Ballinger v. Preslesnik

Filing 8

OPINION and ORDER Granting Evidentiary Hearing, ( Evidentiary Hearing set for 11/21/2011 09:00 AM before District Judge Arthur J. Tarnow) Signed by District Judge Arthur J. Tarnow. (CPic)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DWAYNE BALLINGER,
Petitioner,
CASE NO. 2:09-CV-13886
HONORABLE ARTHUR J. TARNOW

v.
JOHN PRELESNIK,
Respondent.
_______________________________/

OPINION AND ORDER GRANTING EVIDENTIARY HEARING
Dwayne Ballinger, (“Petitioner”), confined at a Michigan correctional facility, seeks
the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

Petitioner

challenges his Wayne Circuit Court jury trial conviction for two counts of first-degree murder
and possession of a firearm during the commission of a felony. The petition requests an
evidentiary hearing to support the claim that Petitioner’s trial counsel was ineffective for
failing to investigate and call an alibi witness at trial. Because Petitioner was diligent in his
efforts to obtain a hearing in the state courts and because the state court adjudication of
the claim constituted an unreasonable application of Supreme Court law in light of the
existing record, the Court will order that an evidentiary hearing be conducted to determine
whether, in fact, Petitioner was denied his right to the effective assistance of counsel.

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I. Background
Prior to Petitioner's trial, his counsel filed a notice of alibi that named "Marie Krisel"
as an alibi witness. The prosecutor objected to the untimeliness of the notice, so defense
counsel withdrew it and stated that no alibi defense would be presented.
At trial, two men, Ramon Nixon and Derrick Greene, identified Petitioner as the man
who shot and killed Mario Harris and Darius Jones. They testified that around 1:00 a.m.
on July 4, 2006, on Fielding Street in Detroit, they saw Petitioner retrieve an assault rifle
from his car and shoot the victims. The witnesses knew Petitioner as a local drug-dealer
who went by the name "Mellow." No other evidence presented at trial tied Petitioner to the
crime. Petitioner was convicted of two counts of first-degree murder and felony-firearm.
Prior to sentencing, Petitioner retained new counsel, the same one representing him
in this case. He filed a motion for new trial based on a claim of ineffective assistance of
counsel for failing to present the alibi defense. The motion was supported by the affidavit
of Marie Cunningham. Cunningham stated in her affidavit that she was with Petitioner from
9:30 p.m. on July 3, 2006, to 3:00 a.m. on July 4, 2006, at a house on Vaughn Street in
Detroit. She also states that defense counsel never spoke with her. At the sentencing
hearing, Petitioner's counsel stated that the name Marie Krisel listed on the alibi notice is
the same person as Marie Cunningham. The trial court summarily denied the motion
without oral argument, refusing the request or a hearing.
Petitioner was then appointed a different attorney to represent him during his direct
appeal. Counsel timely filed a motion to remand in the Court of Appeals that was
supported by Cunningham's affidavit, asserting that trial counsel was ineffective for failing

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to investigate and raise an alibi defense and call Cunningham. The state appellate court
summarily denied the motion for "failure to persuade the Court of the need to remand at
this time."
When the appellate court issued its decision on the merits, it limited review of
Petitioner's ineffective assistance of counsel claim to the existing record because the
motion to remand had been denied. The state court then relied on the fact that the existing
record did not support Petitioner's claim and rejected it with the following reasoning:
On appeal, defendant argues that his trial counsel's failure to
investigate and call Cunningham to testify as an alibi witness deprived him
of a substantial defense. But, "counsel cannot be found ineffective for failing
to pursue information that his client neglected to tell him." People v. McGhee,
268 Mich. App. 600, 626; 709 N.W.2d 595 (2005). Although defendant's
trial counsel listed Krisel as a potential witness in the alibi notice, there
is no evidence in the record supporting the assertion that Krisel and
Cunningham are the same person. That said, there is no evidence that
trial counsel was aware of Cunningham as a potential witness or the
substance of her purported testimony before trial. Moreover, defendant has
not established that Cunningham's testimony would have affected the
outcome of the case. Henry, supra at 146; Hyland, supra at 710. Two
eyewitnesses, Greene and Nixon, unequivocally identified defendant as the
shooter at trial. Accordingly, defendant has failed to overcome the
presumption of effective assistance of counsel. Henry, supra at 146.
(Emphasis added).1
People v. Ballinger, 2008 Mich. App. LEXIS 731, 3-6 (Mich. Ct. App. Apr. 10, 2008).
The Michigan Supreme Court denied leave to appeal by standard order. People v.
Ballinger, 482 Mich. 975, 754 N.W.2d 896 (2008).

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An evidentiary hearing had been requested to provide this evident. The request
had been denied.

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II. Analysis
The Michigan Courts recognized that Petitioner had a Sixth Amendment right to the
effective assistance of counsel at trial, but they did not provide Petitioner an opportunity to
present a claim that this right was violated. In many cases, the standard for adjudicating
such claims requires a reviewing court to determine the reasons for counsel's actions or
omissions. If those actions or omissions are determined to be professionally deficient, then
the reviewing court has to weigh the effect they had on the outcome of the trial. Because
many of the things a criminal defense attorney does or fails to do occur outside of the
courtroom, by their nature, many claims of ineffective assistance are based on facts not
apparent on the trial court record. In such cases, a hearing is often required to reasonably
adjudicate the claim. Michigan recognizes this. People v Ginther, 390 Mich. 436, 212
N.W.2d 922 (1973).
That is the case here. Petitioner claims that his trial attorney was ineffective for
failing to call an alibi witness. The record shows that the attorney was at one point at least
alert to the possibility of presenting such a defense, as he filed a notice of alibi. It also
shows that he abruptly abandoned the defense when the prosecutor objected to the
untimeliness of the notice. Petitioner proffered evidence to the state courts after conviction
that the defense would have been substantial and that trial counsel knew about it: the
affidavit of the alibi witness indicates that she was with Petitioner at the time of the
shooting. Petitioner's appellate counsel represented that the person listed on the notice
of alibi is the same person who signed the affidavit. The affidavit also states that defense

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counsel never spoke with the alibi witness, suggesting that Petitioner gave counsel the
name of a potential witness, but that he failed to investigate the defense.
What is not known is why Petitioner's attorney abandoned the defense and whether
that action had an effect on the outcome of Petitioner's trial. It may be that defense counsel
had a good reason not to present the defense, but it may also be that the action was the
result of deficient performance. Similarly, the alibi defense might have been air-tight, or it
might have been specious. But based on the existing record it is impossible to know the
answers to these questions.
The state appellate court effectively passed these questions on to this Court. It
concluded that Petitioner's claim was meritless without further factual development.
However, it refused to provide Petitioner with any opportunity to develop a record to
support his claim.
Rule 8 of the Rules Governing § 2254 Proceedings sets forth the procedure a district
court must employ when determining whether to conduct an evidentiary hearing. Under
Rule 8, "the judge must review the answer, any transcripts and records of state-court
proceedings, and any [other] materials . . . to determine whether an evidentiary hearing is
warranted." The decision whether to conduct an evidentiary hearing under Rule 8 falls
within the Court’s discretion. Alley v. Bell, 307 F.3d 380, 389 (6th Cir. 2002). In deciding
whether to grant the hearing the Court must consider whether the grounds Petitioner
alleges are sufficient to secure his release from custody and relevant facts are in dispute.
See Washington v. Renico, 455 F.3d 722, 731 (6th Cir. Mich. 2006).
Petitioner raises a substantial, potentially meritorious, ineffective assistance of trial
counsel claim. Petitioner’s defense at trial was mistaken identification, and his counsel

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supported the argument through the cross-examination of the prosecution witnesses. If
believed, a witness testifying that she was with Petitioner at the time of the shooting at
another location would have been consistent with, and supported, this defense. It appears
that defense counsel at least knew about this witness because he filed a notice of alibi that
named her. And as stated above, there is no indication in the record why defense counsel
withdrew the alibi notice. Based on the existing record, it is unknown whether trial
counsel’s conduct was the result of reasonable trial strategy or deficient performance, and
whether there is a reasonable probability that the result of the trial would have been
different had the alibi witness been called to testify. Because Petitioner's claims, if
established, may be sufficient to demonstrate that he was denied his Sixth Amendment
right to the effective assistance of counsel during his trial, and therefore demonstrate
entitlement to habeas relief under 28 U.S.C. § 2254(a), the Court finds the interests of
justice warrant an evidentiary hearing on the issue.
28 U.S.C. § 2254(d) does not bar a hearing on Petitioner's claim. In Cullen v.
Pinholster,

U.S.

, 131 S. Ct. 1388, 179 L. Ed. 2d 557 (2011), the Supreme Court held

that habeas review under § 2254(d) is "limited to the record that was before the state
court." Applying § 2254(d) review here, the Court has no trouble concluding that the state
court unreasonably applied clearly established law in denying Petitioner's claim.
The Supreme Court's decision in Strickland v. Washington, 466 U.S. 668 (1984), is
clearly established federal law for purposes of 28 U.S.C. § 2254(d). Cullen, 131 S. Ct. at
1403 (2011). Under the familiar Strickland standard, an attorney is constitutionally
ineffective if "counsel's performance was deficient" and "the deficient performance
prejudiced the defense." Strickland, 466 U.S. at 687.

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The state appellate court

unreasonably applied this standard because based on the existing (non)record it was
impossible for it to reasonably adjudicate Petitioner's claim.
To establish deficient performance under Strickland, a 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. In so doing, the defendant must
overcome a strong presumption that counsel's behavior lies within the wide range of
reasonable professional assistance.

"Counsel has a duty to make reasonable

investigations or to make a reasonable decision that makes particular investigations
unnecessary." Strickland, 466 U.S. at 691. "In any ineffectiveness case, a particular
decision to investigate must be directly assessed for reasonableness in all the
circumstances, applying a heavy measure of deference to counsel's judgments." Id. "The
relevant question is not whether counsel's choices were strategic, but whether they were
reasonable." Roe v. Flores-Ortega, 528 U.S. 470, 481 (2000).
Based on the scant record before the state appellate court, there was no way for it
to reasonably decide the issue of deficient performance. In a similar case, the Sixth Circuit
determined that deciding an ineffective assistance of counsel claim without a hearing when
the record was not sufficiently developed did not even count as an "adjudication on the
merits" as contemplated by § 2254(d), let alone a reasonable one. See Brown v. Smith, 551
F.3d 424, 429-430 (6th Cir. 2008) ("We conclude that the absence of the [factual
development] before the Michigan Court of Appeals (through no fault of Brown's), combined
with that court's explicit statement that its review was 'limited to mistakes apparent on the
record,' means that there is no relevant state court adjudication to which this court can
defer.")

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Here, the record only shows that Petitioner's counsel was aware of the factual basis
for an alibi defense and that he later withdrew it. It is not known whether he did so based
on legitimate strategic reasons or as a result of deficient performance. The state appellate
court's finding that there is no evidence in the record supporting the assertion that Krisel
and Cunningham are the same person," and that "there is no evidence that trial counsel
was aware of Cunningham as a potential witness or the substance of her purported
testimony before trial," was unreasonable. There was no evidence of these assertions
solely because the state court denied Petitioner's request for an evidentiary hearing.
Appellate counsel proffered that the person listed on the alibi notice was the same one who
signed the affidavit, but he was denied any opportunity to make a record of that fact.
The state appellate court also unreasonably applied the prejudice prong. To satisfy
this prong of the Strickland standard, a defendant must show that there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding would
have been different. Id., at 694. The Strickland Court elaborated on how the prejudice
inquiry must be conducted:
In making this determination, a court hearing an ineffectiveness claim must
consider the totality of the evidence before the judge or jury. Some of the
factual findings will have been unaffected by the errors, and factual findings
that were affected will have been affected in different ways. Some errors will
have had a pervasive effect on the inferences to be drawn from the evidence,
altering the entire evidentiary picture, and some will have had an isolated,
trivial effect. Moreover, a verdict or conclusion only weakly supported by the
record is more likely to have been affected by errors than one with
overwhelming record support. Taking the unaffected findings as a given, and
taking due account of the effect of the errors on the remaining findings, a
court making the prejudice inquiry must ask if the defendant has met the
burden of showing that the decision reached would reasonably likely have
been different absent the errors.
Id., at 695-696.

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The Michigan Court of Appeals concluded that Petitioner could not demonstrate
prejudice because two eyewitnesses identified him as the perpetrator of the shooting. But
that fact alone is insufficient to reasonably support the state court's conclusion that
Petitioner could not demonstrate prejudice. The state appellate court could not have
reasonably weighed the error against the totality of the evidence, as Strickland required it
to, because it had no way to judge the strength of a defense that was never presented at
a hearing. Strickland required the state court to "tak[e] due account of the effect of the
errors," but in this case it could not have reasonably weighed the effect an un-called
witness without hearing her testimony. On the face of things, the affidavit presents a
complete alibi defense. Perhaps the credibility of the alibi witness would have belied the
credibility of the identifying eyewitnesses. Perhaps not. But there was no rational basis
for the state court to conclude that Petitioner did not demonstrate prejudice without hearing
from her.
Nor does 28 U.S.C. § 2254(e)(2) prevent the Court from holding a hearing. Under
this section, a habeas petitioner may introduce new evidence in support of a claim "only if
[the prisoner] was not at fault in failing to develop that evidence in state court, or (if he was
at fault) if the conditions prescribed in § 2254(e)(2) were met." Holland v. Jackson, 542
U.S. 649, 652-53 (2004). A prisoner is at fault in failing to develop the evidence if there is
a "lack of diligence, or some greater fault, attributable to the prisoner or the prisoner's
counsel." Williams v. Taylor, 529 U.S. 420, 432 (2000). The required diligence is "a
reasonable attempt, in light of the information available at the time, to investigate and
pursue claims in state court." Id. at 435.

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III. Summary
Petitioner was diligent in his attempt to develop the factual record for his claim.
Petitioner, through counsel, filed a motion for new trial in the trial court supported by an
affidavit seeking a hearing. After that request was denied, he timely filed a motion to
remand that was also supported by the uncalled witness's affidavit. Petitioner therefore
provided the state courts “the first opportunity to review [these] claim and provide any
necessary relief." O'Sullivan v. Boerckel, 526 U.S. 838 (1999). The Court concludes that
Petitioner diligently sought to develop the factual record for these claims in state court and
that he is not barred by § 2254(e)(2) from receiving a hearing in this Court.
IV. Conclusion
The Court concludes that the Michigan court's adjudication of Petitioner's ineffective
assistance of counsel claim resulted in an unreasonable application of clearly established
Supreme Court law under § 2254(d). The Court also concludes that Petitioner was diligent
in his attempt to develop the factual record in state court to support his claim, and that his
factual allegations, if true, may establish a constitutional violation and entitlement to habeas
corpus relief under § 2254(a). Thus, Petitioner has satisfied the prerequisites for an
evidentiary hearing.

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Accordingly, IT IS ORDERED that an evidentiary hearing shall be conducted in this
matter on November 21, 20011 at 9:00 a.m. The evidentiary hearing shall be limited to
Petitioner's ineffective assistance of trial counsel claim.

S/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
Dated: October 14, 2011
I hereby certify that a copy of the foregoing document was served upon counsel of record
on October 14, 2011, by electronic and/or ordinary mail.
S/Catherine A. Pickles
Judicial Secretary

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