Dax Hawkins v. Jeffrey Wood

Filing

OPINION filed : AFFIRMED. Decision not for publication. Ralph B. Guy, Jr. (AUTHORING), Alice M. Batchelder, and Deborah L. Cook, Circuit Judges.*The file stamp has been placed on this opinion--[Edited 05/23/2016 by CL]

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0277n.06
No. 15-1195
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

FILED
DAX HAWKINS,

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Petitioner-Appellant,
v.
JEFFREY WOODS, Warden,
Respondent-Appellee.

May 23, 2016
DEBORAH S. HUNT, Clerk

On Appeal from the United States
District Court for the Eastern District
of Michigan

_________________________________/
Before: GUY, BATCHELDER, and COOK, Circuit Judges.
RALPH B. GUY, JR., Circuit Judge. Petitioner Dax Hawkins, a Michigan prisoner,
was convicted by a jury of murder, assault with intent to commit murder, and two related firearm
offenses. Hawkins appeals for a second time from the district court’s denial of habeas corpus
relief with respect to his claim that trial counsel rendered ineffective assistance. For the reasons
that follow, we affirm the district court’s judgment.
I.
At about 11:25 p.m. on October 19, 2003, Jason Taylor and Earl Riley were shot multiple
times while seated in Taylor’s car waiting to complete a drug transaction in Detroit, Michigan.
Riley was dead when the police arrived, but Taylor survived five gunshot wounds and identified
Dax Hawkins and an unknown dark-skinned man as the shooters. The unknown man was never

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found. However, Taylor testified that he knew Hawkins from childhood, and that he had been
selling marijuana to Hawkins in quantities of one to twenty pounds for six to twelve months prior
to the shooting. Further, according to Taylor, Hawkins had arranged and participated in the
failed transaction that ended in the shooting.
Taylor testified, under a grant of immunity, that Hawkins purchased a couple of pounds
of marijuana from him between about 8:30 or 9:00 p.m. on the night of the shooting. During that
transaction, Hawkins said he had another customer who wanted to purchase 20 or 25 pounds of
marijuana and would be there in about an hour. Taylor said he could do it, and told Hawkins to
call when the buyer was available. When Hawkins called, Taylor took Riley with him and drove
to meet Hawkins and his customer with two plastic garbage bags of marijuana. Although an
agreement was reached, the buyer did not produce the money and Taylor and Riley left with the
marijuana.
A short time later, Hawkins called Taylor and said the buyer had been suspicious but had
the money and wanted to complete the transaction. Taylor took Riley with him to meet Hawkins
and the buyer again, and the marijuana was transferred to the trunk of the other car. Then, at
Hawkins’ suggestion, both cars were driven around the block and onto another street to avoid
being seen completing the transaction. Taylor parked in front, waited a few minutes, and then
called Hawkins who said he was counting the money.
Taylor testified that Hawkins walked up to his car from behind, got into the rear
passenger seat, and said there might be a problem with the grams. As Taylor turned to respond,
he saw Hawkins with a gun and felt and heard Hawkins shooting. He also saw the buyer run up
and start shooting. Taylor saw Riley slumped over, and awoke in the hospital with lasting
injuries. A few months later, Hawkins was located in federal custody where he was being held

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on a probation violation and extradited to Michigan.
Hawkins asserted an alibi defense and counsel filed a notice of alibi stating that Hawkins
“was not at the scene of the crime but was at [Club] Dot.Com on Grand River in the City of
Detroit, Michigan.” The notice listed four witnesses: Nikia Brockington, Nyree Phillips, Eric
Gibson and Adan Knowles. Prior to jury selection, however, defense counsel stated on the
record that he was no longer planning to call the alibi witnesses because he “investigated it and
saw that none of them were cooperative.” Instead, defense counsel attacked the credibility of
Taylor, who was the only witness to identify Hawkins, and argued that the unknown buyer was
the sole shooter. At the close of the prosecution’s case, defense counsel referred to the alibi
witnesses again and stated: “I already put on the record at the beginning of the case that I wasn’t
planning on calling them. And I want to confirm with Mr. Hawkins his agreement that I’m not
to call them.” Hawkins affirmatively agreed.
Hawkins did not testify, and the jury found him guilty of all counts. At sentencing,
Hawkins maintained his innocence and insisted that he had been at Club Dot.Com at the time of
the shooting. The trial judge sentenced Hawkins to life in prison for first-degree murder, 50 to
100 years for assault with intent to commit murder, and lesser terms for the felon-in-possession
and felony firearm convictions.
Appellate counsel filed an unsuccessful motion for new trial, and raised four claims of
error on direct appeal that are not before this court. Hawkins raised several more claims of error
in a pro se supplemental brief, including one for ineffective assistance of counsel.

His

supplemental brief referred to and was accompanied by a pro se motion to remand for an
evidentiary hearing under People v. Ginther, 212 N.W.2d 992 (Mich. 1973). Hawkins also filed
an amended motion to remand, to which he appended his own sworn “Affidavit and Offer of

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Proof” dated March 9, 2006. In that Affidavit, Hawkins provided the details of his alibi defense
and claimed that counsel had abandoned an alibi defense unilaterally, against his wishes, and
without conducting a proper investigation.
The Michigan Court of Appeals denied both the motion to remand and the amended
motion to remand in a single order “for failure to persuade the Court of the need to remand at
this time.”

Six months later, the Michigan Court of Appeals issued a reasoned decision

affirming Hawkins’ convictions and expressly limited its review of his ineffective-assistance-ofcounsel claims to mistakes apparent from the record because no Ginther hearing had been held.
The Michigan Supreme Court subsequently denied the application for leave to appeal because it
was “not persuaded that the questions presented should be reviewed.”
This pro se petition for writ of habeas corpus followed, asserting the same claims that
were raised on direct appeal. The district court denied habeas relief with respect to each of the
claims, but granted a certificate of appealability on the sole claim of ineffective assistance of
counsel. After appointing counsel to represent Hawkins, this court remanded for reconsideration
of the claim because it was discovered that several state-court records—including his Affidavit
and Offer of Proof—had been omitted from the Rule 5 materials filed in the district court. After
supplemental briefing, the district court reexamined the ineffective-assistance-of-counsel claim
and again denied habeas relief. This appeal followed.
II.
This court reviews the legal basis for the district court’s decision de novo, and any factual
findings for clear error. Awkal v. Mitchell, 613 F.3d 629, 633 (6th Cir. 2010). Under the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), habeas relief may not be
granted with respect to a claim that was “adjudicated on the merits in State court proceedings”

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unless it “(1) resulted in a decision that was contrary to, or involved an unreasonable application
of, clearly established Federal law,” 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)(1) and (2). A petitioner must overcome the limitations of
§ 2254(d)(1) and (2) on the record that was before the state court that adjudicated the claim on
the merits. Cullen v. Pinholster, 131 S. Ct. 1388, 1398, 1400 n.7 (2011). Hawkins argues that
AEDPA deference should not apply because the state court decision was based on an
unreasonable determination of the facts, involved an unreasonable application of clearly
established law, and did not adjudicate the claim on the merits. These arguments are addressed
in turn.
A.

Adjudication on the Merits
Looking through the Michigan Supreme Court’s summary denial, we review the

Michigan Court of Appeals’ decision because it was the last reasoned state-court decision to
address the claim that trial counsel rendered constitutionally ineffective assistance.
Nunnemaker, 501 U.S. 797, 803 (1991).

Ylst v.

Under Strickland, which is incorporated into

Michigan’s standard, a defendant must show (1) that his counsel’s performance fell below an
objective standard of reasonableness and (2) that the deficient performance resulted in prejudice.
Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Ballinger v. Prelesnik, 709 F.3d
558, 561 (6th Cir. 2013).
Hawkins contends that the state-court decision was not an adjudication “on the merits”
because the state court did not consider the “full” record; namely, the Affidavit Hawkins
submitted in support of remand for a Ginther hearing. However, the state court’s denial of
remand for an evidentiary hearing on these claims does not make its subsequent decision

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rejecting those claims anything other than an adjudication “on the merits.” Ballinger, 709 F.3d
at 561-62; see also Lint v. Prelesnik, 542 F. App’x 472, 481-82 (6th Cir. 2013). Also, the state
court’s summary denial of the motion to remand is presumed to be a decision on the merits. See
Nali v. Phillips, 681 F.3d 837, 852 (6th Cir. 2012). It is evident that the reasoned state-court
decision expressly rejecting Hawkins’ claims that trial counsel performed deficiently was an
adjudication on the merits for purposes of § 2254(d). See Wiggins v. Smith, 539 U.S. 930, 95354 (2003); Rayner v. Mills, 685 F.3d 631, 638 (6th Cir. 2012).1
B.

Due Process Principles
Hawkins argues that AEDPA deference should not apply because the Michigan Court of

Appeals denied his motion to remand for a Ginther hearing and then disregarded the Affidavit he
submitted in support of remand for a Ginther hearing. That is, relying on the unreasonableapplication clause of § 2254(d)(1), Hawkins contends that the state court’s rejection of his
deficient-performance claims under Strickland involved “an antecedent unreasonable application
of” long-established due process principles. Panetti v. Quarterman, 551 U.S. 930, 953 (2007).
In Panetti, the Court held that the state court’s competency determination was dependent
on an unreasonable application of clearly established Supreme Court precedent because the state
court failed to comply with the procedures required by Ford v. Wainwright, 477 U.S. 399 (1986),
for determining a prisoner’s competency to be executed. Panetti, 551 U.S. 934-35. Addressing
a similar argument by the petitioner in Loza, this court held that AEDPA deference could not be
avoided under Panetti because the state court’s ruling—that the requirements for discovery on a
claim of selective prosecution had not been met—did not involve an unreasonable application of
United States v. Armstrong, 517 U.S. 456, 460 (1996). Loza v. Mitchell, 766 F.3d 466, 493-94
1

We assume that the state-court decision was not an adjudication on the merits with respect to the prejudice prong—
except for the finding that Hawkins “fail[ed] to demonstrate any prejudice from his trial counsel’s strategic decision
to waive presentation of the Nextel representative.” See Rayner, 683 F.3d at 638.

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(6th Cir. 2014), cert. denied, 135 S. Ct. 2829 (2015); see also Wiley v. Epps, 625 F.3d 199, 20607 (5th Cir. 2010) (applying Panetti where state-court decision involved unreasonable
application of requirements for adjudication of claim under Atkins v. Virginia, 536 U.S. 304
(2002)).
To the extent Hawkins can be understood to argue that the state court erred or abused its
discretion in denying remand for a Ginther hearing under M.C.R. 7.211(C), a perceived violation
of state law would not be a basis for federal habeas relief. Hayes v. Prelesnik, 193 F. App’x 577,
584 (6th Cir. 2006) (citing Baze v. Parker, 371 F.3d 310, 322-23 (6th Cir. 2004)). On appeal,
Hawkins relies on Fuentes v. Shevin, 407 U.S. 67, 80 (1972), for the general proposition that
long-standing due process protections guarantee affected parties notice and a meaningful
opportunity to be heard on federal constitutional claims. However, this frames the clearly
established Supreme Court precedent at too high a level of generality and “is far too abstract to
establish clearly the specific rule [petitioner] needs.” Lopez v. Smith, 135 S. Ct. 1, 4 (2014) (per
curiam). Hawkins has not identified any Supreme Court precedent specifically holding that due
process requires an evidentiary hearing or establishing other procedural requirements for
adjudicating a claim of ineffective assistance of counsel. White v. Woodall, 134 S. Ct. 1697,
1702 (2014); see also Hayes, 193 F. App’x at 584-85 (rejecting claim that due process afforded a
right to an evidentiary hearing to develop a claim of ineffective assistance of counsel). Thus, as
the district court recognized, Panetti is of no avail to Hawkins because he has not identified
clearly established Supreme Court precedent that affords him the antecedent due process
protection he seeks.

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Strickland
Hawkins contends that, whether his Affidavit was overlooked or disregarded, the state

court’s rejection of his claim that counsel’s performance was deficient was based on an
unreasonable determination of the facts and involved an unreasonable application of Strickland.
“[A] state-court factual determination is not unreasonable merely because the federal habeas
court would have reached a different conclusion in the first instance.” Burt v. Titlow, 134 S. Ct.
10, 15 (2013) (quoting Wood v. Allen, 558 U.S. 290, 301 (2010)). Further, “an unreasonable
application of federal law is different from an incorrect application of federal law.” Harrington
v. Richter, 562 U.S. 89, 101 (2011) (quoting Williams v. Taylor, 529 U.S. 362, 410 (2000)).2
Relying on § 2254(d)(2), Hawkins argues that the state court unreasonably found the
evidence did not support his claim of a conflict between him and counsel concerning trial
strategy or refute counsel’s statement that he had investigated his alibi defense. As noted earlier,
the state-court record shows that counsel asserted an alibi defense claiming that Hawkins had
been at the Dot.Com nightclub at the time of the shooting. But, counsel abandoned the defense
prior to jury selection, stating that he had investigated and found the witnesses were not
cooperative, and Hawkins affirmatively agreed with that decision at the close of the
prosecution’s case.
Contradicting the trial court record, Hawkins claimed in his Affidavit that he was
blindsided by counsel’s unilateral decision and was “dead set against” pursuing a defense that
placed him at the scene and foreclosed him from testifying on his own behalf.

Hawkins

explained that he called his fiancée Nyree Phillips after the first day of trial and was told by her
2

Although 28 U.S.C. § 2254(e)(1) provides that “a determination of a factual issue made by a State court shall be
presumed correct,” the interplay between § 2254(e)(1) and § 2254(d)(2) remains unresolved. Wood, 558 U.S. at
299; see also McMullen v. Booker, 761 F.3d 662, 670 (6th Cir. 2014), cert. denied, 135 S. Ct. 1534 (2015). Because
the State does not argue that § 2254(e)(1)’s standard applies, we need not resolve this open question. See Brumfield
v. Cain, 135 S. Ct. 2269, 2282 (2015).

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that defense counsel’s investigator did not interview the alibi witnesses because they could not
all meet at the same time. Not only are such self-serving averments viewed with skepticism, but
waiver of the right to testify is presumed from a defendant’s silence at trial. See, e.g., Thomas v.
Perry, 553 F. App’x 485, 487 (6th Cir. 2014); Freeman v. Trombley, 483 F. App’x 51, 58 (6th
Cir. 2012); United States v. Webber, 208 F.3d 545, 551 (6th Cir. 2000). More importantly,
whether or not it might be debatable, it was not an unreasonable determination of fact for the
state court to find that Hawkins had not demonstrated that there was a conflict with counsel
concerning trial strategy.
It was not unreasonable for the state court to find support was lacking for the assertion
that other witnesses or evidence supported his alibi defense: namely, Charmaine Wright, a
woman named Maria, the manager of Baker’s Lounge, or surveillance camera footage from
Baker’s Lounge. There is no dispute that neither these witnesses nor the surveillance camera
were mentioned in the trial court record. Instead, Hawkins presented the state court with his own
affidavit stating that he provided his attorney with a detailed account of where, when, and with
whom he claimed to have been on the night of the shooting. That included his claim that he went
to the Locker Room bar in Detroit at 7:45 p.m., where he met up with Charmaine, Maria, and
several other women; that Charmaine and her friends joined him at Baker’s Lounge in Detroit
from 8:30 p.m. until approximately 9:00 p.m.; and that he invited them to come to a “going
away” party for him at Club Dot.Com. Hawkins stated that he left Baker’s at 9:00 p.m., picked
up his fiancée, and met Eric Gibson and Adan Knowles at Club Dot.Com, where they had a party
from 9:45 p.m. until 1:30 a.m. because Hawkins was surrendering to federal custody the next
day. Hawkins also identified Nikia Brockington as a witness to his whereabouts that night. But,
in his affidavit, Hawkins acknowledged having advised his attorney that Charmaine and Nikia

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were unwilling to testify on his behalf and that Maria had familial ties to the surviving victim.
With only his own affidavit for support, Hawkins has not shown that the state court’s decision
was based on an unreasonable determination of the facts. Wood, 558 U.S. at 301.
Finally, Hawkins argues that the state court’s rejection of his claim that counsel was
ineffective involved an unreasonable application of Strickland. Importantly, when a claim is
governed by both Strickland and § 2254(d)(1), review of the state court’s decision is doubly
deferential because counsel is “strongly presumed to have rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional judgment.” Strickland,
466 U.S. at 690. On habeas review, federal courts must afford “both the state court and the
defense attorney the benefit of the doubt.” Burt, 134 S. Ct. at 13. Thus, “the question is not
whether counsel’s actions were reasonable,” but “whether there is any reasonable argument that
counsel satisfied Strickland’s deferential standard.” Harrington, 562 U.S. at 105.
Here, a fair-minded jurist could conclude that counsel did as he said he had, and made
sufficient investigation of the alibi defense to support a reasonable strategic decision not to
pursue the alibi defense.

Although the record does not contain evidence concerning the

investigation counsel indicated he had undertaken, “the absence of evidence cannot overcome
the ‘strong presumption that counsel’s conduct [fell] within the wide range of reasonable
professional assistance.’”

Burt, 134 S. Ct. at 17 (quoting Strickland, 466 U.S. at 689).

Moreover, it would not be objectively unreasonable for a fair-minded jurist to conclude that
counsel’s conduct involved a reasonable strategic decision not to pursue an alibi defense because
witnesses were not cooperative, and to rely instead on challenging the prosecution’s evidence
and attacking the credibility of the one eye witness. See Harrington, 562 U.S. at 109; Hale v.
Davis, 512 F. App’x 516, 522 (6th Cir. 2013).

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