Aceval v. MacLaren
Filing
10
MEMORANDUM OPINION and ORDER Granting 1 Petition for Writ of Habeas Corpus, Signed by District Judge Arthur J. Tarnow. (CPic)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ALEXANDER ACEVAL,
Petitioner,
Case Number 2:12-CV-10897
Honorable Arthur J. Tarnow
v.
DUNCAN MACLAREN,
Respondent.
________________________________________/
OPINION AND ORDER GRANTING THE PETITION FOR WRIT OF HABEAS
CORPUS
Alexander Aceval, ("Petitioner"), filed this petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. The petition challenges his June 7, 2006, Wayne
Circuit Court guilty plea conviction of possession with intent to deliver 1,000 or more
grams of cocaine. MICH. COMP. LAWS § 333.7401(2)(a)(i). Petitioner was sentenced
under the terms of his plea bargain to 10-to-15 years imprisonment. The petition
raises two claims: (1) Petitioner was denied his Sixth Amendment right to counsel
of choice when the trial court did not allow Petitioner to have a second retained
attorney present a pretrial motion and otherwise represent Petitioner during trial
proceedings; and (2) Petitioner’s double jeopardy rights were violated when he was
retried after the prosecutor used perjured testimony with the knowledge and consent
of the trial judge at Petitioner’s first trial. The Court will grant the petition on both
Aceval v MacLaren, 12-10897
grounds because the state courts unreasonably adjudicated the claims in light of
clearly established Supreme Court law.
I. Background
Petitioner’s case–which would have been a fairly typical narcotics trafficking
prosecution–gained notoriety when the police, prosecutor, and trial judge knowingly
allowed witnesses to perjure themselves at Petitioner’s first trial. Specifically, a
confidential informant who stood to gain as much as $100,000 from the prosecution
was allowed to lie about his involvement in the case. Police officers were also
allowed to lie about their association with the informant.
As a result of their conduct, the assistant prosecuting attorney trying the case
was prosecuted by the Michigan Attorney General and pled guilty to misconduct in
office. She was sentenced to six months in jail, and was disbarred. Two police
officers pled guilty to neglect of duty and received 90-day jail sentences. The trial
judge retired and was reprimanded by the Michigan Judicial Tenure Commission.
This Court recites verbatim the relevant facts relied upon by the Michigan
Court of Appeals, which are presumed correct on habeas review pursuant to 28
U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):
This matter arises out of an illegal drug transaction. On March11,
2005, police officers Robert McArthur, Scott Rechtzigel, and others,
acting on information obtained from Chad William Povish, a confidential
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informant (CI), were on surveillance at J Dubs bar in Riverview,
Michigan. Povish previously told police officers that defendant had
offered him $5,000 to transport narcotics from Detroit to Chicago. That
day, the officers observed defendant, Povish, and Bryan Hill enter the
bar. Defendant arrived in his own vehicle, while Povish and Hill arrived
in another. Eventually the three individuals left the bar and loaded two
black duffel bags into the trunk of Povish's car. Povish and Hill then
drove away, while defendant drove away in his own vehicle.
Subsequently, the officers stopped both vehicles and found packages
of cocaine in the duffel bags located in the trunk of Povish’s car.
Defendant was subsequently arrested and charged with possession
with intent to deliver 1,000 or more grams of cocaine,
MCL333.7401(2)(a)(i), and conspiracy to commit that offense,
MCL750.157a.
Before trial, defendant moved for the production of the identity of
the CI. During an evidentiary hearing on June 17, 2005, defendant
requested that the trial court, Judge Mary Waterstone, conduct an in
camera interview of McArthur, the officer in charge of the investigation.
The judge agreed, and in the conference it was revealed that McArthur
and Rechtzigel knew that Povish was the CI. Further,the officer told the
trial court that Povish was paid $100 for his services, plus “he was
going to get ten percent, whatever we got.” The conference was sealed
and the trial court denied defendant’s motion.
Subsequently, defendant filed a motion to suppress certain
evidence. During a hearing on September 6, 2005, Rechtzigel lied
when he testified, in response to defense counsel’s questioning, that he
had never had any contact with Povish before March 11, 2005. The
prosecutor did not object. On September 8, 2005, in another sealed in
camera conference between the judge and the prosecutor, the
prosecutor admitted that she knew that Rechtzigel had knowingly
committed perjury but stated that she “let the perjury happen” because
“I thought an objection would telegraph who the CI is.” In response,the
judge stated that she thought “it was appropriate for [the witness] to do
that.” Further, the court added, “I think the CI is in grave danger. . . . I'm
very concerned about his identity being found out.”
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The matter went to trial on September 12, 2005. At trial, the
prosecutor and the judge continued their efforts to protect the
CI’sidentity. Povish testified that he had never met Rechtzigel or
McArthur before they stopped his vehicle on the day that he received
the duffel bags and that neither had offered him a deal of any kind. He
further testified that did not know what was in the duffel bags and that,
until trial, he believed that he could be charged with a crime for his role
in the incident. The prosecutor made no objection to this testimony. The
prosecutor and the judge again indicated, in another sealed ex parte
bench conference on September 19, 2005, that they knew Povish had
perjured himself in order to conceal his identity. At the close of the trial,
the jury was unable to reach a verdict and, thus, the trial court declared
a mistrial.
On December 7, 2005, attorney Warren E. Harris filed an
appearance to represent defendant in his retrial, again in Judge
Waterstone’s court. On March 6, 2006, attorney David L. Moffitt
petitioned for leave to file a limited appearance solely for purposes of
filing certain motions by defendant, which the trial court granted on
March 17, 2006. Subsequently, at a hearing on March 28, 2006,
defendant indicated that he had become aware that the CI was Povish
and argued that the case should be dismissed because of the trial
court’s and the prosecutor’s complicit misconduct in permitting perjured
testimony. Defendant also requested that both the prosecuting attorney
and Judge Waterstone disqualify themselves from the case. Judge
Waterstone disqualified herself on the record. The following day, Judge
Vera Massey–Jones, the successor judge, entered an order unsealing
the three in camera interviews.
Twelve days before defendant’s second trial, Harris moved to
withdraw because of a breakdown in the attorney-client relationship that
he attributed to Moffitt’s increased involvement. After finding that
Moffitt’s appearance was only a limited appearance, the trial court,
noting that it “can’t deal with lawyers who aren’t in the case all the
way[,]” disallowed Moffitt from participating in the case and did not
permit Harris to withdraw. The trial court stated, “And there’s no way in
the world I’m going to let you have a new trial lawyer come in here and
mess up.” Further, the trial court indicated that the matter was set for
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trial on a “particular date, and it’s going to go to trial that date[,]” and
that there was “no way I’m going to let” you “ruin my trial docket.”
Defendant’s retrial began on June 1, 2006, with Harris acting as
counsel. Before trial, defendant allegedly contacted a prosecution
witnesses and directed him to provide false testimony in support of the
defense. After the prosecution discovered this information, it informed
the trial court and defense counsel. Subsequently, the witness testified
that defendant had asked him to lie and he purged his testimony.
Thereafter, defendant pleaded guilty to the charge of possession with
intent to distribute more than 1,000 grams of cocaine.
People v. Aceval (On Remand), 282 Mich. App. 379, 382-385 (2009).
Following sentencing, Petitioner was twice appointed appellate counsel, but
both attorneys withdrew before an appeal was filed. Finally, on June 29, 2007,
attorney David Moffitt filed a delayed application for leave to appeal in the Michigan
Court of Appeals, which raised the following claims:
I. The Double Jeopardy Clauses of the State and Federal Constitutions
Precluded the Prosecutor From Retrying Defendant Where an
Intentional Prosecutorial and Judicial Criminal Misconduct Conspiracy
of a Degree Unprecedented in Michigan Or Federal Judicial History
Sought Unfair Conviction of Defendant.
II. Denial of Sixth Amendment Right to Counsel Invalidates Defendant’s
Plea-based Second Trial Conviction.
III. Ineffective Assistance of Counsel Rendered Defendant’s Guilty Plea
Illusory, Involuntary and Otherwise Invalid.
IV. The Numerous Due Process Violations, Individually or Collectively,
Irreparably Denied Defendant-[A]ppellant His Right to a Fair trial and
Any Possibility of Prevailing in Any Subsequent Trial.
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V. Fraudulent Criminal Processes Were Insufficient to Afford
Jurisdiction over Defendant[-]Appellant.
The Michigan Court of Appeals denied Petitioner’s delayed application “for
lack of merit in the grounds presented.” People v. Aceval, No. 279017 (Mich. Ct.
App. October 5, 2007).
Petitioner subsequently filed an application for leave to appeal in the Michigan
Supreme Court. The Supreme Court remanded the case to the Court of Appeals to
consider “whether the defendant was denied the right to counsel of his choice under
United States v. Gonzales-Lopez, 548 U.S. 140 (2006),” and to consider “whether
the prosecution's acquiescence in the presentation of perjured testimony amounts
to misconduct that deprived the defendant of due process such that retrial should be
barred.” People v. Aceval, 480 Mich. 1108 (2008).
On remand, the Michigan Court of Appeals affirmed Petitioner’s conviction in
a published opinion. People v. Aceval (On Remand), 282 Mich. App. 379 (2009).
Petitioner filed an application for leave to appeal in the Michigan Supreme Court, but
it was initially denied by standard order. People v. Aceval, 485 Mich. 884 (2009).
The Michigan Supreme Court subsequently granted Petitioner’s motion for
reconsideration, and scheduled the case for oral argument on whether the court
should grant leave to appeal, stating:
At oral argument the parties shall address whether the prosecution’s
acquiescence in the presentation of perjured testimony in order to
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conceal the identity of a confidential informant amounts to misconduct
that deprived the defendant of due process such that retrial should be
barred.
People v. Aceval, 486 Mich. 953-954 (2010).
After hearing argument, four Justices voted to deny leave. People v. Aceval,
488 Mich. 978 (2010). Justice Hathaway stated she would have granted leave. Id.
Justice Stephen Markman stated he would have reversed the conviction and
precluded re-prosecution. Id. Justice Maura Corrigan recused herself as she was a
potential witness. Id.
Petitioner then filed the instant petition for habeas relief.
II. Standard of Review
28 U.S.C. § 2254(d) 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.
28 U.S.C. § 2254(d).
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"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
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, 562 U.S.
, 131 S. Ct. 770, 789, 178 L. Ed. 2d 624 (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
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appeal. . . . As a condition for obtaining habeas corpus from a federal 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
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presumption only with clear and convincing evidence. Warren v. Smith, 161 F.3d
358, 360-61 (6th Cir. 1998).
III. Discussion
A. Counsel of Choice
Petitioner first claims that he was denied his counsel of choice when the trial
court prohibited retained attorney David Moffitt from arguing a pretrial discovery
motion and otherwise representing Petitioner because the court would not allow an
attorney to appear for Petitioner who would not file a general appearance and was
not in the case “all the way.” Respondent asserts that the claim is procedurally
defaulted, waived by Petitioner’s guilty plea, and meritless. The Court finds that
Petitioner is entitled to habeas relief on this claim.
After his first trial ended with a hung jury, Petitioner retained a new attorney,
Warren Harris, to represent him during his second trial. Information then came to
light regarding the confidential informant’s false testimony during the first trial. Three
weeks before the new trial was set to begin, Judge Waterstone granted attorney
David Moffitt’s request for a limited appearance to argue pretrial motions related to
the confidential informant. Moffitt then filed and argued several pretrial motions, and
he unsuccessfully pursued an interlocutory appeal. Moffitt also moved for Judge
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Waterstone to disqualify herself, and she did. The case was then reassigned to
Judge Massey-Jones.
Moffitt and Harris thereafter filed somewhat conflicting pretrial motions
regarding the disclosure of agreements the prosecutor made with the confidential
informant. When the attorneys arrived to argue their motions, Harris told the court
that he was opposed to Moffitt’s version of the motion, but he had received a letter
from Petitioner directing him to withdraw his motion and to allow Moffitt to proceed
with his version. Harris stated that Petitioner’s letter directed him to consult with
Moffitt during trial. Harris then moved to withdraw, stating that as a result of the
disagreement about how to handle the issues raised by the pretrial motion there had
been a breakdown in the attorney-client relationship. He was unwilling to proceed
in the fashion requested by his client, and he suggested that Moffitt ought to takeover as sole counsel for Petitioner.
The trial court made no inquiry into Harris’ statement that his relationship with
Petitioner had broken down. Instead, after determining that Moffitt had only filed a
limited appearance, Judge Massey- Jones said, “I can’t deal with lawyers who aren’t
in the case all the way. So if he’s just here for a limited matter he’s going to have to
go someplace else. I need a lawyer that I can hold and speak to in regards to
everything.” Tr. 5/19/06, 8. The court told Moffitt to go to the Court of Appeals
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because it was “not letting him say another word.” Id. Moffitt attempted to object, but
Judge Massey-Jones would not allow him to make a record:
Moffitt: May I respectfully put on the record, your Honor, that The Court: No. Tell that to the Court of Appeals.
Moffitt: - that I object. Thank You.
The Court: Have a nice day.
Id., 9.
From that point through the guilty plea, Harris represented Petitioner in the
trial court.
When the issue was subsequently raised in the Michigan Court of Appeals,
the appellate court denied it as follows:
We first address whether defendant was denied the right to
counsel of his choice under Gonzalez-Lopez, supra. Defendant did not
preserve this argument by asserting it in the trial court. Because this
issue is, at a minimum, unpreserved, n3 our review is limited to plain
error affecting defendant's substantial rights. People v. Carines, 460
Mich. 750, 763-764 (1999).
FOOTNOTES
n3 By pleading guilty, defendant waived appellate review of this issue.
"[A] plea of guilty waives all nonjurisdictional defects in the
proceedings." People v. New, 427 Mich. 482, 488 (1986) (quotation
marks and citation omitted). Nevertheless, we will address this issue
pursuant to our Supreme Court's order.
Both the United States and Michigan constitutions provide that
the accused shall have the right to counsel for his defense. US Const,
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Am VI; 1963 Const, art 1, § 20. A defendant's right under the Michigan
Constitution is the same as that guaranteed by the Sixth Amendment.
People v. Reichenbach, 459 Mich. 109, 118 (1998). This guaranteed
right encompasses a defendant's right to effective assistance of
counsel, Strickland v. Washington, 466 U.S. 668, 686 (1984), the right
to self-representation, Faretta v. California, 422 U.S. 806, 818 (1975),
the right of indigent defendants to have appointed counsel in felony
prosecutions, Gideon v. Wainwright, 372 U.S. 335, 344 (1963), and the
right to choice of counsel, Powell v. Alabama, 287 U.S. 45, 53 (1932),
which is at issue in this case.
The United States Supreme Court recently expounded upon a
defendant's right to choice of counsel in Gonzalez-Lopez, supra. The
Court stated, "[The Sixth Amendment] commands . . . that the accused
be defended by the counsel he believes to be best." Gonzalez-Lopez,
supra at 146. The Court continued, "Deprivation of the right is
'complete' when the defendant is erroneously prevented from being
represented by the lawyer he wants . . . ." Id. at 148 (emphasis added).
It is not necessary that a defendant show prejudice; it is enough that a
defendant merely show that a deprivation occurred. Id. at 150.
However, this right to choice of counsel is limited and may not extend
to a defendant under certain circumstances. Id. at 151; Wheat v. United
States, 486 U.S. 153, 164 (1988). As the Gonzalez-Lopez Court stated:
[T]he right to counsel of choice does not extend to
defendants who require counsel to be appointed for them.
See Wheat, 486 U.S. at 159; Caplin & Drysdale [v United
States], 491 U.S. [617], at 624, 626 [1989]. Nor may a
defendant insist on representation by a person who is not
a member of the bar, or demand that a court honor his
waiver of conflict-free representation. See Wheat, 486
U.S., at 159-160. We have recognized a trial court's wide
latitude in balancing the right to counsel of choice against
the needs of fairness, id. at 163-164, and against the
demands of its calendar, Morris v. Slappy, 461 U.S. 1,
11-12 (1983). [Gonzalez-Lopez, supra at 151-152.]
Similarly, this Court has opined that "[a] balancing of the
accused's right to counsel of his choice and the public's interest in the
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prompt and efficient administration of justice is done in order to
determine whether an accused's right to choose counsel has been
violated." People v. Krysztopaniec, 170 Mich. App. 588, 598 (1988).
In the present matter, defendant was represented by not one, but
two, attorneys of his choice. Before the case was transferred to Judge
Massey-Jones, Judge Waterstone permitted Moffitt to file a limited
appearance and participate in the case solely with respect to certain
pretrial motions, while Harris, who was already part of the case,
handled matters pertaining to defendant's retrial. Just 12 days before
trial, Harris moved to withdraw because of a disagreement between the
two counsel regarding proper trial strategy and a resulting breakdown
in the attorney-client relationship between Harris and defendant. At the
hearing on Harris's motion, Judge Massey-Jones disallowed Moffitt's
limited appearance and denied Harris's motion to withdraw. Defendant
did not object to proceeding to trial with Harris.
Given these facts, it is our view that defendant was not denied
his right to choice of counsel. While Judge Massey-Jones denied
defendant a second "limited-attorney" of defendant's choosing,
defendant was not denied counsel of his choice, Harris, who was fully
involved in the litigation. Moreover, the trial court did not indicate that
defendant could not have a co-counsel. Rather, the trial court's
statement that it would not "deal with lawyers who aren't in the case all
the way" would have permitted Moffitt to file a full appearance and to
act as co-counsel had defendant wished Moffitt to do so. Moffitt,
however, did not file an appearance and was unwilling or unable to
undertake the complete defense of defendant's case. Significantly,
defendant did not object to the continued representation by Harris. In
short, defendant exercised his right to counsel of choice by proceeding
to trial with Harris, who was willing and able to do so.
In addition, our review of the record indicates that Judge
Massey-Jones's decision to deny Harris's motion to withdraw 12 days
before trial was based primarily on retrying defendant in a timely
manner. At one point, Judge Massey-Jones stated, "[T]here's no way
in the world I'm going to let you have a new trial lawyer come in here
and mess up[,]" and, further, indicated that substituting a new attorney
would "ruin [the court's] trial docket." Here, the demands of the trial
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court's calendar clearly outweighed defendant's right to choice of
counsel when defendant maintained the first and primary attorney of his
choosing, despite the fact that limited counsel was ejected from the
case just 12 days before trial. Morris, supra at 11-12; Krysztopaniec,
supra at 598. Under these circumstances, we cannot conclude that
defendant was denied his Sixth Amendment right to counsel when the
trial court did not permit Moffitt's limited appearance. Defendant has
failed to show plain error affecting his substantial rights. Carines, supra
at 763-764.
Aceval, 282 Mich. App. at 385-388.
First, Respondent’s procedural default argument is not well taken. It is true
that when a state court ignores a constitutional claim because it resolved the matter
based on Petitioner’s failure to comply with a state procedural rule, review of the
claim can be barred from habeas review. Wainwright v. Sykes, 433 U.S.72, 80,
84-87 (1977). And it is true that the Michigan Court of Appeals found that Petitioner
did not comply with its contemporaneous objection rule when it found that
“defendant did not preserve this argument by asserting it in the trial court.”
But a habeas court will not enforce a state’s procedural bar where it is obvious
that the state court’s reliance on the procedural rule is in error. Hodge v. Haeberlin,
579 F.3d 627, 643 (6th Cir. 2009); Hartman v. Bagley, 492 F.3d 347, 358 (6th Cir.
2007); Mapes v. Coyle, 171 F.3d 408, 429 (6th Cir. 1999). Petitioner’s counsel did,
in fact, contemporaneously object to the trial court’s ruling that he was prohibited
from arguing the pretrial motion. But the trial court stated it would “not let [him] say
another word,” and to “tell that to the Court of Appeals.” When counsel asked to
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make a record, the trial court told him “no.” Respondent can hardly argue in light of
this record that Petitioner did not comply with state procedural law. Moffitt attempted
to present a full objection, but the trial court prevented him from putting it on the
record. Respondent asserts that Petitioner could have filed a motion for
reconsideration or an interlocutory appeal, but failure to do those things is not what
the court of appeals relied upon to find the claim defaulted. Nor has Respondent
established that a rule requiring a motion for reconsideration be filed to preserve a
trial error exists under state law.
Alternatively, even if the claim were defaulted, Petitioner has shown cause to
excuse his failure to make a full objection."[C]ause for a procedural default must
ordinarily turn on whether the prisoner can show that some objective factor external
to the defense impeded counsel's efforts to comply with the State's procedural rule."
Murray v. Carrier, 477 U.S. 478, 488 (1986). The trial court’s refusal to allow
Petitioner’s counsel to make a record as to his objection constitutes an “objective
factor external to the defense” that prevented him from complying with the
contemporaneous objection rule.
Next, regarding the waiver argument, it is true that an unconditional guilty plea
typically waives non-jurisdictional defects in the proceedings below. See Tollett v.
Henderson, 411 U.S. 258, 267 (1973). The Supreme Court held, however, that the
erroneous deprivation of the right to counsel of choice in violation of the Sixth
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Amendment is a "structural error" in a criminal proceeding and is not subject to
harmless error analysis. United States v. Gonzalez-Lopez, 548 U.S. 140, 150-52
(2006). The Court stated that:
[d]ifferent attorneys will pursue different strategies. And the choice of
attorney will affect whether and on what terms the defendant
cooperates with the prosecution, plea bargains, or decides instead to
go to trial. In light of these myriad aspects of representation, the
erroneous denial of counsel bears directly on the framework within
which the trial proceeds, or indeed on whether it proceeds at all. . . .
Many counseled decisions, including those involving plea bargains and
cooperation with the government, do not even concern the conduct of
the trial at all.
Id. at 150.
Relying on Gonzalez-Lopez, the Fifth and Seventh Circuits have held that a
defendant's guilty plea does not preclude him from challenging on appeal a denial
of his right to counsel of choice. United States v. Smith, 618 F.3d 657, 663 (7th Cir.
2010); United States v. Sanchez-Guerrero, 546 F.3d 328, 332 (5th Cir. 2008). As the
Fifth Circuit stated, "it is obvious that the choice of counsel may seriously impact a
defendant's decision to plead guilty." Id. "If a defendant is erroneously denied the
counsel of his choice, it is a structural error in the trial that brings into question the
voluntary and intelligent character of the guilty plea itself." Id.
Here, there is no way to determine how the case would have proceeded if the
trial court had allowed Moffitt to appear for Petitioner. That is why the denial of
counsel of choice is considered a structural error - it directly affects “the framework
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within which the trial proceeds, or indeed on whether it proceeds at all.”
Gonzalez-Lopez, 548 U.S. at 150. It is unknowable whether Moffitt’s participation
would have resulted in Petitioner standing trial and not pleading guilty.
Respondent asserts that Petitioner had the counsel of his choice–Harris–at
the guilty plea hearing, and that Petitioner only wanted Moffitt to represent him at the
pre-trial motion hearing. But that ignores the fact, as represented by Harris at the
hearing, that Petitioner wanted Harris to consult with Moffitt during trial. Petitioner
sought to be represented by two retained attorneys throughout trial proceedings, not
just Harris. The denial of counsel of choice did not end after the pre-trial motion
hearing, it persisted all the way through the guilty plea.
Under these circumstances, therefore, Petitioner’s guilty plea does not amount
to a waiver of his Sixth Amendment choice-of-counsel claim.
Turning to the merits of the claim, the Michigan Court of Appeals’ conclusion
that Petitioner had the counsel of his choice at the guilty plea simply does address
Petitioner’s argument that he desired to have Moffit handle the pre-trial motion and
have him consult with Harris during trial proceedings.
In Gonzalez–Lopez, the Supreme Court held that the Sixth Amendment
provides a criminal defendant the right to “the counsel he believes to be best.” 548
U.S. at 146. The Court rejected the contention that, to show a constitutional violation
from a denial of substitution of counsel, a criminal defendant must demonstrate that
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the original counsel “was ineffective within the meaning of Strickland v. Washington.”
Id. at 144–48. Rather, because “[d]eprivation of the right is ‘complete’ when the
defendant is erroneously prevented from being represented by the lawyer he wants,”
“[w]here the right to be assisted by counsel of one's choice is wrongly denied, . . .
it is unnecessary to conduct an ineffectiveness or prejudice inquiry to establish a
Sixth Amendment violation.” Id. at 148. Indeed, “deprivation of the right to counsel
of choice . . . unquestionably qualifies as structural error.” Id. at 150 (citation
omitted). The right to choose counsel is not without limit, however. A trial court
maintains “wide latitude in balancing the right to counsel of choice against the needs
of fairness, and against the demands of its calendar.” Id. at 152 (citations omitted).
As indicated by Harris at the motion hearing, Petitioner desired to have Moffitt
represent him at the pretrial motion hearing and have him consult with Harris
throughout all other trial proceedings. Petitioner did not want Harris to argue the
motion, and indeed, Harris ended up not presenting a motion at all but working out
a deal with the prosecution regarding discovery. Thus, at a minimum, Petitioner was
denied the attorney of his choosing at the pretrial hearing.
The only ground for disallowing the representation by Moffitt at the hearing by
the trial court was the fact that Moffitt would not file a general appearance and
handle the case “all the way.” Nothing in clearly established Supreme Court law,
however, limits the right to counsel of one’s choice to a single attorney willing to
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handle the whole case. The Supreme Court stated a general rule in
Gonzalez–Lopez that a criminal defendant who can afford it has the right to “the
counsel he believes to be best.” 548 U.S. at 146. It did not limit the rule to a single
lawyer handling an entire case or to multiple lawyers, so long as they are each
willing to handle the entire case.
Now, had the trial court allowed Moffitt to argue the pretrial motion, it is true
that the court would also have been forced to address Harris’ motion to withdraw
because he expressed his unwillingness to consult with Moffitt during further trial
proceedings, which in turn would have raised the specter of an adjournment of the
trial date. That course might have given rise to a possible reasonable basis for
precluding Moffitt’s participation under Gonzalez–Lopez because it might have
affected the demands of the court’s trial calendar. But that is not what happened.
Instead, the trial court refused to allow counsel of his choosing argue a pretrial
motion because that attorney was not in the case “all the way.” Such a rationale
does not fit within the trial court’s “wide latitude in balancing the right to counsel of
choice against the needs of fairness, and against the demands of its calendar.” Id.
at 152.
Petitioner wanted to retain Moffit to handle pretrial matters and to consult with
Harris. Harris was uneasy about the arrangement and moved to withdraw. The
situation required the trial court to probe into the dispute and resolve it in a manner
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Aceval v MacLaren, 12-10897
that protected Petitioner’s right to counsel of choice. As the Michigan Supreme
Court itself once stated:
The right to assistance of counsel is a precious constitutional
right. It is probably the most important right of any defendant in a
criminal trial. Without needlessly prolonging this opinion by citation of
authority, we might point out that the importance of this right in our legal
system is thoroughly analyzed by the United States Supreme Court in
Powell v. Alabama, 287 U.S. 45 (1932), and Gideon v. Wainwright, 372
U.S. 335 (1963). It is guaranteed by the United States Constitution and
has been included in every Constitution of this state since Michigan
entered the Union. This right has been jealously protected by the courts
and is of critical importance to any defendant in a criminal trial. Hence,
whenever this right is asserted, the trial court must take special care to
insure that it is protected.
People v. Williams, 386 Mich. 565, 575-576 (1972).
Instead, of taking special care to protect Petitioner’s right to counsel, the trial
court intemperately gave short-shrift to the problem by finding that she would not
allow an attorney to represent Petitioner if he would not file a general appearance
and be wiling to try the whole case. This basis for rejecting Petitioner’s request to
have Moffit represent resulted in an unreasonable application of clearly established
Supreme Court law.
The alternative analysis of the Michigan Court of Appeals also misses the
mark. It found that Petitioner was not denied the right to counsel of choice because
his retained counsel, Harris, represented him during the guilty plea. This reasoning
does not address at all Petitioner’s claim that he was denied his right to counsel of
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choice at the motion hearing itself. Instead, the court implicitly relied on a dubious
principle that Petitioner was only entitled to an attorney willing to handle the entire
case, or that he had no right to counsel of his choice at a pretrial hearing. No such
distinction has ever been made by the Supreme Court, and Respondent does not
offer any reason why such a distinction would be reasonable.
The appellate court went on to find that the trial court expressed concern
regarding the trial calender, but that was not the trial court’s basis for denying
Petitioner’s request to have Moffitt represent him at the motion hearing. It did so
because he would not file a general appearance. In fact, Petitioner never requested
an adjournment of the trial date. While allowing Moffitt to present the pretrial motion
would have prompted Harris to press his motion to withdraw, the trial court might
have denied the motion to withdraw, found some compromiser, or otherwise
assuaged Harris’s concerns and preserved Petitioner’s right to counsel of choice and
its trial calender. But the trial court was in a hurry to dismiss Moffit out of hand and
in doing so ignored Petitioner’s right to counsel of choice.
In short, Petitioner had a right to have the retained attorney of his choosing
argue the pretrial motion. And while that right was not absolute, neither the trial court
nor the Michigan Court of Appeals gave a reasonable explanation consistent with
clearly established Supreme Court law as to why it was appropriate to deny
Petitioner’s request to have counsel of his choice represent him at that proceeding.
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Although it would seem that the failure to allow Moffitt to argue the motion had
no appreciable effect on the outcome of the proceedings, Petitioner need not
demonstrate prejudice to demonstrate entitlement to relief. As stated, the denial of
the right to counsel of choice is a structural error. Gonzalez–Lopez, 548 U.S. at 148.
Moreover, Petitioner desired to have Moffit work with Harris during further trial court
proceedings. This too is a structural error. In addition, Petitioner very well may have
been prejudiced by the Court’s refusal to allow Moffit to participate in further trial
court proceedings. It may very well have impacted his decision to plead guilty or
stand trial.
Accordingly, The state court adjudication of Petitioner’s claim resulted in an
unreasonable application of Gonzalez–Lopez. Petitioner is therefore entitled to
habeas relief based on this claim.
B. Double Jeopardy
Petitioner’s second claim asserts that the police, prosecutor, and trial judge’s
conduct at his first trial was so egregious that a retrial should have been barred.
Respondent does not contest the fact that serious misconduct occurred at the first
trial. Indeed, the Michigan Attorney General pursued criminal charges against the
prosecutor, two detectives, and the trial judge. Respondent asserts, however, that
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Aceval v MacLaren, 12-10897
Petitioner is not entitled to habeas on this claim because under clearly established
Supreme Court law Petitioner was not entitled to have his retrial barred.
Michigan Supreme Court Justice Markman dissented from the court’s order
denying leave to appeal, and stated that he would have granted relief and barred
reprosecution:
I am of the view that the jury -- which could not reach a verdict of
guilty even absent an awareness of the tainted evidence -- would
almost certainly have found it to be of significance as to the credibility
of the principal witness against defendant that the witness had been
promised, upon defendant's conviction, 10% of the expected forfeiture
proceeds, an amount estimated to be as much as $ 100,000. Had the
jury been made aware of this evidence, as it should have been, there
is a reasonable chance that defendant would have been acquitted,
which acquittal under the United States and Michigan Constitutions
would have barred a second trial.
I am further of the view that had it become known during trial
that: (a) the principal witness testified falsely concerning this interest;
(b) that such testimony was known to be false by both the prosecutor
and the judge; and (c) that the prosecutor and the judge colluded in
allowing such false testimony, a mistrial almost certainly would have
been required on account of such misconduct. And such a mistrial -one occasioned by circumstances directly "attributable to prosecutorial
[and] judicial overreaching" -- would almost certainly have deprived the
prosecutor, under either the due process or the double jeopardy
clauses of the United States and Michigan Constitutions, of a second
opportunity to try the defendant. United States v. Dinitz, 424 U.S. 600,
607 (1976). That such circumstances did not come to light until after the
trial, and that the state therefore was able to try defendant a second
time "cannot make an unconstitutional second trial retrospectively
valid." People v. Lett, 466 Mich 206, 229 (2002) (CAVANAGH , J.,
dissenting.)
People v. Aceval, 488 Mich. 978, 978-979 (2010) (J. Markman dissenting).
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Aceval v MacLaren, 12-10897
This rationale is compelling, and is the only reasonable result given the
dictates of clearly established Supreme Court law.
The Double Jeopardy Clause of the Fifth Amendment protects a defendant in
a criminal proceeding against repeated prosecutions for the same offense. United
States v. Dinitz, 424 U.S. 600, 605 (1976). "As part of this protection against multiple
prosecutions, the Double Jeopardy Clause affords a criminal defendant a 'valued
right to have his trial completed before the first jury impaneled to try him.'" Oregon
v. Kennedy, 456 U.S. 667, 671-73 (1982) (quoting Wade v. Hunter, 336 U.S. 684,
689 (1949)). The Double Jeopardy Clause also protects a defendant from "the
anxiety, expense, and delay occasioned by multiple prosecutions." Lee v. United
States, 432 U.S. 23, 32 (1977). Jeopardy attaches when the original jury panel is
seated and sworn. Crist v. Bretz, 437 U.S. 28, 38 (1978). Ordinarily, once jeopardy
attaches, a defendant may not be retried after a mistrial has been declared unless
(1) there is a "manifest necessity" for a mistrial, or (2) the defendant either requests
or consents to a mistrial. Dinitz, 424 U.S. at 606-07.
Here, there was a mistrial declared after Petitioner’s first trial because the jury
could not reach a verdict. Petitioner consented to the declaration of a mistrial on
these narrow grounds. It is important to note that when Petitioner consented to the
mistrial, he did not know of the collusion between the trial judge and prosecutor
25
Aceval v MacLaren, 12-10897
regarding the confidential informant, and he did not request or consent to a mistrial
because of that collusion.
The Double Jeopardy clause bars retrial when "bad faith conduct by judge or
prosecutor threatens harassment of an accused . . . so as to afford the prosecution
a more favorable opportunity to convict the defendant." Dinitz, 424 U.S. at 611. For
such conduct to bar retrial, a prosecutor or judge must specifically act in "bad faith"
or must intend to goad the defendant "into requesting a mistrial or to prejudice the
defendant's prospects for an acquittal." Id. at 611–12; see also, United States v.
Jorn, 400 U.S. 470, 485 (1971). “[T]he strictest security is appropriate when . . .
there is reason to believe that the prosecutor is using the superior resources of the
State to harass or to achieve a tactical advantage over the accused.” Arizona v.
Washington, 434 U.S. 497, 508 (1978). Retrying a defendant after such bad faith
conduct implicates a defendant’s "valued right to have his trial completed by a
particular tribunal," Wade v. Hunter, 336 U.S. 684, 689 (1949).
There can be no reasonable debate in this case but that the prosecutor and
trial judge acted in bad faith by hiding from Petitioner the fact that the key
prosecution witness was in fact a confidential informant who according to Justice
Markman stood to profit by up to $100,000 from the prosecution. Indeed,
Respondent can hardly contest this fact because the Michigan Attorney General
prosecuted the prosecutor and trial judge for their conduct in Petitioner’s case.
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Aceval v MacLaren, 12-10897
There are no set of circumstances in which Petitioner’s first trial could have
been left to stand. It was a sham. The conduct of such a sham trial implicated a
number of Petitioner’s double jeopardy interests. Intentional misconduct such as this
firstly is more likely to be highly prejudicial and so to cause an inaccurate jury
verdict. The prosecutor also illegitimately increased the likely expense,
embarrassment, and ordeal Petitioner was forced to suffer as a direct product of
intentional misconduct. Barring retrial under such circumstances deters prosecutors
and trial judge’s from Petitioner's double jeopardy right to a particular tribunal. See
generally Jorn, 400 U.S. at 479-86; Dinitz, 424 U.S. at 606-12.
It is equally obvious that the bad faith conduct prejudiced Petitioner’s
prospects for an acquittal. The jury was unable to reach a verdict. Had they known
the enormous financial incentive that Povish–a drug dealer who was no paragon of
virtue to begin with–had to testify against Petitioner, it is very likely Petitioner would
have been acquitted. Retrial is barred where the judge or prosecutor knowingly
engages in misconduct with the intention of prejudicing the defendant's chances for
acquittal and there is, in fact, serious prejudice. See United States v. Zozlio, 617
F.2d 314, 315 (1st Cir. 1980); United States v. Opager, 616 F.2d 231, 233-34 (5th
Cir. 1980); Drayton v. Hayes, 589 F.2d 117, 121 (2nd Cir. 1979); United States v.
Martin, 561 F.2d 135, 138-40 (8th Cir. 1977).
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Respondent asserts that in Oregon v. Kennedy, 456 U.S. 667, 672 (1982), the
Supreme Court held that where a mistrial is declared at the defendant's own request,
double jeopardy does not bar retrial, except in the "narrow" circumstance in which
the prosecutor's actions giving rise to the motion for mistrial were done in order to
"goad" the defendant into requesting a mistrial. Id. at 673. Here, the prosecutor did
not intend to goad Petitioner into moving for a mistrial. The mistrial was caused by
the jury’s inability to reach a verdict. Petitioner did not learn of the collusion between
the trial judge and prosecutor until after that time. Kennedy does not apply to this
case because Petitioner never moved for a mistrial based on the prosecutor’s
misconduct. See United States v. Wallach, 979 F.2d 912, 915 (2d Cir. 1992) (“We
have some doubt that the Supreme Court expected its carefully worded statement
of the rule in Kennedy to be extended beyond the context of a trial that ends with the
granting of a defendant's motion for a mistrial.”). In the absence of a motion for a
mistrial by the defendant, such as the case here, the general rule announced in
Dinitz applies.
The bottom line here is that the prosecutor and trial judge conducted a sham
trial that tilted the scales of justice strongly in favor of the prosecution, and even with
that advantage the jury–the “particular tribunal” chosen by Petitioner to decide his
case–was unable to convict. Under Dinitz, such extraordinary bad faith prohibited
Petitioner’s retrial before a different tribunal. The first sham trial served no purpose
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Aceval v MacLaren, 12-10897
other than to deplete Petitioner’s resources and deprive him of his right to be tried
before a particular tribunal in a single proceeding. The contrary decision by the state
courts constituted an unreasonably application of clearly established Supreme Court
law.
IV. Conclusion
Based on the foregoing analysis, the Court concludes that Petitioner’s claims
were unreasonably decided by the state courts in light of clearly established
Supreme Court law. Accordingly, the Court GRANTS the petition for writ of habeas
corpus.
Because Petitioner’s rights to be placed twice in jeopardy were violated, the
grant of habeas relief is unconditional. Petitioner must be released from custody
pursuant to the judgment of sentence challenged by this petition forthwith.
SO ORDERED.
S/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
Dated: September 30, 2013
I hereby certify that a copy of the foregoing document was served upon
parties/counsel of record on September 30, 2013, by electronic and/or ordinary mail.
S/Catherine A. Pickles
Judicial Assistant
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