Hicks v. StraubHicks v. Straub
ARGUED: Brad H. Beaver, OFFICE OF THE ATTORNEY GENERAL, Lansing, Michigan, for Appellant. Carole M. Stanyar, Detroit, Michigan, for Appellee. ON BRIEF: Brad H. Beaver, OFFICE OF THE ATTORNEY GENERAL, Lansing, Michigan, for Appellant. Carole M. Stanyar, Detroit, Michigan, for Appellee.
OPINION
KENNEDY, Circuit Judge. The district court conditionally granted the petition for a writ of habeas corpus under
In reaching the merits of petitioner‘s Confrontation Clause Claim, the district court found that the prosecutor‘s opening
Respondent Dennis Straub appeals this grant of the writ of habeas corpus on the following grounds: (1) the district court erred in reaching the merits of petitioner‘s claim because petitioner procedurally defaulted his claim by failing to raise it on direct review and because trial counsel‘s failure to object did not constitute ineffective assistance of counsel that would excuse this default; (2) the district court violated
For the reasons explained below, we REVERSE the district court‘s grant of a writ of habeas corpus to petitioner under
I. Procedural History
Adjudication of respondent‘s present appeal requires an understanding of the complex procedural history that bears upon that appeal in the state courts.
On July 25, 1993, petitioner was arrested and charged with the first-degree murder of Shawn Stalworth, who had been shot to death earlier that day as he was leaving his house in Battle Creek, Michigan. Following his arrest, petitioner was confined in a local jail, where he allegedly confessed to another inmate, Lorenzo Brand (“Brand“), that he had committed the murder. Brand testified to this confession at petitioner‘s preliminary hearing. At petitioner‘s jury trial, the prosecutor, during his opening statement, stated, in pertinent part:
Defendant was arrested. He was charged. He was arraigned. He was taken to the City of Battle Creek lockup, not the county jail, but the lockup pending transfer, moving him over here. While he was there[,] there was another person in the lockup. He goes, hey, my mom just saw you on a videotape . . . . He said my mom told me she just saw a person and they accused him of homicide. You kill that man? What did he say? Yep, yep.
At the close of the state‘s case, the prosecutor informed the court that the state would not call Brand as a witness because it had been unable to locate him. The prosecutor admitted that he did not believe that the state‘s efforts to locate Brand met with the due diligence required under Michigan case law for the admission of preliminary examination testimony. The trial court agreed and declined to admit the testimony. Despite the prosecutor‘s failure to produce Brand, defense counsel neither objected to nor requested a mistrial based upon the prosecutor‘s opening statement relaying that confession. Further, defense counsel never mentioned the prosecutor‘s statement regarding petitioner‘s alleged confession in his opening statement, which he had reserved until the close of the prosecution‘s case. Neither defense counsel nor the prosecutor mentioned the alleged confession in closing arguments.
Lorenzo Brand is a missing witness whose appearance was the responsibility of the [p]rosecution. You may infer that the witness’ testimony would have not been favorable to the [p]rosecution‘s case.
However, because the prosecutor‘s opening statement never named the jail inmate to whom petitioner allegedly confessed, and because no mention was ever made before the jury that Brand was that inmate, the jury had no knowledge with which to tie the trial court‘s “Brand” instruction to the prosecutor‘s opening statement regarding the alleged confession.2 Moreover, immediately after this instruction, the district court gave an instruction as to when the jury could properly consider an unrelated out-of-court statement made by petitioner that had been admitted into evidence.
The jury convicted petitioner of first-degree murder and possession of a firearm during the commission of a felony. The trial court sentenced petitioner to life imprisonment without parole on the murder conviction and to two years’ imprisonment on the felony-firearm conviction.
B. Direct Review
Petitioner filed an appeal as of right in the Michigan Court of Appeals. Petitioner presented, among others, the following two claims:
I. Defendant . . . was denied a fair trial by the prosecutor‘s numerous instances of misconduct,
II. Because of defense counsel‘s failures[,] . . . [defendant] was denied his rights to the effective assistance of counsel, to present an effective defense, and to a fair trial.
Petitioner only asserted that these instances of prosecutorial misconduct violated defendant‘s rights to due process and a fair trial; he never argued that this misconduct also violated his Sixth Amendment right to confrontation. During his appeals in the state courts, petitioner argued that no curative instruction could have remedied the prejudice to defendant. During the direct appeal, no one mentioned that the curative instruction that identified Brand was referring to the jail inmate in the prosecutor‘s opening statement to whom petitioner allegedly confessed. Since trial counsel never objected to this alleged prosecutorial misconduct, petitioner argued that this failure to object resulted in the requisite manifest injustice which rendered any such objection unnecessary, and, alternatively, that the failure amounted to an ineffective assistance of counsel. Thus, petitioner‘s independent claim of ineffective assistance of counsel rested, in part, upon this failure by trial counsel.3
Petitioner filed a motion to remand the case to the trial court for an evidentiary hearing on his claim of ineffective
After noting that the defendant failed to properly preserve the issue, the court of appeals nonetheless decided to address the merits of his ineffective assistance of trial counsel claim, and found that he “failed to overcome the presumption that he was afforded effective assistance of counsel.” Id. Specifically, the court held that “in each instance, the action [that] defendant suggests that counsel should have taken[] would have either been futile, or a matter of strategy that th[e] [c]ourt is unwilling to second-guess on appeal.” The Michigan Court of Appeals denied petitioner‘s motion to remand on the ground that petitioner “failed to identify an issue sought to be reviewed on appeal and demonstrate by affidavit or an offer of proof regarding the facts to be established at a hearing,” as
Petitioner then filed a delayed application for leave to appeal to the Michigan Supreme Court, presenting the same
C. State Collateral Review
On January 29, 1999, petitioner filed a motion for relief from judgment in the trial court, pursuant to
I. [Petitioner was] denied his constitutional right to confront witnesses against him when the prosecutor advised the jury during opening statement that defendant had confessed to the murder, where the prosecutor without even the pretense of due diligence failed thereafter to produce the witness to the alleged confession, where defense counsel never responded to the issue of the “confession” in any way, and where the trial court‘s instructions failed
II. [Petitioner was] deprived of the effective assistance of counsel when trial counsel failed to object or move for mistrial based upon an obvious deprivation of the right to confront witnesses following the prosecutor‘s unsupported statement to the jury that the defendant had confessed, and where appellate counsel failed to frame the issue properly as the deprivation of the right to confront witnesses in violation of the Sixth Amendment.
In support of his claims, petitioner argued, for the first time, that the trial court‘s jury instruction on Brand was incapable of curing the prosecutor‘s statement to the jury that petitioner had confessed to a jail inmate because that statement never disclosed the name of that jail inmate while the court‘s instruction only referenced Brand by name, not by his role as the jail inmate to whom petitioner allegedly confessed. Petitioner further argued that, had Brand testified, defense counsel would have had substantial evidence with which to impeach his testimony.
In an order dated March 16, 2000, the state trial court denied petitioner‘s motion for relief from judgment. People v. Hicks, No. 93-2188FC (Calhoun County Circuit Court March 16, 2000). The court outlined its reasons for that denial at a hearing on March 6, 2000.5 During that hearing,
The trial court noted that the Michigan Court of Appeals had held that trial counsel was not ineffective. Nevertheless, it stated that, “[b]ecause this is a first degree murder conviction and a felony firearm conviction, . . . [it was] willing to address the underlying substance of the motion.” The court stated that, because defendant testified that he had an alibi defense and completely denied having anything to do with the murder, the defense “clearly contradicted the [p]rosecutor‘s opening statement [that defendant had confessed].” The trial court then noted that it had instructed the jury that the lawyers’ arguments and statements are not evidence and that the jury‘s decision must be based upon only evidence. The court concluded that, “technically,” there is no “confrontation issue” because, absent the prosecutor‘s statement, “there was no evidence brought into play against the defendant.” While reading onto the record the Michigan Court of Appeals’ opinion denying petitioner‘s ineffective-
[T]he record provides no support for [d]efense‘s proposition that counsel‘s failure to object to the admission of evidence, his failure to request a pretrial lineup, his failure to extensively cross-examine an eyewitness, or his presentation of the [d]efendant‘s defense fell below the objective standard of reasonableness. We find that defendant has failed to overcome the presumption that he was afforded effective assistance of counsel.
Based upon this excerpt, the trial court concluded that petitioner had not presented a “specific discrete allegation of ineffective assistance.” Rather, according to the trial court, petitioner‘s allegation “was wide-ranging” and involved a “number of different areas . . . to demonstrate ineffective assistance.” As a result, the trial court also agreed with the court of appeals that trial counsel‘s assistance was not ineffective, reasoning that defendant had posited an alibi defense before the jury, and that the court had instructed the jury that lawyers’ statements are not evidence. The court then denied petitioner‘s motion.7
Petitioner filed a delayed application for leave to appeal the trial court‘s denial of his motion for relief from judgment in the Michigan Court of Appeals, presenting these claims:
II. The trial court was clearly erroneous in rejecting defendant[]‘s claim that he was deprived of the effective assistance of counsel when trial counsel failed to object or move for mistrial based upon an obvious deprivation of the right to confront witnesses following the prosecutor‘s unsupported statement to the jury that the defendant had confessed, and where appellate counsel failed to frame the issue properly as the deprivation of the right to confront witnesses in violation of the Sixth Amendment.
The Michigan Court of Appeals denied petitioner leave to appeal on the ground that petitioner had failed “to meet the burden of establishing entitlement to relief under
Petitioner then filed a delayed application for leave to appeal in the Michigan Supreme Court, presenting the same claims that he had presented to the Michigan Court of Appeals. The Michigan Supreme Court denied petitioner leave to appeal, ruling that petitioner had failed “to meet the burden of establishing entitlement to relief under
On March 9, 2001, petitioner filed a petition for a writ of habeas corpus under
I. Petitioner was denied his constitutional right to confront witnesses against him when the prosecutor advised the jury during opening statement that petitioner had confessed to the murder, where the prosecutor without even the pretense of due diligence failed thereafter to produce the witness to the alleged confession, where defense counsel never responded to the issue of the ‘confession’ in any way, and where the court‘s instruction failed utterly to remedy the enormous prejudice to the petitioner.
II. Petitioner was deprived of the effective assistance of counsel when trial counsel failed to object or move for mistrial based upon an obvious deprivation of the right to confront witnesses following the prosecutor‘s unsupported statement to the jury that the petitioner had confessed, and where appellate counsel failed to frame the issue properly as the deprivation of the right to confront witnesses in violation of the Sixth Amendment.
On October 15, 2002, the district court conducted an evidentiary hearing in which it found trial counsel was ineffective, and conditionally granted petitioner a writ of habeas corpus on petitioner‘s Confrontation Clause claim.8
On state collateral review, the Michigan Supreme Court denied petitioner leave to appeal the trial court‘s denial of his motion for relief from judgment on the ground that petitioner failed “to meet the burden of establishing entitlement to relief under
The court may not grant relief to the defendant if the motion . . . alleges grounds for relief, other than jurisdictional defects, which could have been raised on appeal from the conviction and sentence or in a prior motion under this subchapter [of post-appeal relief], unless the defendant demonstrates (a) good cause for failure to raise such grounds on appeal or in the prior [post-appeal] motion, and (b) actual prejudice from the alleged irregularities that support the claim for relief.
Respondent argued that, in denying petitioner relief under
The district court held that the Michigan Supreme Court, in denying petitioner leave to appeal his motion for relief from judgment under
The court may not grant relief to the defendant if the motion . . . alleges grounds for relief which were decided
against the defendant in a prior appeal or proceeding under this subchapter [of post-appeal relief], unless the defendant establishes that a retroactive change in the law has undermined the prior decision;
In so holding, the district court reasoned that, although “[p]etitioner could have presented his Confrontation Clause claim in a clearer manner,” he “fairly presented [it] to the Michigan state courts on direct review.” Id. at 706. The district court underscored that petitioner, in his brief to the Michigan Court of Appeals, argued that the prosecutor engaged in misconduct by relaying in his opening statement petitioner‘s alleged confession to the murder and then subsequently failing, because of a lack of due diligence, to produce that inmate as a witness at trial. Id. Relying upon McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000), the district court concluded that the facts underlying the “prosecutorial misconduct claim . . . [that petitioner presented] in his state court briefs were ‘well within the mainstream of constitutional law’ [on the Confrontation Clause] such that the Michigan state courts should have recognized and addressed the Confrontation Clause issue.” Id. In further support, the district court posited that petitioner had expressly presented his Confrontation Clause claim, as such, on state collateral review, and that the Michigan trial court, on such review, had agreed with the prosecutor that petitioner‘s motion for relief from judgment only presented claims that he had previously presented to the state courts on direct review.10 Id. According to the district court, because
2. Procedural Default Consideration on Direct Review
Before the district court, respondent argued that, to the extent petitioner fairly presented his Confrontation Clause claim to the state courts on direct review by virtue of presenting the factual basis underlying his prosecutorial misconduct claim, petitioner, nevertheless, procedurally defaulted that claim. As respondent pointed out, the Michigan Court of Appeals, on direct review, found that
The district court held that, in case the Michigan Court of Appeals, on direct review, found petitioner‘s Confrontation Clause claim procedurally defaulted due to his trial counsel‘s failure to object to that underlying violation at trial,12 that failure constituted ineffective assistance and, thus, excused any such procedural default. After conducting an evidentiary hearing on the matter, the district court agreed with petitioner that trial counsel‘s assistance was objectively unreasonable for the following reasons: 1) it should have been obvious to
3. Adjudication on the Merits
Relying upon Harris v. Stoval, 212 F.3d 940 (6th Cir. 2000), the district court held that, where, as here, the petitioner fairly presented his federal constitutional claim of a violation of the confrontation clause to the state courts on direct review, and those courts, in denying that claim, failed
In reviewing petitioner‘s Confrontation Clause Claim, the district court found that the prosecutor‘s opening statement relaying petitioner‘s purported confession violated petitioner‘s right to confrontation, and that this violation was not harmless error. Id. at 711. The district court further found, pursuant to
II. Analysis
The provisions of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (“ADEPA“), apply to petitioner‘s habeas petition, which petitioner filed after the effective date of the act. “In a habeas corpus proceeding, we review de novo a district court‘s legal conclusions and its factual findings for clear error.” Lott v. Coyle, 261 F.3d 594, 606 (6th Cir. 2001). We review de novo a district court‘s determinations regarding a habeas petitioner‘s procedural default of any of his claims. Id. We review de novo a district court‘s determinations concerning a habeas petitioner‘s ineffective-assistance-of-counsel claim, a mixed question of law and fact. Id.
Subject to two exceptions,
In deciding whether a petitioner procedurally defaulted a federal claim in state court, we must determine whether: 1) the petitioner failed to comply with an applicable state procedural rule; 2) the last state court rendering judgment on the claim at issue, in fact, enforced the applicable state procedural rule so as to bar that claim; and 3) the state procedural default is an adequate and independent state ground properly foreclosing federal habeas review of the petitioner‘s federal claim at issue. Seymour v. Walker, 224 F.3d 542, 554-55 (6th Cir. 2000) (citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986)); Simpson v. Jones, 238 F.3d 399, 406 (6th Cir. 2000). If, pursuant to these standards, a petitioner procedurally defaulted his federal claim in state court, the petitioner must demonstrate either: 1) cause for his failure to comply with the state procedural rule and actual prejudice flowing from the violation of federal law alleged in his claim, or 2) that a lack of federal habeas review of the claim‘s merits “will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750; see Murray v. Carrier, 477 U.S. 478, 496 (1986) (specifying that a ‘fundamental miscarriage of justice’ will result “where a constitutional violation has probably resulted in the conviction of one who is actually innocent“).
1. Direct Review
We find that, contrary to the district court‘s conclusion, petitioner procedurally defaulted his Confrontation Clause claim by failing to fairly present it to the Michigan courts on direct review.14 A petitioner must fairly present to the state
Because his prosecutorial misconduct and Confrontation Clause claims rest upon the same factual predicate, petitioner, by presenting his prosecutorial misconduct claim on direct review, also presented the factual basis underlying his Confrontation Clause claim. Thus, the issue is whether petitioner, on direct review, presented either the substance of or the substantial equivalent of the legal basis for his Confrontation Clause claim. We find that he did not.
Petitioner referenced the underlying factual predicate neither in terms relating to legal precedent on the Confrontation Clause nor in terms of a specific violation of his right to confrontation. See Newton v. Million, 349 F.3d 873, 877 (6th Cir. 2003) (holding that petitioner fairly presented his federal claim to the state courts where he phrased his claim in terms of the specific denial of a constitutional right–his right to due process of law under the Fifth and Fourteenth Amendments–and alleged the underlying facts upon which that claim was based even though he cited no cases employing federal constitutional analysis). Notably, petitioner never mentioned the terms confrontation or cross-examination. Rather, petitioner argued only that the prosecutor‘s opening statement amounted to the “argu[ing] facts not in evidence,” and that this instance of prosecutorial misconduct violated his constitutional right to a fair trial.
In addressing the underlying factual foundation in his state court briefs, petitioner did not rely upon any federal legal precedent analyzing a claim under the Confrontation Clause, and only one case upon which he relied discussed the
While the district court found that the factual predicate that petitioner presented on direct review fell “well within the mainstream of” Confrontation Clause precedent, we disagree. Frazier v. Cupp, 394 U.S. 731 (1969), best illustrates why we arrive at this conclusion. In Frazier, the Supreme Court
Relying upon Bruton v. United States, 391 U.S. 123 (1968), and Douglas v. Alabama, 380 U.S. 415 (1965), in which the Supreme Court found Confrontation Clause violations, the petitioner in Frazier argued before the Supreme Court that “this series of events placed the substance of Rawls’ statement before the jury in a way that ‘may well have been the equivalent in the jury‘s mind of testimony,’ and the statement ‘added substantial, perhaps even critical, weight to the [g]overnment‘s case in a form not subject to cross-examination.‘” Id. at 734 (internal citations omitted). However, the Supreme Court distinguished petitioner‘s case from Bruton as follows: “[U]nlike the situation in Bruton, the jury was not being asked to perform the mental gymnastics of considering an incriminating statement against only one of two defendants in a joint trial.” Id. Here, unlike Bruton, but like Frazier, the
The Frazier Court also distinguished Douglas as follows:
In Douglas, the prosecutor called the defendant‘s coconspirator to the stand and read his alleged confession to him; the coconspirator was required to assert his privilege against self-incrimination repeatedly as the prosecutor asked him to confirm or deny each statement. The Court found that this procedure placed powerfully incriminating evidence before the jury in a manner which effectively denied the right of cross-examination. Here, Rawls was on the stand for a very short time and only a paraphrase of the statement was placed before the jury. This was done not during the trial, while the person making the statement was on the stand, but in an opening statement. In addition, the jury was told that the opening statement should not be considered as evidence. Certainly the impact of the procedure used here was much less damaging than was the case in Douglas.
Id. at 735 (italics added). Here, unlike in both Douglas and Frazier, the relevant witness, Brand, was not a co-conspirator who had inculpated petitioner while confessing to the crime. In addition, unlike in both Douglas and Frazier, the prosecutor did not call Brand to the stand, and, thus, did not, by his questions, read either Brand‘s entire preliminary examination testimony nor portions of it into the record. Clearly then, unlike in Douglas, Brand did not give credence to those questions by consistently asserting his Fifth Amendment privilege.
The Frazier Court concluded that the limiting instruction that the jury was not to regard counsels’ statements as evidence was sufficient to protect the petitioner‘s constitutional rights. Id. 734-36 (noting that, while “[a] more specific limiting instruction might have been desirable, . . .
Here, as in Frazier, the prosecutor neither emphasized his reference to petitioner‘s alleged confession in any way nor “touted” that confession as a crucial part of its case to the jury. The opening statement‘s reference to petitioner‘s purported confession lasted less than a minute. The reference was “sandwiched” between summaries of the evidence that the government intended to produce, such as witnesses’ testimony identifying petitioner and showing that he knew the victim. Moreover, unlike in Frazier, the prosecutor did not appear to summarize Brand‘s preliminary examination testimony in his statement, but, rather, referred to the purported confession generally. While the Supreme Court cautioned in Frazier that “[i]t may be that some remarks included in an opening or closing statement could be so prejudicial that a finding of error, or even constitutional error, would be unavoidable,” id. at 736, a comparison of the facts in this case to those in Frazier reveal that this is not such a case. The facts of petitioner‘s case here are even less damaging than those in Frazier where the Supreme Court found no Confrontation Clause violation. Thus, as Frazier illustrates, the principle that petitioner claims his factual
Petitioner contends that his prosecutorial misconduct claim necessarily encompassed the “more serious” Confrontation Clause violation. However, petitioner‘s prosecutorial misconduct and Confrontation Clause claim involve distinct legal analyses. See Frazier, 394 U.S. at 736-737 (holding that a prosecutor‘s good or bad faith in expecting a witness to testify is not controlling in determining whether a defendant‘s right of confrontation, was violated, but finding that, because of the prosecutor‘s good faith there, no prosecutorial misconduct claim could lie). Were we to hold that petitioner fairly presented his Confrontation Clause claim to the state courts on direct review, state courts would be compelled to consider sua sponte all possible federal legal claims that a petitioner‘s factual allegations might arguably support. The principle of comity underlying the exhaustion doctrine does not permit us to force state courts to do so.
Because petitioner did not fairly present his Confrontation Clause claim to the Michigan courts on direct review, the state courts, on such review, could not have actually enforced any applicable state procedural rule against that claim. See Seymour, 224 F.3d at 554-55. We now turn to whether the state courts enforced such a rule against his Confrontation Clause claim on state collateral review.
2. State Collateral Review
In a motion for relief from judgment under
The district court held that petitioner failed to comply with only
In denying petitioner leave to appeal his motion for relief from judgment under
Even though petitioner procedurally defaulted his Confrontation Clause claim in state court, he may, nevertheless, obtain federal habeas review of the claim if he demonstrates either: 1) cause for his failure to comply with the state procedural rule and actual prejudice flowing from the violation of federal law alleged in his claim, or 2) that a lack of federal habeas review of the claim‘s merits “will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. Petitioner, pursuing the former route only, contends that his appellate counsel‘s failure to raise his Confrontation Clause claim on direct review constituted ineffective assistance of counsel in violation of the Sixth Amendment and, thus, serves as the requisite cause to excuse his procedural default under
Attorney error that rises to the level of ineffective assistance of counsel in violation of the Sixth Amendment may constitute cause for a procedural default. Murray, 477 U.S. at 488-89. To establish that counsel‘s assistance was ineffective, the petitioner must demonstrate that: 1) counsel‘s performance was deficient in that it “fell below an objective standard of reasonableness“; and 2) this deficient performance actually prejudiced him in that there is a
Here, petitioner has failed to establish that his appellate counsel‘s failure to raise a Confrontation Clause claim on direct review constituted ineffective assistance under Strickland so as to serve as cause to excuse his procedural default of that claim. Even assuming arguendo that appellate counsel‘s failure to raise a Confrontation Clause claim on direct review was objectively unreasonable so as to constitute deficient performance,17 petitioner has failed to demonstrate that this failure actually prejudiced him. Appellate counsel‘s failure to raise the Confrontation Clause claim on direct review could only have prejudiced petitioner if there were a reasonable probability that counsel‘s pursuit of that claim would have resulted in a successful appeal. McFarland v. Yukins, 356 F.3d 688, 699 (6th Cir. 2004); see Williams v. Taylor, 529 U.S. 362, 392-93 (2000) (holding that, where counsel‘s ineffective assistance did not deprive the petitioner “of any substantive or procedural right to which the law entitled him,” the petitioner cannot satisfy Strickland‘s “prejudice” component).
For the preceding reasons, we REVERSE the district court‘s grant of a writ of habeas corpus to petitioner and remand to the district court with instruction to dismiss the petition for the writ.
CONCURRENCE
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ROGERS, J., concurring. I concur in the result and in much of the majority‘s opinion. It is not sufficiently clear to me, however, that on collateral review the Michigan Supreme Court relied upon