Trooper Coulter‘s footprint rather than thе perpetrator‘s. That decision not to compare the photographs was objectively unreasonable because it “was a decision made without undertaking a full investigation” into whether a comparison of the photographs could assist in Guilmette‘s defense. Combs, 205 F.3d at 288. By failing even to compare the two, readily available photographs, Guilmette‘s counsel “abandoned his investigation at an unreasonable juncture, making a fully informed decision with respect to [whether such an investigation was] impossible.” Wiggins, 539 U.S. at 527-28. Counsel should have hired an expert to examine the prints, see Richey v. Bradshaw, 498 F.3d 344, 363-64 (6th Cir. 2007) (finding that an expert was necessary to make an informed decision about trial strategy), and should have, at the very least, cross-examined the prosecution‘s footprint expert regarding the discrepancy. Trial counsel should have made an argument to the jury or the court about the discrepancy. Instead, trial counsel focused only on the state‘s identification of Guilmette as the perpetrator to the exclusion of all other viable arguments. This was not a strategic decision because a strategic decision necessarily involves an informed choice between two alternatives. Here, counsel was completely ignorant as to one of these alternatives due to his failure to reasonably investigate, or indeed, to investigate at all, an obvious evidentiary problem and defense to a required element of the charge. This constitutes a deficiency of counsel, satisfying the first Strickland prong.
With regard to Strickland‘s prejudice prong, the record contains ample evidence indicating that, but for counsel‘s ineffectiveness, there is a reasonable probability that Guilmette would have been acquitted. Entry is an essential element of the charge of home invasion and the only evidence of entry was the threshold footprint photograph that McCormick took after Trooper
Guilmette‘s claim of prejudice is further supported by the weakness of the prosecution‘s case. The Supreme Court has explained that “a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.” Strickland, 466 U.S. at 696; Clinkscale v. Carter, 375 F.3d 430, 445 (6th Cir. 2004). McCormick‘s eyewitness identification of Guilmette, the only solid evidence linking Guilmette to the crime, was weak and tentative, especially at trial. We have repeatedly expressed our “grave reservations concerning the reliability of eyewitness testimony.” Clinkscale, 375 F.3d at 445 (quoting Blackburn v. Foltz, 828 F.2d 1177, 1186 (6th Cir. 1987)). In light of the scant evidence of Guilmette‘s guilt, his counsel‘s ineffectiveness was even more prejudicial that it could otherwise have been.
Thus, I respectfully dissent.
No. 07-4305.
United States Court of Appeals, Sixth Circuit.
Argued: July 29, 2009. Decided and Filed: Jan. 19, 2010. Rehearing and Rehearing En Banc Denied March 17, 2010.
The majority asserts that the jury could have found entry even without the footprint in the doorway because kicking in a door without entering is “impossible” (supra at 512), as opposed to, apparently, using a crowbar to force open a door. It is unclear on what basis this assertion is made. It certainly is not based on anything in the record, so perhaps it is based on some heretofore unrecognized species of judicial notice based on my colleagues’ extensive experience in kicking in doors. I unfortunately cannot comment on the veracity of their observation, having not had the opportunity to kick in a statistically sufficient set of doors in my lifetime.
If I were to take notice of information outside of the record, I would look to Sir Isaac Newton‘s Laws of Motion, with which I am marginally familiar from high school physics. If I recall correctly, according to Newton‘s First Law, an object in motion tends to stay in motion. This provides some support fоr the majority‘s reasoning that when a person kicks his leg at a door and the door gives way, that person‘s momentum should continue in the direction of the kick, necessarily causing his foot to cross the plane of the doorway. However, this Law has an important caveat: an object in motion tends to stay in motion unless acted upon by an external force. Similarly, under Newton‘s Third Law, for every action there is an equal and opposite reaction. As applied here, when a person kicks a door, the door sends an equal force in the opposite direction up the leg of the kicker, acting as the “external force” provided for in the First Law. Thus, the kicker could essentially bounce back due to the reverse force on his body so that no part of him would cross the threshold, rather thаn falling forward through the door, as the majority suggests is a physical, and legal, certainty.
However, just as I have no basis from which to judge the majority‘s assertion because I have little experience in kicking in doors, I have no real basis to rely on my understanding of the physics at issue because I am a judge, not a physicist. Thus, I look solely to the evidence in the record in making my legal determinations: the circumstances regarding the disputed picture of the footprint on the threshold.