Wright v. Rivard
Filing
16
MEMORANDUM OPINION and ORDER Conditionally 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
NIGEL KINTE WRIGHT,
Case Number: 2:12-CV-14164
HON. ARTHUR J. TARNOW
Petitioner,
v.
STEVEN RIVARD,
Respondent.
/
OPINION AND ORDER CONDITIONALLY GRANTING
PETITION FOR WRIT OF HABEAS CORPUS
This matter is before the Court on Petitioner Nigel Kinte Wright’s petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254. Wright challenges his convictions
for first-degree murder and carrying a concealed weapon. The Court finds that Wright
was denied his right to the effective assistance of counsel when trial counsel failed to
raise a Confrontation Clause claim concerning the admission of the victim’s out-of-court
statements to a police officer. And, the Michigan Court of Appeals’ conclusion to the
contrary was an unreasonable application of Strickland v. Washington, 466 U.S. 668
(1984). The Court further finds that trial counsel’s ineffectiveness and the resulting
prejudice excuse Wright’s procedural default of his independent Confrontation Clause
claim. Finally, the Court finds a violation of the Confrontation Clause and holds that the
violation was not harmless error. The Court grants a conditional writ of habeas corpus.
I. Facts
Wright’s convictions arise from the shooting death of Travis Goodwin during the
early morning hours of December 29, 2007. The prosecution alleged that Wright aided
and abetted Patrick Pickett (also known as “Worm”) and Shondell Dalton (also known as
“Black”), in the shooting of Travis Goodwin, who was shot while sitting in a parked van
outside his mother’s home on Kimberly Street in Detroit. The prosecution alleged that
Wright drove Pickett and Dalton to the scene and, after the two men shot Goodwin, drove
them away from the scene.1
Alice Smiley, Travis Goodwin’s mother, testified that Goodwin lived with her
until his death. During the early morning hours of December 29, 2007, Smiley was
awakened in her home on Kimberly Street by gunshots. She then heard a knock at her
door. Dawayne Currie, who lived next door, told her that Goodwin had been shot.
Smiley was able to see her son before he was taken to the hospital, where he remained
until he died on January 10, 2008, never having regained consciousness.
Smiley testified that she had known Wright since he was born and that Wright and
her son had been friends when they were younger, but had become enemies by the time
Goodwin was shot. Wright’s grandmother lived a few houses away from Smiley and
1
Co-defendants Pickett and Dalton were charged in the same felony information
as Wright, but the charges against them were dismissed at the close of the preliminary
examination because there was insufficient probable cause as to their identity as the
shooters. See People v. Wright, No. 288975, 2010 WL 5373811, *1 (Mich. Ct. App. Dec.
28, 2010).
2
Wright visited her once or twice a week. Smiley saw Currie several times after the
shooting, but he never told her what he had seen that night and never identified Wright as
the shooter.
Smiley testified that a fire destroyed a known drug house on the street adjacent to
her own within two weeks before the shooting. The following day, Goodwin told her that
the destroyed house was Worm’s (Pickett’s), and that Goodwin was concerned that
“they” were going to think that he had caused the fire.
Detroit police officer Michael McGinnis testified he responded to the shooting on
Kimberly Street. He interviewed Currie at the scene. Currie informed him that the
shooters’ vehicle was a dark-colored 1980's model Grand Prix. Currie informed Officer
McGinnis that the van was shot up less than a minute after Goodwin parked it. Currie
saw three individuals outside the Grand Prix, but only two were carrying weapons. The
only description Currie gave of the vehicle’s driver was that he was a black male. Currie
did not mention that the two shooters wore ski masks or that the driver had braids.
Alfred G. Thomas testified that he is a Detroit police officer. He and his partners
responded to the shooting of Travis Goodwin. The prosecutor asked Officer Thomas if,
when he responded to the shooting, he had any suspicions that Wright was involved.
Defense counsel objected. Outside the jury’s presence, the prosecutor stated that she
intended to ask Officer Thomas whether he was aware of any feuds between Wright and
Goodwin that preceded the shooting. The prosecutor made the following offer of proof:
Officer Thomas testified that, a couple of months before the shooting, Goodwin
3
“indicated on general stops in the neighborhood that he was having problems in the
neighborhood with a couple of guys that frequent the area of Clarendon as well as
Mackinaw.” Tr., 8/25/08 at 261. Goodwin identified the men with whom he had
problems as: Wright, Damien Bell, and Tommy Dickey. Id. at 262. Goodwin described
the trouble as involving “passing stares, looks.” Id.
At the conclusion of the offer of proof, defense counsel argued that the testimony
was inadmissible because it had no probative value, the prejudice was extreme, and
Officer Thomas was biased because he was acquainted with several members of the
victim’s family. The prosecutor argued that the testimony was admissible under the state
of mind of the deceased hearsay exception. The trial court held that Goodwin’s
statements to Officer Thomas were admissible.
The jury was returned to the courtroom and Officer Thomas testified about
Goodwin’s out-of-court statements. Officer Thomas testified that approximately three to
four weeks before the shooting, Goodwin told Officer Thomas that he was receiving
threats from three individuals in the neighborhood. Goodwin identified those three
individuals as Wright, Damien Bell, and Tommy Dickey. Officer Thomas recalled that
Goodwin said the conflicts arose because these individuals were expanding their territory
for their drug business. Officer Thomas learned that Goodwin died from his injuries on
January 10, 2007. After a warrant was issued for Wright’s arrest, Officer Thomas
arrested Wright on February 7, 2008. Wright was driving a black Dodge Charger at the
time of his arrest and his hair was in braids.
4
Dawayne Currie testified that he lived on Kimberly Street, next door to Alice
Smiley. At approximately 2:00 a.m. on December 29, 2007, Currie was playing a video
game with his six-year-old daughter when he heard a vehicle outside. He looked out the
window and saw Travis Goodwin parking Smiley’s van across the street. Currie then
resumed playing a game with his daughter. Approximately 20 minutes later, he heard
gunshots. Currie testified that he ushered his daughter into a back room and then peeked
out the front window. He saw two men backing away from Goodwin’s van, one carrying
an assault rifle, the other a handgun. He also saw a black Dodge Charger and identified
the driver of the Charger as Wright. He identified the man carrying the assault rifle as
Shondell Dalton, or “Black.” He identified the other man as Patrick Pickett, also known
to him as “Worm.” Currie testified that Black wore a ski mask, but he could nevertheless
identify him because he knows how Black walks and moves. Pickett also wore a ski
mask that covered his entire face. He recognized Pickett because of Pickett’s unusually
large head. Currie testified that Wright remained seated in the driver’s seat and was not
wearing a mask. After the Charger left the scene, Currie went to Smiley’s house to
inform her that her son had been shot. Currie testified that he did not identify Wright as
the driver of the vehicle, or Pickett and Dalton as the gunmen when questioned by police
on the day of the shooting because he feared for his own safety.
On January 27, 2008, Currie was arrested in connection with an outstanding traffic
warrant unrelated to Goodwin’s shooting. Currie believed that he was taken to the police
station because police considered him a suspect in the shooting. This time, he identified
5
Wright as the driver of the vehicle and Pickett and Dalton as the shooters. He also
identified these individuals in photographs shown to him by Sergeant Diaz. On January
30, 2008, Currie testified at an investigative subpoena hearing with the prosecutor and
Sergeant Diaz. At that time, he indicated he had doubts about whether Wright was the
driver of the vehicle.
Currie also testified about the fire that destroyed Pickett’s house. According to
Currie, just before Christmas, Wright asked him to burn down Pickett’s drug house in
exchange for $100. He agreed to the deal although he knew that Wright intended for
Pickett to think that Goodwin had burned the house down. Currie also testified that his
father and girlfriend conveyed an offer purportedly made by Wright for money if
Goodwin did not testify at Wright’s trial.
Sergeant Gary Diaz testified that he was the police officer in charge of this case.
He had Currie detained on traffic warrants on January 27, 2008. Currie identified Wright
as the driver of the vehicle and Dalton and Pickett as the shooters. Currie never
mentioned that any of the men were wearing a ski mask. When he testified about the ski
masks at the preliminary examination, it came as a complete surprise to Diaz. Currie told
Diaz that he did not see Pickett with a gun in his hand.
Dr. Lokman Sung, assistant medical examiner at the Wayne County Medical
Examiner’s Office, testified that he performed an autopsy on Travis Goodwin on January
10, 2008. He identified the cause of death as eight gunshot wounds.
Wright presented no witnesses in his own defense.
6
II. Procedural History
Following a jury trial in Wayne County Circuit Court, Wright was convicted of
first-degree murder and carrying a concealed weapon. On October 20, 2008, he was
sentenced to life imprisonment for the first-degree murder conviction and 2-5 years’
imprisonment for the carrying a concealed weapon conviction.
Wright filed a claim on appeal in the Michigan Court of Appeals on November 17,
2008. He filed a brief on appeal through counsel on May 28, 2009, and a pro per
supplemental brief on August 19, 2009. On December 14, 2009, the trial court granted
appellate counsel’s motion to withdraw and appointed the State Appellate Defender
Office as substitute appellate counsel. Substitute counsel moved to strike the brief
previously submitted by assigned counsel because it omitted several relevant issues, and
to replace it with the brief filed by substitute counsel. The trial court granted the motion.
Substitute counsel also filed a motion to remand to the trial court for an evidentiary
hearing on this issue:
Defendant Wright was denied his state and federal constitutional right to the
effective assistance of counsel, where trial counsel failed to object to the
out-of-court statements to Officer Thomas on constitutional grounds, failed
to request a limiting instruction regarding the jury’s use of hearsay
evidence, failed to request a cautionary instruction on the unreliability of
accomplice testimony, and failed to object to the prosecutor’s closing
argument.
The Michigan Court of Appeals denied the request for a remand. People v.
Wright, No. 288975 (Mich. Ct. App. Apr. 16, 2010).
7
Wright’s appeal of right in the Michigan Court of Appeals raised these claims: (i)
admission of victim’s hearsay statements to his mother and Officer Thomas violated due
process and trial court committed plain error in failing to give a limiting instruction; (ii)
admission of victim’s out-of-court statements to Officer Thomas violated the
Confrontation Clause; (iii) trial court’s failure to instruct the jury that it should view
Currie’s testimony with caution denied Wright his right to present a defense; (iv)
prosecutor committed misconduct; and (v) trial counsel was ineffective. Wright raised
these additional claims in a pro per brief: (i) perjured testimony was presented at trial; (ii)
prosecutorial misconduct; (iii) references to accomplices who were not part of case
violated due process; (iv) Wright should have been charged as an accessory after the fact;
and (v) ineffective assistance of counsel. The Michigan Court of Appeals affirmed
Wright’s convictions. People v. Wright, No. 288975, 2010 WL 5373811 (Mich. Ct. App.
Dec. 28, 2010).
Wright 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. Wright, 489 Mich. 973 (2011).
Wright then filed the pending habeas petition through counsel, raising these
claims:
I.
The trial court violated due process by admitting the hearsay statements of
the deceased victim to his mother and to Officer Thomas. Moreover, the
trial court committed plain error by failing to give a limiting jury instruction
on the use of the same.
8
II.
The admission of out-of-court statements violated Petitioner’s right to
confrontation.
III.
The trial court committed plain error in failing to instruct the jury that it
should view Mr. Currie’s testimony with caution as he was an accomplice
to the crime.
IV.
Prosecutorial misconduct denied Petitioner his right to a fair trial.
V.
Petitioner was denied the effective assistance of counsel by his counsel’s
failure to object to the out-of-court statements on constitutional grounds,
failure to request limiting instructions, failure to request accomplice
instruction, and failure to object to the prosecutor’s closing argument.
VI.
The principal witness, Dawayne Currie, committed palpable perjury and
therefore there is constitutionally insufficient evidence to support the
verdict.
III. Standard of Review
This habeas petition is reviewed under the exacting standards set forth in the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132,
110 Stat. 1214 (Apr. 24, 1996). Under AEDPA, a federal court cannot grant habeas relief
with respect to any claim adjudicated on the merits in a state-court proceeding unless the
state adjudication of the claim either:
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d)(1), (2).
“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
9
‘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. “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.86, 101 (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 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).
To obtain relief under § 2254(d)(2), a petitioner must show an unreasonable
determination of fact and that the resulting state court decision was “based on” that
unreasonable determination. Rice v. White, 660 F.3d 242, 250 (6th Cir. 2012).
10
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. Discussion
A. Ineffective Assistance of Trial Counsel
Wright argues that his trial counsel rendered ineffective assistance by failing to
object to the admission of Goodwin’s out-of-court statements to Officer Thomas on the
ground that their admission violated the Confrontation Clause. He further argues that the
state court’s holding that his attorney did not render ineffective assistance was an
unreasonable application of Strickland.
To establish that he received ineffective assistance of counsel, a petitioner must
show, first, that counsel’s performance was deficient and, second, that counsel’s deficient
performance prejudiced the petitioner. Strickland v. Washington, 466 U.S. 668, 687
(1984). A petitioner may show that counsel’s performance was deficient by establishing
that counsel’s performance was “outside the wide range of professionally competent
assistance.” Id. at 689. This “requires a showing that counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed by the Sixth Amendment.” Id. at
687.
To satisfy the prejudice prong, a petitioner must show that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
11
would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. at 694. A court’s review of counsel’s
performance must be “highly deferential.” Id. at 689. Habeas relief may be granted only
if the state-court decision unreasonably applied the standard for evaluating
ineffective-assistance-of-counsel claims established by Strickland. Knowles v.
Mirzayance, 556 U.S. 111, 122-23 (2009). “The question is not whether a federal court
believes the state court’s determination under the Strickland standard was incorrect but
whether that determination was unreasonable – a substantially higher threshold.” Id. at
123 (internal quotation omitted).
Wright argues that counsel was ineffective in failing to object to admission of
Goodwin’s statements to Officer Thomas on Confrontation Clause grounds. Counsel
objected only on state law hearsay grounds. Wright raised this claim on direct review and
the Michigan Court of Appeals denied the claim as follows:
Defendant argues that his trial counsel rendered ineffective assistance by
failing to object to Officer Thomas’s testimony about Goodwin’s
out-of-court statements on Confrontation Clause grounds, . . . Even if
defendant could overcome the presumption of effective assistance, he has
not established that any deficiency was prejudicial. For the reasons already
explained, defendant has not established that the erroneous admission of
Goodwin’s statements was outcome determinative.
Wright, 2010 WL 5373811 at *5.
Because the state court did not decide the question of whether counsel was
deficient in his representation, and instead ruled that Wright failed to demonstrate that he
was prejudiced by counsel’s errors, the Court reviews the deficiency prong of this claim
12
de novo and the prejudice prong with AEDPA deference. See Rayner v. Mills, 685 F.3d
631, 638 (6th Cir. 2012) (“When a state court relied only on one Strickland prong to
adjudicate an ineffective assistance of counsel claim, AEDPA deference does not apply to
review of the Strickland prong not relied upon by the state court.”).
To assess whether counsel was deficient in failing to raise a Confrontation Clause
objection, the Court first considers the relative strength of that objection. In Crawford v.
Washington, 541 U.S. 36, 68 (2004), the Supreme Court held that out-of-court statements
that are testimonial in nature are barred by the Confrontation Clause unless the witness is
unavailable and the defendant had a prior opportunity for cross-examination regardless of
whether the trial court finds the statements to be reliable. Goodwin’s death clearly made
him unavailable for trial and it is undisputed that Wright did not have an opportunity to
cross-examine Goodwin. The only remaining question is whether Goodwin’s statements
were testimonial in nature.
Statements are testimonial in nature when the primary purpose is “to establish or
prove past events potentially relevant to later criminal prosecution.” Davis v.
Washington, 547 U.S. 813, 822 (2006). “Statements taken by police officers in the course
of interrogations are ... testimonial.” Crawford, 541 U.S. at 52. But, the Supreme Court
also made clear in Davis and its companion case, Hammon v. Indiana, that not all
statements made to police officers are testimonial. Davis, 547 U.S. at 822. Davis
concerned statements made to a 911 operator by a domestic assault victim while the
assailant was still in her home. Id. at 817. The Court found those statements non13
testimonial because they were made “under circumstances objectively indicating that the
primary purpose of the interrogation is to enable police assistance to meet an ongoing
emergency.” Id. at 822. In contrast, in Hammon, police responded to a domestic
disturbance and were told by the wife that “nothing was the matter.” Id. at 819. Police
placed the husband in a separate room while the wife completed an affidavit describing an
altercation that occurred before the police arrived. Id. at 820. The Court held that the
statements made by the wife in Hammon were not made during an emergency and were
therefore testimonial. Id. at 830. The Court further explained: “In Davis, [the victim]
was speaking about events as they were actually happening, rather than describing past
events,” id. at 828, while in Hammon, the declarant was separated from the defendant and
described events that occurred in the past and the police questioning “took place some
time after the events described were over.” Id. at 830.
In this case, Goodwin was not in any immediate danger or in the midst of an
ongoing emergency when he flagged down Officer Thomas. That Goodwin flagged
down a police officer and volunteered his statement does not alter the testimonial nature
of his statement. Out-of-court statements “can evade the basic objective of the
Confrontation Clause, which is to prevent the accused from being deprived of the
opportunity to cross-examine the declarant about statements taken for use at trial”
regardless of whether they are formal or informal statements. Michigan v. Bryant, 562
U.S. 344, —, 131 S. Ct. 1143, 1155 (2011). As the Sixth Circuit Court of Appeals
14
observed, the danger may be even greater for volunteered informal statements than for
those elicited by formal interrogation:
Indeed, the danger to a defendant might well be greater if the statement
introduced at trial, without a right of confrontation, is a statement
volunteered to police rather than a statement elicited through formalized
police interrogation. One can imagine the temptation that someone who
bears a grudge might have to volunteer to police, truthfully or not,
information of the commission of a crime, especially when that person is
assured he will not be subject to confrontation. ... If the judicial system only
requires cross-examination when someone has formally served as a witness
against a defendant, then witnesses and those who deal with them will have
every incentive to ensure that testimony is given informally. [] The proper
inquiry, then, is whether the declarant intends to bear testimony against the
accused. That intent, in turn, may be determined by querying whether a
reasonable person in the declarant’s position would anticipate his statement
being used against the accused in investigating and prosecuting the crime.
United States v. Cromer, 389 F.3d 662, 675 (6th Cir. 2004).
Goodwin’s statements to Officer Thomas were made under circumstances which
would lead an objective witness reasonable to believe that his statement would be
available for use in a later investigation or prosecution of a crime. There was no
immediate threat to Goodwin at the time. In sum, the statement to Officer Thomas was
clearly testimonial and would have been excluded under Crawford.
It should have been obvious to defense counsel that an objection under the
Confrontation Clause would be sustained. Wright derived no possible tactical advantage
from the admission of this testimony and the risk of prejudice was immense. Goodwin’s
statement to Officer Thomas directly pointed a finger (Goodwin’s finger) at Wright as
someone who might cause him harm. There is no reasonable strategic justification for
15
counsel to fail to object to the violation of Wright’s fundamental right to confrontation.
Therefore, the Court finds that counsel’s failure to object fell outside the wide range of
professionally competent assistance.2
The Court now turns to Strickland’s prejudice prong. In finding no prejudice
under the Strickland analysis, the Michigan Court of Appeals relied on its analysis in the
context of the holding that improper admission of hearsay testimony (through Officer
Thomas and Smiley) was harmless error. The Michigan Court of Appeals rejected
Wright’s argument that “given the questionable reliability of Currie’s testimony, the
admission of the hearsay testimony tipped the balance against defendant by permitting the
jury to make the inference that there was a good reason for Goodwin to be frightened of
defendant and for defendant to assist in his murder.” Wright, 2010 WL 5373811 at *3.
The state court reasoned:
[A]fter a careful review of the record, we do not agree that the
inconsistencies in Currie’s testimony were so consequential, or the
inadmissible evidence so prejudicial, that one must conclude that more
likely than not the jury’s assessment of defendant’s guilt or innocence
turned on the inadmissible evidence. Currie’s initial statement to police
was understandably less comprehensive than his later detailed testimony
about the incident. Indeed, the police officer who interviewed Currie after
he was arrested on traffic tickets testified that he wanted to interview Currie
2
An alternative route to fulfilling the purpose of requiring an objection to satisfy
comity is to note the state courts were provided with notice and the opportunity to enforce
the Constitution by the hearsay objection. State court judges take an oath or affirmation
of office which requires them to “support the Constitution of the United States ...” Mich.
Const. Ar. XI, § 1. It is not a leap to note that state court judges have an obligation to
know the confrontation requirements inherent in a hearsay objection, whether the attorney
mentions the Constitution or not.
16
because there were “holes” in Currie’s earlier statement. The officer
testified that, from the time the officer interviewed Currie and Currie
identified the suspects, Currie had never named anyone other than
defendant as the driver, “Black” as the person with the assault rifle, and
“Worm” as the person with the shiny object getting into the passenger side
of defendant’s car. And, critically, even absent the inadmissible evidence,
the jury would still have heard Currie’s testimony that he burned the drug
house knowing that defendant would blame Goodwin for burning the house.
In addition, a firearms identification expert concluded based on the
cartridge casings found at the scene that two guns were involved, and that
one of the types of cartridges could have come from a semi-automatic
assault rifle. This testimony was consistent with Currie’s account of two
shooters.
In addition, after defense counsel’s cross-examination of Currie, in which
defense counsel brought out some inconsistencies between Currie’s various
statements, the prosecutor forcefully highlighted defendant’s involvement
in the shooting:
Q. Sir, were you asked these questions and did you give these
answers at the preliminary examination on March 14th under
oath, sir.
***
“Question: Did ... Nigel tell you that they were going to blame
this on Travis; that he was going to tell Patrick that Travis did
it?”
Your answer under oath, “Yes.”
Was that you answer, sir?
A. Yes.
Q. So when counsel asked you about who set stuff in motion,
who asked you to burn the house?
A. Nigel.
Q. Who was going to blame Travis for it?
17
A. Nigel.
Q. Who was in the black Charger when Travis gets shot?
A. Nigel.
Q. And who’s with Nigel?
A. Worm, and Black.
Q. And whose house—whose drug house got burned up?
A. Worm’s
Q. And it got burned up because who wanted it burned up?
A. Nigel.
In light of the other evidence connecting defendant with the murder, we
cannot conclude that it was more probable than not that the inadmissible
evidence was outcome determinative.
Id. at *3-4.
When determining prejudice, the Court “must consider the totality of the evidence
before the judge or jury.” Strickland, 466 U.S. at 695. A case in which the “verdict or
conclusion [is] only weakly supported by the record is more likely to have been affected
by errors than one with overwhelming record support.” Strickland, 466 U.S. at 696.
The Michigan Court of Appeals’ finding that Wright was not prejudiced by
admission of Goodwin’s out-of-court statements was an unreasonable application of
Strickland. The evidence implicating Wright was far from overwhelming and rested
almost exclusively on the testimony of Currie. Currie’s testimony suffered from
numerous credibility problems. Currie did not immediately identify Wright as the driver
18
of the vehicle. He first identified Wright as the driver and Pickett and Dalton as the
shooters on January 27, 2008, almost a month after the shooting. He made these
identifications following his own arrest on unrelated traffic warrants, and only when he
believed that police considered him a suspect in the murder.
Currie’s testimony about his relationship with Goodwin and Wright also calls his
credibility into question. Currie testified that he was good friends with Goodwin. He used
his relationship with Goodwin to explain in part the delay in his identification of Wright
as the shooter. He explained that he was motivated to finally identify Wright when he
learned that Goodwin died because Goodwin had been his friend. Yet, he did not contact
police after Goodwin’s death. In fact, he did not communicate with police following
Goodwin’s death until police arrested him on unrelated warrants. Moreover, Currie
burned the drug house knowing that his supposedly good friend would be blamed for the
fire.
At trial, Currie identified two masked men, Dalton and Pickett as the shooters. He
did so despite many factors calling into question his ability to view the suspects: Currie
viewed the suspects from inside his home across the street from where their vehicle was
parked for approximately fifteen seconds; it was 2:00 a.m.; the nearest streetlight was
three houses down; the light inside Currie’s home was on; and he was surreptitiously
peeking out from behind blinds. The basis for Currie’s identification of Dalton and
Pickett was so insufficient that the district court would not bind them over for trial.
Currie’s identification of Dalton and Pickett, in the middle of the night, with no
19
opportunity to see their unmasked faces, certainly raises concerns about his credibility.
Indeed, Currie showed that he would lie under oath when he admitted at trial that he
testified falsely at the preliminary examination on several facts.
Further impugning Currie’s credibility is his testimony that he told Goodwin’s
mother, Smiley, and other family members that Wright, Dalton and Pickett were
responsible for Goodwin’s death. Smiley testified that Currie did not relay this
information to her and there is no evidence that any of Goodwin’s relatives relayed this
information to police.
Furthermore, the “other evidence” identified by the Michigan Court of Appeals as
supporting a finding that Wright was not prejudiced by this testimony is almost entirely
evidence derived from Currie’s own testimony. That is, the state court uses the portions
of Currie’s trial testimony that identify Wright as the driver and the certainty of that
identification to support its conclusion that the admission of the victim’s statements did
not prejudice Wright. However, this analysis depends upon the credibility of Currie,
which itself was supported by the victim’s out-of-court statements.
If counsel raised a Confrontation Clause objection and if the trial court followed
controlling Supreme Court precedent, Goodwin’s statements would have been excluded.
Had jurors not heard Goodwin’s statements to Officer Thomas, there is a reasonable
probability that the jury would have changed their assessment of Currie’s credibility and
their verdict. The state court’s conclusion to the contrary is an unreasonable application
of Strickland.
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B. Confrontation Clause Violation
Related to his ineffective assistance of counsel claim, Wright raises a stand-alone
claim that habeas relief should be granted because the admission of Goodwin’s out-ofcourt statements to Officer Thomas violated his rights under the Confrontation Clause.
Respondent argues that this claim is procedurally defaulted because the Michigan
Court of Appeals relied on an adequate and independent state court procedural rule in
denying this claim – trial counsel’s failure to object on Confrontation Clause grounds.
Federal habeas relief is precluded on claims that were not presented to the state courts in
accordance with the state’s procedural rules. See Wainwright v. Sykes, 433 U.S. 72,
85-87 (1977). The doctrine of procedural default is applicable when a petitioner fails to
comply with a state procedural rule, the rule is actually relied upon by the state courts,
and the procedural rule is “independent of the federal question and adequate to support
the judgment.” Walker v. Martin, 562 U.S. 307, —, 131 S. Ct. 1120, 1127 (2011)
(internal quotations omitted). A federal court may excuse procedural default and address
the merits of a habeas claim if the petitioner establishes cause and prejudice or if a
petitioner can show that failure to consider a claim will result in a fundamental
miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991).
To establish “cause,” a petitioner must show that “some objective factor external
to the defense impeded counsel's efforts to comply with the State's procedural rule.”
Haylim v. Mitchell, 492 F.3d 680, 690-91 (6th Cir. 2007), quoting Murray, 477 U.S. at
488. “Prejudice . . . requires a showing that errors at trial ‘worked to [the petitioner's]
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actual and substantial disadvantage, infecting his entire trial with error of constitutional
dimensions.’“ Id. at 690-91 quoting United States v. Frady, 456 U.S. 152, 168 (1982).
Wright asserts ineffective assistance of trial counsel to excuse his procedural
default. The Court has found that counsel rendered constitutionally ineffective assistance
and that Wright was prejudiced by counsel’s error. Therefore, he has shown cause and
prejudice to excuse the default and the Court is free to address the merits of this claim.
The Court has found that Goodwin’s statements to Officer Thomas were
testimonial and that Wright had no prior opportunity to cross-examine Goodwin. Thus, a
Confrontation Clause violation occurred. A violation of the Confrontation Clause is
subject to harmless error analysis. See Lilly v. Virginia, 527 U.S. 116, 140 (1999). On
habeas review, to determine whether an error is harmless a court must ask whether the
error “had [a] substantial and injurious effect or influence in determining the jury’s
verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quoting Kotteakos v. United
States, 328 U.S. 750, 776 (1946)). The Court, however, need not undertake that analysis
here because “[t]he prejudice prong of the ineffective assistance analysis subsumes the
Brecht harmless-error review.” Hall v. Vasbinder, 563 F.3d 222, 236 (6th Cir. 2009),
citing Kyles v. Whitley, 514 U.S. 419, 436 (1995). See also Rodriguez v. Montgomery,
594 F.3d 548, 551 (7th Cir. 2010) (“When a petitioner must show prejudice, as when
arguing that counsel furnished ineffective assistance of counsel, it is unnecessary to show
prejudice a second time through the lens of Brecht.”); Avila v. Galaza, 297 F.3d 911, 918
n. 7 (9th Cir. 2002) (“We need not conduct a harmless error review of Strickland
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violations under Brecht ... because the Strickland prejudice analysis is complete in itself;
there is no place for an additional harmless-error review”) (internal quotation omitted).
Because Wright satisfies the prejudice prong of Strickland, the error is not harmless under
the Brecht standard. Hall, 563 F.3d at 236 (“If [petitioner] can show that he was
prejudiced by his attorney’s failure, . . . then he necessarily satisfies Brecht. . . ”). Habeas
relief is granted on this claim.
V. Conclusion
Accordingly, IT IS ORDERED that the petition for a writ of habeas corpus is
CONDITIONALLY GRANTED. Unless a date for a new trial is scheduled within 120
days, Petitioner must be unconditionally released. Because the Court concludes that the
claims that counsel was ineffective in failing to raise a Confrontation Clause objection
and the Confrontation Clause violation are sufficient to warrant habeas corpus relief, the
Court need not address Petitioner’s remaining claims.
S/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
Dated: May 28, 2015
I hereby certify that a copy of the foregoing document was served upon parties/counsel of
record on May 28, 2015, by electronic and/or ordinary mail.
S/Catherine A. Pickles
Judicial Assistant
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