*1 Petitioner-Appellant, SMITH, Larry D. HOFBAUER, Respondent-
Gerald
Appellee.
No. 01-1169. Appeals, States
United Circuit.
Sixth 1, May 2002.
Argued and Filed Dec.
Decided *2 briefed), of the Attorney Office Gener-
al, Division, Corpus MI, Lansing, Habeas Respondent-Appellee. CLAY, Before: SILER and Circuit OBERDORFER, Judges; Judge.* District OPINION CLAY, Judge. Circuit Petitioner, Larry Smith, appeals Donnell from the order denying district court’s Pe- titioner’s for writ of habeas § corpus pursuant filed to 28 2254. U.S.C. appeal, argues On Petitioner that because interest, of counsel’s conflict of structural defect Petitioner’s trial oc- curred such that Petitioner was denied his Sixth Amendment to the effective auspices assistance of counsel under the of Sullivan, Cuyler (1980). Petitioner’s claim seeks extend Sulli- proof van’s lessened necessary standard of for a defendant to on claim succeed of ineffective assistance counsel based on a involving joint conflict of interest repre- types sentation to other con- sought flicts interest. Because the rule to be invoked Petitioner in order to on succeed his claim is a new rule that was and, not in effect at the time conviction indeed, is still not effect under precedent time, at this Petitioner’s claim fails inasmuch it is not upon based “clearly established for pur- federal law” poses § of satisfying 2254 of the Antiter- rorism and Penalty Effective Death Act briefed), F. Martin (argued Tieber (“AEDPA”). 2254(d)(1). 28 U.S.C. We Office, Appellate State Defender Lansing, AFFIRM therefore the district court’s de- MI, for Petitioner-Appellant. writ, nial of Petitioner’s application for the Leone, Gen., Vincent Attorney J. Asst. albeit for reasons other than those of the Lansing, MI, Janet Van (argued A. Cleve court. district * Oberdorfer, lumbia, sitting designation. Honorable Louis F. United Judge States District for the District of Co- guilty first-degree was found Petitioner BACKGROUND - August criminal conduct on sexual Petitioner, thir- body builder who was time, was arrested old at the ty-one years later, September About one month following an alle- January in late *3 in Balgooyen appeared on Kent performed fellatio a six- gation that he Court, County judge a boy force. Circuit but before teen-year-old Petitioner was whom first-degree judge criminal different from before Pe- charged with sexual Comp. appeared, charge on the of of Mich. Laws titioner had conduct in violation 450.502b(l)(e) to prosecut- § intent distribute cocaine. The County Kent Cir- Ann. case, Court, assigned Balgooyen’s County, Michigan, ing attorney and to cuit Kent felony prosecuting attorney was offender in vio- who as- being with a fourth case, plea to Petitioner’s made a Comp. signed lation Laws Ann. 769.12. of Mich. thereafter, to Shortly charge attempted his offer to reduce the Petitioner fired possession the intent and retained at- with deliver co- court-appointed counsel offer, April Balgooyen accepted caine. torney Jeffrey Balgooyen. On pleaded guilty a arraigned charge, as fourth the lesser Petitioner was imprison- months’ felony first-degree on the criminal was sentenced five offender , plus probation. a charge, which carried ment sexual conduct imprisonment. maximum sentence of life sentencing Prior to on Octo- Petitioner’s 16, 1991, later, May court-appointed attorney a weeks ber Three counsel, replaced Balgooyen as Petitioner’s prosecuting another assistant possibly Balgooyen’s license to obtained an indictment because County from Kent as practice suspended him one law have been against Balgooyen, charging with Michigan intent of his date of conviction under with the to de- possession count of cocaine, mandatory prosecut- Rule 9.120. Yet another liver which carried a County imprison- represent- one from Kent year’s ing attorney minimum sentence of ment, Michigan of twenty maximum sentence of ed State Petitioner’s and a sentencing. pleaded guilty to Petitioner years’ imprisonment. felony exchange a being second offender trial, jury the eve of Petitioner’s On dismissal charg- of information for the Balgooyen moved to withdraw Petition- offender, being felony him as ing fourth claiming attorney, er’s that difficulties twenty-five of and was sentenced a term with Petitioner de- establishing contact forty years’ imprisonment. Balgooyen pre- of sufficient time to prived appealed Petitioner his conviction to the and to his finan- complete his defense pare raising, among Michigan with arrangements cial Petitioner. motion, Balgooyen’s a claim that Balgooyen’s things, other trial court denied county in pending drug charge in the same prosecution’s reminded Petitioner convicted Petitioner tried and earlier offer of assault with intent which was plea conduct, which denied created conflict interest criminal sexual which commit have to the effective assis- the maximum sentence would been Petitioner As far as the per life se. years’ imprisonment, instead of tance ten indicates, first time if he this was the which Petitioner faced record imprisonment At this issue. that Petitioner raised proceeded to trial. Petitioner indicated reject appeal time filed his prosecu- same Petitioner that he continued to offer, Appeals, he also go tion’s he desired to plea trial, jury to remand for evidentia- Following three-day filed motion to trial. court, 11, 1995) hearing requesting July in the trial ry (Mich.Ct.App. (unpublished curiam) Pickens, development (citing regarding per People factual further (1994)). assistance counsel claims. Mich. 521 N.W.2d Ap- ineffective decision, parently, light Petitioner six claims of Although court’s by Balgooyen for Petitioner’s motion to for an ineffective assistance remand evi- development dentiary further factual hearing which denied. only allegation necessary, one involved July On Petitioner filed an conflict Balgooyen’s potential of interest. appeal for leave to to the Mich- allegation was made ref- And even Court, igan Supreme again raising the in- allegation to Petitioner’s that Bal- erence effective assistance of counsel issue. *4 gooyen failing was ineffective chal- issue, Leave was granted along on that composition jury pool.
lenge evidentiary claim, an the supreme but Specifically, Petitioner as follows: court affirmed Petitioner’s conviction. See Smith, black, who Mr. is also 6. Smith, People v. 456 Mich. appeal to claim on that counsel wishes (1998). opined N.W.2d The court in ineffective he to chal- because failed part relevant that Petitioner “cited no evi- jury of lenge composition based dence to suggest that counsel defense ac- underrepresentation on the of [sic] tively his a lessened defense as result of (This judicial can blacks. Court take pending felony charge, his do nor we find under-representation notice that the evidence of an actual conflict of interest County on Kent blacks Circuit Court contrary, the record. To the defense subject a juries ongoing is concern in vigorously pursued objections his County.) Kent Counsel’s failure raise presented strong a Id. at case.” this claim have been the of a result application Petitioner filed the instant created by felony conflict interest for writ of corpus habeas in the district drug charge pending against him the raising court single issue of ineffective (Kent County Kent Circuit Court. assistance of counsel. Specifically, Peti- County Circuit Court No. 91-54842- argued tioner that “because his trial coun- FH.) (Alternatively, Mr. Smith wishes was being prosecuted drug sel charge on a that to claim he was denied federal his county the same in which Petitioner was right and state constitutional a trial tried, being a conflict of interest existed by jury jury because the members did defect, which created a thereby structural represent not a fair cross-section of the denying Petitioner his Sixth Amendment Missouri, community. Duren v. See right the effective assistance of trial 58 L.Ed.2d (J.A. 6-7; counsel.” Petition for Writ (1979).) of Habeas Corpus.) The district court re- (J.A. 90; Petitioner’s Motion to Re- ferred magistrate Petitioner’s case to a mand.) who recommended that application be denied. In a opinion, memorandum Michigan The affirmed district court adopted magistrate’s rec- conviction and Petitioner’s sentence an ommendation, opining in part relevant unpublished per opinion, opining curiam follows: that judge prosecutor “[b]ecause [Balgooyeris]
involved counsel’s case The state court’s conclusion defen- defendant’s, were not the same as no actu- dant “cited suggest no evidence to al conflict of interest has been actively shown.” defense counsel lessened his de- People slip op. No. at 1 fense as a pending felony result “contrary to” judication Supreme Court amply supported by ...” is charge 2254(d)(1), vigorous § “if the state precedent Counsel conducted under record. objections defense, lodging appropriate court at a conclusion opposite arrives evidence, engaging extensive Supreme] on a [the reached Court cross-examination, and pre- law,” competent “if question or the state court testimony of defendant and two senting materially that are indistin- confronts facts Su- other witnesses. guishable Supreme from a relevant Court reasonably concluded that preme arrives at re- precedent” and different any adverse failed to show petitioner Taylor, sult. Williams counsel’s representation effect on (2000). conflict of interest. adjudication A state “an un- involves result, of the Michi-
As a the decision of’ reasonable petitioner Court that gan 2254(d)(2), “if precedent under the state denied his Amendment Sixth legal correct governing court identifies the of counsel was not to effective assistance but Supreme] rule from Court’s cases [the to, contrary applica- unreasonable it to unreasonably applies the facts of of, clearly federal law as tion established case,” ... or if unrea- particular the court *5 by the United States Su- determined extend, unreasonably sonably or refuses preme Court. extends, existing legal from the principles (J.A. 99; Opinion Adopt- Memorandum a new Id. precedents Court’s context. (altera- ing Report Recommendation at 1520. original).) The district court tion was de [Petitioner] “Whether corresponding thereafter entered its order prived right of to effective assistance of denying application Petitioner’s question is mixed law and fact counsel of
writ, and it is this order that Peti- we review de novo.” Hunt v. Mitch appeals. now tioner (2001) ell, 575, (citing 261 580 Olden F.3d States, (6th 561, 224 F.3d 565 v. United
DISCUSSION Cir.2000)). applies This Court the “unrea reviewing a district court’s When 2254(d)(1) § prong sonable of application” for a regarding petition writ of decision of law fact. questions to mixed corpus under 28 brought habeas U.S.C. Ohio, 322, (citing v. 128 F.3d 327 Harpster 2254, legal § review we the district court’s (6th Cir.1997)). has Court factual findings de novo and its conclusions a federal court cautioned that habeas Stovall, error. 212 for clear See Harris simply not overturn a state court’s decision (6th Cir.2000). 940, 942 F.3d because it concludes a state misapplied Supreme precedent; AEDPA Court A. Standards rather, application of state court’s Su provides habeas relief AEDPA federal be un preme precedent must also if the for a state court defendant state Williams, (citing 529 id. reasonable. See in a decision “resulted decision that court’s 1495). 411, 120 U.S. S.Ct. to, contrary or involved unreason- of, clearly established able In- B. Precedent as to law, as determined the Su- Federal of Counsel effective Assistance Court[,]” 2254(d)(1), § preme 28 U.S.C. Upon Based Counsel’s Con- Claims on “an unreasonable determina- was based flict Interest facts light tion of the evidence recognized “It has long been in the proceeding.” State court presented 2254(d)(2). Amend- right to Sixth [under A state court ad- counsel 28 U.S.C. to the is effective assis- “complete ment] cumstances to include the denial tance McMann v. of counsel.” Richard- of counsel” or the denial of counsel “at a son, 759, 14, 771 n. trial; 397 U.S. stage” S.Ct. critical of the defendant’s (1970). 1441, “subject 25 L.Ed.2d this re- failure to prosecution’s case to gard, opined in the Court Strickland v. meaningful adversarial testingf;]” Washington, 466 U.S. 104 S.Ct. those circumstances which counsel is L.Ed.2d 674 that in gen- called upon to render assistance where eral, in order for a criminal defendant competent not, very likely counsel could prevail on a claim for Alabama, ineffective assis- such as Powell v. (1932).
tance of
under the
Sixth Amend-
Cronic,
However, Strickland also recog
The Sullivan standard grew out of the
nized that
certain
“[i]n
Sixth Amendment
prior recognition
Court’s
that when “a trial
contexts, prejudice
presumed.”
is
See
improperly
requires joint represen-
Strickland,
692,
would be virtually (2002), had before it a claim of harmless error inquiry into question of “what a defendant must cases, require, unlike most here would in order demonstrate Sixth show speculation. unguided violation the trial court where Amendment inquire potential into a conflict of original). fails to (emphasis which or reasonably interest about it knew Later, Sullivan, affirming have should known.” Holloway’s to extend auto Court declined peti- en banc denial of the Fourth Circuit’s rule to in which there matic reversal cases brought on tioner’s for the writ joint repre made objection was no to the of coun- the basis of ineffective assistance Rather, found at trial. the Court sentation sel, opined: the Court *7 that order to establish a violation “[i]n (as in which this was not a case Since Amendment, who the a defendant Sixth his ina- Holloway) protested objection joint repre at trial [to raised no multi- bility simultaneously represent an actual must demonstrate that sentation] defendants; and since ple his adversely conflict of interest affected failure make the Sullivan- court’s 348, lawyer’s at performance.” 446 U.S. inquiry does not reduce the mandated that The Court also noted 100 1708. S.Ct. it was at petitioner’s proof; burden of that precedents suggests “nothing [its] conviction, necessary, to void least state requires Amendment Sixth the con- petitioner establish that inquiries into courts themselves initiate adversely affected flict of interest multiple representation propriety performance. The Court of counsel’s every case.” Id. effect, having such see found no circumstances, Instead, special “[a]bsent of habeas 240 F.3d at the denial may ... either trial courts assume be affirmed. relief must no conflict multiple representation entails at 1245. Id. knowing lawyer and clients or that the found, expressly ex the Court Having risk of conflict as so ly accept such (footnote omitted). limited holding that its The Court cautioned ist.” Id. 816 i.e., what issue before burden of counsel claim failed inasmuch as “the it —
proof under the Sullivan rule was re- judge prosecutor involved counsel’s quired by petitioner to succeed on an defendant’s[; case were not the same as ineffective assistance counsel claim therefore,] no actual conflict of interest has ” inquire when the trial court did not into a Smith, been shown. People v. No. conflict potential of interest of which it 148757,slip op. at 1 (Mich.Ct.App. July Mickens, 1995) knew or should have known. curiam) (unpublished per (citing S.Ct. at 1245. The Court noted that the Pickens, People 446 Mich. type of conflict itself at issue in (1994)). Mickens N.W.2d 797 representation, was one of successive not The Michigan Supreme Court also held joint representation, and that the Sullivan that Petitioner’s ineffective assistance of rule, although having “unblinkingly” been failed, counsel claim opining as follows: applied by bevy' the circuits to a of various Defendant argues that he was denied conflicts, attorney ethical had never been the effective assistance of counsel in vio extended Court to con- lation of his rights Sixth Amendment flicts joint representation other than attorney because his charged with a (citing trial. Id. at 1245-46 examples of felony pending in the county. same De types various of ethical conflicts of inter- fendant presume asks that we a conflict ests applied wherein circuits have of interest rule). exists whenever an Sullivan The Court em- therefore being prosecuted in county the same phasized although adjudicated as a criminal defendant whom it, repre he question before it did so under the sents. We decline to create such a rule “assumption” that the properly pro- case and hold instead that in order to demon ceeded under Sullivan the lower courts. strate that a conflict of However, interest has vio the Court cautioned that its de- lated his Sixth Amendment rights, a de cision should not be “misconstrued” as ex- fendant “must establish that an actual tending the Sullivan rule to conflicts other conflict of adversely interest joint than affected his representation. Specifically, lawyer’s performance.” Cuyler v. Sulli emphasized van, 335, 350, 100 resolving grounds [i]n this case on the (1980). L.Ed.2d 333 presented us, which it was we do upon rule the need for the Sullivan People 456 Mich. prophylaxis in cases of repre- successive (1998) (footnote omitted). N.W.2d sentation [or conflicts based The court case, concluded that this “[i]n upon joint anything representation]. but defendant has cited no evidence to suggest Whether Sullivan should be extended to that defense counsel actively lessened his *8 remains, such cases juris- as as the far defense as a result of his pending felony prudence concerned, this Court is an of charge, nor do we find evidence of an open question. actual conflict of interest on the record. added). Id. at (emphasis 1246 To the contrary, defense vigorous- counsel ly pursued objections his presented Application C. to Petitioner’s Case strong case.” Id. at 660. 1. Michigan Appellate Courts’ Deci- 2. District Court’s Order
sions The Michigan found The district court concluded that the that Petitioner’s Michigan ineffective assistance of appellate courts did not unrea- 288, 1060, Lane, 109 S.Ct. 489 U.S. Supreme precedent Court sonably apply (1989)] con- jurisprudence will L.Ed.2d 334 assistance of ineffective Petitioner’s claim law, ‘clearly Federal as stitute established alleged con- on counsel’s of based by the of the Supreme determined Court that the The court held flict of interest. 2254(d)(1).” under Pur- in States’ United found properly courts new Teague, “a announces a suant to case for Petitioner succeed order by pre- if result was not dictated rule claim, only prove had he not at the defendant’s existing time the existed, ad- cedent but that the conflict conflict Teague became final.” See conviction performance versely affected counsel’s Lane, so, 109 S.Ct. doing In the district under Sullivan. origi- in (emphasis 103 L.Ed.2d claim—that rejected court Petitioner’s nal). determining whether the relief conflict was he has shown that the where rule, requested would constitute new actual, pre- potential, prejudice and not a state court question becomes “whether com- the basis that Sullivan sumed—on claim at the considering [the defendant’s] conflict showing of both actual mands final would time his conviction became will be prejudice effect before and adverse compelled by existing precedent felt on an have presumed purposes succeeding of for seeks was conclude that rule [he] claim. of counsel ineffective assistance Caspari v. by the Constitution.” required failed to demonstrate Because Petitioner Bohlen, adversely by his coun- effected that he was (1994) (internal quotation conflict, L.Ed.2d 236 rec- and because the
sel’s omitted; in citation alteration factual marks and ord no indication that a showed Bohlen). developed support be Peti- record could claim, the district denied
tioner’s
Accordingly,
Teague prin
applying
Petitioner’s
for
writ.
hand, “clearly
matter
es
to the
ciples
by
law
federal
as determined
tablished
Novo
3. De
of District
Review
of
the United States”
Supreme
Court’s Order
sought by
that the rule
Petitioner
means
question
of whether
Because
proof
standard of
here —that
lessened
proof
lessened standard
Sullivan’s
of counsel
for an ineffective assistance
for
of ineffective assistance
a claim
be
Cuyler
as set forth
v. Sullivan
claim
upon
attorney’s
conflict
counsel based
than
to conflicts of interest other
extended
joint
anything
for
than
of interest
other
representa
multiple
concurrent
those
representation
“open question”
remains an
by
have been dictated
Sulli
tion—must
jurisprudence
clearly
was not dictated
Sulli
van.
It
Mickens,
Court,
122 S.Ct. at
and,
explained by
the Court
van
time
open question at the
fact was an
Mickens,
led to
the concerns which
heard,
case was
Petitioner’s
Petitioner’s
conflicts
proof
standard
Sullivan
upon
claim fails because
is not based
present
joint representation
not be
prece
clearly established
of con
involving
types
other
situations
dent as mandated AEDPA.
Mickens,
flicts. See
that one ethical
Indeed,
suggest
529 U.S. That “is not
Taylor,
in Williams v.
*9
than anoth
important
more or less
duty
120 S.Ct.
146 L.Ed.2d
is
Holloway
(2000),
purpose
[the Court’s]
that for
er. The
Supreme
Court held
ordinary
exceptions
AEDPA,
would
“whatever
and Sullivan
purposes
Strickland, however,
is
Teague
qualify
requirements
[v.
as an old rule under our
Ethics,
Legal
not to enforce
Canons of
for
relief.
2254(d);
§
See 28 U.S.C.
needed
apply
prophylaxis
Williams,
but to
situa-
from the Michigan appellate
deny
courts
CONCLUSION
ing Petitioner relief was not unreasonable
The district court’s order denying Peti-
for purposes of AEDPA.
tioner’s
for a writ of habeas
Moreover, it would be improvident for
corpus brought
§
under 28 U.S.C.
2254 is
us to
circuits,
follow the other
or even
AFFIRMED.
our own
review,
decisions on direct
which
have, in
Mickens,
the words of
“unblink-
OBERDORFER,
Judge,
District
ingly” applied Sullivan’s lessened. stan-
concurring in part
dissenting
in part.
dard to “all
kinds of
Mickens,
conflicts.”
I. de- contact with Smith had establishing differs in of the record my view Because complete him time to prived of sufficient my colleagues, from that respects some pre- to arrangements financial and their aspects which briefly I will summarize men- defense. He made no pare Smith’s that the district conclusion my influence criminal case. pending tion of his own request Smith’s have honored court should that Bal- oblivious of the fact Apparently hearing. for by under indictment same gooyen was (his being office case was prosecutor’s A. Facts prosecutor a different assistant by handled January Case: Criminal Smith’s judge), assigned was to a different and Smith, a 6 foot-1 Larry Donnell Lieber, County Dennis B. the Kent Judge inch, African-American gay, 217-pound, judge assigned trial to Circuit charges on was arrested bodybuilder male case, He not- denied the motion. Smith’s Dewaard, a 5 he had threatened Joel delayed already the trial had been ed .that inch, who white male 120-pound, foot-5 schedule month due to the court’s own one pair gym, at the same with exercised opted replace had to court- Smith oral him to to and forced submit scissors counsel. counsel with retained appointed incident, At the time of the sex. following morn- begin set to He and Smith was years was 16 old Dewaard ing. charged under years old. Smith was felony one count Michigan law with denying After Bal- Plea Smith’s Offer: and, sexual conduct degree criminal first withdraw, Lie- Judge to gooyen’s motion offender, a habitual subsequently, as that the on the record ber reminded Smith punishment Maximum degree. fourth plea made a offer that had prosecution life im- charges was conviction on these to assault permit plead would' Smith brought and His prisonment. case con- to commit criminal sexual with intent in the Office of by an assistant prosecuted duct, of ten a maximum sentence with Attorney County. of Kent Prosecuting which instead of the life sentence years, Smith fired Early proceedings, on in the and lost. if he went to trial faced Smith and retained court-appointed following col- engaged Judge Lieber conduct the de- Jeffrey Balgooyen to J. Balgooyen: loquy Smith fense. intervening In the THE COURT: af- Shortly Case:
Balgooyen’s Criminal
hours,
opinion that
I’m of the
time of
April
on
he was retained
ter
Mr.
speak
will have
Mr. Smith
charged
under Michi-
Balgooyen
well-qualified
rep-
who is
Balgooyen,
felony
posses-
count of
law with one
gan
lengthy expe-
him virtue of his
resent
He
deliver cocaine.
with intent
sion
with these
I should conclude
rience.
minimum sentence of
mandatory
faced
remarks,
too,
that Mr.
that I know
so
maximum sentence of
year
sir,
and a
one
charged,
you
are
knows
Smith
brought
was also
twenty years. His case
in the first
sexual conduct
with criminal
of the Prose-
by the Office
prosecuted
your
known from
degree,
you
as
have
County.
of Kent
cuting Attorney
of life or
potential
with the
arraignment,
any
years.
term of
To Withdraw:
Balgooyen’s Motion
felony
4th
charged as a
you
Also
are
begin
trial was scheduled
Smith’s
which,
to this
again, grants
morning,
offender
In court that
August
of, upon conviction
possibility
moved to withdraw
Balgooyen
*11
criminal sexual con-
Smith’s Trial
August
of the substantial
and Verdict: On
duct,
13,1991,
degree charge, again,
a first
which
with no further record mention of
potential
offer,
of a life sentence.
includes the
plea
the trial of Smith on the
into,
you’re going
That
is what
Mr.
criminal sexual conduct indictment com-
in this
prosecution
case has menced,
Smith.
with the trial of the habitual of-
you
opportunity
plead
offered
follow,
charge
fender
if necessary. Af-
intent
to commit criminal
assault with
dire,
jury
.
ter a routine voir
á
was selected.
conduct,
degree,
ten-year
first
sexual
Balgooyen’s voir dire inquired about the
offense;
felony
is
correct?
jurors
attitudes of individual
in the venire
However,
That’s correct.
MR. BALGOOYEN:
about race and sex.
he did not
question
composition
the racial
of the veni-
then,
You should know
THE COURT:
jury
re from which the
sir,
Smith
was selected
a substantial difference
that is
be-
process by
or the
which
possible
County
maximum
Kent
as-
tween the
sentence of
sembled
you
and that which
are
venires.
years
pres-
ten
facing which has a maximum
ently
sen-
trial,
called,
At
prosecution
any
years up
term of
to life in
tence
others,
among
Dewaard and his mother.
prison.
Dewaard testified that on several occasions
Your
is best able to describe
gym
he met Smith outside the
for social
impact
you
of these two offenses
activities,
accompanied by
sometimes
served,
in terms of time
but it is clear to
roommate,
regular boyfriend
you
your
if
plead,
sentence
this Court
Huyser.
Joel
Dewaard testified that late
than a
will be less
conviction of the
on his last and
evening
critical
with Smith
original charge
sentencing
because the
accompanied
he
apartment.
Smith to his
for a much lower min-
guidelines provide
threats,
There Smith made various
includ-
ten-year
felony
imum sentence for
of-
ing a
proposal
they fight
bizarre
each
offense;
felony
then
a life
[sic]
fense
do
won,
other.
If
pounds
Smith
De-
you
that?
understand
sex;
waard would submit to oral
if De-
Yes, I do.
MR. SMITH:
won,
pounds
waard at 120
he would not
THE
Knowing
COURT:
and under-
submit. Dewaard testified that when he
that,
standing
you
go
[sic]
desire to
accept
refused to
challenge,
Smith
felony supplement;
with the 4th
is that
(but
injure)
threatened
did
him
with a
correct?
scissors,
pair
whereupon
Dewaard sub-
MR.
Yes.
SMITH:
mitted and went home.
THE
You
op-
COURT:
will have the
testified,
Dewaard’s mother
objec-
over
portunity,
my opinion,
in
to discuss
tion, that her son
returned home
great
this matter
detail with Mr.
early
morning
question,
hours of the
Balgooyen. I wanted to make sure that
himself,
upset
muttering
and that
you
coming
knew what was
morning
later that
he
something
told her
proceed
bench
we
to trial in the
before
of what
transpired
had
the previous night
morning.
between himself and Smith. She then
(J.A.
added).)
(emphasis
at 123
The exist-
police.
called the
ing record does not disclose what discus-
offer,
the plea
any,
sions about
if
took
Smith took the
stand
his own defense.
place between Smith and Balgooyen,
night
in question, according
On
between Balgooyen
and the
prosecutor
he had a conversation with De-
(Smith)
remaining few hours before the trial. waard about the fact that he
*12
(cid:127)
Appeals
“compan-
his
B. Direct
roommate was
gay, that his
together for
they had lived
ion” and that
Through
Michigan
Appeals:
that Dewaard be-
He testified
years.
two
appealed his con-
appointed counsel Smith
by tak-
responded
upset
came
Smith
of
viction to the
Court
had
that he
him home. He denied
ing
others,
theory, among
Balgooy-
on the
De-
contact with
any physical
ever had
interest resulted in his be-
en’s conflict of
any way.
him in
threatened
waard or
right
deprived of his Sixth Amendment
ing
assistance of counsel. De-
to the effective
15, 1991,
jury returned a
August
the
On
No.
fendant-Appellee’s
Appeal,
Brief on
mute about his
guilty.
verdict of
Still
1993).
(Mich.
Ct.App.
May
filed
conflict,
mo-
Balgooyen
post-trial
filed no
simultaneously moved to remand his
Smith
tions,
new trial.
such as a motion for
evidentiary
the trial court for an
case to
develop
sup-
additional factual
hearing to
Plea and Sentence: Be-
Balgooyen’s
of coun-
for his ineffective assistance
port
sentencing, Bal-
trial and
tween Smith’s
Remand,
claim, Motion to
No. 148757
sel
own criminal case.
gooyen resolved his
(Mich.
14, 1993),
May
filed
as con-
Ct.App.
13, 1991,
a
before
different
September
On
law,
People
see
templated by Michigan
judge, he
County
Kent
Circuit Court
Ginther,
436, 212
390 Mich.
N.W.2d
entered,
to,
to
plea
guilty
a
of
agreed
.
(1973).2
motion asserted
ex-
several
attempted posses-
charge
the reduced
of
allegedly deficient
Balgooyen’s
of
amples
in ex-
sion with intent to deliver cocaine
counsel, including:
trial
performance as
im-
a
of
months
change for
sentence
five
black,
Smith,
is
also wishes to
Mr.
who
and dismissal of
prisonment plus probation
appeal
claim on
that counsel was ineffec-
charge
20-year
its
maxi-
original
with
challenge
because he failed
tive
Smith,
represent
mum. He also ceased to
jury
based on the
composition of
sentencing by
being replaced
Smith’s
(This
underrepresentation
of blacks.
court-appointed attorney.1
judicial notice that the
Court can take
Plea and Sentence: On October
on
under-representation of blacks
Kent
pleaded guilty
being
juries
subject
Smith
County Circuit Court
offender,
a con-
felony
admitting
County.)
in Kent
ongoing
second
concern
of
exchange
burglary
viction for
failure to raise this claim
Counsel’s
felony of-
of a conflict of
for the dismissal of the fourth
have been the result
Lieber,
by felony drug charge
consistent
charge.
Judge
fender
interest created
County
warning,
against
sentenced
him the Kent
pending
with his eve-of-trial
(Kent County Circuit
Smith,
twenty-five
then
to a term of
Circuit Court.
91-54842-FH) (Alternatively,
No.
forty years imprisonment.
evidentiary hearing
for the
why
court level
Although the record does not reflect
1.
representation
Balgooyen
establishing
claims with evi-
purpose
terminated
Michigan Court Rule
invoking
the fact that
precondition
as a
dence
lawyer’s
automatically suspends a
li-
9.120
appellate
except in
processes
courts
practice
the date of his
cense to
law as of
manifestly
where the record
the rare case
judicially
conviction is
noticeable.
judge would refuse a hear-
shows that the
ing;
a case the
should
in such
defendant
Ginther,
Michigan Supreme
appeal,
his convic-
on
not a reversal
seek
held that
tion,
directing
court to
but an order
advance
defendant who wishes to
[a]
hearing.
conduct the needed
depend matters not of record
claims that
added).
Ginther,
(emphasis
Regarding (2) he (1978); object represen fails to to dual hearing, tation, should be entitled to a the district but demonstrates that created identify court stated that Smith “fails to adversely actual conflict affected Sullivan, attempt prove what facts he would at an performance, Cuyler counsel’s evidentiary hearing support would his 446 U.S. (Id. 98.) (1980); L.Ed.2d 333
claim of adverse effect.”
demonstrates
that,
*15
unprofessional
in “his
but for his counsel’s
court noted
state-court
re-
errors, the result of
hearing,
proceedings
the
would
quests
[Smith]
identified
different,
trial,”
have been
Strickland v. Wash
alleged failings of counsel at
specific
668, 694,
2052,
ington, 466 U.S.
104 S.Ct.
subject
but it
that such errors “are
stated
(1984).
80
674
I
record,
agree
L.Ed.2d
also
to review on the trial
and do not
yet
not
Smith has
satisfied these formulae
require
evidentiary hearing.”
a separate
they
(Id.)
recently
as
have been
construed. See
Based on its own review of the trial
162,
Taylor,
Mickens v.
535
122
U.S.
S.Ct.
record, the district court found that
the
1237, 1240-46,
(2002).3
152
291
L.Ed.2d
court’s conclusion that defendant
“state
suggest
‘cited no evidence
that defense
However,
stated,
disagree,
I
with the
actively
counsel
lessened his defense as a
ruling
request
that Smith’s
for an eviden-
felony
pending
charge’
result of his
is am-
tiary hearing
Supreme
is moot.
(Id.
99.)
ply
by the record.”
supported
at
clearly
decisions
long ago
established
continued,
The
“[c]ounsel
court
conducted
person
“... charged with crime ...
re-
defense,
vigorous
lodging
appropriate ob- quires
guiding
the
hand of
every
counsel at
evidence,
jections
engaging in
extensive
step in
proceedings against
him.” See
cross-examination,
competent
pre-
and
Alabama,
45, 68-69,
Powell v.
287 U.S.
53
senting testimony of defendant and two
55,
(1932)
S.Ct.
825 sizes, Lockhart, only in all shapes' 474 106 conflicts come Hill v. U.S. ings. (1985). joint representation. one of which is “[E]ven L.Ed.2d 203 88 S.Ct. view, defense, my my analysis and critical to of the is a bona fide when there case, present if Court’s decision plead guilty his client to may still advise ulti- range Holloway clearly of rea- established the that advice falls within mate, functionally ratio- governing, legal under the circum- competence sonable Cronic, any 466 nale for federal habeas review for stances.” See United States represented n. 80 convicted defendant state 104 S.Ct. U.S. counsel, merely conflicted not (citing Tollett L.Ed.2d Henderson, 258, 266-8, joint representation. Holloway v. Arkan- U.S. (1973)). sas, 489-90, Finally, 1173. As S.Ct. here, there, explained “[j]oint repre- circumstances the Court highly relevant conflicting suspect teach that “an sentation of interests is Supreme Court decisions per- prevent of the effective because of what it tends to indispensable element doing.... from evil is in responsi- [T]he of [defense counsel’s] formance what the finds ability independently compelled is the to act advocate himself bilities trial, only oppose doing, and to but of the Government refrain Ackerman, possible pretrial plea negotia- Ferri v. also as to adversary litigation.” sentencing process.” 62 tions and in the S.Ct. (1979). C.J.); Mickens, 122 (Burger, see also L.Ed.2d 355 (in J., (Kennedy, concurring)
at 1246 A. Effective context, Assistance Counsel disparaging related a “wooden
Conflicts
Interest
emphasizing
importance
rule” and
evidentiary hearing and
district court
majority
A
has estab
Supreme Court
findings on the effect
conflict on
evaluating
lished a clear framework for
representation).
*16
lawyer
where one
effectiveness of counsel
more than one defendant in a
represents
considered,
that,
I
foregoing
The
believe
Arkansas,
Holloway v.
criminal case. See
though Balgooyen’s conflict is not on
even
489-91,
1173; Cuyler
law
that conflicts of interest B.
establishes
joint
pre
the
arising
representation,
out of
A
of the state court
close examination
trigger
in Cuyler,
cise conflict
issue
by the district court would
led
record
have
analysis
relief.
Cuyler-type
and
discovery that there were two criti-
to the
Balgooyen’s
Obviously, Cuyler
clearly
phases
representation
established
cal
explored
have been
with care
relevant
law. But it is which should
and
(1)
hearing:
his failure to
totality
reality
evidentiary
is that
in an
not the
of it. The
the
picked
petit jury
the
which returned
composition of
Smith
challenge
guilty.
verdict that Smith was
judicial-
allegations of a
of his
jury
light
concern about the
ongoing
ly noticeable
may
made no issue of
Balgooyen
have
ju-
African-Americans
County practice
selecting
Kent
underrepresentation
was,
is, quite
rors because it
and
correct
venires,
County Circuit Court
on Kent
he,
Or,
he
unprepared
knew it.
and
jury
the Smith
was
which
from one of
trial,
under
possibly
was on the eve of
and
drawn,
role in
fateful
his
Smith’s
influence,
thought
never
he
have
rejection of the offer
eve-of-trial
issue, or,
it,
thinking of was
raising
in ex-
ten-year
sentence
prosecution
trial
preoccupied with last minute
too
light
of the.
guilty,
change
plea
for a
develop
to have time to
preparation
Smith,
admonition to
judge’s pointed
events,
raise it.
In either of those
Smith’s
prospect
of a life sen-
respect
Balgooyen’s con-
present concerns about
advice,
tence,
Balgooyen’s
that he seek
may be beside the mark.
flict of interest
it,
Balgooyen to render
admonition to
his
scrutiny of the record
heightened
But
supra p.
“in
great detail.” See
or the
magistrate
have alerted the
should
if Bal-
judge
district
to the 'fact that even
was called on to
jury trying
Smith
his
gooyen
considering
protect
how to
match
the di-
swearing
between
resolve
muscular,
client
gay, African-American
(17 at
testimony
16-year
of a
old
rect
bias,
very possibly
he
jury
trial)
male,
white
corroborated
time of
more,
equally, if not
concerned about his
mother, and
hearsay testimony
of his
possibility
own fate and the
of a favorable
uncorroborated,
direct, categorical, but
himself,
plea bargain for
such as
5-
Afri-
31-year
a then
old
denial
negotiated
month sentence that he
after
American,
can
who took the stand
rejected
plea
client
a favorable
offer
that in
Experience
defense.
teaches
own
convicted.
he was advis-
and stood
When
trial,
featuring allegations
cases
of non-consen-
ing.
just
though
before
even
he
Smith
being prosecuted by an assistant dif-
of the same was
persons
sual oral sex between
him in
opposed
ferent from the one who
sex,
races, preconceptions
but different
whether,
case, he could not know
strongly
credibility judg-
influence the
can
when,
exchanged
those two
information
professedly impartial
ments of
triers of
the two cases at hand or had a
about
cases,
jury
fact.
In such
selection is
In the cir-
superior familiar with both.
critical,
critical,
responsibil-
if not the most
*17
cumstances, Balgooyen could have felt
ity of an effective criminal defense counsel.
liberty
hostage
that his
to the Office
Balgooyen’s voir dire exami-
The record of
result,
of the Prosecutor. As a
he could
particular
nation of the
venire
(not irrationally)
have feared
the conse-
system delivered to
County
Kent
quences
“compelled
to himself and felt
about its attitudes as to
courtroom
challenging
allegedly long
refrain” from
appropriate
have been
race and sex
tolerated,
inappropriate,
but
courthouse
it
But
application
far as went.
Smith’s
practice
respect
the selection of
expressed
Balgooy-
a remand
concern that
Arkansas,
“jurors.”
Holloway
See
v.
435
allegedly
en made no issue of an
discrimi-
489-90,
my
In
U.S. at
827 2254(e)(2). [,] section, § ability ... to act Under that a defen- performance tive of the Government and to independently develop dant who “failed to the factual subject it” on a about which the oppose basis of a claim in court proceedings” State Kent of the Prosecutor Office evidentiary cannot obtain an un- hearing Court, court, would be un County any less he satisfies two statutory exceptions.4 derstandably highly sensitive. See Fern 2254(e)(2), § purposes For a defendant Ackerman, U.S. S.Ct. develop “fail[s] to the factual basis of a 402. in claim” the state courts when there is a fault, diligence, “lack of greater or some I heightened scrutiny, which believe conflict, prisoner prison- attributable to the or the Balgooyen’s suspect admitted lack preparation imped- Taylor, chemical er’s counsel.” Williams v. require, should also include a close iments 120 S.Ct. 146 L.Ed.2d (2000). Balgooyen’s examination of district court respect Judge open
role with Lieber’s Williams, In defined carefully admonition that Smith re- prisoner’s diligence a as “a reasonable at- consider, with Balgooyen and counsel light tempt, information available about, prosecution’s eve-of-trial offer of time, to investigate pursue 10-year risking sentence instead of court; claims in depend state does not sentence, including much life im- longer ... upon whether those efforts could have clear, prisonment. Hindsight makes with- been successful.” Id. at any presumption, out the aid of the dire Typically, require 1479. this will “that the consequences of decision: 25 to 40 minimum, prisoner, at a seek an evidentia- years evidentiary instead of 10. An hear- ry hearing state court in the manner explore Balgooy- whether ing should also prescribed by state law.” Id. at en, was, time pressed for as he did fact Thus, dili- when defendant (“in otherwise) detail” or advise Smith gently evidentiary hearing seeks an in the offer, and, did, if plea about the he prescribed, state courts the manner but extent and substance of that advice. deny opportunity, the state courts him that 2254(e)(2)’s § he can avoid barriers to ob- Antiterrorism and Effective Death C. taining hearing in federal court. Penalty Act recently The Sixth Circuit has consid- conclusion, reaching In this I am mind- 2254(e)(2) light -in ered the ful of the fact that the Antiterrorism and (AEDPA) Court’s decision Penalty Effective Death Act lim- Mitchell, 264 F.3d Williams. See Greer its federal habeas review of a state court (6th Cir.2001). Greer, this Court evidentiary criminal conviction where an hearing sought. explained. its the defendant See 28 U.S.C. decision (ii) 2254(e)(2) provides predicate 4. Section in full: a factual that could not *18 previously through have been discovered applicant develop If has failed to the pro- diligence; and factual basis of a claim in State court the exercise of due ceedings, (B) the court shall not hold an eviden- underlying the facts the claim would tiary hearing appli- claim unless the by be to establish clear and con- sufficient cant shows that— vincing evidence that but for constitutional (A) the claim relies on— error, would have no reasonable factfinder law, (i) a new rule of constitutional made applicant guilty underlying found the of the retroactive to cases on collateral review offense. Court, by Supreme previous- that was added). 2254(e)(2) (emphasis § 28 U.S.C. unavailable; ly Michigan to both the thus en- missions requested, and diligently had Court, Michigan Supreme and the to, hearing as follows: a titled had never erroneously stated that Smith us, petitioner pursued In the case before hearing. help a This requested appellate assistance ineffective ap- Court’s explain Michigan diligence, rais- proper with claim had, in that Smith parent unawareness prematurely it first —albeit ing —in fact, In timely requested hearing. its relief post-conviction for petition conviction and delayed affirming for reconsid- Smith’s in his motion decision then Both, stated, sentence, re- “If a pleadings of these that court convicted eration. evidentiary hearing, which attorney’s rep- an quested believes that his defendant courts. afforded the Ohio objective was never stan- below an resentation was Taylor, with Williams reasonableness, Consistent appropriate dard of therefore, petitioner we conclude hearing.” is to seek Ginther procedure evidentiary hear- from an precluded People 456 Mich. necessary dili- ing as he exercised (citing People v. N.W.2d the fac- attempting in establish gence Ginther, Mich. 212 N.W.2d Accordingly, court. tual record state (1973)). Thus, Michigan matter to the district we remand this exactly the advised Smith to seek peti- to accord court with instructions already but diligently, that he had relief evidentiary hearing in which to tioner an unsuccessfully, sought. appellate counsel ren- establish whether state level to diligence at the Smith’s constitutionally ineffective assis- dered mirrored his near- hearing obtain a respect penalty phase to the tance seeking the same ly equivalent diligence trial. petitioner’s proceedings. in these federal habeas relief Elo, 681; see also Barnes v. hearing in his ob- requested first Smith (6th Cir.2000) (without citing F.3d 1025 jections magistrate judge’s report to the 2254(e)(2), appeals § federal court re and recommendation. The district evidentiary § an manded 2254 case for request, considered the merits of hearing, noting sought that defendant had thereby properly placing it before us hearing Michigan in the State a Ginther The district court then denied appeal. this and had been denied Appeals, Court of hearing on the request Smith’s Michigan Supreme to the appeal leave to that his ineffective assistance claim ground Court). evaluated on the could be basis necessary has demonstrated the Smith evidentiary separate record and thus “a 2254(e)(2). diligence escape the bar of unnecessary. hearing” was evidentiary an Smith’s efforts obtain view, my no such “Catch-22” series of are hearing Michigan state courts complications state and federal court to the defendant’s ef virtually identical way in the of federal court should stand diligent more arguably forts Barnes predicament. I would review In this than defendant’s Greer. remand this case to the district court case, acknowledging that his ineffective as evidentiary hearing and to re- conduct facts, sistance claim relied on non-record in light its denial of the writ consider timely Michigan moved the Smith hearing. of that results Appeals to remand the case to the Circuit hearing. Court for a Ginther That court
denied the motion. The Su
preme then leave to denied Smith state,
appeal ruling. its sub-