Mason v. Mitchell (CA6)

Mason v. Mitchell, No. 05-4511 (capital case) — The court granted relief on a claim of ineffective assistance of counsel at the penalty phase.

The petitioner was charged in September 1993 with aggravated murder, rape, and possession of a firearm by a prohibited possessor.  He was convicted in June 1994, and two weeks later the penalty phase began.  Counsel presented testimony from two deputy sheriffs regarding the petitioner’s good behavior in jail, and from his mother, brother, sister, and cousin, who asked for mercy.  The petitioner testified, continuing to protest his innocence and asking the jury for a life sentence so that he could complete the appeals process.  The defense rested, and the prosecution did not offer any rebuttal evidence.  After four and a half hours of deliberation, the jury informed the judge they could not reach a unanimous sentencing recommendation.  Once they had slept on it, they recommended a death sentence.  The Ohio Supreme Court ultimately affirmed the conviction and sentence.

Ultimately the petitioner filed a federal habeas petition, raising a claim of ineffective assistance at sentencing.  The district court denied relief initially, and the Sixth Circuit remanded for an evidentiary hearing.  The district court held the hearing and denied relief, and the petitioner appealed.

In light of the prevalent ABA Guidelines for representing capital defendants at the penalty hearing, the court found trial counsel’s performance deficient.  The guidelines required counsel to present all reasonably available mitigating evidence.  But counsel’s preparation consisted of a 75-minute phone call with the Ohio Public Defender’s office five days before the penalty hearing.  Counsel had before him only information provided by the state; he “inexplicably failed to conduct his own independent investigation and interview members of the petitioner’s family regarding the circumstances of his childhood and background.”  He did briefly interview a couple of family members, but only after he made the decision not to include any information about the petitioner’s childhood in his mitigation case.

The information the state had provided showed that the petitioner “was born into a drug-dependent family, that the family had in the past and currently was dealing drugs, and that both parents had been previously incarcerated for drug trafficking.”  A psychological evaluation of the petitioner at the age of 13 showed he “had been exposed to quite a lot of violence” and that he came “from a family which has had many problems over the years.”  A police report from that time indicated that the petitioner had suffered several injuries from a beating at the hands of his father.  His parents would whip him and his brothers, tie them up, and stab him.  Counsel failed to talk to the petitioner’s two sisters and two brothers, who could have confirmed this information.

The failure to present this missing information was prejudicial to the petitioner.  The petitioner only had to persuade one juror to impose a noncapital sentence, and the jury was initially deadlocked.  None of the family-background evidence gave rise to a potential for rebuttal by the state; indeed, the only evidence the prosecution considered using in rebuttal was a deposition from a psychologist regarding the extent of the petitioner’s past criminal behavior.  The Supreme Court has held that the failure to present the kind of mitigation evidence not presented here is prejudicial.  See Wiggins v. Smith, 539 U.S. 510 (2003). The Ohio Supreme Court’s ruling ran contrary to Wiggins, and thus the court ordered a new penalty hearing.

Judge Boggs dissented, arguing that counsel is not ineffective merely because the petitioner receives a death sentence.  “Although one might argue that trial counsel’s decision to forego a mitigation defense based on family history was a foolish one, it was not the product of a constitutionally deficient investigation….  He possessed all of the essential facts regarding the petitioner’s background necessary to make a reasonable strategic choice.”  Judge Boogs also complained that the ABA Guidelines were an “impossibly high” benchmark for defense counsel to achieve.

Newman v. Metrish (CA6)

Newman v. Metrish, No. 07-1782 — The court affirmed the district court’s grant of habeas relief on a claim of insufficient evidence for conviction.  The petitioner was charged with murdering a drug dealer.  “Although the prosecution offered ample evidence to support an inference that the petitioner had previously possessed  at least one of the murder weapons, the prosecution did not offer any evidence that the petitioner had used or possessed the weapons on the day of the murder.  There was no eyewitness testimony, nor were the police able to recover any latent fingerprints from the crime scene or the items in the gym bag.”  The petitioner bought the murder weapon in 1991, and a witness had seen a similar gun in the petitioner’s home a couple of weeks before the murder.  A gym bag found by the side of the road the day after the murder contained twine that was similar to twine seized from the petitioner’s house.  That gym bag also contained a hangun that matched spent ammunition recovered from the victim’s body.  The petitioner presented an alibi defense.

The petitioner was convicted of first-degree murder, but the conviction was later reduced to second-degree murder.  His other efforts at relief on direct appeal and in state post-conviction proceedings failed.  Ultimately, he sought federal habeas relief, claiming that the evidence was insufficient under Jackson v. Virginia, 443 U.S. 307 (1979), to sustain the conviction.  The Sixth Circuit agreed.

“Here, if we consider all the evidence in the light most favorable to the prosecution, there remains reasonable doubt because we are limited by what inferences reason will allow us to draw.  We can infer only that the petitioner intended to rob a drug dealer and knew that the victim was a drug dealer, that a gun previously owned by the petitioner was used to kill the victim, and that a similar looking gun was seen in the petitioner’s home approximately two weeks before the murder….  Although the evidence need not exclude every reasonable hypothesis except that of guilt, it must be enough for any rational trier of fact to have found proof of guilt beyond a reasonable odubt.”

CA6 — memorandum disposition

Bird v. Brigano, No. 06-4438 — The petitioner was arrested for murder, locked in a police interrogation room, and asked to sign a card waiving his Miranda rights.  The trial court denied his motion to suppress the statements taken in the face of the waiver, and he was ultimately convicted and sentenced to two consecutive life terms.  The Miranda claim was ultimately certified for appeal in federal habeas proceedings.

The court affirmed.  The petitioner did not unequivocally invoke his right to silence, despite his protestations to the police that he was done talking to them, because his behavior with the police suggested otehrwise.  In the face of such ambiguity, the court could not conclude that the Ohio courts had unreasonably applied clearly established federal law.

Parker v. Bagley (CA6)

Parker v. Bagley, No. 06-4355 — Ohio’s rule on the timeliness of applications to reopen an appeal was firmly established and regularly followed in noncapital cases as of June of 2001, and so the district court properly denied the § 2254 petition as procedurally defaulted.

The petitioner had been convicted on child molestation charges and sentenced to 30-50 years in prison.  While his direct appeal was pending, he filed a petition for post-conviction relief, which was denied.  The direct appeals process for both the conviction and post-conviction relief petition ended in February 2001.  In June 2001, he filed an application to reopen his direct appeal, claiming ineffective assistance of appellate counsel.  The Ohio Court of Appeals denied the application, ruling he had not shown “good cause” for doing so more than 90 days after the direct appeal was final.  The federal district court denied the IAC of appellate counsel claim as procedurally defaulted.

The Sixth Circuit ruled that, in noncapital cases, Ohio’s “good cause” rule was independent of federal law and adequate to support the procedural default because it was firmly established and regularly followed in 2001, when the state courts actually imposed the bar.  Prior Sixth Circuit cases, including Scuba v. Brigano, 527 F.3d 479 (6th Cir. 2007), had settled the issue, although those cases had been decided after the district court issued its decision in this case.  Because the petitioner’s argument against procedural default was foreclosed by prior precedent, the court affirmed.

Smith v. Berghuis (CA6)

Smith v. Berghuis, No. 06-1463 — The Sixth Circuit ordered a new trial for a Michigan prisoner who was denied a jury drawn from a fair cross-section of the community.

The petitioner is African-American.  He was charged in Kent County, Michigan, where the largest city is Grand Rapids, with one count of second-degree murder and two counts of possession of a firearm during commission of a felony.  According to the 1990 census, 7.8% of the eligible jury pool for the entire county, and 18.1% of the jury pool for the city of Grand Rapids, was African-American.  Grand Rapids accounted for 37% of the total population of the county but 85% of the total African-American population.  Yet of the entire jury venire, which numbered between 60 and 100 people (the record wasn’t clear), only 3 were African-American.  Those three were excluded before voir dire began, and the 14 people who eventually were seated on the petit jury were white. The petitioner challenged this arrangement as violating his right to a jury drawn from a fair cross-section of the community, but the trial judge disagreed.  He was later convicted of the murder count and one of the firearm counts.

The Michigan Court of Appeals ordered a hearing on the petitioner’s fair cross-section claim.  The county court administrator testified about how jury pools were drawn.  The county obtained the list of all licensed drivers and holders of state identification cards who lived in the county.  Then it sent out questionnaires, only 75% to 80% of which garnered an initial response.  Follow-up letters explaining the penalties for failing to respond increased the response rate to 85% or 90%, but the administrator explained that the largest non-response rate occurred among members of minorities.  The county did not keep track of the race of individuals who responded or claimed exemptions from jury service.  Those exemptions included prior felony convictions and inability to find childcare or to take time off from work.

Ultimately, the county made changes to the procedures by which it constituted its jury pools, but did not make up for the lack of minorities serving on its juries.  Statistical evidence confirmed this.  Other testimony at the hearing highlighted the fact that the statutory exemptions overly impacted African-Americans.

The trial court resolved the claim against the petitioner, finding that while the county’s procedures did underrepresent African-Americans in the jury pool, they did not “systematically exclude” African-Americans.  The Michigan Court of Appeals did conclude that the procedures systematically excluded African-Americans, but the Michigan Supreme Court did not.  It therefore affirmed the petitioner’s convictions and sentence.  Ultimately, the Sixth Circuit Court of Appeals took up the fair cross-section claim, on which it granted relief.

The court held that the Michigan Supreme Court unreasonably applied controlling Supreme Court decisions articulating the fair cross-section requirement.  To be sure, the absolute disparity between the number of eligible blacks (7.28%) and the number in the jury venire (~6%) was not constitutionally significant.  But because of the relative smallness of the absolute numbers, the comparative disparity mattered more.  In the six months before the petitioner’s trial began, the comparative disparity was 18%.  In the month his trial actually began, it was 34%.  These numbers demonstrated that the underrepresentation of blacks in the jury pool was unfair and unreasonable.

Even so, they did not help to explain whether the Michigan Supreme Court unreasonably applied clearly established federal law to reject the petitioner’s claim.  The relatively small size of the African-American population made both measures of disparity somewhat unreliable.  Even so, examination of how the system operates ex ante might give the petitioner the benefit of the doubt, such that if there is a certain likelihood that the system will systematically exclude blacks from the beginning, the claim will prevail.  And it was on this score that the Michigan Supreme Court went astray.

As the court put it, the county allowed “prospective jurors to essentially opt out of jury service if jury duty would constitute a hardship based on child care concerns, transportation issues or the inability to take time from work.”  These exemptions disproportionately affected African-American jurors more.  64% of single-parent households were black, while only 19% were white.  Allowing single parents to opt out disproportionately affected African-Americans.  The Michigan Supreme Court dismissed this evidence as relating to socioeconomic factors rather than the system by which potential jurors were identified.  But “the Sixth Amendment is concerned with social or economic factors when the particular system of selecting jurors makes such factors relevant” to identifying potential jurors.  The system here took into account the socioeconomic factor of being the sole breadwinner for a family, and that socioeconomic factor disproportionately impacted African-Americans.

Moreover, those African-Americans that did appear for jury duty were diverted from hearing cases in the division of the trial court where the petitioner’s trial took place.  His was a circuit court, where jurors were drawn from all over the county.  Residents of Grand Rapids, where most of the county’s African-American population lived, were given priority for the city’s district court instead.  As a consequence, fewer African-Americans were available to serve on juries in the county circuit court.  The Michigan Supreme Court dismissed this assertion because the petitioner did not indicate precisely how many African-American jurors were diverted to district courts.  But the Sixth Circuit found this reasoning to be unreasonable inasmuch as the fair cross-section requirement was concerned with systematic exclusion.

These two facts together demonstrated a prima facie violation of the fair cross-section requirement.  The burden then shifted to the state to demonstrate that the systematic exclusion satisfied some significant state interest.  But the state could not do so.  Indeed, since petitioner’s trial the state court in the county where the trial took place has stopped allowing for the automatic exemption for economic hardships precisely because such an exemption disproportionately impacts minorities.  Nor was there a significant state interest in ensuring that residents of Grand Rapids served on the district court rather than the circuit court.  Accordingly, the Michigan Supreme Court’s rejection of the petitioner’s fair cross-section claim was unreasonable.  The Sixth Circuit ordered a new trial.

CA6 — memorandum disposition

Reddic v. Conerly, No. 07-1032 — The court afffirmed the denial of a § 2254 petition on the merits.

The petitioner challenged the voluntariness of his guilty plea to armed robbery, as well as the effectiveness of counsel relating to the plea.  The court affirmed with respect to the voluntariness claim.  As for the IAC claim, the court noted that the claim he advanced in district court was not the same claim he advanced in state court.  Accordingly, it was unexhausted.  Moreover, the court denied it as meritless because there was no indication that the evidence the petitioner contended counsel did not uncover before the plea was entered would have caused him to go to trial rather than to plead guilty.

CA6 — memorandum disposition

Brooks v. Anderson, No. 06-4286 — The court affirmed the denial of a 2254 petition.

This is a case of shaken baby syndrome.  The petitioner and his mother were tried together, and they were represented by the same lawyer at trial.  The trial judge informed them of the dangers this might pose, and they nevertheless assented.  The trial judge also confirmed that the lawyer was aware of the risks involved.

During the trial, a neighbor testified that the petitioner’s aunt was present in the home, and that the aunt had suffered some kind of “breakdown.”  The neighbor also sought to testify regarding some scratches on the baby.  This tended to prove that the petitioner’s mother would be guilty of child endangerment.  Ultimately, the petitioner was convicted of felonious assault, and his mother was convicted of child endangerment.

After completing state-court review, the petitioner filed a 2254 petition, raising four claims, including two related to the lawyer’s conflict of interest.  A magistrate judge recommended granting the petition, but the district judge disagreed.  The petitioner appealed.

The court found no error in the district court’s denial of the IAC claim predicated on the conflict of interest.  Ultimately, the introduction of the testimony of the neighbor was excluded as inadmissible hearsay.  Because the trial judge excluded the evidence on hearsay grounds rather than because of any prejudice inherent in the conflict of interest, the court affirmed.

CA6 — memorandum decision

Johnson v. Hall, No. 06-4563 — The court affirmed the denial of a 2254 petition.  The petitioner argued that trial counsel was ineffective for informing the police where they might find a pair of gloves containing the blood of the victim of the murder with which the petitioner was charged and ultimately convicted.

The petitioner had been charged as an accomplice to the murder, and under Ohio law accomplices are liable as principals.  He claimed that if his counsel had not stipulated to the jury being told that the only evidence linking the principal to the crime was the location of the gloves, which the petitioner’s counsel had divulged to the police, he would not have been convicted.

The court ruled that neither Strickland prong was satisfied in this case.  Other evidence had been presented at the trial indicating that the petitioner had abetted the murder — he drove the killer to the empty parking lot where the murder took place, and had arranged the meeting beforehand.  Under Ohio law, specific intent to abet murder can be inferred from actions taken to conceal the murder after it happens.  The petitioner in this case harbored the killer and helped him dispose of his clothing, which (according to forensic testimony) would have been covered in blood.  Because the petitioner could show neither deficient performance nor prejudice, the court affirmed the denial of the petition.

Railey v. Webb (CA6)

Railey v. Webb (CA6, No. 06-5806) — The petitioner filed a 2254 petition challenging his guilty-plea convictions and 10 years in prison for three assault counts, including one episode where he shot and injured his girlfriend while target shooting.

Railey alleged judicial bias because the prosecutor who appeared at two pretrial hearings was the uncle of the trial judge.  The state post-conviction court found that defense counsel knew about the relationship and waived it on Railey’s behalf.  In any event, state law required Railey to show actual bias, and mere allegations of bias stemming from a family relationship did not satisfy this standard.  Surveying constitutional law as AEDPA required, the Sixth Circuit concluded that kinship is not a kind of judicial bias that may give rise to a constitutional obligation for a judge to recuse himself.  But, the court also ruled, this obligation is not clearly established.  The relevant Supreme Court law, ending with Bracy v. Gramley, 520 U.S. 899 (1997), could be read to impose a constitutional requirement of recusal in any situation giving rise to an appearance of bias.  But it could also be read to require a showing of actual bias in situations of kinship.  “Regardless of the preferred reading — or the merits of one reading over the other — the fact that there are two or more reasonable readings compels the conclusion that this precedent is not ‘clearly established.’”

Because there was no clearly established Supreme Court law, the court could not rule that the Kentucky courts had unreasonably applied Supreme Court law in requiring Railey to show actual bias between the judge and the prosecutor.

Railey also claimed trial counsel was ineffective for failing to inform him of the relationship between the prosecutor and the judge.  But he did not show that there was a reasonable probability he would have gone to trial if he had known about it.  Thus the court rejected this IAC claim.

The court also rejected Railey’s claim that counsel were ineffective for failing to pursue a voluntary intoxication defense.  But that defense was not available under Kentucky law, because the assault charges he faced were general intent crimes.  And counsel did argue his intoxication in mitigation of his sentence.  Thus counsel did not perform deficiently.

Finally, Railey argued that his plea was not knowing and voluntary because he did not know about the voluntary intoxication defense.  But the court ruled that he had not overcome the presumption attached to state-court determinations that he had pleaded guilty voluntarily.  He explained to the trial judge that he understood he was pleading guilty, and that he had discussed his case with his attorneys, and he signed a statement to that effect.  He did not explain how the state courts’ conclusion was unreasonable.

CA6 — memorandum disposition

Suttles v. Wilson, No. 06-3585, 06-3652 — Owing to an irreconcilable conflict between defense counsel and a prosecution witness, the court granted the writ of habeas corpus and ordered the State of Ohio to retry petitioner within 180 days.  The petitioner argued that appellate counsel was ineffective for failing to raise the conflict on appeal.  The court held that appellate counsel performed deficiently for failing to raise the conflict on appeal, and that deficient performance prejudiced the petitioner insofar as the conflict adversely affected the petitioner.