McCoy v. Bell
Filing
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OPINION AND ORDER denying 1 Petition for writ of habeas corpus and denying certificate of appealability. Signed by District Judge Victoria A. Roberts. (DPer)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RODNEY MCCOY,
Case Number: 2:09-CV-10219
Petitioner,
HONORABLE VICTORIA A. ROBERTS
v.
THOMAS BELL,
Respondent.
/
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS AND DENYING CERTIFICATE OF APPEALABILITY
This matter is before the Court on Petitioner Rodney McCoy’s petition for a writ
of habeas corpus, filed under 28 U.S.C. § 2254. McCoy, who is released on parole,
challenges his convictions for first-degree criminal sexual conduct, first-degree home
invasion, aggravated stalking, and domestic violence. Respondent has filed an answer in
opposition to the petition. For the reasons set forth below, the Court denies the petition.
I.
McCoy’s convictions arise from events occurring at the home of his ex-girlfriend,
Kassandra Jones, during the early morning hours of March 11, 2006. Jones testified that
McCoy called her at approximately 6:45 a.m., on that date. McCoy told her that he
wanted to bring some money by the home. He periodically paid Jones money as child
support for their two children. Jones said it was too early in the morning and McCoy
should bring it by the home later in the day. McCoy persisted, calling about thirty
minutes later, insisting that he bring the money to her. Jones testified that she told
McCoy to leave the money in the mailbox. Shortly thereafter, McCoy called again and
told Jones that he was outside the home and she should come to the door. He did not
want to leave the money in the mailbox because he feared someone would steal it. After
initially refusing to do so, Jones agreed to come to the door. She testified that as she
opened the door, McCoy pushed the door open, forcing his way into the home. Jones
testified that she did not intend to allow McCoy into her home.
After entering the home, McCoy took out a gun and hit Jones on the side of her
head with it. He ordered her to go upstairs and take off her clothes. Jones testified that
McCoy pushed her upstairs to the bedroom, pushed her down on the bed, pulled off her
pants and performed cunnilingus on her. He then had intercourse with her, while wearing
a condom. McCoy washed up in the bathroom and left Jones home. Jones called a
neighbor, Jamekia Wafer, to tell her what happened. Wafer accompanied Jones to the
police department. Jones gave a statement to a police officer, Anita King. Jones went to
the hospital where a full rape kit was collected. Two days later, she obtained a personal
protection order against McCoy.
Jones testified that when she and her children exited church, approximately two
weeks later, McCoy was outside the church waiting for her. She walked to her car and
dialed 911. The 911 operator told her to drive to a police station. She did, with McCoy
following her. When they arrived at the police station, a police officer arrested McCoy.
Jones further testified that, between the time she obtained the PPO and the time he was
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arrested, McCoy called her home many times. Sometimes he left messages on her
answering machine, other times he did not. Jones saved some of the voice messages. A
tape of the messages was admitted into evidence and played for the court. McCoy made
several references in the messages to keeping his eye on Jones, watching her, and seeing
her when Jones did not think he could see her. He also accused her of sneaking over to
another man’s house.
Jamekia Wafer testified that Jones called her on the morning of March 11, 2006.
In response to the phone call, Wafer went to Jones’ house and found Jones crying. She
observed that Jones had a bump on her forehead. Jones told her that McCoy had raped
her. Wafer took Jones to the police station.
Police Officer Anita King was the only witness presented by the defense. She
testified that she was working the precinct’s report desk on the morning of March 11,
2006. She took Jones’ statement that morning. She testified that she included all relevant
information told to her by Jones. Officer King testified that Jones stated that she allowed
McCoy to enter her home. She also testified that the report did not indicate that McCoy
performed cunnilingus on Jones. If Officer King had been told that, she would have
included that information in the report. But, on cross-examination, Officer King
acknowledged that it was possible that she had omitted something from the report,
although she had no recollection of having done so.
II.
Following a bench trial in Wayne County Circuit Court, McCoy was convicted of
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first-degree criminal sexual conduct, first-degree home invasion, aggravated stalking, and
domestic violence. He was acquitted of another charge of first-degree criminal sexual
conduct, felonious assault, felon in possession, and felony firearm. On November 17,
2006, McCoy was sentenced as a second habitual offender to 51 months to 10 years in
prison for the criminal sexual conduct conviction, 1 to 30 years in prison for the home
invasion conviction, 1 to 7-1/2 years in prison for the stalking conviction, and 90 days
time served for the domestic violence conviction.
McCoy filed an appeal of right in the Michigan Court of Appeals. He raised these
claims:
I.
Mr. McCoy was denied his due process right to a fair trial, to present a
defense, and/or effective assistance of counsel when two witnesses crucial
for the defense were not subpoenaed or produced at trial.
II.
The trial court erred by refusing to grant Mr. McCoy a new trial where
evidence was presented at a hearing demonstrating that the complaining
witness lied at trial about whether the rape and other crimes really
happened.
McCoy also filed a motion for remand so the trial court could conduct an
evidentiary hearing regarding his ineffective assistance of counsel claim.
The Michigan Court of Appeals denied the motion to remand, People v. McCoy,
No. 274834 (Mich. Ct. App. Jan. 23, 2008), and affirmed McCoy’s convictions. People
v. McCoy, No. 274834 (Mich. Ct. App. Jan. 31, 2008). The Michigan Court of Appeals
denied McCoy’s motions for reconsideration of its order denying remand, id. (March 19,
2008), and its opinion affirming his convictions. Id. (Apr. 3, 2008).
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McCoy filed an application for leave to appeal in the Michigan Supreme Court.
He raised the same claims raised in the Michigan Court of Appeals. The Michigan
Supreme Court denied leave to appeal. People v. McCoy, 483 Mich. 975 (Mich. Sept. 9,
2008).
McCoy then filed the pending petition. He raises these claims:
I.
Mr. McCoy was denied effective assistance of counsel when his trial
attorney failed to investigate witnesses who would have clearly undermined
the credibility of the sole witness against him in his trial that revolved
around a close credibility question.
II.
Mr. McCoy is entitled to an evidentiary hearing to establish the facts
necessary to establish his claim of ineffective assistance of trial counsel
where the Michigan Court of Appeals unreasonably denied his motion for
such a hearing.
III.
Petitioner’s claims are reviewed against the standards established by the
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat.
1214 (AEDPA). The AEDPA provides:
An 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 proceedings.
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28 U.S.C. § 2254(d).
“A state court’s decision is ‘contrary to’ . . . clearly established law if it ‘applies a
rule that contradicts the governing law set forth in [Supreme Court cases]’ or if it
‘confronts a set of facts that are materially indistinguishable from a decision of [the
Supreme] Court and nevertheless arrives at a result different from [this] precedent.’”
Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam) (quoting Williams v. Taylor,
529 U.S. 362, 405-06 (2000)). “[T]he ‘unreasonable application’ prong of the statute
permits a federal habeas court to ‘grant the writ if the state court identifies the correct
governing legal principle from [the Supreme] Court but unreasonably applies that
principle to the facts’ of petitioner’s case.” Wiggins v. Smith, 539 U.S. 510, 520 (2003)
(quoting Williams, 529 U.S. at 413). However, “[i]n order for a federal court to find a
state court’s application of [Supreme Court] precedent ‘unreasonable,’ the state court’s
decision must have been more than incorrect or erroneous. The state court’s application
must have been ‘objectively unreasonable.’” Wiggins, 539 U.S. at 520-21 (citations
omitted); see also Williams, 529 U.S. at 409. “A state court’s determination that a claim
lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’
on the correctness of the state court’s decision.” Harrington v. Richter, __ U.S. __, 131
S. Ct. 770, 789 (2011), quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).
“Section 2254(d) reflects the view that habeas corpus is a guard against extreme
malfunctions in the state criminal justice systems, not a substitute for ordinary error
correction through appeal. . . . As a condition for obtaining habeas corpus from a federal
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court, a state prisoner must show that the state court’s ruling on the claim being presented
in federal court was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement.” Id.
at 786-87 (internal quotation omitted).
Section 2254(d)(1) limits a federal habeas court’s review to a determination of
whether the state court’s decision comports with clearly established federal law as
determined by the Supreme Court at the time the state court renders its decision. See
Williams, 529 U.S. at 412. Section 2254(d) “does not require citation of [Supreme Court]
cases–indeed, it does not even require awareness of [Supreme Court] cases, so long as
neither the reasoning nor the result of the state-court decision contradicts them.” Early v.
Packer, 537 U.S. 3, 8 (2002). “[W]hile the principles of “clearly established law” are to
be determined solely by resort to Supreme Court rulings, the decisions of lower federal
courts may be instructive in assessing the reasonableness of a state court’s resolution of
an issue.” Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007), citing Williams v.
Bowersox, 340 F.3d 667, 671 (8th Cir. 2003); Dickens v. Jones, 203 F. Supp. 2d 354, 359
(E.D. Mich. 2002).
Lastly, a federal habeas court must presume the correctness of state court factual
determinations. See 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption
only with clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th
Cir. 1998).
IV.
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Petitioner claims that he was denied the effective assistance of trial counsel by
counsel’s failure to investigate witnesses who would have undermined the credibility of
the sole witness against him. He also seeks an evidentiary hearing to develop the facts
supporting his claim.
The Supreme Court recently held that, when a petitioner seeks habeas relief on a
claim that has been “adjudicated on the merits in state court proceedings,” 28 U.S.C. §
2254(d)(1), federal court review “is limited to the record that was before the state court
that adjudicated the claim on the merits.” Cullen v. Pinholster, __ U.S. __, 131 S. Ct.
1388, 1398 (2011). If a petitioner raises a claim not adjudicated on the merits by the state
courts, the federal court has discretion to consider new evidence under 28 U.S.C. §
2254(e)(2). Id. at 1401. Section 2254(e)(2) bars a federal court from holding an
evidentiary hearing unless the petitioner satisfies certain statutory requirements.
In this case, the Michigan Court of Appeals clearly adjudicated McCoy’s
ineffective assistance of counsel claim on the merits. And, McCoy seeks relief under §
2254(d)(1), arguing that the state court’s adjudication was an unreasonable application of
clearly established Federal law. “[E]vidence introduced in federal court has no bearing
on § 2254(d)(1) review.” Id. at 1400. Thus, under Pinholster, the Court’s review is
confined to the record before the state courts and the court denies McCoy’s request for an
evidentiary hearing. Id. at 1398.
The two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984),
governs claims of ineffective assistance of counsel. Towns v. Smith, 395 F.3d 251, 258
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(6th Cir. 2005). To show a violation of the Sixth Amendment right to effective assistance
of counsel, a petitioner must establish that his attorney’s performance was deficient and
that the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687. An
attorney’s performance is deficient if “counsel’s representation fell below an objective
standard of reasonableness.” Id. at 688. The defendant must show “that counsel made
errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.” Id. at 687. “Judicial scrutiny of counsel’s
performance must be highly deferential.” Id. at 689. The Supreme Court has “declined to
articulate specific guidelines for appropriate attorney conduct and instead [has]
emphasized that the proper measure of attorney performance remains simply
reasonableness under prevailing professional norms.” Wiggins v. Smith, 539 U.S. 510,
521 (2003).
An attorney’s deficient performance is prejudicial if “counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”
Strickland, 466 U.S. at 687. The petitioner must show “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. Unless the petitioner demonstrates both deficient performance
and prejudice, “it cannot be said that the conviction [or sentence] resulted from a
breakdown in the adversary process that renders the result unreliable.” Id. at 687.
“Surmounting Strickland’s high bar is never an easy task.” Padilla v. Kentucky, __
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U.S. __, 130 S. Ct. 1473, 1485 (2010).
[T]he Strickland standard must be applied with scrupulous care, lest
‘intrusive post-trial inquiry’ threaten the integrity of the very adversary
process the right to counsel is meant to serve. Strickland, 466 U.S. at 68990. Even under de novo review, the standard for judging counsel’s
representation is a most deferential one. Unlike a later reviewing court, the
attorney observed the relevant proceedings, knew of materials outside the
record, and interacted with the client, with opposing counsel, and with the
judge. . . . The question is whether an attorney’s representation amounted to
incompetence under ‘prevailing professional norms,’ not whether it
deviated from best practices or most common custom. Strickland, 466 U.S.
at 690.
Establishing that a state court's application of Strickland was unreasonable
under § 2254(d) is all the more difficult. The standards created by
Strickland and § 2254(d) are both “highly deferential,” id., at 689, 104 S.Ct.
2052; Lindh v. Murphy, 521 U.S. 320, 333, n. 7, 117 S.Ct. 2059, 138
L.Ed.2d 481 (1997), and when the two apply in tandem, review is “doubly”
so, Knowles, 556 U.S., at
, 129 S.Ct. at 1420. The Strickland standard is
a general one, so the range of reasonable applications is substantial. 556
U.S., at , 129 S.Ct. at 1420. Federal habeas courts must guard against
the danger of equating unreasonableness under Strickland with
unreasonableness under § 2254(d). When § 2254(d) applies, the question is
not whether counsel’s actions were reasonable. The question is whether
there is any reasonable argument that counsel satisfied Strickland’s
deferential standard.
Richter, __ U.S. __, 131 S. Ct. at 788.
McCoy argues that his trial attorney was ineffective in failing to investigate and
call three witnesses, the victim’s former boyfriend, Jerry Brazell, the petitioner’s mother,
Ida McCoy, and the petitioner’s sister, Lashone Collins. On the day set for sentencing,
the trial court heard testimony regarding trial counsel’s motion for a new trial.
Brazell testified that, at the time of the preliminary examination, he and Jones were
dating and he accompanied her to the preliminary examination. Prior to the date of the
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preliminary examination, Jones express a lot of anger toward McCoy and stated that if
she could not be his girlfriend, the woman he was dating could not either. According to
Brazell, Jones also told him that McCoy had made her life miserable by leaving her and
that if McCoy didn’t return to her she would throw one of his children out the window.
Brazell asked Jones if McCoy had raped her and she replied, “not really.” She said that if
McCoy wanted her to drop the case, his mother or grandmother should pay her because
they had “plenty of money.” Jones specified an amount of $3,000. Brazell testified that
he was contacted by a defense investigator prior to trial and advised the investigator that
he did not want to get involved in the case. Brazell learned after the trial that McCoy had
been found guilty and decided to cooperate with defense counsel.
Ida McCoy, Petitioner’s mother, testified at the hearing on petitioner’s motion for
new trial. She testified that she often cared for Jones and her son’s two children. She had
frequent contact with Jones when Jones came to pick up the children. Sometime before
April 11, 2006, Jones told Ida that she “sure could use three thousand dollars.” Ida asked
Jones what she meant by that, but Jones did not respond. Ida testified that she informed
her son of this conversation sometime prior to his trial.
McCoy did not testify at the hearing. But, he submitted an affidavit in support of
his motion to remand filed in the Michigan Court of Appeals. In his affidavit, McCoy
stated that, two to three weeks prior to trial, Brazell spoke to him in prison. Brazell told
McCoy that Jones had admitted that she had not been raped by McCoy. Jones also told
Brazell that she lied because if she could not have McCoy, she did not want his girlfriend
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to have him either. McCoy stated that he immediately advised his trial attorney what
Brazell had told him. McCoy stated that he also advised his trial attorney that Jones had
told his mother that she could use three thousand dollars. Finally, McCoy stated that his
sister, Lashone Collins, was telephoned by Jones at approximately 7:40 a.m. on March
11, 2006. Jones reportedly told Collins that McCoy pulled a gun on her and raped her.
Jones also purportedly told Collins that she was taking the condom he used to the police
station. McCoy states that he informed trial counsel of his conversation with Collins, but
Collins was not called to testify.
While he did not testify at the hearing, trial counsel responded to several questions
from the trial judge regarding when he knew about these witnesses and their potential
testimony. Trial counsel stated that he had no knowledge of Brazell’s testimony prior to
trial because Brazell refused to speak to his investigator. The trial court found counsel’s
statement credible.
McCoy argues that his attorney was ineffective in failing to call Brazell, Ida
McCoy and Collins to testify because their testimony would have undermined Jones’
credibility and provided a motive for her to fabricate her testimony.
The Michigan Court of Appeals denied McCoy’s ineffective assistance of counsel
claim. Although not citing Strickland, the state court cited case law that plainly
incorporated that standard. First, the Court held that Ida McCoy’s testimony that Jones
expressed a need for $3,000 had not been sufficiently linked to McCoy’s case to render it
relevant and admissible. Additionally, the state court held that McCoy had not shown
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that counsel was aware of Ida McCoy’s potential testimony prior to trial.
Second, the Michigan Court of Appeals held that defense counsel was aware of
some of Brazell’s proposed testimony because, on cross-examination, he asked Jones
whether she ever expressed feelings of jealousy over McCoy’s new girlfriend to Brazell.
But, the state court held, the record did not show counsel was aware of anything else
Brazell might offer in support of the defense. Brazell declined to speak to defense
counsel or his investigator and, the state court held, McCoy failed to inform defense
counsel about the nature of Brazell’s proposed testimony. The state court concluded,
“[d]efense counsel ‘cannot be found ineffective for failing to pursue information that his
client neglected to tell him.’” McCoy, slip op. at 2, quoting People v. McGhee, 268 Mich.
App. 600, 626; 709 N.W.2d 595 (2005). The state court did not specifically address
McCoy’s claim that counsel was ineffective for failing to present Collins’ testimony.
According the state court the “deference and latitude” required under the AEDPA,
Richter, 131 S. Ct. at 785, this Court finds that the state court’s conclusion was a
reasonable application of Strickland. First, with respect to counsel’s failure to subpoena
Brazell, Brazell’s testimony may have impeached portions of Jones’ testimony. But, it
would have been reasonable for defense counsel to conclude that the risk of calling an
uncooperative witness whose testimony was uncertain outweighed the potential benefits.
The Michigan Court of Appeals held that McCoy did not inform defense counsel of the
full extent of Brazell’s possible testimony. Counsel was not ineffective for failing to call
Brazell when his client did not provide him with all of the relevant information. Accord
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Collins v. Francis, 728 F.2d 1322 (11th Cir.1984) (trial counsel was not ineffective for
failing to investigate witnesses about whom defendant did not tell him); Turner v.
Purkett, No. 4:06CV1473RWS, 2009 WL 1109359, *6-7 (E.D. Mo. Apr. 24, 2009)
(same). “There is a ‘strong presumption’ that counsel’s attention to certain issues to the
exclusion of others reflects trial tactics rather than ‘sheer neglect.’” Richter, 131 S. Ct. at
790, quoting Yarborough v. Gentry, 540 U.S. 1, 8, (2003) (per curiam).
Second, this Court defers to the state court’s evidentiary finding that Ida McCoy’s
testimony was inadmissible under state law. Thus, counsel was not ineffective in failing
to elicit her testimony at trial.
Finally, the state court did not provide reasons for denying McCoy’s claim that
counsel was ineffective in failing to call his sister to testify. Nevertheless, because the
state court adjudicated this claim on the merits, § 2254(d) applies to this claim. Id. at
784-85. This Court must determine what arguments or theories “could have supported
the state court’s decision.” Id. at 786. McCoy does not present an affidavit from Collins
detailing what her proposed testimony would have been. He provides only his own
affidavit stating that Jones called Collins on March 11, 2006, and told Collins that McCoy
raped her at gunpoint and that she was taking the condom to the police station. Collins’
testimony would not have necessarily been favorable to McCoy. Her testimony may have
had slight impeachment value because no police reports or trial testimony showed that
Jones brought a condom to the police station. However, its potential impeachment value
is far outweighed by the fact that it was consistent with two critical pieces of her trial
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testimony – that she had been raped and that McCoy had a gun. Under these
circumstances, assuming defense counsel was aware of Collins’ proposed testimony, it
would have been a reasonable tactical decision not to call her as a witness.
Thus, the Court concludes that it was reasonable application of Strickland for the
Court to conclude that defense counsel was not ineffective. Habeas relief is denied.
V.
Federal Rule of Appellate Procedure 22 provides that an appeal may not proceed
unless a certificate of appealability (COA) is issued under 28 U.S.C. § 2253. Rule 11 of
the Rules Governing Section 2254 Proceedings now requires that the Court “must issue or
deny a certificate of appealability when it enters a final order adverse to the applicant.”
A COA may be issued “only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. §2253(c)(2). A petitioner must show “that
reasonable jurists could debate whether (or, for that matter, agree that) the petition should
have been resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)
(citation omitted).
The Court finds that jurists of reason would not debate the conclusion that the
petition fails to state a claim upon which habeas corpus relief should be granted, and
denies a certificate of appealability.
VI. Conclusion
For the foregoing reasons, IT IS ORDERED that the petition for a writ of habeas
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corpus is DENIED.
It is FURTHER ORDERED that a certificate of appealability is DENIED.
S/Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: October 31, 2011
The undersigned certifies that a copy of this
document was served on the attorneys of record
by electronic means or U.S. Mail on October 31,
2011.
S/Linda Vertriest
Deputy Clerk
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