julian v. harry
Filing
6
OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus, Declining to Issue a Certificate of Appealability, and Granting Leave to Appeal In Forma Pauperis. Signed by District Judge Matthew F. Leitman. (HMon)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JEFFREY JULIAN,
Petitioner,
Case No. 17-cv-12211
Hon. Matthew F. Leitman
v.
ERICA HUSS1,
Respondent.
__________________________________________________________________/
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS (ECF #1), DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY, AND GRANTING LEAVE TO APPEAL
IN FORMA PAUPERIS
Petitioner Jeffrey Julian is a state prisoner in the custody of the Michigan
Department of Corrections. On July 6, 2017, Julian filed a petition for a writ of
habeas corpus in this Court pursuant to 28 U.S.C. § 2254. (See ECF #1.) In the
petition, Julian challenges his conviction for first-degree premeditated murder,
Mich. Comp. Laws § 750.316; and moving or carrying away a dead body, Mich.
Comp. Laws § 750.160.
1
The Court amends the caption to reflect that Julian’s current custodian is Erica
Huss, the warden at the Marquette Branch Prison where Julian is currently
incarcerated. See Edwards Johns, 450 F.Supp.2d 755, 757 (E.D. Mich. 2006) (“The
only proper respondent in a habeas case is the habeas [p]etitioner’s custodian, which
in the case of an incarcerated habeas [p]etitioner is the warden”).
1
Julian raises four claims in his petition: (1) the state trial court denied him due
process of law when it permitted the admission of a recorded conversation between
himself and witness Dustin Pirl because Pirl was acting as an agent for the police
during that conversation, (2) the state trial court denied him due process of law when
it refused to allow him to obtain a second independent psychological evaluation, (3)
his trial counsel was ineffective when counsel failed to discover and investigate
Julian’s history of head trauma and marijuana abuse and failed to obtain all of
Julian’s medical records before scheduling a psychological evaluation, and (4) he
was deprived of the presumption of innocence and the effective assistance of trial
counsel when his trial counsel, prior to the prosecutor presenting his proofs,
conceded Julian’s guilt and agreed that there was no dispute as to the facts of the
case. (See id.)
The Court has reviewed Julian’s claims and concludes that he is not entitled
to federal habeas relief. Accordingly, the Court will DENY his petition. The Court
also declines to issue Julian a certificate of appealability. But it will grant him
permission to appeal in forma pauperis.
I
Julian appeared before the Bay County Circuit Court for a bench trial on June
12, 2012. (See Trial Tr., ECF #5-14.) The trial court convicted Julian as charged.
2
(See id. at Pg. ID 515.) The Michigan Court of Appeals described the relevant facts
as follows:
On August 27, 2010, defendant contacted the Bay City
Police Department to report that his girlfriend was
missing. He subsequently told Dustin Pirl that he had
killed her. At the request of the police, Pirl agreed to wear
a recording device and record a conversation with
defendant. During the conversation, defendant again
confessed.
People v. Julian, 2013 WL 6244705, at *1 (Mich. Ct. App. Dec. 3, 2013).
Julian appealed his conviction the Michigan Court of Appeals, and that court
affirmed. See id. Julian then filed an application for leave to appeal in the Michigan
Supreme Court, and that court denied leave. See People v. Julian, 846 N.W.2d 399
(Mich. 2014).
Julian thereafter filed a post-conviction motion for relief from judgment in the
state trial court pursuant to Michigan Court Rule 6.500, et. seq. (See ECF #5-20.)
The trial court denied that motion. See People v. Julian, 10-10985-FC (Bay Cty. Cir.
Ct., Oct. 2, 2015); reconsideration den. Oct. 27, 2015. (See ECF ## 21, 23.) Julian
sought leave to appeal the trial court’s ruling in the Michigan Court of Appeals and
the Michigan Supreme Court, and those courts denied leave. See People v. Julian,
No. 332575 (Mich. Ct. App. Sept. 27, 2016); lv. den. 895 N.W. 2d 195 (2017).
3
II
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
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 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.
28 U.S.C. § 2254(d)(1)-(2).
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. See Williams v. Taylor, 529
U.S. 362, 405-06 (2000). An “unreasonable application” of clearly established
federal law 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. To obtain habeas relief,
a state prisoner must show that the state court’s rejection of his or her claim “was so
4
lacking in justification that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement.” Harrington,
Richter, 562 U.S. 86, 103 (2011).
III
A
Julian first claims that the state trial court violated his Fifth Amendment rights
under Miranda v. Arizona, 384 U.S. 436 (1966), when it refused to suppress a tape
recorded confession that Julian made to a prosecution witness (Pirl) who Julian says
was an agent for the police. The Michigan Court of Appeals reviewed this claim on
direct appeal and rejected it:
Defendant first argues that the trial court erred by denying
his motion to suppress the statements to Pirl and the
recording. Specifically, defendant maintains that, instead
of using Pirl to record the conversation with defendant, the
police should have invited defendant to come to the police
station for questioning. According to defendant, not doing
so “was tantamount to a custodial interrogation” and
necessitated Miranda warnings. We disagree. [….]
Defendant’s position is entirely without merit. First,
defendant offers no authority for his position that criminal
suspects have a constitutional right to be asked to come to
the police station for questioning, and we have located no
such authority. This is not surprising since there is no such
right. Second, defendant’s Miranda rights were not
violated, let alone implicated, because his recorded
conversation with Pirl was not the equivalent of a custodial
interrogation.
5
It is well settled that Miranda warnings need only be given
when a person is subject to custodial interrogation.
Whether a defendant is in custody for purposes of Miranda
at the time of an interrogation is determined by looking at
the totality of the circumstances, with the key question
being whether the accused reasonably could have believed
that he or she was free to leave.
Here, it is undisputed that the recorded conversation
occurred when defendant voluntarily went to Pirl’s home
and freely confessed to the killing. There simply is no
evidence that defendant was ever taken into custody or
otherwise deprived of his freedom at any time during this
visit. The fact that Pirl may have been acting as an agent
of the police has no bearing on whether defendant was
deprived of any freedom. Therefore, the trial court did not
err by denying defendant’s motion to suppress the
recording.
People v. Julian, 2013 WL 6244705, at *1 (internal punctuation and citations
omitted). The Michigan Court of Appeals’ ruling was not unreasonable.2
2
Julian argues that this claim should be reviewed under a “modified AEDPA
standard” because the admission of his taped confession violated his right to due
process. See Bey v. Bagley, 500 F. 3d 514, 520 (6th Cir. 2007) (describing modified
standard). This modified approach requires a “careful review of the record and
applicable law” but still bars habeas relief unless the state’s court’s decision was
contrary to or an unreasonable application of clearly established federal law. Id.
While it is not clear whether this modified approach is still viable, see Jackson v.
Smith, 745 F.3d 206, 209-10 (6th Cir. 2014), even if the Court applied that standard
here, it would still deny Julian habeas relief on this claim because the Michigan
Court of Appeals’ decision was not contrary to clearly established federal law.
6
In Illinois v. Perkins, 496 U.S. 292, 300 (1990), the United States Supreme
Court held that an undercover law enforcement officer posing as a fellow inmate
was not required to give Miranda warnings to an incarcerated suspect before asking
questions that may elicit an incriminating response. The Supreme Court reasoned
that “[c]onversations between suspects and undercover agents do not implicate the
concerns underlying Miranda. The essential ingredients of a police-dominated
atmosphere and compulsion are not present when an incarcerated person speaks
freely to someone whom he believes to be a fellow inmate.” Id., at 296 (internal
quotation marks omitted). Moreover, “[p]loys to mislead a suspect or lull him into
a false sense of security that do not rise to the level of compulsion or coercion to
speak are not within Miranda’s concerns.” Id. at 297.
In this case, Julian was neither in custody or a “police-dominated atmosphere”
when he made the tape recorded confession to Pirl nor was there any evidence that
his statement was coerced. Id. at 296. The fact that Pirl was wearing a wire and
acting as an undercover agent for the police, or that Julian may have been “lull[ed]
into a false sense of security,” does not implicate Miranda. Id. at 297. The Michigan
Court of Appeals therefore did not unreasonably reject Julian’s claim. Nor was that
court’s decision contrary to clearly established federal law. Accordingly, Julian is
not entitled to federal habeas relief on this claim.
7
B
Julian next argues that the state trial court violated his right to due process and
to present a defense when the court did not allow him to obtain a second independent
psychiatric evaluation before trial. At the time Julian made that request, he had
already obtained an independent evaluation that concluded he was not insane or
mentally ill at the time of the alleged crime. That independent clinician, Dr. Jeffrey
Wendt, met with Julian twice at the Bay County Jail for a total of 7 ½ hours. Dr.
Wendt interviewed Julian and Julian’s trial counsel and administered several
psychological tests. In addition, Dr. Wendt reviewed a report from the Center for
Forensic Psychiatry which concluded that Julian was criminally responsible. Dr.
Wendt
also reviewed the police reports, reports from the Federal Bureau of
Investigation, the autopsy report, the transcript of an interview with co-defendant
Craig Julian, search warrants, crime scene photographs, records relating to Julian’s
service in the United States Marine Corps, a transcript of an interview conducted by
defense counsel with Amy Julian, the recordings of Julian’s telephone calls while at
the Bay County Jail, an interview of Julian by the police, the recording of the police
interview with Pirl, Pirl’s covert recording of Julian, and two Wal-Mart Security
videotapes. After conducting this testing and reviewing all of this information, Dr.
Wendt concluded that Julian did not meet the criteria to be considered insane or
mentally ill at the time of the crime. (See ECF #5-18 at Pg. ID 786-88.)
8
Before trial, Julian requested a second independent psychiatric evaluation. He
argued that he needed a second expert to evaluate his claim that he was suffering
from post-traumatic stress disorder and that the disorder rose to the level of a mental
illness that he could present as a defense. The state trial judge denied his request.
The Michigan Court of Appeals reviewed and rejected this claim on direct appeal:
Defendant filed a notice of insanity defense as required
under MCL 768.20a(1) and subsequently underwent a
psychiatric examination pursuant to MCL 768.20a(2). He
then obtained an expert witness to conduct the
independent evaluation allowed under MCL 768.20a(3).
Defendant’s subsequent request for a second independent
evaluation by an expert who had expertise with respect to
some of defendant’s alleged specific conditions, including
post-traumatic stress disorder, was denied.
[….]
There is no authority for the proposition that a defendant
is constitutionally entitled to an expert with specific
expertise. Although another psychiatrist or psychologist
might have had additional expertise, defendant has not
established that the appointed expert was not competent.
Accordingly, he has not established a constitutional
violation.
Further, defendant’s claim that his right to present a
defense was impaired is refuted by the record. He was
permitted to obtain the evaluation by a clinician of his
choice, and he has presented no legal or factual basis for
concluding that the clinician who provided the first
evaluation was incompetent to render analysis or
otherwise unsuitable in any way that would necessitate the
procurement of a second evaluation. We note that
defendant’s position at the trial court made it clear that his
9
request for a second expert was based on sheer
speculation. Defendant claimed that the United States
military possessed some medical records that he was
attempting to obtain. Defendant speculated that if he
received those records, those records could reflect posttraumatic stress disorder, and another expert may be better
suited to evaluate defendant. Thus, with defendant’s
request for another examination being based on
speculation, he cannot establish a factual basis that he was
denied his right to present a defense.
People v. Julian, 2013 WL 6244705, at **2-3 (emphasis original). The Michigan
Court of Appeals’ conclusion was not unreasonable.
In Ake v. Oklahoma, 470 U.S. 68, 83 (1985), the United States Supreme Court
held that when an indigent defendant demonstrates to a trial judge that his sanity at
the time he allegedly committed the offense will be a significant factor at trial, the
state must assure the defendant access to a competent psychiatrist who will conduct
an appropriate examination and assist in the evaluation, preparation, and
presentation of the defense. But the Supreme Court has never “held that a trial court
violated Ake by refusing to appoint a second … mental health expert.” Leavitt v.
Arave, 646 F.3d 605, 610 (9th Cir. 2011). And Julian has not cited any case in which
a federal court of appeals has read Ake to require a district court to allow a defendant
to obtain a second mental health evaluation.
In this case, Julian received an examination from two competent psychiatrists.
First, a psychiatrist from the Forensic Center for Psychiatry examined Julian and
concluded that he was not insane at the time of the murder. Then, Julian obtained
10
his own, independent psychiatrist who reached the same conclusion. The Michigan
Court of Appeals did not unreasonably apply Ake when it concluded that the trial
court did not violate Julian’s constitutional rights by refusing to allow him to obtain
a second independent evaluation. Nor was such a decision contrary to Ake. Julian
is therefore not entitled to federal habeas relief on this claim.
C
Finally, Julian claims that he was denied the effective assistance of trial
counsel in two respects. First. Julian argues that his trial counsel was ineffective for
failing to obtain all of his (Julian’s) medical records, and failing to investigate
Julian’s use of marijuana and history of head trauma, before counsel scheduled a
psychological evaluation.
Second, Julian asserts that his trial counsel was
ineffective because counsel conceded Julian’s guilt during a “walk-through” trial.
Ineffective assistance claims are governed by Strickland v. Washington, 466
U.S. 668 (1984). In Strickland, the United States Supreme Court established a twoprong test by which to evaluate claims of ineffective assistance of counsel. To
establish a claim of ineffective assistance of counsel, a petitioner must prove that:
(1) counsel’s performance fell below an objective standard of reasonableness; and
(2) counsel’s deficient performance caused the petitioner prejudice resulting in an
unreliable or fundamentally unfair outcome. With respect to the front prong of the
Strickland analysis, a court must “indulge a strong presumption that counsel’s
11
conduct falls within the wide range of reasonable professional assistance.” Id. at 689.
The petitioner bears the burden of overcoming the presumption that a challenged
action might be considered sound trial strategy. See id. To demonstrate prejudice,
a petitioner must show that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at
694. On habeas review, “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.’” Knowles
v. Mirzayance, 556 U.S. 111, 123 (2009) (quoting Schriro v. Landrigan, 550 U.S.
465, 473 (2007)).
The Court will examine each of Julian’s ineffective assistance claims in turn.
1
In Julian’s first ineffective assistance claim, he alleges that his trial counsel
was ineffective for scheduling an independent psychological examination without
first obtaining all of Julian’s medical records for the psychologist to review. Julian
further asserts that his trial counsel was ineffective for failing to discover and
investigate Julian’s history of head trauma and marijuana abuse, which Julian argues
could have been used to support his insanity defense. The Michigan Court of
Appeals reviewed and rejected these claims on direct appeal:
12
Defendant alleges two errors on the part of his trial
counsel. First, defendant alleges that trial counsel was
ineffective for scheduling an independent psychological
evaluation without first obtaining all of defendant’s
relevant medical records. Even assuming arguendo that
this decision fell below professional norms, defendant has
not established that counsel’s error was outcome
determinative. Though the evaluating clinician did not
possess all of defendant’s medical records at the time of
the evaluation, the trial court explicitly permitted
defendant to provide any such records to the clinician and
also permitted the clinician to revise his evaluation if
necessary. Given those facts, any error was rendered
harmless.
Second, defendant asserts that trial counsel erred by failing
to discover and investigate defendant’s history of head
trauma and marijuana abuse. These histories, however, are
evidenced on appeal by nothing more than an affidavit by
defendant’s appellate counsel stating that defendant told
her about such histories. There is nothing on the record to
support these assertions. Therefore, defendant has waived
the issue. Likewise, there is nothing in the record to
support a conclusion that any alleged error was outcome
determinative; defendant merely asserts that following up
on his alleged conditions would have made his insanity
defense successful. Even if the conditions had been
properly established, defendant has provided nothing to
suggest that a clinician would have found these clinically
significant to defendant’s insanity defense. Given this lack
of evidence, defendant cannot establish a claim for
ineffective assistance of counsel.
People v. Julian, 2013 WL 6244705, at * 4 (internal citation omitted). The Michigan
Court of Appeals’ conclusion was not unreasonable.
13
Julian never provided his medical records or any evidence of head trauma or
marijuana abuse to the Michigan courts or to this Court. Julian has also failed to
show how these records, if they existed, would have supported an insanity defense.
Conclusory allegations of ineffective assistance of counsel, without any evidentiary
support, do not provide a basis for federal habeas relief. See Workman v. Bell, 178
F.3d 759, 771 (6th Cir. 1998). Because Julian did not present any evidence to the
state courts of the records that he claims his trial counsel failed to obtain, the
Michigan Court of Appeals did not unreasonably conclude that he failed to establish
that he was prejudiced by his trial counsel’s alleged omissions. Julian is therefore
not entitled to federal habeas relief on this claim of ineffective assistance.
2
Julian next asserts that trial counsel was ineffective when counsel conceded
Julian’s guilt at the bench trial by essentially conducting what counsel himself
referred to as a “walk-through” trial. In order to understand this claim, some
background is required. As explained above, prior to the start of Julian’s trial, Julian
requested that the trial court allow him to obtain a second psychiatric evaluation.
The trial court denied that motion. That denial was effectively the death-knell of
Julian’s defense. Julian had no defense on the merits of the charges against him –
indeed, he had confessed to the murder on multiple occasions. Thus, Julian’s only
viable defense at trial was insanity. But the two experts who had evaluated Julian
14
concluded that he was not mentally ill at the time of the murder. Without the ability
to obtain a second independent evaluation in order to support his claim of insanity,
Julian had no real defense to present at trial.
Under Michigan law, the only way for Julian to preserve his right to appeal
the trial court’s denial of his motion to obtain a second psychiatric evaluation was to
not plead guilty and proceed to trial. See Michigan Court Rule 7.203(A)(1)(b)
(providing that there is no appeal of right following a “plea of guilty”); Michigan
Court Rule 6.301(C)(2) (allowing a defendant to enter a conditional plea of guilty
and preserve an issue or issues for appeal, but restricting the appeal to “application
for leave to appeal only”). Thus, in order to preserve Julian’s appellate rights, and
because Julian did not have a defense to the charges other than insanity, Julian’s
counsel decided it was in Julian’s best interest to proceed with a “walk-through” trial
during which Julian would not contest most of the facts in dispute.
Before Julian’s counsel proceeded with the “walk-through” trial, he twice
confirmed on-the-record that Julian understood and agreed with that strategy. First,
at a pre-trial hearing, counsel and the trial court confirmed that Julian wanted to
waive his right to a jury trial and proceed with the “walk-through” trial:
THE COURT: Okay. And, Mr. Czuprynski, it’s my
understanding that you have a motion regarding jury trial?
DEFENSE COUNSEL: Yes, your Honor. In conferring
with my defen -- my client, he has arrived at the decision
to waive his right to jury trial, and we base that primarily
15
on the – or solely on the fact that we are, in our opinion,
being precluded from mounting an insanity defense by the
Court’s ruling that an assessment by Dr. Wendt shall be
treated as a – an evaluation and that we’re entitled to only
one evaluation, even though it’s at the defendant’s cost.
So, with that in mind, we needed a specialist in the field of
PTSD, and since we cannot get that in advance of this trial,
we will waive the right to a jury trial, save the taxpayers
that expense, you know, for going through a jury trial for
what? If we – if we can’t mount our insanity defense as
intended, then there’s just really no rhyme or reason
behind having a trial by jury. He will waive the tr – the –
the right to a trial by jury, so that we can go through what’s
called, commonly called, a "walk- through" trial, and that
way preserve my client’s right to an appeal on the issue
surrounding the psychologist – psychiatrist.
[….]
THE COURT: Okay, thank you. Now, Mr. Julian, I want
to make sure you understand some things. [….] Now on
these charges, you have the absolute right by the United
States Constitution to a trial by jury and the Michigan
Constitution provides you the same right. Do you
understand that you have a right to have these charges tried
and the issue decided by a jury of your peers?
DEFENDANT: Yes, I do.
THE COURT: Do you want a trial by jury?
DEFENDANT: No, I don’t.
[….]
THE COURT: And it’s my understanding that defense is
proceeding to trial without offering an insanity defense?
DEFENDANT: Yes.
16
DEFENSE COUNSEL: Yes, we’re – our hands are tied
in that regard. [….] In accordance with this Court’s
ruling, we are not presenting an insanity defense. And,
also, for the record, which was also discussed in chambers
and not mentioned yet today, we are willing to stipulate to
the identity of the body and preclude the necessity of
bringing in the dentist and various other expert witnesses.
Again, our intent is just trying to minimize the expense of
the taxpayers here.
THE COURT: Are you sure this is what you want to do,
Mr. Julian?
DEFENDANT: Yes, I am.
(ECF #5-13 at Pg. ID 431-32, 434-35, 439-40.)
Then, on the first day of trial, the trial court and Julian’s counsel again
confirmed on-the-record that Julian understood what was going to happen at his
“walk-through” trial:
DEFENSE COUNSEL: Mr. Julian you were – you’re – of
course, present when I just explained to the Court why
we’re doing what’s called a walk-through trial and what
we consider the only issue that you have, for your defense,
is that you’re precluded from pursuing due to a previous
ruling….? Is that all clear to you?
DEFENDANT: It is.
DEFENSE COUNSEL: And – and have I not explained
all of this to you and explained to you what a walk-through
trial is and why we’re pursuing a walk-through trial in this
particular case?
DEFENDANT: You have.
17
DEFENSE COUNSEL: Okay. Is there any, confusion or
– or misunderstanding or any questions that you have in
reference to what we’re doing today?
DEFENDANT: No, there’s not.
[….]
THE COURT: Mr. Czuprynski, when you use the term
walk-through trial, I understand what your [sic] saying to
be that, in your mind the defense that you’d like to assert
is insanity, that factually there isn’t much dispute as to
what happened, is that what you’re saying?
DEFENSE COUNSEL: That’s what I’m saying your
honor.
(ECF #5-14 at Pg. ID 450-51.)
Julian now claims that his trial counsel’s decision to proceed with the “walkthrough” trial amounted to ineffective assistance of counsel. Julian did not raise this
claim on direct appeal. Instead, he raised it for the first time a post-conviction
motion for relief from judgment that he filed in the state trial court. (See ECF #520.) That court concluded that the claim was procedurally defaulted pursuant to
Michigan Court Rule 6.508(D)(3) because Julian (1) failed to establish good cause
for failing to raise this claim on his direct appeal and (2) did not show actual
prejudice.3 (See ECF #5-21.)
The Michigan Court of Appeals and Michigan
Supreme Court denied leave to appeal this ruling. (See ECF ## 5-24, 5-25.)
3
Michigan Court Rule 6.508(D)(3) provides that a court may not grant relief to a
defendant if the motion for relief from judgment alleges grounds for relief which
18
When a state court clearly and expressly relies on a valid state procedural bar,
federal habeas review is also barred unless a petitioner can demonstrate “cause” for
the default and actual prejudice as a result of the alleged constitutional violation, or
can demonstrate that failure to consider the claim will result in a “fundamental
miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750-51 (1991). If a
petitioner fails to show cause for his procedural default, it is unnecessary for the
court to reach the prejudice issue. See Smith v. Murray, 477 U.S. 527, 533 (1986).
However, in an extraordinary case, where a constitutional error has probably resulted
in the conviction of one who is actually innocent, a federal court may consider the
constitutional claims presented even in the absence of a showing of cause for
procedural default. See Murray v. Carrier, 477 U.S. 478, 479-80 (1986).
In this case, Julian has not attempted to excuse his default. Nor has Julian
attempted to show that he is actually innocent of the charges or that a fundamental
miscarriage of justice has occurred. See Schlup v. Delo, 513 U.S. 298, 326-27 (1995).
Accordingly, because Julian has not alleged or demonstrated any cause for his
procedural default, and he has not shown that he is actually innocent, he is not
entitled to federal habeas relief on this claim. See Smith, 477 U.S. at 533.
could have been raised on direct appeal, absent a showing of good cause for the
failure to raise such grounds previously and actual prejudice resulting therefrom.
For purposes of a conviction following a trial, “actual prejudice” means that “but for
the alleged error, the defendant would have had a reasonably likely chance of
acquittal.” M.C.R. 6.508(D)(3)(b)(i).
19
Finally, even if Julian had been able to excuse his procedural default, this
ineffective assistance claim would still fail on the merits. As described above,
ineffective assistance claims are generally governed by the Supreme Court’s
decision in Strickland, which requires a defendant to show both that his counsel’s
performance fell below an objective standard of reasonableness and that the deficient
performance caused prejudice. Julian cannot satisfy either of these requirements.
First, the performance of Julian’s trial counsel did not fall below an objective
standard of reasonableness.
Indeed, it was entirely reasonable for counsel to
conclude that Julian’s conviction was all but assured and that it was in Julian’s best
interest to proceed with a “walk-through” trial so that Julian could then appeal trial
court’s ruling denying his motion for a second psychiatric evaluation. Moreover,
counsel did cross-examine and re-cross examine Pirl, the government’s key witness,
and objected to the admission of Julian’s recorded confession.
Under these
circumstances, trial counsel’s conduct was not unreasonable.
Second, Julian has not shown that he suffered prejudice from his counsel’s
decision to proceed with the “walk-through” trial. The government’s evidence of
guilt was overwhelming, and Julian had confessed, multiple times. As the trial court
said when it issued its verdict, “[i]n this case, there’s not only no reasonable doubt,
no honest doubt, there is absolutely no doubt, whatsoever, that the defendant is
Guilty of the crime.” (ECF #5-14 at Pg. ID 515.) Julian simply has not shown that,
20
given the evidence of guilt that the government possessed, there was a reasonable
probability that the outcome of the trial would have been different. See Poindexter
v. Mitchell, 454 F.3d 564, 582 (6th Cir. 2006). Julian is therefore not entitled to
federal habeas relief on this ineffective assistance claim.
Julian insists that Strickland does not apply to this claim, and he is entitled to
automatic reversal of his conviction, because his counsel’s concession of guilt and
performance at the “walk-through” trial amounted to a complete denial of counsel.
The Court disagrees.
The facts of this case are analogous to those in United States v. Nixon, 543
U.S. 175 (2004). In Nixon, the defendant was indicted for first-degree murder (a
capital charge), kidnapping, robbery, and arson. See id. at 180. The strength of the
government’s case was overwhelming, and the defendant’s counsel concluded that
the defendant’s guilt was “not subject to any reasonable dispute.” Id. at 181. After
plea negotiations broke down, counsel “turned his attention to the penalty phase,
believing that the only way to save [the defendant’s] life would be to present
extensive mitigation evidence centering on [the defendant’s] mental instability.” Id.
Counsel further concluded that “the best strategy would be to concede guilt, thereby
preserving his credibility in urging leniency during the penalty phase.” Id. The jury
ultimately convicted the defendant and sentenced him to death. See id. at 184.
21
On appeal, the defendant argued that his counsel rendered ineffective
assistance because the defendant never expressly consented to his counsel’s
concession-of-guilt strategy. See id. at 186-87. When the Florida Supreme Court
reviewed this claim, it did not apply Strickland. See id. at 178. Instead, that court
presumed that the defendant’s counsel was deficient and that the defendant suffered
prejudice. See id. at 178. The Supreme Court reversed. It concluded that where
counsel “explain[ed] his proposed trial strategy to [the defendant],” and where the
defendant did not expressly object to that strategy, Strickland applied to defendant’s
ineffective assistance claim. Id. at 189-90. Likewise here, Julian’s trial counsel and
the trial judge explained the confines of the “walk-through” trial to Julian, and Julian
did not object to that procedure. Indeed, Julian told the trial court that he understood
that strategy. Accordingly, as in Nixon, Strickland applies to Julian’s claim of
ineffective assistance.
This case is also distinguishable from those in which the United States
Supreme Court has held that a defendant’s constitutional rights were violated as a
result of decisions made by their counsel. In Bookhart v. Janis, 384 U.S. 1 (1966),
for example, a defendant’s trial counsel informed the trial court that the defendant
wanted a “prima facie” trial where there would be “no cross-examination of the
witnesses” and the defendant “in effect admits his guilt.” Id. at 5-6. As defense
counsel was explaining this procedure to the trial judge, the defendant interrupted
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and said “I would like to point out in no way am I pleading guilty to the charge.” Id.
at 6. After the trial judge then asked the defendant if he wanted “a prima facie case
or a complete trial,” defense counsel answered “[p]rima facie, Your Honor, is all we
are interested in.” Id. The defendant was then convicted after a truncated trial. See
id. at 7.
The defendant asserted on appeal that he was denied the right to crossexamine the witnesses who testified against him, and the Supreme Court agreed. See
id. at 2. The court concluded that where the defendant expressly objected to his trial
counsel’s strategy, counsel could not waive his client’s right to cross-examine
witnesses and have a full trial. Here, in contrast, even though the trial court
explained and questioned Julian about the “walk-through” trial on two separate
occasions, Julian never objected to that strategy, and confirmed he fully understood
it.
The facts of this case are also distinguishable from the Supreme Court’s recent
ruling in McCoy v. Louisiana, 138 S. Ct. 1500 (2018). In McCoy, a defendant’s
counsel conceded the defendant’s guilt during the guilt phase of a capital trial. The
defendant argued on appeal that he was denied the effective assistance of counsel.
When the Supreme Court reviewed that claim, it held that the defendant did not need
to satisfy the requirements in Strickland. See id. Importantly, the Supreme Court
concluded that Strickland did not apply to the defendant’s claim because the
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defendant “vociferously insisted that he did not engage in the charged acts and
adamantly objected to any admission of guilt.” Id. at 1505. The Supreme Court
explained that “a defendant has the right to insist that counsel refrain from admitting
guilt, even when counsel’s experienced-based view is that confessing guilt” is in the
defendant’s best interest.
Here, as described above, Julian lodged no such
“adamant[] objection[ion]” and never “insist[ed]” that his counsel “refrain from
admitting guilt.”
In sum, when the Court reviews the facts of this case, and applies the Supreme
Court’s holdings in Brookhart, Nixon, and McCoy, it concludes that Julian’s
ineffective assistance claim related to his counsel’s performance during the “walkthrough” trial must be analyzed pursuant to Strickland. And, for all of the reasons
described above, under Strickland, Julian’s ineffective assistance claim fails.
As Julian has failed to demonstrate entitlement to federal habeas relief with
respect to any of his claims, the Court will deny the petition.
IV
In order to appeal the Court’s decision, Julian must obtain a certificate of
appealability. To obtain a certificate of appealability, a prisoner must make a
substantial showing of the denial of a constitutional right. See 28 U.S.C. §
2253(c)(2). To demonstrate this denial, the applicant is required to show that
reasonable jurists could debate whether the petition should have been resolved in a
24
different manner, or that the issues presented were adequate to deserve
encouragement to proceed further. See Slack v. McDaniel, 529 U.S. 473, 483-84
(2000). A federal district court may grant or deny a certificate of appealability when
the court issues a ruling on the habeas petition. See Castro v. United States, 310 F.3d
900, 901 (6th Cir. 2002).
Here, jurists of reason would not debate the Court’s conclusion that Julian has
failed to demonstrate entitlement to habeas relief with respect to any of his claims
because they are all devoid of merit. Therefore a certificate of appealability will be
denied.
Although this Court declines to issue Julian a certificate of appealability, the
standard for granting an application for leave to proceed in forma pauperis on appeal
is not as strict as the standard for certificates of appealability. See Foster v. Ludwick,
208 F.Supp.2d 750, 764 (E.D. Mich. 2002). While a certificate of appealability may
only be granted if a petitioner makes a substantial showing of the denial of a
constitutional right, a court may grant in forma pauperis status if it finds that an
appeal is being taken in good faith. See id. at 764-65; 28 U.S.C. § 1915(a)(3); Fed.
R.App.24 (a). Although jurists of reason would not debate this Court’s resolution of
Julian’s claims, an appeal could be taken in good faith. Therefore, Julian may
proceed in forma pauperis on appeal.
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V
Accordingly, for the reasons stated above, the Court 1) DENIES WITH
PREJUDICE Julian’s petition for a writ of habeas corpus (ECF #1), 2) DENIES
Julian a certificate of appealability, and 3) GRANTS Julian permission to appeal in
forma pauperis.
IT IS SO ORDERED.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: June 26, 2018
I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on June 26, 2018, by electronic means and/or
ordinary mail.
s/Holly A. Monda
Case Manager
(810) 341-9764
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