Pouncy v. Palmer
Filing
93
OPINION AND ORDER (1) Granting Petitioner's 80 Motion for Release on Bond and Staying Grant of Bond for 21 Days, (2) Granting Respondent's 85 Motion for Stay Pending Appeal, (3) Denying Petitioner's 82 Motion to Reduce Time to Comply with Conditional Writ as Moot, and (4) Denying Petitioner's 92 Motion for Oral Argument. Signed by District Judge Matthew F. Leitman. (HMon)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
OMAR RASHAD POUNCY,
Petitioner,
Case No. 13-cv-14695
Hon. Matthew F. Leitman
v.
CARMEN D. PALMER,
Respondent.
_________________________________/
OPINION AND ORDER (1) GRANTING PETITIONER’S MOTION FOR
RELEASE ON BOND (ECF #80) AND STAYING GRANT OF BOND FOR
21 DAYS, (2) GRANTING RESPONDENT’S MOTION FOR STAY
PENDING APPEAL (ECF #85), (3) DENYING PETITIONER’S MOTION
TO REDUCE TIME TO COMPLY WITH CONDITIONAL WRIT (ECF
#82) AS MOOT, AND (4) DENYING PETITIONER’S MOTION FOR ORAL
ARGUMENT (ECF #92)
INTRODUCTION
On January 11, 2016,1 this Court issued a conditional writ of habeas corpus
vacating Petitioner Omar Rashad Pouncy’s convictions for carjacking, armed
robbery, and felon in possession of a firearm (the “Amended Opinion and Order”).
(See ECF #76.) In the Amended Opinion and Order, the Court held that Petitioner
was entitled to habeas relief because the state appellate court’s decision affirming
Petitioner’s convictions involved an unreasonable application of Faretta v.
California, 422 U.S. 806 (1985). In Faretta, the Supreme Court held, among other
things, that a criminal defendant’s waiver of his right to counsel must be voluntary
– the product of a truly “free choice.” Id. at 833-34. Petitioner’s waiver of counsel
here was plainly involuntary under Faretta because he was forced to choose
between admittedly and obviously unprepared defense counsel, on one hand, and
representing himself, on the other hand. As explained in the Amended Opinion
and Order, the state appellate court unreasonably applied Faretta when it upheld
the validity of Petitioner’s waiver of counsel under these circumstances.
Respondent has appealed the Amended Opinion and Order. (See ECF #78.)
She now asks the Court to stay that ruling and keep Petitioner in custody while she
appeals (the “Motion for Stay”). (See ECF #85.) Petitioner has moved the Court
1
The Court initially granted Petitioner relief on January 8, 2016. (See ECF #74.)
It then issued an Amended Opinion and Order on January 11, 2016, that corrected
two non-substantive errors in the Court’s initial ruling. (See ECF #76.)
1
to release him on bond pending Respondent’s appeal (the “Motion for Bond”).
(See ECF #80.) He also asks the Court to require the State to retry him in no more
than sixty days (the “Expedited Retrial Motion”). (See ECF #82.) For the reasons
explained below, the Court will stay the Amended Opinion and Order; release
Petitioner on bond (subject to the very strict conditions described below) while
Respondent appeals; and deny as moot the Expedited Retrial Motion. Proceeding
in this fashion properly balances the legitimate interests of both parties. (The
Court will also stay the portion of this ruling granting Petitioner bond on appeal in
order to permit Respondent to appeal that part of the Court’s decision before it
takes effect.)
GOVERNING LEGAL STANDARD
Petitioner’s Motion for Bond and Respondent’s Motion for Stay are each
governed by Rule 23(c) of the Federal Rules of Appellate Procedure. That rule
provides that
[w]hile a decision ordering the release of a prisoner is
under review, the prisoner must – unless the court or
judge rendering the decision, or the court of appeals, or
the Supreme Court, or a judge or justice of either court
orders otherwise – be released on personal recognizance,
with or without surety.
Fed. R. App. P. 23(c).
Rule 23(c) “creates a presumption” that a successful habeas petitioner
should be “release[d] from custody” pending appeal. Hilton v. Braunskill, 481
2
U.S. 770, 774 (1987). But that presumption “may be overcome” upon a sufficient
showing by a habeas respondent. Id. When a district court considers whether to
release a successful habeas petitioner or to stay an order granting habeas relief
pending appeal, it should consider and balance the following four factors
(hereinafter, the “Hilton factors”):
(1) whether the stay applicant has made a strong showing
that he is likely to succeed on the merits; (2) whether the
applicant will be irreparably injured absent a stay; (3)
whether issuance of the stay will substantially injure the
other parties interested in the proceeding; and (4) where
the public interest lies.
Id. at 776.
The Supreme Court has offered the following guidance to lower courts
applying the Hilton factors:
The interest of the habeas petitioner in release pending
appeal, always substantial, will be strongest where the
factors mentioned in the preceding paragraph are
weakest. The balance may depend to a large extent upon
determination of the State's prospects of success in its
appeal. Where the State establishes that it has a strong
likelihood of success on appeal, or where, failing that, it
can nonetheless demonstrate a substantial case on the
merits, continued custody is permissible if the second and
fourth factors in the traditional stay analysis militate
against release. Where the State's showing on the merits
falls below this level, the preference for release should
control.
Id. at 777-78 (citations omitted).
3
Finally, the Supreme Court has also explained that “[t]he State’s interest in
continuing custody and rehabilitation pending a final determination of the case on
appeal is also a factor to be considered; it will be strongest where the remaining
portion of the sentence to be served is long, and weakest where there is little of the
sentence remaining to be served.” Id. at 777.
ANALYSIS
As explained below, the Hilton factors weigh in favor of releasing Petitioner
on bond (subject to very strict conditions).
The Court will therefore grant
Petitioner’s Motion for Bond. The Court will also grant Respondent’s Motion for
Stay because Respondent has a substantial interest in avoiding a re-trial of
Petitioner prior to a ruling on her appeal.
I.
Respondent Has Not Shown a Strong Likelihood of Success on the
Merits
In the Motion for Stay, Respondent argues that the Court committed several
serious errors when it granted habeas relief. Respondent insists that these errors
will lead the United States Court of Appeals for the Sixth Circuit to reverse the
Court’s judgment. Respondent’s criticisms of the Court’s ruling raise fundamental
questions about the manner in which a federal court may analyze claims in a
habeas petition and about the case law that a federal court may consider when
conducting its analysis. Respondent has set forth its claims of error in a careful
and thoughtful manner, and they warrant a detailed response.
4
A.
The Court’s Independent Consideration of Whether Petitioner’s
Waiver of Counsel Complied with Faretta Did Not Convert the
Court’s Deferential Review Under AEDPA Into De Novo Review
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
strictly limits the standard of review applicable to habeas petitions. Under the
provision of AEDPA relevant to this case, a federal court may grant habeas relief
only if, among other things, it concludes that a state court decision involved an
unreasonable application of clearly established federal law. See 28 U.S.C.
§ 2254(d)(1). This Court applied that test to Petitioner’s claim challenging his
waiver of counsel.
The Court began by emphasizing that Petitioner was entitled to habeas relief
because the state appellate court unreasonably applied Faretta, not because this
Court had independently concluded that a Faretta violation had occurred. (See Am.
Op. and Order at 2, Pg. ID 6849) (noting that state appellate court unreasonably
applied Faretta and “therefore” Petitioner was entitled to habeas relief.) Likewise,
the Court concluded with a several-page explanation detailing how the state
appellate court unreasonably applied Faretta. (See id. at 29-32, Pg. ID 6876-79.)
Respondent nonetheless contends that this Court actually “conduct[ed] what
appears to be a de novo review” of Petitioner’s waiver of counsel claim. (Mot. for
Stay at 7, Pg. ID 7012.) Respondent is incorrect.
5
Respondent appears to believe that this Court conducted a de novo review
because the Amended Opinion and Order included the Court’s own analysis of
whether Petitioner’s waiver of counsel satisfied Faretta. In Respondent’s words,
the Court mistakenly “treated the unreasonableness question as a test of its own
confidence in the preparedness of [defense] counsel.” (Mot. for Stay at 8, Pg. ID
7013) (emphasis in original.)
But the Court did not stray from AEDPA’s
deferential standard of review when it evaluated whether Petitioner’s waiver of
counsel satisfied Faretta. On the contrary, the Court conducted its own analysis
under Faretta as merely one step on its way to answering “the only question that
matter[ed] under [AEDPA] – whether [the] state court decision [was] contrary to,
or an unreasonable application of [Faretta].” Lockyer v. Andrade, 538 U.S. 63, 71
(2003). The Court first found a patent violation of Faretta and then proceeded to
separately conclude that the state appellate court unreasonably applied Faretta
when it ruled that no such violation had occurred. That analytical path was fully
compliant with AEDPA.
Pausing to independently consider whether a petitioner is entitled to relief
under controlling Supreme Court precedent, as the Court did here, fits comfortably
within AEDPA’s deferential standard of review. While AEDPA does not allow a
federal court to grant relief based solely on its own conclusion that a clear
constitutional error occurred, see Lockyer, 538 U.S. at 75, such a conclusion may
6
nonetheless be an important building-block of a federal court’s ultimate
determination that a state appellate court unreasonably applied Supreme Court
precedent. Indeed, common sense tells us that the more glaring and egregious the
constitutional error, the more likely it is that a state appellate court decision
affirming a conviction in the face of that error involved an unreasonable
application of clearly established federal law. See, e.g., Jackson v. Edwards, 404
F.3d 612, 621, 627 (2d Cir. 2005) (granting habeas relief under AEDPA in part
because state appellate court affirmed conviction despite a “catastrophic” and
“egregious[]” constitutional error). Accordingly, it may be quite “useful” for a
federal habeas court “to review first the underlying constitutional issue.” Hurtado
v. Tucker, 245 F.3d 7, 16 (1st Cir. 2001) (approving of the practice of reviewing
the constitutional issue first before turning to the reasonableness of the state
appellate court’s resolution of that issue). As the United States Court of Appeals
for the Second Circuit has explained, “it is often appropriate in considering a
habeas petition under AEDPA for [a] federal court” to first reach its own
conclusion as to “what the correct interpretation [and application] of Supreme
Court precedent is” and, thereafter, to tackle the question of whether the state
appellate court unreasonably “unders[tood] or appl[ied] that precedent.” Kruelski v.
Connecticut Superior Ct. for Jud. Dist. of Dansbury, 316 F.3d 103, 105-06 (2d Cir.
7
2003).2 Proceeding in this fashion does not transform AEDPA’s deferential review
into de novo review.
It was especially appropriate for this Court to begin with its own analysis of
whether Petitioner’s waiver of counsel was voluntary under Faretta because the
Michigan Court of Appeals conducted no analysis of that issue when it affirmed
Petitioner’s convictions. Instead, the state appellate court confined its analysis to
whether Petitioner’s waiver of counsel was knowingly made. See People v.
Pouncy, 2008 WL 9869818, at *8-9 (Mich. Ct. App. Mar. 25, 2008). Thus, this
2
The United States Supreme Court’s decision in Lockyer, supra, resolved a circuit
split concerning whether a federal court may or even must conduct an independent
review of a petitioner’s constitutional claim before analyzing whether the state
appellate court unreasonably applied clearly established federal law. Prior to
Lockyer, the Ninth Circuit had ruled that federal courts must conduct an
independent analysis of the constitutional claim, see Clark v. Murphy, 317 F.3d
1038, 1044 n.3 (9th Cir. 2003); the Fourth and Fifth Circuits had ruled that federal
courts may not conduct an independent analysis and must proceed directly to
whether the state appellate court unreasonably applied clearly established federal
law. See Bell v. Jarvis, 236 F.3d 149, 160 (4th Cir. 2000) (en banc); Valdez v.
Cockrel, 274 F.3d 941, 954 n.19 (5th Cir. 2001). In Lockyer, the Supreme Court
rejected the Ninth Circuit’s rule requiring independent review of a petitioner’s
constitutional claim and explained that “AEDPA does not require a federal habeas
court to adopt any one methodology in deciding the only question that matters
under 28 U.S.C. § 2254(d)(1) – whether a state court decision is contrary to, or an
unreasonable application of, clearly established federal law.” Lockyer, 538 U.S. at
71 (emphasis added). In so holding, the Supreme Court “sided with the [rule
adopted by the] First and Second Circuits” in the Hurtado and Kruelski cases cited
in text above. Stephen I. Vladeck, AEDPA, Saucier, and the Stronger Case for
Rights-First Constitutional Adjudication, 32 Seattle U.L. Rev. 595, 607 (Spring
2009). “Thus, [under Lockyer], [] federal courts are allowed, but not required, to
reach whether the state court committed error before deciding whether that error
was unreasonable.” Id.
8
Court was not in a position to evaluate the state appellate court’s reasoning for
concluding that Petitioner’s waiver of counsel was voluntary under Faretta; the
Court could only assess the reasonableness of the result reached by that court. And
the most sensible way to test the reasonableness of the state appellate court’s result
was to begin by conducting the appropriate voluntariness analysis under Faretta,
as the Court did, and to then determine whether any “fairminded jurist” could
reach a different conclusion. Harrington v. Richter, 562 U.S. 86, 101 (2011)
(quotation omitted).
Under these circumstances, the Court did not err by
independently analyzing whether Petitioner’s waiver of counsel satisfied Faretta as
a precursor to, and as aid in, answering the ultimate reasonableness question under
AEDPA.
B.
The Court Did Not Err in Assessing Defense Counsel’s Level of
Preparedness
When analyzing whether Petitioner’s waiver of counsel satisfied Faretta’s
voluntariness requirement, the Court assessed whether defense counsel was
prepared for trial. (See Am. Op. and Order at 24-27, Pg. ID 6871-74.) The Court
ultimately concluded that defense counsel was “entirely unprepared for trial” and
that this lack of preparation – which was obvious to Petitioner at the time he
waived his right to counsel – was the key element in rendering Petitioner’s waiver
involuntary. (Id. at 26, Pg. ID 6873.) Respondent now argues that the “steps
taken” by the Court “to reach [the] conclusion” that defense counsel was
9
unprepared “are faulty.” (Mot. for Stay at 9, Pg. ID 7014.) Respondent’s criticisms
of the Court’s “steps” miss the mark.
Respondent first argues that the Court wrongly placed “heavy reliance on
[defense] counsel’s statement [to the trial court] that he was unprepared for trial.”
(Id. at 10, Pg. ID 7015.) Respondent insists that the Court erred when it relied on
that
statement
because
“[m]ere
statements
by
counsel
as
to
their
preparedness/effectiveness should not govern when questions arise concerning
preparedness/effectiveness.” (Id.) But the Court did not blindly accept defense
counsel’s subjective opinion that he was unprepared. On the contrary, the Court
focused on defense counsel’s objective admissions that he (1) did not have the time
or resources to conduct his own investigation into Petitioner’s primary defenses (of
alibi and mistaken identity); (2) hired an investigator to conduct the investigation
into the defenses; and (3) did not have the investigator’s final report on the day of
trial. No competent attorney could have been prepared under these circumstances
– and defense counsel plainly was not.
Moreover, the Court found in the record substantial other, objective,
evidence that defense counsel was not prepared. (See Am. Op. and Order at 25-26,
Pg. ID 6872-73) (noting that defense counsel offered virtually no opposition to the
prosecution’s motions in limine, miscalculated Petitioner’s sentencing guidelines
range, and never disputed Petitioner’s contention that he (defense counsel) had
10
failed to sufficiently meet and communicate with Petitioner prior to trial.) And it
bears repeating that at the hearing before this Court, Respondent’s counsel could
not identify any evidence in the record to support a finding that defense counsel
was in fact prepared for trial. (11-12-2015 Hearing Tr., ECF #73 at 24, 28-29, Pg.
ID 6720, 6724-25.)
Second, Respondent insists that this Court should not have “placed great
emphasis” on the fact that, at the time Petitioner’s trial began, defense counsel had
not yet received a final written report from the investigator he hired to investigate
Petitioner’s primary defenses.
(Mot. for Stay at 10-11, Pg. ID 7015-16.)
According to Respondent, the failure of the investigator to complete the report
prior to trial was not significant because Petitioner “never produced [the final
report] or even alleged that it contained anything but what the investigator had
already told [defense] counsel – that he found nothing to assist [Petitioner].” (Id.)
(emphasis in original.)
That criticism confuses the issue before the Court. The Court was not
adjudicating a claim of ineffective assistance of counsel which would have
required a showing that the lack of a final written report ultimately had an impact
on the result at trial. See Strickland v. Washington, 466 U.S. 668, 694 (1984)
(holding that to succeed on an ineffective assistance claim, a “defendant must show
that there is a reasonable probability that, but for counsel’s unprofessional errors,
11
the result of the proceeding would have been different.”). Instead, the Court was
evaluating the voluntariness of Petitioner’s waiver of counsel. And whether the
final report ultimately would have helped Petitioner’s case has no bearing
whatsoever on that issue.
The key point in time for the voluntariness inquiry was the moment at which
Petitioner made the decision to waive his right to counsel, and the relevant facts
were those known to Petitioner at that time. When Petitioner decided to waive his
right to counsel, Petitioner had no way of knowing whether the final report would
(1) reveal new and helpful information uncovered during later phases of the
investigator’s work or (2) merely confirm the investigator’s preliminary oral
report. Thus, at that moment, the lack of the final report was a fundamental
problem for Petitioner and placed Petitioner in an impossible position. Moreover,
even if the investigator’s final report had ultimately turned out to be unhelpful to
Petitioner, that would not somehow have retroactively lessened the coercive
circumstances created by the absence of the final report at the time Petitioner
waived his right to counsel. Thus, the ultimate contents of the report are entirely
irrelevant to whether Petitioner’s waiver of counsel – made before Petitioner knew
what the final report would say – was voluntary under Faretta.
Third, Respondent faults the Court for citing defense counsel’s response to
the prosecution’s motions in limine as evidence that defense counsel was
12
unprepared. Respondent stresses that the Court has not identified “any valid basis
by which [defense] counsel could have vigorously opposed the motions beyond
what he did.” (Mot. for Stay at 11, Pg. ID 7016) (emphasis in original.) Again,
Respondent focuses on the wrong issue.
The Court was not addressing an
ineffective assistance claim in which Petitioner would have had to show that
defense counsel missed a viable ground for opposing the prosecution’s motions.
Instead, the question before the Court focused on whether the circumstances
experienced by Petitioner when he waived his right to counsel deprived him of a
truly free choice.
And the manner in which defense counsel responded to the motions did
undermine Petitioner’s ability to make a real choice because defense counsel’s
responses conveyed a clear lack of preparation. More specifically, defense counsel
announced that he would have had a valid basis on which to oppose one of the
motions if only he had been aware of, and properly understood, the facts
underlying the motion. (See 1-24-2006 Trial Tr., ECF #8-7 at 31-34, Pg. ID 48687.) As the Court explained in detail in the Amended Opinion and Order, that
confessed error contributed to Petitioner’s reasonable conclusion that defense
counsel was not prepared and reinforced for Petitioner that he faced the prospect of
proceeding to trial with an unprepared attorney or representing himself. (See Am.
Op. and Order at 7-9, Pg. ID 6854-56.) Simply put, even if defense counsel did not
13
actually miss a viable ground for opposing the prosecution’s motions in limine,
defense counsel’s admission that he was not aware of the facts related to the
motions did undermine the voluntariness of Petitioner’s waiver of counsel.
Fourth, Respondent contends that the Court wrongly cited defense counsel’s
miscalculation of Petitioner’s sentencing guidelines as evidence that he was not
prepared for trial. Respondent notes that calculating the guidelines before trial is a
challenging endeavor and that pre-trial estimates are always subject to change
based upon the facts elicited at trial. All true. But the magnitude of the guidelines
miscalculation here was staggering – the high end of the actual range was more
than 225 months greater than the high end of defense counsel’s calculations – and
cannot be explained by any of the routine challenges that an attorney faces in
preparing a pre-trial estimate. The gross miscalculation surely evidences a lack of
preparation.3
Finally, Respondent faults the Court for citing defense counsel’s opening
statement as evidence that he was unprepared. Respondent makes too much of the
3
The Court acknowledges that the guidelines error did not contribute to the
involuntariness of Petitioner’s waiver of counsel because the error was unknown to
Petitioner when he made the waiver. However, the seriousness of the error does
help to confirm the Court’s conclusion – amply supported by other evidence – that
defense counsel was not prepared. Notably, according to the state trial judge,
defense counsel was both experienced and competent (see 1-24-2006 Trial Tr.,
ECF #8-7 at 9-11, Pg. ID 464-66), and thus the guidelines error is best understood
as having been caused by a lack of preparation, not a lack of competence or lack of
experience with the guidelines.
14
Court’s treatment of the opening statement. While the Court did describe the
opening statement, it placed very little weight on the statement. The Court simply
observed that in the overall context of the other compelling evidence of defense
counsel’s lack of preparation, defense counsel’s opening statement could
reasonably have contributed to Petitioner’s belief that defense counsel was not
prepared.
C.
The Court Did Not Err in Considering and Citing Circuit-Level
Precedent
In support of its grant of habeas relief, the Court considered and cited the
Sixth Circuit’s published decision in James v. Brigano, 470 F.3d 636 (6th Cir.
2006). In Brigano, the Sixth Circuit, applying AEDPA, affirmed a grant of habeas
relief. The Sixth Circuit held that the state appellate court unreasonably affirmed
the petitioner’s conviction even though, in clear violation of Faretta, he was forced
to choose between self-representation and unprepared counsel. Respondent insists
that the Court’s reliance on Brigano was “misplaced” because “only decisions of
the United States Supreme Court constitute clearly established federal law for
purposes of [AEDPA,] 28 U.S.C. § 2254(d)(1).” (Mot. for Stay at 14, Pg. ID
7019.)
Respondent is absolutely correct: a federal court may not find clearly
established federal law in circuit level precedent. But the Court did not do that.
Instead, the Court identified Faretta as the applicable clearly established federal
15
law. And the Court judged the state appellate court’s decision against Faretta’s
requirement that a waiver of counsel be truly voluntary. The Court found the state
appellate court’s decision to be an unreasonable application of Faretta, not an
unreasonable application of Brigano or any other circuit-level precedent. The
Court’s decision did not depend upon the existence of Brigano; indeed, because
the state appellate court’s decision is so plainly incompatible with Faretta’s
voluntariness requirement, the Court would have reached precisely the same
conclusion even without Brigano.
In any event, the Court did not exceed AEDPA’s strict limitation on the
source of clearly established federal law by looking to Brigano in the course of its
analysis.
The decision in Brigano affirmed relief under AEDPA, and thus it
necessarily (1) did not establish any new federal law and (2) applied only clearly
established federal law.4 The key point here is that circuit precedent, like Brigano,
granting or affirming relief under AEDPA (hereinafter “AEDPA Relief Circuit
Precedent”) already accounts for AEDPA’s severe limitation on the source of
4
The Sixth Circuit in Brigano was careful to note that it was adhering to the
clearly established waiver of counsel standard from Faretta. The respondent in
Brigano argued that the court should not follow its prior ruling in Fowler v.
Collins, 253 F.3d 244 (6th Cir. 2001), because that decision “was based on a
reading of Von Moltke v. Gillies, 332 U.S. 708 (1948).” Brigano, 470 F.3d at 644.
But the Sixth Circuit stressed that it could properly seek guidance from Fowler,
which was decided under AEDPA, because Fowler involved “an application of
Faretta.” Brigano, 470 F.3d at 644.
16
clearly established federal law, and thus a federal court does not bypass AEDPA’s
limit on the source of that law by considering AEDPA Relief Circuit Precedent.
The Supreme Court’s recent decision in Glebe v. Frost, __ U.S. __, 135 S.
Ct. 429 (2014), confirms that a federal court does not improperly expand the
source of clearly established federal law by considering AEDPA Relief Circuit
Precedent as part of its analysis. In Glebe, the Supreme Court explained that the
Ninth Circuit’s reliance on its own prior cases was erroneous because those cases
were not decided under AEDPA and thus did not adhere to AEDPA’s extremely
limited source of clearly established federal law:
Attempting to bridge the gap between Herring [v. New
York, 422 U.S. 853 (1975)] and this case, the Ninth
Circuit cited two Circuit precedents—United States v.
Miguel, 338 F.3d 995 (C.A.9 2003), and Conde v. Henry,
198 F.3d 734 (C.A.9 2000)—for the proposition that
“preventing a defendant from arguing a legitimate
defense theory constitutes structural error.” 757 F.3d, at
916. As we have repeatedly emphasized, however, circuit
precedent does not constitute “clearly established Federal
law, as determined by the Supreme Court.” § 2254(d)(1);
see, e.g., Lopez v. Smith, 574 U.S. ––––, ––––, 135 S. Ct.
1, 4–5, –––L.Ed.2d –––– (2014) (per curiam ). The Ninth
Circuit acknowledged this rule, but tried to get past it by
claiming that circuit precedent could “ ‘help ... determine
what law is “clearly established.” ’ ” 757 F.3d, at 916, n.
1. But neither Miguel nor Conde arose under AEDPA, so
neither purports to reflect the law clearly established by
this Court’s holdings. The Ninth Circuit thus had no
justification for relying on those decisions. See Parker v.
Matthews, 567 U.S. ––––, ––––, 132 S. Ct. 2148, 2155–
2156, 183 L.Ed.2d 32 (2012) (per curiam ).
17
Glebe, 135 S. Ct. at 431 (all emphasis added).
Likewise, in the Supreme Court’s other recent decisions disapproving of
reliance on circuit court precedent, the lower courts had consulted their own prior
decisions that were not decided in accordance with AEDPA’s strict limitation on
the source of clearly established federal law. See, e.g., White v. Woodall, 134 S. Ct.
1697, 1702 n.2 (2014) (criticizing Sixth Circuit for its reliance on one of its preAEDPA decisions); Lopez v. Smith, 135 S. Ct. 1, 4-5 (2014) (criticizing Ninth
Circuit for its reliance on one of its pre-AEDPA decisions); Parker v. Matthews,
132 S. Ct. 2148, 2155 (2012) (criticizing Sixth Circuit for relying upon one of its
prior decisions that was decided “under pre-AEDPA law”5); Renico v. Lett, 559
U.S. 766, 778-79 (2010) (criticizing Sixth Circuit for relying on its own prior
decision in Fulton v. Moore, 520 F.2d 522 (6th Cir. 2008), a decision in which the
Sixth Circuit expressly declined to decide whether AEDPA or de novo review
applied). These decisions do not hold that a federal court erroneously expands the
5
As noted above, the Supreme Court in Parker criticized the Sixth Circuit for
relying upon one of its pre-AEDPA decisions on habeas review. The Supreme
Court also said that the Sixth Circuit erred in citing one of its decisions applying
AEDPA, Broom v. Mitchell, 441 F.3d 392, 412 (6th Cir. 2006). See Parker, 132 S.
Ct. at 2155. However (and this is critical), the Supreme Court stressed that the rule
the Sixth Circuit applied in Broom did not accurately reflect clearly established
federal law and thus did not comply with AEDPA. Id. Thus, Parker cannot be
read as faulting a circuit court for relying on AEDPA precedent, like Brigano here,
that properly reflects clearly established federal law and properly applies
AEDPA’s restrictive standards.
18
source of clearly established federal law by considering AEDPA Relief Circuit
Precedent.
Numerous Sixth Circuit decisions underscore that this Court’s consideration
of Brigano did not run afoul of AEDPA. This Court considered Brigano when
analyzing whether Petitioner’s waiver of counsel satisfied the clearly established
voluntariness standard from Faretta. The Sixth Circuit has likewise regularly
considered AEDPA Relief Circuit Precedent in order to determine whether a
clearly established federal standard has been violated.
The Sixth Circuit’s cases analyzing ineffective assistance of counsel claims
under AEDPA are particularly instructive. In those cases, the Sixth Circuit has
often looked to its prior decisions affirming habeas relief under AEDPA to guide
its determination of whether the challenged performance by counsel fell below the
Strickland standard.6 See, e.g., Peoples v. Lafler, 734 F.3d 503, 513-14 (6th Cir.
2013) (citing Couch v. Booker, 632 F.3d 241, 247 (6th Cir. 2011) as support for
finding that counsel’s failure to track down available witnesses fell below
Strickland standard); Couch, 632 F.3d at 246 (citing Bigelow v. Haviland, 576 F.3d
284, 287-88 (6th Cir. 2009) for proposition that it is an especially clear violation of
Strickland for counsel to fail to track down useful leads provided by defendant);
6
A finding of ineffective assistance is, of course, insufficient, on its own, to
support a grant of habeas relief under AEDPA. Relief is warranted only when the
state appellate court has unreasonably applied Strickland.
19
Bigelow, 576 F.3d at 288 (citing Ramonez v. Berghuis, 490 F.3d 482, 488-89 (6th
Cir. 2007) for proposition that failure to track down witnesses fell below Strickland
standard); English v. Romanowksi, 602 F.3d 714 (6th Cir. 2010) (citing Ramonez,
supra, for proposition that failure to investigate potentially favorable testimony fell
below Strickland standard).7
This Court also considered Brigano when analyzing the ultimate question of
whether the state appellate court unreasonably applied Faretta. The Court did not
err in considering Brigano for that purpose. Brigano applied the same standard of
review (AEDPA), applied the same clearly established federal law (Faretta), and
involved the same core facts (a waiver of counsel by a habeas petitioner who was
forced to choose between unprepared counsel and self-representation). Few cases
could be more relevant to the proper resolution of Petitioner’s habeas claim.
Indeed, it would make no sense to conclude – and AEDPA plainly does not require
the conclusion that – a federal court must ignore a prior circuit-level decision
holding, under AEDPA, that a similarly-situated habeas petitioner was entitled to
7
Other circuits likewise cite their own prior decisions granting or affirming relief
under AEDPA for this same purpose. See, e.g., Campbell v. Reardon, 780 F.3d
752, 764 (7th Cir. 2015) (citing several prior Seventh Circuit decisions granting or
affirming relief under AEDPA in support of proposition that counsel’s failure to
present testimony fell below Strickland standard); Grant v. Lockett, 709 F.3d 224,
234 (3d Cir. 2013) (citing prior Third Circuit decision affirming relief under
AEDPA for proposition that counsel’s failure to introduce impeachment evidence
fell below Strickland standard).
20
relief. And case law confirms that a federal court conducting a review under
AEDPA may consult similar AEDPA Relief Circuit Precedent as a guide in
answering the ultimate question of whether the petitioner is entitled to habeas
relief.8
Finally, Respondent argues that Brigano “is factually distinguishable”
because the state trial court in Brigano failed to explain the risks of selfrepresentation to the petitioner, and there was no similar failure in Petitioner’s
case. (Mot. for Stay at 14-15, Pg. ID 7019-20.) The Court expressly acknowledged
that distinction in the Amended Opinion and Order and, more importantly,
explained why the distinction does not diminish Brigano’s applicability to this
case. (See Am. Op. and Order at 28 n.5, Pg. ID 6875.) While the Sixth Circuit in
Brigano did conclude that the trial court violated Faretta by failing to warn the
8
See, e.g., Yenawine v. Motley, 402 Fed. App’x 997 (6th Cir. 2010) (reversing
denial of habeas relief because Sixth Circuit had previously ruled that a petitioner
was entitled to relief under AEDPA where a state appellate court affirmed his
conviction in the face of a similar constitutional error), cert. denied 132 S. Ct. 91
(2011); Simpson v. Warren, 475 Fed. App’x 51, 61-63 (6th Cir. 2012) (affirming
grant of habeas relief on prosecutorial misconduct claim under AEDPA and
highlighting that in prior AEDPA case the Sixth Circuit previously granted habeas
relief based on similar misconduct); Jackson v. Edwards, 404 F.3d 612, 627-28 (2d
Cir. 2005) (affirming grant of habeas relief under AEDPA and citing prior similar
decision affirming relief under AEDPA as support for conclusion that state
appellate court decision was unreasonable application of clearly established federal
law); Newman v. Harrington, 726 F.3d 921, 928 (7th Cir. 2013) (citing prior
similar decision affirming grant of habeas relief under AEDPA for proposition that
the state appellate court’s rejection of petitioner’s similar claim was unreasonable).
21
petitioner about the dangers of self-representation, the Sixth Circuit independently
concluded that the trial court unreasonably violated Faretta when it forced the
petitioner in that case to choose between self-representation and unprepared
counsel. See Brigano, 470 F.3d at 644. The Sixth Circuit said that the petitioner
was attempting to deal with appointed counsel that had
stated he was unprepared to go to trial and a trial court
judge intent on going forward with trial regardless of
appointed counsel's preparedness.
As such, [petitioner’s] waiver was not made knowingly
and intelligently, with “eyes wide open”; the choice
between unprepared counsel and self-representation is no
choice at all. Fowler v. Collins, 253 F.3d 244, 249-50
(6th Cir. 2001) (citing Faretta v. California, 422 U.S.
806, 95 S. Ct. 2525, 45 L.Ed. 2d 562 (1975)). Contrary to
the Warden's assertions, Fowler is not based on a reading
of Von Moltke v. Gillies, 332 U.S. 708, 68 S. Ct. 316, 92
L.Ed. 309 (1948), but instead on an application
of Faretta, which looks at all of the circumstances
surrounding waiver of counsel to ensure that such waiver
was knowing and intelligent.
Id. at 644. So, even though Brigano is not essential to the Court’s ruling, it
strongly supports the grant of habeas relief here.
In sum, the Court did not violate AEDPA by considering Brigano (and a
Third Circuit decision granting relief under AEDPA under similar circumstances)
22
as part of its analysis.9 Thus, Respondent’s argument that this Court erroneously
considered Brigano is not likely to prevail on appeal.
D.
The “Substantial Case on the Merits” Issue
For all of the reasons explained above, the Court has concluded that
Respondent has not shown a substantial likelihood that it will succeed on appeal.
Respondent contends that she has nonetheless demonstrated a “substantial case on
the merits,” see Hilton, 481 U.S. at 778, and that this Court should therefore deny
Petitioner’s Motion for Bond. Respondent’s criticisms of the Amended Opinion
and Order are carefully made and will surely receive close attention by the Sixth
Circuit. But the Court need not definitively resolve whether Respondent has a
“substantial case on the merits” because even if that were true, the Court would
still grant bond. Under Hilton, even in the face of a “substantial case on the
merits,” a court properly grants bond where the second and fourth Hilton factors do
not “militate against release.” Id. As explained below, that is the case here.
9
The Court also quoted from a pre-AEDPA decision from the United States Court
of Appeals for the Seventh Circuit. (See Am. Op. and Order at 28-29 n.6, citing
and quoting Wilks v. Israel, 627 F.2d 32, 35 (7th Cir. 1980), cert. denied 449 U.S.
1086 (1981).) But the Court cited the Wilks decision solely because it contains a
more comprehensive discussion of the same issues addressed in Brigano and in the
Third Circuit’s decision granting relief under AEDPA. The Seventh Circuit’s
decision in Wilks simply provided helpful background in understanding some of
the concepts involved in this case. The Court did not glean from the Seventh
Circuit’s decision either clearly established federal law or the rule of decision it
applied to Petitioner’s claim.
23
The Court does deem it appropriate to pause here to make one observation
concerning Petitioner’s assessment of Respondent’s position on appeal. Petitioner
contends that the Amended Opinion and Order “is impenetrable” and “the epitome
of unassailability”; that Respondent “has a zero percent chance of prevailing in the
Sixth Circuit”; and that, any appeal from the Amended Opinion and Order would
thus be “in bad faith” and “frivolous.” (Mot. for Bond at 4-5, 9-10, 16; Pg. ID
6888-89, 6893-94, 6900.) This hyperbolic praise for the Amended Opinion and
Order is vastly overstated, and the argument that an appeal by Respondent would
be in bad faith or frivolous is, itself, frivolous.
II.
The Irreparable Injury to the State Factor Does Not Favor Continued
Detention
Respondent argues that the State has a strong interest in keeping Petitioner
in custody while she appeals because he is a flight risk and a danger to the
community. There is support for this argument. As Respondent fairly notes,
Petitioner has a criminal record, including felony offenses. (See Respondent’s
Answer, ECF #89 at 8-9, Pg. ID 7370-71.) Likewise, Petitioner’s disciplinary
record while incarcerated raises cause for concern. He has been found guilty of
several major misconduct violations, including possession of weapons, possession
of a cellular telephone, and threatening a corrections officer. (See id. at 12-13, Pg.
ID 7375.) Finally, Petitioner has some incentive to flee because if the grant of
24
habeas relief is reversed, he will be forced to serve the substantial period remaining
on his sentence – at least thirty-eight more years. (See id. at 7-8, Pg. ID 7369-70.)10
However, Petitioner offers several reasonable counterarguments as to why
he his level of dangerousness and risk of flight is not as high as Respondent
suggests. First, Petitioner notes that the three felony convictions currently on his
record were not for crimes of violence.11 Second, he points out that he has already
served an amount of time in custody that the State once deemed nearly sufficient to
protect the public from him. More specifically, Petitioner says that at the time of
trial, the State offered to permit him to plead guilty under a sentence agreement
that called for a sentencing guidelines range of 135-225 months (11.5-18.75 years)
(1-24-06 Trial Tr., ECF #8-7 at 21, Pg. ID 476), and Petitioner points out that he
has already served more than ten years in custody. Petitioner stresses that the State
10
Respondent also argues that the Court should decline to release Petitioner
because certain witnesses who testified against Petitioner at his trial have recently
been contacted as part of an allegedly improper effort to influence their testimony
at a possible re-trial. However, Respondent offers no evidence linking Petitioner
to this alleged misconduct.
11
Petitioner’s criminal record appears on pages 8-9 of Respondent’s Answer to the
Motion for Bond. (See Respondent’s Answer, ECF #89 at 8-9, Pg. ID 7370-71.)
The record includes convictions for possession with intent to deliver a small
quantity of drugs, one conviction for accessory after the fact, and one conviction
for attempting to carry a concealed weapon. (Id.) Respondent’s Answer also
indicates that Petitioner has been convicted of carjacking and armed robbery
offenses, but those convictions have been vacated by this Court and by the
Michigan Court of Appeals. Thus, there are no currently-valid convictions for
violent offenses on Petitioner’s criminal record.
25
knew about his criminal history and the circumstances of the charged offenses at
the time it concluded that 11.5 years in custody would be sufficient to protect the
public, and he insists that there is no substantial basis for the State to argue now
that the public would face a great risk from him if he were freed after serving more
than ten years.
Petitioner also observes that his co-defendants have already
completed their sentences and re-joined society, and he argues that he should not
be deemed to present a substantially greater danger to the public than his currentlyfree co-defendants.
Third, Petitioner highlights that he has established a support system that,
upon his release, will keep him on the right path and mitigate any potential risk to
the public. Most importantly, Petitioner has been offered a paid position as a
paralegal with the law firm owned and operated by his current counsel.
In
addition, Petitioner notes that his friends and family stand ready to provide him
emotional and financial support. Petitioner reasonably argues that he is much less
likely to offend and/or flee with regular employment, a steady source of income,
and substantial support from his friends and family.
Fourth, Petitioner notes that while his prison disciplinary record is not
pristine, he has not committed any physical assaults against other inmates or staff.
And Petitioner notes that he has spent much of his time in custody intensively
studying the law and developing useful legal skills and knowledge – both of which
26
were apparent to the Court during the two motion hearings in this case. Petitioner
also points out that he has frequently helped other inmates with their own legal
filings.12
In sum, while Respondent has raised valid concerns about Petitioner’s
behavior
and
risk
of
flight,
Petitioner
has
offered
some
reasonable
counterarguments in support of his assertion that he will neither threaten the public
nor flee. After considering all of these arguments, the Court concludes that the
Respondent’s legitimate concerns can be adequately addressed by the imposition
of a very strict set of release conditions (described in detail below). Thus, the
Court concludes that this factor does not weigh in favor of continuing Petitioner’s
detention.
III.
The Substantial Injury to Petitioner Factor Weighs Heavily in Favor of
Release
A successful habeas petitioner suffers “a continuing injury while
incarcerated.” Newman v. Metrish, 300 Fed. App’x 342, 344 (6th Cir. 2008).13
Thus, the interest of a prevailing habeas petitioner in release pending appeal is
12
The Court has no doubt that Petitioner actually has the capability to provide
quality work as a paralegal. The Court has twice allowed Petitioner to present
argument on his own behalf at motion hearings, and the Court has been impressed
with his mastery of complex issues of habeas procedure and constitutional law.
13
District courts in this Circuit and elsewhere have deemed the injury to be
“irreparable.” See, e.g., Ward v. Wolfenbarger, 340 F. Supp. 2d 773, 778 (E.D.
Mich. 2004); Burdine v. Johnson, 87 F. Supp. 2d 711, 717 (S.D. Tex. 2000).
27
“always substantial.” Hilton, 481 U.S. at 777. Having succeeded on his habeas
claim, Petitioner has a strong interest in his release from custody.
Respondent counters with the following quote from Hilton:
But we also think that a successful habeas petitioner is in
a considerably less favorable position than a pretrial
arrestee, such as the respondent in Salerno, to challenge
his continued detention pending appeal. Unlike a pretrial
arrestee, a state habeas petitioner has been adjudged
guilty beyond a reasonable doubt by a judge or jury, and
this adjudication of guilt has been upheld by the appellate
courts of the State.
Id. at 779. But the context of this observation is important. The Supreme Court
made this statement in response to a successful petitioner’s argument that a district
court should not be permitted to consider evidence of his dangerousness when
deciding whether to grant bond. The Supreme Court held that a district court may
consider such dangerousness. That conclusion does not in any way undermine the
Supreme Court’s earlier determination that a successful habeas petitioner “always”
has a substantial interest in securing his release pending appeal.
This factor weighs heavily in favor of releasing Petitioner pending
Respondent’s appeal.
IV.
The Public Interest Factor Does Not Weigh in Favor of Continued
Detention
As Petitioner properly notes, the public has an interest “in the state not
continuing to incarcerate individuals [like Petitioner] who have not been accorded
28
their constitutional right to a fair trial.” House v. Bell, 2008 WL 972709, at *2
(E.D. Tenn., April 7, 2008), vacated in part on other grounds, 2008 WL 2235235
(E.D. Tenn., May 29, 2008). And while the public also plainly has a right to be
safe from those who pose an immediate and serious threat to public safety, the
Court concludes that the release of Petitioner, subject to the very strict conditions
outlined below, will not pose such a threat to the public. The public interest factor
thus does not weigh in favor of continued detention.14
V.
The Final Balance and the Strict Conditions of Release
For all of the reasons explained above, the Court concludes that Respondent
does not have a substantial likelihood of success on appeal and that the second and
fourth Hilton factors – the interests of Respondent and the public – do not “militate
against release.” Hilton, 481 U.S. at 777-78. Accordingly, the Court concludes
that the presumption of release has not been rebutted and that Petitioner should be
released from custody pending appeal.
But the Court also believes that imposing strict conditions of release is
appropriate to strike the proper balance between the interests of Petitioner,
Respondent, and the public. Accordingly, Petitioner must comply with all of the
14
The Court notes that Respondent also has an interest in continuing Petitioner’s
custody and rehabilitation pending a final determination of its appeal, and that this
interest is strengthened given the substantial time that remains on Petitioner’s
sentence. Nonetheless, for all of the reasons stated above, the Court concludes that
Petitioner’s interest in release still outweighs Respondent’s interest in continued
detention.
29
standard conditions of pre-trial release adopted by this Court for federal criminal
cases pending here and with the following special conditions:
1.
Within seven days of his release, Petitioner shall commence paid
employment with his current counsel of record in this action and shall
remain so employed throughout the period that he remains free on
bond. Petitioner shall provide written proof of such employment to
the Court within seven days after commencing employment.
2.
Petitioner shall designate a single residence and shall remain present
in that residence at all times other than when Petitioner is at his place
of employment, at a meeting with his attorney(s), or at medical and/or
mental health appointments.
3.
Petitioner shall submit to 24-hour GPS monitoring and shall pay for
said monitoring at his own expense.
4.
Petitioner shall not have any contact, directly or indirectly, with any
person who testified against Petitioner at his criminal trial or any
person who may reasonably be expected to testify against Petitioner at
a re-trial. Petitioner shall not in any way encourage or condone any
other person to have such contact. Nothing in this order shall prohibit
Petitioner’s attorney (or an investigator employed by Petitioner’s
attorney) from attempting to contact potential witnesses.
5.
Petitioner shall refrain from consuming alcoholic beverages and from
using any controlled substances (except if prescribed by, and as
directed by, a licensed physician).
30
6.
The Pre-Trial Services unit of the Court shall supervise Petitioner
while he is free on bond and shall monitor his compliance with all of
the conditions imposed by the Court.
VI.
A Stay of This Court’s Order to Re-Try Petitioner is Appropriate
The State has a strong interest in a stay of this Court’s order requiring the
State to re-try Petitioner within ninety days of its grant of habeas relief. A re-trial
will require the State to expend substantial resources.
In contrast, given the
Court’s decision to release Petitioner during the appeals process, Petitioner has no
strong countervailing interest in a prompt re-trial. Accordingly, the Court’s prior
Order requiring the State to re-try Petitioner is stayed until further written order of
this Court.
VII. A Stay of This Order Granting Bond is Appropriate
Respondent has requested that this Court stay any order granting bond in
order to allow an appeal of such order to the Sixth Circuit. That is a reasonable
request. Accordingly, this Court stays this Order granting bond to Petitioner for
twenty-one days. If the Court’s Order granting bond remains undisturbed at the
conclusion of the twenty-one day period, Petitioner may request that the Court
issue the actual bond papers requiring his release.
31
CONCLUSION
For the reasons stated above, IT IS HEREBY ORDERED that:
Petitioner’s Motion for Bond (ECF #80) is GRANTED subject to the
conditions detailed above (all of which Petitioner shall strictly and
literally comply with while free on bond). However, this grant of
bond is STAYED for twenty-one days from the entry of this Order. If
the Court’s Order granting bond remains undisturbed at the
conclusion of the twenty-one day period, Petitioner may request that
the Court issue the actual bond papers requiring his release.
Respondent’s Motion for Stay (ECF #85) is GRANTED, and the
State is under no obligation to re-try Petitioner during the pendency of
Respondent’s appeal.
Petitioner’s Expedited Retrial Motion (ECF #82) is DENIED in light
of this Court’s decision to stay pending appeal the portion of its
Amended Opinion and Order requiring the State to re-try Petitioner.
Petitioner’s Motion for Oral Argument (ECF #92) is DENIED.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: March 4, 2016
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on March 4, 2016, by electronic means and/or ordinary
mail.
s/Holly A. Monda
Case Manager
(313) 234-5113
32
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