Black v. Burton
Filing
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OPINION and ORDER DENYING 1 Petition for Writ of Habeas Corpus and DENYING Certificate of Appealability Signed by District Judge Robert H. Cleland. (LWag)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
_____________________________________________________________________
ROY BLACK, # 140652,
Petitioner,
v.
Case No. 16-10407
DEWAYNE BURTON,
Respondent.
_______________________________________/
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS
AND DENYING CERTIFICATE OF APPEALABILITY
Michigan prisoner Roy Black filed this habeas corpus petition under 28 U.S.C.
§ 2254. Petitioner, who is proceeding pro se, was convicted of first-degree premeditated
murder, Mich. Comp. Laws § 750.316(1)(a), felon in possession of a firearm, Mich.
Comp. Laws § 750.224f, and possession of a firearm during the commission of a felony,
Mich. Comp. Laws § 750.227b. He raises four claims for habeas corpus relief. Because
the court finds these claims lack merit, it will deny the petition. The court will also deny a
certificate of appealability.
I. BACKGROUND
Petitioner’s convictions arise from the shooting death of Marlon Jones. The
Michigan Court of Appeals summarized the evidence presented at trial as follows:
On the afternoon of January 4, 2012, Marlon Jones drove to Superior
Street in the city of Detroit with his friend Eugene Rice to purchase drugs.
Rice exited the vehicle and traversed a vacant lot to meet a drug dealer.
Defendant then drove up alongside Jones's vehicle, with Gregory Currie in
the passenger seat. All four men were acquainted, but defendant and
Jones had a falling out the previous year. Defendant and Rice exchanged
greetings as Rice returned to Jones's car. Despite the presence of
witnesses, defendant removed a handgun from his left sleeve and shot
Jones in the head three times. Rice ran away and called 911. Currie
claimed that he was so intoxicated that he slept through the incident,
barely hearing the gunshots. Another witness, George O’Neal, testified
that he saw the shooting from the porch of a vacant home he had visited
that day to use heroin. Authorities arrived approximately 30 minutes later
and pronounced Jones dead at the scene.
People v. Black, No. 313449, 2015 WL 1814037, at *1 (Mich. Ct. App. Apr. 21, 2015).
Following a jury trial in Wayne County Circuit Court, Petitioner was convicted of
first-degree premeditated murder, felon in possession of a firearm, and possession of a
firearm during the commission of a felony. The court sentenced him to life in prison for
the first-degree murder conviction, 3 years 4 months to 5 years for the felon-inpossession conviction, and 2 years for the felony-firearm conviction.
Petitioner filed an appeal of right in the Michigan Court of Appeals raising two
claims: (i) the trial court’s failure to explain to Petitioner why he would be prejudiced by
remaining in jail clothing during trial denied him his right to due process; and (ii) the trial
court erred in replacing a seated juror with a dismissed juror without ensuring the
replacement juror was free from outside influence and without instructing the jury it must
begin its deliberations anew. The Michigan Court of Appeals, on its own motion,
remanded the matter to the trial court for an evidentiary hearing regarding the alternate
juror issue. See 3/7/14 Order (Dkt. #8-18, PageID 719). On remand, the trial court held
an evidentiary hearing, following which the trial court held that the process used to
replace the juror complied with Michigan Court Rule 6.411. See 11/24/14 Tr. at 8–9
(Dkt. #8-17).
Upon return to the Michigan Court of Appeals, Petitioner filed a supplemental
brief, raising these additional claims: (i) Petitioner’s exclusion from the proceedings
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regarding the recall of the alternate juror violated his right to be present; and (2) counsel
was ineffective in failing to inform Petitioner about the recall of the alternate juror. The
Michigan Court of Appeals affirmed Petitioner’s convictions. People v. Black, 2015 WL
1814037 (Mich. Ct. App. Apr. 21, 2015). The Michigan Supreme Court denied
Petitioner’s application for leave to appeal. People v. Black, 498 Mich. 906 (2015).
Petitioner then filed the pending habeas petition, and, with leave of court, an
amended petition. The petition and amended petition raise these claims:
I.
Petitioner was denied his state and federal constitutional rights to
due process when the trial judge failed to explain to him why he
would be prejudiced by remaining in the jail clothing in which he
was brought to the courtroom, telling him repeatedly that he was
“old enough” to make his own decisions.
II.
Petitioner was denied his state and federal constitutional rights to a
12-person jury and to an unbiased jury when the trial court replaced
a seated juror with an unequivocally dismissed juror without
ensuring that the replacement juror was free from outside influence,
and when the court did not instruct the newly constituted jury that it
must begin its deliberations anew.
III.
Petitioner’s due process rights under the 14th Amendment were
violated when he was absent from the critical stage of juror
substitution proceedings.
IV.
Petitioner’s 6th Amendment right to the effective assistance of
counsel was violated when counsel failed to consult with him prior
to agreeing to replace a late juror with an alternate.
II. STANDARD
Title 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, imposes the
following standard of review for habeas cases:
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
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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 proceeding.
A decision of a state court is “contrary to” clearly established federal law if the
state court arrives at a conclusion opposite to that reached by the Supreme Court on a
question of law, or if the state court decides a case differently than the Supreme Court
has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405–
06 (2000) (O’Connor, J., concurring). An “unreasonable application” occurs when “a
state-court decision unreasonably applies the law of [the Supreme Court] to the facts of
a prisoner’s case.” Id. at 409. “[A] federal habeas court may not issue the writ simply
because that court concludes in its independent judgment that the relevant state-court
decision applied clearly established federal law erroneously or incorrectly.” Id. at 411.
The AEDPA “imposes a highly deferential standard for evaluating state-court
rulings . . . and demands that state-court decisions be given the benefit of the doubt.”
Renico v. Lett, 559 U.S. 766, 773 (2010) (internal citation omitted). “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) (internal quotation and citation omitted).
The Supreme Court has emphasized “that even a strong case for relief does not mean
the state court’s contrary conclusion was unreasonable.” Id. at 102. Pursuant to
§ 2254(d), “a habeas court must determine what arguments or theories supported or . . .
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could have supported, the state court’s decision; and then it must ask whether it is
possible fairminded jurists could disagree that those arguments or theories are
inconsistent with the holding in a prior decision” of the Supreme Court. Id. Although
§ 2254(d), as amended by the AEDPA, does not completely bar federal courts from relitigating claims that have previously been rejected in the state courts, a federal court
may grant habeas relief only “in cases where there is no possibility fairminded jurists
could disagree that the state court’s decision conflicts with” the Supreme Court’s
precedents. Id. A “readiness to attribute error [to a state court] is inconsistent with the
presumption that state courts know and follow the law.” Woodford v. Viscotti, 537 U.S.
19, 24 (2002).
A state court’s factual determinations are presumed correct on federal habeas
review. See 28 U.S.C. § 2254(e)(1). A habeas petitioner may rebut this presumption of
correctness only with clear and convincing evidence. Id. Moreover, for claims that were
adjudicated on the merits in state court, habeas review is “limited to the record that was
before the state court.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
III. DISCUSSION
A. Jail Clothing
Petitioner’s first claim concerns his appearance at trial in a jail jumpsuit. He
argues that his due process rights were violated when the trial court failed to advise him
he would be prejudiced by remaining in jail clothing for his trial.
On the day the trial began, the trial court questioned Petitioner about his jail
clothing. When the court learned that Petitioner did not have other clothes to wear, the
court offered him a shirt, suit, and tie. Petitioner declined the offer and several times
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expressed his desire to wear his jail clothing. Respondent argues that Petitioner’s
choice to appear in his jail clothing constitutes a waiver of this claim. The Michigan
Court of Appeals held that Petitioner’s choice resulted in a waiver because it was an
“intentional relinquishment or abandonment” of his right to wear civilian clothes. Black,
2015 WL 1814037 at *2 (citation omitted). In addition, the Michigan Court of Appeals
held that “[t]he trial court bore no duty to specifically warn defendant about the danger of
prejudice facing a criminal defendant appearing before the jury in jail garb.” Id.
Due process precludes a defendant from being compelled to stand trial in jail or
prison garb as long as the defendant makes a timely objection. Estelle v. Williams, 425
U.S. 501, 512 (1976). Compelling a defendant to appear in prison garb impairs the
presumption of innocence guaranteed under the Fourteenth Amendment because it
presents the unacceptable risk of affecting a juror’s judgment and furthers no essential
state policy. Id. at 503–05. No constitutional violation occurs, however, where the
defendant chooses to be tried in jail attire. Id. at 507–08. “The reason for this judicial
focus upon compulsion is simple; instances frequently arise where a defendant prefers
to stand trial before his peers in prison garments . . . . [I]t is not an uncommon defense
tactic to produce the defendant in jail clothes in the hope of eliciting sympathy from the
jury.” Id. (citations omitted).
A defendant’s failure to object or desire to be tried in prison garb negates the
presence of compulsion necessary to establish a constitutional violation. Id. at 512–13.
Further, there exists no constitutional requirement that a court advise a defendant of the
risks of appearing before the jury in jail clothing. See id. at 512. Since the Michigan
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Court of Appeals’ decision was not contrary to or an unreasonable application of clearly
established Federal law, habeas relief will be denied on this claim.
B. Seating of Replacement Juror
Petitioner argues that his state and federal rights to a 12-person and unbiased
jury were violated when the trial court replaced a tardy juror with a previously dismissed
alternate juror without ensuring that the replacement juror was free from outside
influence and without instructing the jurors that they must begin deliberations anew.
At the close of arguments, the trial court instructed the jury and then randomly
chose two jurors—Andrew Nagy and Aed Dudar—to excuse as alternates. At
approximately 3:30 p.m., the remaining jurors retired to the jury room to begin
deliberations. They were dismissed for the day a half hour later. The following morning,
October 12, 2012, a juror failed to appear and the court recalled one of the alternate
jurors, Aed Dudar, to replace the absent juror. The record does not show what time the
newly-constituted jury began deliberations. At 1:24 p.m., the jury returned to the
courtroom to enter its verdict.
Petitioner first argues that the substitution of Dudar for the absent juror violated
his right to a 12-person jury. This claim does not warrant habeas relief because there is
no Sixth Amendment right to a specific number of jurors. Williams v. Florida, 399 U.S.
78, 86 (1970).
Petitioner next argues that the trial court violated his right to a fair and impartial
jury when it failed to ensure that the replacement juror was free from outside influence
and when it failed to instruct the jury to begin its deliberations anew. For reasons
unclear from the record, no trial court transcript exists for the proceeding replacing the
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absent juror, seating Dudar, and reconvening the newly-constituted jury. The Michigan
Court of Appeals remanded the case to the trial court for an evidentiary hearing
regarding this issue. Six witnesses testified at the hearing: the two alternate jurors
(Andrew Nagy and Aed Dudar), the jury foreperson (Joseph Bauman), Petitioner, the
prosecutor, and defense counsel.
Dudar testified that he believed that when he was dismissed as an alternate juror
the trial court instructed him not to discuss the case with anyone outside the jury room.
See 7/11/14 Tr. at 12 (Dkt. #8-13). Between the time he was released from the jury and
his return the following day, he did not discuss the case with anyone. Id. at 12–13. He
did not recall whether the trial court reinstructed the jury once he was recalled. Id. at 15–
16, 19.
Joseph Bauman, the jury foreperson, testified that deliberations began at 3:30 on
October 11, 2012. The jury was sent home at approximately 4:00 p.m. During that half
hour time period, the jury did not begin any “meaningful deliberations.” See 8/15/14 Tr.
at 17 (Dkt. #8-14). They only read the instructions, chose a foreperson, and discussed
what evidence the jury might want recalled. Id. at 16–17. Bauman recalled that once the
replacement juror was seated in the jury box, the court gave the jury instructions on how
to proceed with their deliberations, but Bauman did not recall the specific instructions.
Id. at 12, 16.
Petitioner testified that he learned about the juror substitution at approximately
noon on October 12, 2012, from a deputy. See 10/10/14 Tr. at 3 (Dkt. #8-15). His
attorney did not discuss the substitution with him. Id. at 4.
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Kenyatta Stanford, the prosecutor, testified that when the replacement juror was
called back to the courtroom, the remaining jurors were brought into the jury box and
the trial court instructed the newly-constituted jury to deliberate together. See 7/11/14
Tr. at 25 (Dkt. #8-13). She recalled that defense counsel was present for these
instructions but not whether Petitioner was present. Id.
Defense counsel, Claude Chapman, testified that he did not object to replacing
the tardy juror with an alternate. 8/15/14 Tr. at 8 (Dkt. #8-14). He recalled that Petitioner
was present in the courtroom when the decision was made. Id. at 9. After the alternate
juror was summoned, he took a seat with the rest of the jury in the jury box. Id. at 10.
The judge informed the jury that the alternate would become part of the jury. Id. The
judge also gave additional instructions, but Chapman did not recall the nature of these
instructions. Id. at 11.
The trial court ultimately concluded that it had followed the procedures of
Michigan Court Rule 6.411 and that the jury had “rendered a fair and unanimous
verdict.” See 11/24/14 at 8 (Dkt. #8-17). The case was returned to the Michigan Court of
Appeals.
The Michigan Court of Appeals held that, based upon the record, it could not find
with certainty that the trial court complied with Mich. Ct. R. 6.411. The court,
nevertheless, denied relief:
[R]elief is not warranted in this case. The trial court's failure to properly
inform the alternate jurors that they were being retained for service and to
instruct the alternates upon excusal not to discuss the case with anyone,
and even the potential error in failing to advise the jury to start
deliberations anew with the newly seated juror, were not outcome
determinative. At the hearing, Dudar expressly denied that he had spoken
to anyone about the case between being released and then recalled to
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join the deliberating jury. Accordingly, the failure to properly retain and
instruct Dudar in this regard did not affect the jury deliberations.
Moreover, the jury did not begin their substantive deliberations until Dudar
was seated. Bauman testified that in the half hour the jurors met on
October 11, 2012, the jury selected him as the foreman, they read the
instructions, and “discussed what evidence we may want to ask to have
recalled for us to see.” The jury “had not even really started any
meaningful deliberations before [they] were excused.” Bauman indicated
that Dudar approved the jury's choice of foreman and was fully involved in
the deliberation process. The jury began discussing the charges against
defendant and taking polls on his guilt only after bringing Dudar up to
speed. Dudar was present when the jury “spent a lot of time going over”
the elements of the offenses. As a result, this error was also harmless.
See Tate, 244 Mich.App at 567–568 (finding harmless error even in light
of the court's specific instruction not to begin deliberations anew).
Black, 2015 WL 1814037 at *6.
“The Supreme Court has never ‘specifically ruled on the constitutionality of
substituting an alternate juror after jury deliberations have begun.’” Gordon v. Woods,
No. 16-2446, 2018 WL 746526, *2 (6th Cir. Feb. 7, 2018) (quoting Claudio v. Snyder, 68
F.3d 1573, 1575 (3d Cir. 1995)). Nor has the Supreme Court specifically required a trial
court judge to advise an alternate juror not to discuss the case with anyone or to
question that alternate juror when recalled to replace a seated juror. In addition, there is
no clearly established federal law requiring a trial court to instruct the jury to begin
deliberating anew after recall of a discharged alternate juror. See Tate v. Bock, 271 F.
App’x 520, 523 (6th Cir. 2008) (state trial court's failure to instruct the jury to begin
deliberating anew after the recall of a discharged alternate juror was not contrary to
clearly established Federal law, as required for federal habeas relief).
The Sixth Amendment right to trial by jury encompasses the right to a fair trial by
a panel of impartial jurors. Irvin v. Dowd, 366 U.S. 717, 722 (1961). “Due process
means a jury capable and willing to decide the case solely on the evidence before it,
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and a trial judge ever watchful to prevent prejudicial occurrences and to determine the
effect of such occurrences when they happen.” Smith v. Phillips, 455 U.S. 209, 217
(1982). The exposure of a juror or jury to “extrinsic evidence or other extraneous
influence violates a defendant’s Sixth Amendment rights . . . and a state court decision
that conflicts with this rule may justify habeas relief under the standard set forth in the
AEDPA.” Fletcher v. McKee, 355 F. App’x 935, 937 (6th Cir. 2009). The right to an
impartial jury imposes on the trial judge the duty to investigate allegations of external
jury influences. Remmer v. United States, 347 U.S. 227, 229–30 (1954). “A defendant
must ‘do more than simply raise the possibility of bias.’” Jackson v. Bradshaw, 681 F.3d
753, 766 (6th Cir. 2012) (quoting Remmer, 347 U.S. at 230).
In this case, Dudar testified that he did not discuss the case with anyone outside
the jury room from the time he was dismissed until his recall. Petitioner presents no
evidence to contradict this testimony and the court finds none in the record. Petitioner’s
claim that an extraneous influence may have influenced the jury is meritless. Further,
because there is no Supreme Court precedent requiring a trial court to instruct a newlyconstituted jury to being deliberations anew, the Michigan Court of Appeals’ decision
cannot be said to be contrary to, or an unreasonable application of, Supreme Court
precedent. This claim does not merit relief.
C. Right to be Present
Petitioner next alleges a violation of his right to be present during a critical stage
of his criminal proceedings. He states that he was not present when the trial court
decided to seat the alternate juror and that this was a critical stage of the proceeding.
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One of the “most basic” rights guaranteed by the Sixth Amendment’s
Confrontation Clause is “the accused’s right to be present in the courtroom at every
stage of his trial.” Illinois v. Allen, 397 U.S. 337, 338 (1970). See also Rushen v. Spain,
464 U.S. 114, 117 (1983) (“[T]he right to personal presence at all critical stages of the
trial and the right to counsel are fundamental rights of each criminal defendant.”). In
addition, a criminal defendant has a “due process right ‘to be present in his own person
whenever his presence has a relation, reasonably substantial, to the fulness of his
opportunity to defend against the charge.’” Kentucky v. Stincer, 482 U.S. 730, 745
(1987) (quoting Snyder v. Massachusetts, 291 U.S. 97, 105–06 (1934)).
The Michigan Court of Appeals held that the seating of the alternate juror in this
case was not a critical stage of the proceedings:
While initial jury selection is a critical stage of the proceedings, there is no
legal support for describing as critical the juror substitution proceeding in
this case. The substitution was more akin to an administrative task
following the absence of a seated juror. And defendant’s attorney was
present to protect his rights if need be. Accordingly, we find no prejudicial
violation of defendant’s right to be present.
Black, 2015 WL 1814037 at *7.
Petitioner fails to show that the seating of an alternate juror was a “stage of the
criminal proceeding . . . critical to its outcome” or that his absence compromised the
fairness of the procedure. Stincer, 482 U.S. at 745. He also cites no clearly established
federal law establishing the seating of an alternate juror as a critical stage of the trial,
and the court is aware of no such authority. Further, defense counsel was present when
the decision was made to substitute the alternate juror and there is no evidence that
counsel did not defend the rights of Petitioner. See United States v. Brown, 571 F.2d
980, 987 (6th Cir. 1978) (finding defendant’s absence during conference concerning the
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dismissal of jurors did not implicate his right to be present where defense counsel was
present and zealously represented defendant’s rights). Under these circumstances, the
Michigan Court of Appeals’ decision was not contrary to or an unreasonable application
of clearly established Supreme Court precedent. Habeas relief will be denied on this
claim.
D. Ineffective Assistance of Counsel
Finally, Petitioner argues that counsel was ineffective in failing to consult with him
before agreeing to recall an alternate juror to replace the tardy juror. He argues that
counsel’s failure to consult him was such an egregious mistake that prejudice should be
presumed under United States v. Cronic, 466 U.S. 648 (1984).
The standard for obtaining habeas corpus relief is “difficult to meet.” White v.
Woodall, 572 U.S. 415, 419 (2014) (quoting Metrish v. Lancaster, 569 U.S. 351, 358
(2013)). In the context of an ineffective assistance of counsel claim under Strickland v.
Washington, 466 U.S. 668 (1984), the standard is “all the more difficult” because “[t]he
standards created by Strickland and § 2254(d) are both highly deferential and when the
two apply in tandem, review is doubly so.” Harrington, 562 U.S. at 105 (internal citations
and quotation marks omitted). “[T]he question is not whether counsel’s actions were
reasonable” but “whether there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.” Id.
A violation of the Sixth Amendment right to effective assistance of counsel is
established where an attorney’s performance was deficient, and the deficient
performance prejudiced the defense. Strickland, 466 U.S. at 687. An attorney’s
performance is deficient if “counsel’s representation fell below an objective standard of
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reasonableness.” Id. at 688. To establish that an attorney’s deficient performance
prejudiced the defense, the petitioner must show “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. at 694. Unless the petitioner demonstrates both deficient performance and
prejudice, “it cannot be said that the conviction [or sentence] resulted from a breakdown
in the adversary process that renders the result unreliable.” Id. at 687. However, a
petitioner need not demonstrate prejudice in instances where the circumstances arising
in the case “are so likely to prejudice the accused that the cost of litigating their effect in
a particular case is unjustified.” Cronic, 466 U.S. at 658.
The Michigan Court of Appeals denied this claim:
Defendant characterizes his claim as falling under the first Cronic
scenario: the complete denial of counsel at a critical stage in the
proceeding. Cronic, 466 U.S. at 659–660. This simply is not accurate.
Defendant had counsel and that counsel was present at the proceeding.
Defendant’s real complaint is the failure of counsel to consult with him.
This falls squarely under Strickland.
“[T]he Sixth Amendment right to effective assistance of counsel should not
be translated into a right to be present at counsel’s side wherever and
whenever instantaneous consultation may be helpful to the defense.”
Mallory, 421 Mich. at 266. But when defendant cannot be at counsel’s
side, there are times when defendant needs to be consulted. “From
counsel’s function as assistant to the defendant derive the overarching
duty to advocate the defendant’s cause and the more particular duties to
consult with the defendant on important decisions and to keep the
defendant informed of important developments in the course of the
prosecution.” Strickland, 466 U.S. at 688. “An attorney undoubtedly has a
duty to consult with the client regarding ‘important decisions,’ including
questions of overarching defense strategy. That obligation, however, does
not require counsel to obtain the defendant's consent to ‘every tactical
decision.’” Florida v. Nixon, 543 U.S. 175, 187; 125 S. Ct 551; 160 L. Ed
2d 565 (2004).
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There is no legal support for treating the decision made in this case—
whether to call an alternate juror to replace a late juror—so important that
counsel was required to consult with defendant. This was not a matter of
“overarching defense strategy.” And there was no reason to assume that
the jurors had gotten far in their deliberations given that they had only
been in the jury room for half an hour. This was a simple administrative
decision made to avoid further delay of the trial. Accordingly, we discern
no error in counsel’s performance.
Black, 2015 WL 1814037 at *8–*9.
The substitution of an alternate juror for a tardy juror did not raise questions of
“overarching defense strategy.” Nixon, 543 U.S. at 560 (finding counsel must allow
defendant to make only certain decisions, including “whether to plead guilty, waive a
jury, testify in his or her own behalf, or take an appeal”) (citation omitted). Instead, this
was a tactical decision for which counsel was not required to obtain Petitioner’s
consent. See Taylor v. Illinois, 484 U.S. 400, 418 (1988) (“The adversary process could
not function effectively if every tactical decision required client approval.”). Petitioner
has not shown that counsel acted outside the wide range of professionally competent
assistance when he did not consult with Petitioner. Further, the Michigan Court of
Appeals’ rejection of Petitioner’s claim that prejudice should be presumed under Cronic
was in accord with Supreme Court precedent on this issue. See Taylor, 484 U.S. at
417–18. Cronic’s presumption of prejudice is reserved for instances where “counsel
entirely fails to subject the prosecution’s case to meaningful adversarial testing.” Nixon,
543 U.S. at 190 (quoting Cronic, 466 U.S. at 659). Such was not the case here and
prejudice should not be presumed and has not been shown. Habeas relief will be
denied on this claim.
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IV. CERTIFICATE OF APPEALABILITY
Before Petitioner may appeal the court’s decision, a certificate of appealability must
issue. See 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P. 22(b). A certificate of
appealability may issue “only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A petitioner must show “that
reasonable jurists could debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S.
473, 484 (2000) (internal citation and quotation marks omitted). Because in this case
reasonable jurists would not debate the conclusion that the petition fails to state a claim
upon which habeas corpus relief should be granted, the court will deny a certificate of
appealability.
V. CONCLUSION
For the reasons set forth above, the court finds that Petitioner is not entitled to
habeas corpus relief or a certificate of appealability. Accordingly,
IT IS ORDERED that the Petition for Writ of Habeas Corpus is DENIED.
IT IS FURTHER ORDERED that a Certificate of Appealability is DENIED.
s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: March 6, 2019
I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, March 6, 2019, by electronic and/or ordinary mail.
s/Lisa Wagner
Case Manager and Deputy Clerk
(810) 292-6522
S:\Cleland\Cleland\JUDGE'S DESK\C2 ORDERS\16-10407.BLACK.DenyHabeas.docx
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