Mohammed Al-Khalil v. Susan Davis

Filing

OPINION filed : AFFIRMED, decision not for publication pursuant to local rule 206. Eugene E. Siler , Jr., Circuit Judge; R. Guy Cole , Jr., Circuit Judge and Raymond M. Kethledge, Circuit Judge.

Case: 09-2300

Document: 006111042947

Filed: 08/15/2011

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0573n.06
FILED

No. 09-2300

Aug 15, 2011
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

MOHAMMED AL-KHALIL,
Petitioner-Appellant,
v.
SUSAN DAVIS, Warden,
Respondent-Appellee.

BEFORE:

)
)
)
)
)
)
)
)
)
)

LEONARD GREEN, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF MICHIGAN
OPINION

SILER, COLE, and KETHLEDGE, Circuit Judges.

COLE, Circuit Judge. Petitioner-Appellant Mohammed Al-Khalil appeals the district
court’s denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. Specifically, he
argues that he received ineffective assistance from his state trial counsel, who purportedly failed to
provide Al-Khalil’s retained mental-health expert with the information necessary to render an
informed opinion as to Al-Khalil’s sanity at the time of the crime. Both the Michigan Court of
Appeals and the district court disagreed. Because Al-Khalil has not shown that his trial counsel
provided ineffective assistance, we AFFIRM the district court’s judgment.
I. BACKGROUND
In May 2005, a Michigan jury convicted Al-Khalil of kidnapping, assault with intent to do
great bodily harm less than murder, mayhem, and felonious assault. Al-Khalil received 18 to 50
years’ imprisonment on the kidnapping charge, and a lesser concurrent amount on the others.

Case: 09-2300

Document: 006111042947

Filed: 08/15/2011

Page: 2

No. 09-2300
Al-Khalil v. Davis
Prior to the trial, Al-Khalil’s counsel at the time, James F. Piazza, filed a notice with the state
trial court that he planned to assert an insanity defense. Al-Khalil then was referred to the Michigan
Forensic Center for a psychological evaluation. That evaluation ultimately opined that Al-Khalil was
competent to stand trial and “criminally responsible for his conduct” towards the victim.
Subsequently, Piazza requested and received public funding for an independent psychological
evaluation. On the suggestion of the trial court, Piazza chose Dr. George Drozd as the independent
psychological expert. After evaluating Al-Khalil on August 17 and 24, 2004, Dr. Drozd also found
Al-Khalil competent to stand trial and “criminally responsible.” Piazza then withdrew his insanity
defense for Al-Khalil.
After Al-Khalil’s conviction and concurrently with his appeal to the Michigan Court of
Appeals, Al-Khalil filed with the trial court a motion for a new trial and for an evidentiary hearing
as to whether Piazza rendered ineffective assistance of counsel. In relevant part, Al-Khalil argued
that Piazza provided ineffective assistance of counsel by failing to provide Dr. Drozd with certain
Forensic Center documents. In so arguing, Al-Khalil relies on the report of Dr. Steven Miller, a
mental-health expert Al-Khalil hired after his conviction. The trial court denied his motion.
Likewise, the Michigan Court of Appeals rejected Al-Khalil’s claim. The Michigan Supreme Court
denied his application for leave to appeal the Court of Appeals’ decision.
Subsequently, Al-Khalil filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254
in the U.S. District Court for the Eastern District of Michigan. The magistrate judge issued a Report
and Recommendation suggesting that the district court deny Al-Khalil’s claims. The district court
summarily adopted the Report and Recommendation, but granted Al-Khalil a certificate of
2

Case: 09-2300

Document: 006111042947

Filed: 08/15/2011

Page: 3

No. 09-2300
Al-Khalil v. Davis
appealability on the claim currently pending before us. Al-Khalil later sought to expand the scope
of his appeal; we declined that request.
II. ANALYSIS
A. AEDPA Generally and the Standard of Review
Because Al-Khalil filed his petition after April 24, 1996, the Antiterrorism and Effective
Death Penalty Act (“AEDPA”) amendments to 28 U.S.C. § 2254 apply. Lundgren v. Mitchell, 440
F.3d 754, 762 (6th Cir. 2006). Under those amendments,
[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant
to the judgment of a State court shall not be granted with respect to any claim that
was adjudicated on the merits in State court proceedings unless the adjudication of
the claim(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court
of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d).
A state court’s determination is “contrary to” the clearly established law of the Supreme
Court under § 2254(d)(1) “if the state court arrives at a conclusion opposite to that reached by [the
Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme
Court] on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000)
(opinion of O’Connor, J.). A state court’s determination “involve[s] an unreasonable application
of” the clearly established law of the Supreme Court under § 2254(d)(1) if “the state court identifies

3

Case: 09-2300

Document: 006111042947

Filed: 08/15/2011

Page: 4

No. 09-2300
Al-Khalil v. Davis
the correct governing legal principle . . . but unreasonably applies that principle to the facts of the
prisoner’s case.” Id.
Al-Khalil’s first contention is that we need not defer to the Michigan Court of Appeals’
decision because it “couldn’t get the Strickland[ v. Washington, 466 U.S. 668, 694 (1984),] standard
right . . . , requiring that it be ‘likely that the proceedings outcome would have been different,’ or that
counsel’s ineffectiveness ‘deprived defendant of a substantial defense’ or that the error ‘affected the
outcome of this case’ but never speaking to the reasonable probability of a different result,” which
is the test under Strickland. (Al-Khalil Br. 38 (quoting Mich. Ct. App. Decision, Dist. Ct. Docket
No. 9-20, at 4).) Thus, he contends that the decision was “contrary to” Strickland. At oral argument,
however, Al-Khalil was unclear as to whether or not he continued to advance this argument.
To the extent that Al-Khalil has not conceded the point, he seems to be correct. The
Michigan Court of Appeals required Al-Khalil to establish “that, but for defense counsel’s error, it
is likely the proceeding’s outcome would have been different.” (Mich. Ct. App. Decision, Dist. Ct.
Docket No. 9-20, at 4 (citing People v. Henry, 607 N.W.2d 767, 770 (Mich. Ct. App. 1999)).) Yet
the U.S. Supreme Court in Strickland explicitly rejected an outcome-determinative approach in favor
of one demanding a showing of simply a “reasonable probability” that the result would be different.
See Strickland, 466 U.S. at 693-94. We have previously recognized as much—and held that
language nearly identical to that used by the Michigan Court of Appeals was “contrary to” Supreme
Court precedent. See Smith v. Bell, 381 F. App’x 547, 550 (6th Cir. 2010) (citing Williams, 529 U.S.
at 405-06). Ultimately, our standard of review makes little difference in this case, for even under
de novo review, Al-Khalil cannot establish that he received ineffective assistance of trial counsel.
4

Case: 09-2300

Document: 006111042947

Filed: 08/15/2011

Page: 5

No. 09-2300
Al-Khalil v. Davis
B. Ineffective Assistance of Trial Counsel
Al-Khalil argues that he received ineffective assistance “where his trial attorney, with no
strategic purpose, made a critical, outcome-determinative error in failing to provide a psychiatric
expert, through discovery, with the material necessary to make a studied determination of criminal
responsibility.” (Al-Khalil Br. 2.)
1. Generally
The Supreme Court has held that the Sixth Amendment to the U.S. Constitution guarantees
a criminal defendant the effective assistance of counsel. Strickland, 466 U.S. at 684-85. In
Strickland, the Court articulated a two-part test for assessing when counsel is ineffective. Id. at 687.
First, we ask whether counsel’s performance was deficient, because it “fell below an
objective standard of reasonableness” as measured by “prevailing professional norms.” Id. at 688.
In assessing deficient performance, we must abide by the “strong presumption” that counsel’s
performance was professionally reasonable and must take care not to second-guess strategic
decisions that did not bear fruit. Id. at 689. Nonetheless, we differentiate between “strategic choices
made after thorough investigation of law and facts relevant to plausible options,” and “choices made
after less than complete investigation[, the latter of which] are reasonable precisely to the extent that
reasonable professional judgment support the limitations on investigation.” Id. at 690-91. Decisions
not to investigate are assessed for “reasonableness,” id. at 691, though “the deference owed” strategic
determinations is dependent on “the adequacy of the investigation supporting those” determinations,
Wiggins v. Smith, 539 U.S. 510, 521 (2003).

5

Case: 09-2300

Document: 006111042947

Filed: 08/15/2011

Page: 6

No. 09-2300
Al-Khalil v. Davis
Second, we determine if the deficient performance prejudiced the defendant. Strickland, 466
U.S. at 692. “Prejudice” constitutes “a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. at 694.
2. In Providing a Mental-Health Expert with Necessary Information
The Supreme Court has held that a defendant who “demonstrates to the trial judge that his
sanity at the time of the offense is to be a significant factor at trial, . . . [has a constitutional right of]
access to a competent psychiatrist who will conduct an appropriate examination and assist in
evaluation, preparation, and presentation of the defense.” Ake v. Oklahoma, 470 U.S. 68, 83 (1985).
Nonetheless, the Court cautioned that “[a] defendant’s mental condition is not necessarily at issue
in every criminal proceeding.” Id. at 82. Also, an “indigent defendant [does not have] a
constitutional right to choose a psychiatrist of his personal liking.” Id. at 83.
We have since fleshed out the dictates of Ake. Specifically, in Lundgren v. Mitchell, we
reviewed the petition of a defendant who received funding for two clinical psychologists. 440 F.3d
at 772. The psychologists, after performing their evaluations and meeting with counsel, nonetheless
concluded that the defendant was criminally responsible. Id. Rejecting the defendant’s ineffectiveassistance challenge, we explained that “defense counsel did secure appropriate mental health
experts and did make an adequate investigation into [the defendant]’s mental state and background
well before the criminal trial.” Id. The Lundgren court continued: “The question before this Court
. . . is not whether all mental health experts would agree on whether the defense was viable, but
whether counsel’s decision not to pursue the defense was a reasonable strategic choice.” Id. We
6

Case: 09-2300

Document: 006111042947

Filed: 08/15/2011

Page: 7

No. 09-2300
Al-Khalil v. Davis
then observed that, “[t]o the extent that [the defendant]’s argument can be framed as counsel’s
failure to procure a mental health expert whose conclusions were favorable to [the defendant], [the
defendant]’s claim must also fail. [A defendant] does not have a constitutional right to an expert
whose conclusions favor [the defendant].” Id. at 772 n.5. Indeed, “[t]he Constitution does not
require that an indigent criminal defendant be able to retain the expert of his choosing, only that a
competent expert be made available.” Id. at 772; see also Matthews v. Parker, --- F.3d ----, 2011
WL 2518895, at *17 (6th Cir. June 27, 2011); Daoud v. Davis, 618 F.3d 525, 532 (6th Cir. 2010).
Here, Al-Khalil contends that Piazza provided ineffective assistance of counsel in failing to
provide Dr. Drozd with Al-Khalil’s psychological reports from the Forensic Center and the jail. At
the outset, we note that Dr. Drozd had a proper basis for his opinion—a basis facilitated by Piazza’s
assistance. Dr. Drozd “interviewed [Al-Khalil] on more than one occasion, considered the results
of several objective tests, and reviewed [various] forensic records, police records, and court files.”
(Mich. Ct. App. Decision, Dist. Ct. Docket No. 9-20, at 4-5.) Dr. Drozd’s report on Al-Khalil noted:
Regarding the issue of Mr. Al-Khalil’s competency to stand trial, . . . [t]he
defendant’s performance on [one cognitive test] is indicative of an average level of
cognitive functioning. The results of the McAuthur [test] clearly indicate that he
possesses a sufficient level of understanding of the legal process, shows an adequate
capacity to rationally assist in his defense and demonstrates a good appreciation of
the proceedings against him. Consequently, it is this psychologist’s clinical opinion
that the defendant is indeed competent to stand trial on the pending charges.
(Dr. Drozd Rep., Dist. Ct. Docket No. 1-4, at 47-48.)
Also, while he observed that Al-Khalil “presents with some ideas of reference bordering on
the paranoid . . . , he was generally easily verbally redirected from such preoccupations [and t]here
were no indicators of any acute psychotic symptomatology over the course of this evaluation.” (Id.,
7

Case: 09-2300

Document: 006111042947

Filed: 08/15/2011

Page: 8

No. 09-2300
Al-Khalil v. Davis
Dist. Ct. Docket No. 1-5, at 1.) Dr. Drozd thus concluded, regarding whether Al-Khalil was
criminally responsible at the time of the crime, that, “based on an extensive analysis and integration
of the evaluation outcomes delineated above and all the biographical data, it is this psychologist’s
clinical opinion that, Mr. Al-Khalil does not meet the criteria for being considered legally insane at
the time of the alleged offenses.” (Id. at 4.)
Attempting to combat the presumption that Piazza’s actions vis-a-vis Dr. Drozd constituted
sound trial strategy, Al-Khalil identifies “at least an inch to an inch and a half of documents,” (PostConviction Mot. for New Trial Hr’g Tr., Dist. Ct. Docket No. 9-16, at 5), that he claims Piazza
should have obtained. He further points to Piazza’s post-trial statement that, “if there was [a way
to get the aforementioned documents beforehand], then I made an error in not getting it to provide
to Dr. Drozd.” (Id. at 10.)
As an initial matter, such “admissions” by counsel are inadequate to establish ineffective
assistance of counsel. Cf. Young v. Miller, 883 F.2d 1276, 1281 (6th Cir. 1989). Furthermore, as
to the “inch and a half” of documents from the Forensic Center, Al-Khalil identifies only six
documents “of note” from that presumably large stack: reports by Dr. George Watson, Dr. Michele
Hill, Dr. Thomas Shazer, Dr. Wladimir Zarski, and admission and discharge summaries. Of those
six—or, indeed, of the sixteen documents that Dr. Miller reviewed from the Forensic Center’s
files—none of them is in the record before us, except as summarized in Dr. Miller’s psychological
report on Al-Khalil. (See Dr. Miller Sept. 28, 2005 Rep., Dist. Ct. Docket No. 1-3, at 42-50, and No.
1-4, at 1-7.)

8

Case: 09-2300

Document: 006111042947

Filed: 08/15/2011

Page: 9

No. 09-2300
Al-Khalil v. Davis
Yet even taking as accurate Dr. Miller’s summaries of the relevant documents, we find them
inadequate to carry Al-Khalil’s burden of showing inadequate investigation and thus ineffective
assistance of counsel. The documents to which Dr. Miller directs us are conflicting. A prison
incident report simply notes that Al-Khalil threw a cup of liquid on a corrections officer. Dr.
Watson found Al-Khalil criminally responsible and not legally insane. Dr. Thomas Shazer reached
the same conclusion. Dr. Wladimir Zarski, in the course of ongoing treatment of Al-Khalil and as
noted in an August 25, 2004 report, diagnosed Al-Khalil with “Schizoaffective Disorder, Depressed
Mood,” but did not explicitly opine on whether he was competent to stand trial or criminally
responsible. (Id., Dist. Ct. Docket No. 1-3, at 48, and No. 1-4, at 6-7.) Two admission and discharge
summaries, as well as a report by Dr. D. Pascual, specified that Al-Khalil seemed to have “psychosis,
not otherwise specified.” (Id., Dist. Ct. Docket No. 1-4, at 1-3, 6.) Like Dr. Zarski, these diagnoses
did not directly bear on Al-Khalil’s criminal responsibility or competency to stand trial. Only one
clinician identified Al-Khalil as unfit to stand trial: Dr. Michele Hill. However, Dr. Hill did not
perform a criminal responsibility evaluation, because of the conclusion that Al-Khalil was unfit to
stand trial.
Drawing on the Supreme Court’s opinion in Ake and our opinion in Lundgren, we conclude,
as did the Michigan Court of Appeals, that “[t]he fact that another expert concluded after the trial
that [Al-Khalil] was legally insane does not mean that Dr. Drozd would have reached the same
conclusion had he reviewed the additional records from the Forensic Center.” (Mich. Ct. App.
Decision, Dist. Ct. Docket No. 9-20, at 4.) Al-Khalil has not provided us with the documents
themselves, only their summaries as present in Dr. Miller’s report. Assuming those summaries are
9

Case: 09-2300

Document: 006111042947

Filed: 08/15/2011

Page: 10

No. 09-2300
Al-Khalil v. Davis
reliable, however, they still provide at best conflicting conclusions on Al-Khalil’s mental state, and
none of them explicitly states that Al-Khalil was not criminally responsible at the time of the
crime—the key question before us. Furthermore, even such a statement would simply establish that
two professionals might disagree on Al-Khalil’s mental state; we have no reason to believe that such
a report would have convinced Dr. Drozd to change his mind. In sum, Al-Khalil had no right “to
procure a mental health expert whose conclusions were favorable” to Al-Khalil, so Piazza’s
performance was not deficient and Al-Khalil’s challenge must fail. See Lundgren, 440 F.3d at 772
n.5; see also Ake, 470 U.S. at 83. We conclude that Piazza was not constitutionally ineffective for
failing to provide Dr. Drozd with the Forensic Center documents.
3. Remand
Finally, we reject Al-Khalil’s request for a remand—be it to the district court or back to the
Michigan courts—for an evidentiary hearing, as Al-Khalil has not identified any further information
that he would seek or provide on remand that he could not have sought or provided in the current
proceedings. Cf. Greer v. Mitchell, 264 F.3d 663, 681 (6th Cir. 2001) (“Consistent with Williams
v. Taylor, therefore, we conclude that petitioner is not precluded from an evidentiary hearing as he
exercised the necessary diligence in attempting to establish the factual record in state court.”).

III. CONCLUSION
Therefore, for the reasons detailed above, we AFFIRM the judgment of the district court.

10