Pennebaker v. Jackson

Filing 18

OPINION and ORDER DISMISSING 1 Petition for Writ of Habeas Corpus; and DENYING a certificate of appealability and permission to appeal in forma pauperis. Signed by District Judge Judith E. Levy. (WBar)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Danny R. Pennebaker,
Petitioner,

v.
Randee

Rewerts,1

Warden,

Respondent.

Case No. 17-12196
Hon. Judith E. Levy
United States District Judge
Mag. J. David R. Grand

_________________________________/
OPINION AND ORDER DISMISSING THE PETITION
FOR A WRIT OF HABEAS CORPUS [1], DENYING A
CERTIFICATE OF APPEALABILITY, AND DENYING
LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
Petitioner Danny R. Pennebaker, a prisoner currently held at the
Carson City Correctional Facility, in Carson City, Michigan, challenges
his convictions for felonious assault and assault with intent to rob while
armed. He seeks habeas corpus relief on the ground that his trial counsel
was constitutionally ineffective for conceding guilt on the felonious
assault charges, after Petitioner had asserted his innocence.

The proper respondent for a state prisoner seeking habeas relief pursuant to 28
U.S.C. § 2254 is the state officer having custody of the petitioner. See Rule 2(a) of the
Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254. The Court orders the case
caption amended to reflect the name of the warden of Carson City Correctional
Facility, Randee Rewerts.
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Because the Michigan Court of Appeals’ decision denying this claim
was not contrary to nor an unreasonable application of Supreme Court
precedent, the petition for habeas corpus is denied. The Court also denies
a certificate of appealability and leave to proceed in forma pauperis on
appeal.
I. Background
Petitioner was convicted at a jury trial in Jackson County,
Michigan, of two counts of assault with intent to rob while armed
(AWIRA), Mich. Comp. Laws § 750.89, and two counts of felonious assault
(assault with a dangerous weapon), Mich. Comp. Laws § 750.82.
Following a direct appeal by right and a remand for resentencing, he was
sentenced as a fourth habitual offender to eleven to twenty years for the
AWIRA convictions and six to fifteen years for the felonious assault
convictions. The Michigan Court of Appeals described the circumstances
of the offense as follows:
On June 30, 2013, defendant stopped the two victims on their
way to Taco Bell. Defendant asked the two victims for a
cigarette and also asked them to purchase a taco for him.
Thereafter, defendant rode off on his bicycle, but then he
returned and told the two victims that they looked like they
were “up to no good.” Defendant subsequently pulled out a
knife, which caused the two victims to run to the Taco Bell.
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Police arrived at the Taco Bell shortly thereafter. One of the
victims had a cut on his arm. At some point, the police found
defendant, and the two victims identified defendant on scene
as the perpetrator.
People v. Pennebaker, No. 322117, 2015 WL 6439047, at *1 (Mich. Ct.
App. Oct. 22, 2015) (unpublished) (per curiam).
Petitioner raised four issues in his first direct appeal: ineffective
assistance of trial counsel for admitting Petitioner’s guilt without his
consent, jail credit error, and two arguments regarding improper scoring
of two offense variables (used in sentencing guideline calculations). The
state court affirmed Petitioner’s convictions but remanded for
resentencing over one of the offense variable errors. Pennebaker, 2015
WL 6439047, at *1, *3. Petitioner raised only the question of ineffective
assistance in his application for leave to appeal to the Michigan Supreme
Court. That court affirmed the court of appeals decision in a standard
form order. People v. Pennebaker, 499 Mich. 916 (2016).
Following resentencing, Petitioner again appealed by right, arguing
that the judge considered inaccurate information in his Presentence
Investigation Report (PSIR). The court of appeals again affirmed. People
v. Pennebaker, No. 335371, 2018 WL 521900, at *1 (Mich. Ct. App. Jan.

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23, 2018). Petitioner did not seek leave to appeal that decision in the
Michigan Supreme Court.
Petitioner also filed a motion for relief from judgment at the trial
court, which was denied. The state court of appeals denied leave to
appeal, as did the state supreme court “because the defendant has failed
to meet the burden of establishing entitlement to relief under MCR
6.508(D).” People v. Pennebaker, No. 349589 (Mich. Ct. App. Oct. 14,
2019) (unpublished); lv. den., 937 N.W.2d 683 (Mich. 2020). The state
supreme court also denied Petitioner’s motion to expand the record. Id.
Petitioner filed this petition on June 29, 2017. As he notes in
numerous pleadings (see, e.g., ECF No. 7, PageID.62–63; ECF No. 12,
PageID.98), he raises a single claim of error, that by admitting
Petitioner’s guilt to the felonious assault counts without obtaining his
consent

on the record for that

admission, trial

counsel was

constitutionally ineffective in violation of Petitioner’s Sixth Amendment
rights.
II. Legal Standard
A habeas petition brought by a prisoner in state custody is governed
by the heightened standard of review set forth in the Anti-Terrorism and
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Effective Death Penalty Act (AEDPA). 28 U.S.C. § 2254. To obtain relief,
habeas petitioners who raise claims previously adjudicated by state
courts must “show that the relevant state-court ‘decision’ (1) ‘was
contrary to, or involved an unreasonable application of, clearly
established Federal law,’ or (2) ‘was based on an unreasonable
determination of the facts in light of the evidence presented in the State
court proceedings.’” Wilson v. Sellers, 138 S. Ct. 1188, 1191 (2018)
(quoting 28 U.S.C. § 2254(d)).
For the purposes of habeas review, “clearly established Federal
law” is based solely on Supreme Court precedent. Lopez v. Smith, 574
U.S. 1, 6 (2014) (per curiam) (citing 28 U.S.C. § 2254(d)(1)). “State-court
decisions are measured against this Court’s precedents as of ‘the time the
state court renders its decision.’” Cullen v. Pinholster, 563 U.S. 170, 182
(2011) (quoting Lockyer v. Andrade, 538 U.S. 63, 71–72, (2003)). “[C]ircuit
precedent does not constitute ‘clearly established Federal law as
determined by the Supreme Court’” and thus cannot provide the basis for
federal habeas relief. Parker v. Matthews, 567 U.S. 37, 48–49 (2012).
The focus of the AEDPA standard “is not whether a federal court
believes the state court’s determination was incorrect but whether that
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determination was unreasonable–a substantially higher threshold.”
Schriro v. Landrigan, 550 U.S. 465, 473 (2007). “AEDPA thus 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 citations and quotation
marks omitted).
Ultimately, “[a] state court’s determination that a claim lacks merit
precludes federal habeas relief so long as ‘fairminded jurists could
disagree’ on the correctness of the state court’s decision.” Harrington v.
Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541
U.S. 652, 664 (2004)). Additionally, a state court’s factual determinations
are presumed correct on federal habeas review, 28 U.S.C. § 2254(e)(1),
and review is “limited to the record that was before the state court.”
Cullen, 563 U.S. 170 at 181. A petitioner may rebut the presumption of
correctness with clear and convincing evidence. § 2254(e)(1); Warren v.
Smith, 161 F.3d 358, 360–61 (6th Cir. 1998). “[A] decision adjudicated on
the merits in a state court and based on a factual determination will not
be overturned on factual grounds unless objectively unreasonable in light

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of the evidence presented in the state-court proceeding.” Miller-El v.
Cockrell, 537 U.S. 322, 340 (2003) (citations omitted).
III. Analysis
Petitioner’s sole claim of error is that trial counsel’s defense was
objectively unreasonable, because counsel conceded guilt to the felonious
assault charges without obtaining consent from Petitioner on the record.
Petitioner argues that his rejection of a plea offer before his July 2013
preliminary examination, which required him to plead guilty to a single
count of felonious assault in exchange for dismissal of the other charges
and reduced habitual offender sentence enhancement, should have made
clear to his trial attorney that he sought to pursue a defense theory of
innocence at trial. (See, e.g., ECF No. 12, PageID.98; ECF No. 16,
PageID.744–45.)
In his opening statement, trial counsel stated that, “[a]fter you’ve
heard all the evidence I think you’ll be convinced that Mr. Pennebaker is
guilty of assaulting these young men with a knife, inappropriately,
wrongfully[,] there is no excuse for what he did.” (ECF No. 13-5,
PageID.339). However, he continued, Petitioner “never intended at all to
rob these young men.” (Id. at PageID. 339; see also id. at 338.) Similarly,
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in his closing statement, counsel concluded that Petitioner was “guilty of
two counts of felonious assault, he is because that’s what he did. But he
didn’t assault those boys intending to rob.” (Id. at 418.) In support,
defense counsel read from a letter Petitioner wrote to the victims (which
was identified and described as an admission by one of the victims (id. at
353).). (Id. at 416.) In that letter, Petitioner admitted to pulling out his
knife, which frightened the victims, who then ran away. (Id. at 417.)
Counsel argued that the letter demonstrated that Petitioner was
panhandling and pulled out the knife after he felt the victims laughed at
him, humiliating him, but he never intended to rob them. (Id.)
The Michigan Court of Appeals ruled that Petitioner’s ineffective
assistance of counsel claim lacked merit. Pennebaker, 2015 WL 6439047,
at *1. It found that “[i]t is clear from the record that defense counsel did
not make a complete concession of guilt, but rather defense counsel
conceded that defendant was guilty of the lesser charged offenses of
felonious assault.” Id. The court continued:
Here, defendant was positively identified by both of the
victims; defendant had a knife with him when police stopped
him; and defendant admitted, in a letter to the victims, that
he pulled a knife on both of them and both of them appeared
to be scared. “When defense counsel ... recognizes and
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candidly asserts the inevitable, he is often serving his client’s
interests best by bringing out the damaging information and
thus lessening the impact.” People v. Wise, 134 Mich. App 82,
98; 351 N.W.2d 255 (1984). Accordingly, defense counsel’s
performance was not objectively unreasonable; thus,
defendant’s ineffective assistance of counsel claim of error
lacks merit.
Pennebaker, 2015 WL 6439047, at *1.
Petitioner cites Supreme Court cases McCoy v. Louisiana, 138 S.
Ct. 1500 (2018), and Florida v. Nixon, 543 U.S. 175 (2004), as well as
Sixth Circuit case Wiley v. Sowders, 647 F.2d 642, 650 (6th Cir. 1981), in
support of his argument. None establish that he is entitled to habeas
relief.
First, McCoy was issued on May 14, 2018, two and a half years after
the Michigan Court of Appeals decided this question in Petitioner’s first
direct appeal. A state court decision cannot be challenged under § 2254(d)
based on Supreme Court decisions not yet decided at “the time the state
court render[ed] its decision.” Greene v. Fisher, 565 U.S. 34, 38 (2011)
(quotations and emphasis omitted); see also Cullen, 563 U.S. at 182.
Furthermore, McCoy is distinguishable. In McCoy, the Supreme
Court held that it was impermissible for defense counsel to concede a
defendant’s guilt during the guilt phase of a two-phase death penalty
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trial, when the defendant “vociferously insisted that he did not engage in
the charged acts and adamantly objected to any admission of guilt.” 138
S. Ct. at 1505, 1508. The Court reasoned that while “[t]rial management
is the lawyer’s province,” such as deciding to “what arguments to pursue,
what evidentiary objections to raise, and what agreements to conclude
regarding the admission of evidence,” a criminal defendant is entitled to
the “[a]utonomy to decide that the objective of the defense is to assert
innocence” and to “insist on maintaining her innocence at the guilt phase
of a capital trial.” Id. at 1508. As a result, the Sixth Amendment gives a
defendant the right to insist that counsel refrain from admitting guilt
over the defendant’s objection, even when counsel believes that it is in
the defendant’s best interest to do so to avoid a harsh sentence. Id. at
1511–12 .
McCoy found this denial of autonomy to be structural error, and
therefore the ineffective assistance of counsel analysis of Strickland v.
Washington, 466 U.S. 668 (1984), did not apply. 138 S. Ct. at 1511. McCoy
distinguished Florida v. Nixon, another case in which guilt was conceded
by trial counsel. In the latter case, counsel was found not to be
constitutionally ineffective, because “Nixon’s attorney did not negate
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Nixon’s autonomy by overriding Nixon’s desired defense objective.”
McCoy, 138 S. Ct. at 1509 (citing Nixon, 543 U.S. at 181; see also id. at
192). Unlike McCoy’s “adamant[] object[ions],” id. at 1505, Nixon was
“generally unresponsive,” and never articulated a defense objective; nor
did he approve of or protest counsel’s proposed strategy. McCoy, 138 S.
Ct. at 1509 (citing Nixon, 543 U.S. at 181). Nixon only complained about
counsel’s concession of guilt after trial. Nixon, 543 U.S. at 185. “McCoy,
in contrast, opposed [his attorney’s] assertion of his guilt at every
opportunity, before and during trial, both in conference with his lawyer
and in open court.” McCoy, 138 S. Ct. at 1509.
Petitioner’s circumstances correspond more closely to Nixon’s
failure to respond than to McCoy’s vociferous insistence on innocence.
That is, Petitioner argues that his attorney should have been aware of
his desire to assert his innocence at trial based primarily on his rejection
of a plea offer to a single count of felonious assault many months before
the March 2014 trial.2 He does not argue that he objected to this strategy
with his attorney or the court before or during trial.

Petitioner also cites in support of his argument statements he made at an
October 2013 hearing purportedly asserting innocence. As with the plea rejection,
those remarks preceded his trial by several months; in addition, they are not the clear
2

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Petitioner demonstrated at his October 2013 pretrial hearing that
he was capable of advocating for himself directly with the court, when he
sought replacement of appointed counsel or the opportunity to represent
himself. (ECF No. 13-3, PageID.246, 249–51.) Even if, as Petitioner
alleges, his attorney never discussed trial strategy with him, he was on
notice of counsel’s defense theory as soon as counsel made his opening
statement. Yet Petitioner failed to oppose this strategy with his attorney
or before the court; nor did he clearly and consistently insist on a defense
of innocence. Instead, Petitioner, like the defendant in Nixon, only
objected to counsel’s defense strategy after trial. As a result, this is not a
case of structural error, as in McCoy, but rather, invokes Nixon’s analysis
of ineffective assistance of counsel.
The Nixon Court determined that Strickland governed the question
before it, namely, whether a defendant must consent to counsel’s
strategic choices. It rejected a “blanket rule demanding” consent, and
instead held that “if counsel’s strategy, given the evidence bearing on the

assertion of innocence he suggests. Specifically, Petitioner said to the trial court, “I
do not claim innocence of a crime taking place. I do claim that the crimes as charged
did not take place.” (ECF No. 13-3, PageID.251.) Petitioner’s dispute was the result
of his perception the length of his knife’s blade determined whether charges should
have been issued. Id.

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defendant’s guilt, satisfies the Strickland standard, that is the end of the
matter; no tenable claim of ineffective assistance would remain.”3 Nixon,
543 U.S. at 192.
Claims for habeas relief based on ineffective assistance of counsel
are evaluated under a “doubly deferential” standard. Abby v. Howe, 742
F.3d 221, 226 (6th Cir. 2014) (citing Burt v. Titlow, 571 U.S. 12, 15
(2013)). First, under the two-pronged standard of Strickland, a habeas
petitioner must show “that counsel’s representation fell below an
objective standard of reasonableness,” and “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Lafler v. Cooper, 566 U.S. 156,
163 (2012) (citations omitted). Strickland requires a “strong presumption
that counsel’s conduct [fell] within the wide range of reasonable
professional assistance[,]” Abby, 742 F.3d at 226 (citing Strickland, 466
Nixon does suggest that a defense strategy that includes the admission of a
defendant’s guilt outside its capital context might, “in a run-of-the-mine trial might
present a closer question,” as to whether counsel “fail[ed] to function in any
meaningful sense as the Government’s adversary.” 543 U.S. at 190 (quoting United
States v. Cronic, 466 U.S. 648, 666 (1984)). However, those remarks are dicta, and
therefore do not represent “clearly established Federal law” for the purposes of
section 2254 analysis. See White v. Woodall, 572 U.S. 415, 419 (2014) (citing Howes
v. Fields, 132 S. Ct. 1181, 1187 (2012)).
3

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U.S. at 689), and that “under the circumstances, the challenged action
‘might be considered sound trial strategy.’” Bell v. Cone, 535 U.S. 685,
698 (2002) (citing Strickland, 466 U.S. at 689).
AEDPA provides the second layer of deference, under which the
Court may “examine only whether the state court was reasonable in its
determination that counsel’s performance was adequate.” Abby, 742 F.3d
at 226 (citing Burt, 134 S. Ct. at 18). “The pivotal question is whether the
state court’s application of the Strickland standard was unreasonable,”
which “is different from asking whether defense counsel’s performance
fell below Strickland’s standard.” Harrington, 562 U.S. at 101.
Against Nixon and the doubly deferential standard AEDPA
requires, the state courts were not unreasonable to find that defense
counsel provided Petitioner effective assistance. Counsel’s choice of
strategy was a reasonable attempt to mitigate the impact of significant
evidence against Petitioner, especially Petitioner’s own admission in his
letter that he used a knife to frighten the victims.
Further, Petitioner cannot establish that he was prejudiced by
counsel’s concession of guilt. His sole argument in favor of prejudice is
that counsel’s admission exposed him to a higher potential sentence than
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that of the July 2013 plea offer, had he accepted it. (ECF No. 1,
PageID.33.) However, the plea offer, which Petitioner rejected months
before while represented by a different appointed attorney, bears no
relation or relevance to his sentence after trial. Petitioner does not
suggest he declined the plea offer as the result of ineffective assistance of
counsel and then received a longer sentence as the result of proceeding
to trial. See Lafler v. Cooper, 566 U.S. 156, 170 (2012). Defense counsel’s
admission of the felonious assaults had no direct impact on the sentence
Petitioner ultimately received. And an unsuccessful trial strategy does
not establish that counsel was ineffective. See Moss v. Hofbauer, 286 F.3d
851, 859 (6th Cir. 2002) (“an ineffective-assistance-of-counsel claim
cannot survive so long as the decisions of a defendant’s trial counsel were
reasonable, even if mistaken”).
Finally, Petitioner is not entitled to habeas relief based on Wiley v.
Sowders, a pre-AEDPA Sixth Circuit habeas case in which a petitioner’s
“lawyer admitted his client’s guilt, without first obtaining his client’s
consent to this strategy.” 647 F.2d 642, 650 (6th Cir. 1981). Wiley held
that consent “must appear outside the presence of the jury on the trial
record,” and that the failure to obtain that consent, where the evidence
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was circumstantial and the likelihood of conviction absent the confession
unclear, was ineffective assistance of counsel. Id.
However, a later case distinguished Wiley and rejected a similar
claim, where counsel “argued to the jury that petitioner was guilty only
of the lesser included offense of second-degree home invasion” but did not
concede guilt in “the charged offenses of armed robbery or first-degree
home invasion.” Johnson v. Warren, 344 F. Supp. 2d 1081, 1095 (E.D.
Mich. 2004). That court found trial counsel’s admission of guilt, in “an
attempt to win an acquittal” on the higher, charged offenses “a legitimate
trial strategy.” Id.
Most importantly, clearly established law for habeas purposes may
only be determined by the holdings of the United States Supreme Court,
so this Court may not apply Wiley to grant habeas relief to Petitioner.
Parker, 567 U.S. at 48–49. In addition, Petitioner’s circumstances
correspond more to Johnson’s than Wiley’s. The evidence in Petitioner’s
case was much more significant than in Wiley, including the location of
the suspect very shortly after police were called, matching the victims’
descriptions (ECF No. 13-5, PageID.396); the victims’ individual
identifications of him (id. at 383); the knife found within Petitioner’s
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reach (id. at 390); and the letter from Petitioner to the victims admitting
he pulled a knife and scared them (id. at 353, 416–18).
Further, although the felonious assault charges against Petitioner
were not “lesser included offenses” of the assault while attempting to rob
charges per se, see People v. Walls, 265 Mich. App. 642, 646 (2005), they
were much less consequential. Compare Mich. Comp. Laws § 750.89
(assault with intent to rob punishable by life or any term of years), Mich.
Comp. Laws § 750.82 (felonious assault is a four-year offense; fourth
habitual offender enhancement raises the penalty to a maximum of
fifteen years, Mich. Comp. Laws § 769.12(1)(c)). Applying Johnson, a
defense seeking to limit convictions to lower-penalty charges was a
“legitimate trial strategy.” The state courts’ finding that Petitioner’s
Sixth Amendment rights to counsel were not violated was not
unreasonable. Petitioner is not entitled to habeas relief.
IV. Certificate of Appealability and Pauper Status on Appeal
Federal Rule of Appellate Procedure 22(b)(1) provides that an
appeal may not proceed unless a certificate of appealability is issued
under 28 U.S.C. § 2253. Rule 11(a) of the Rules Governing Section 2254

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Cases requires the Court to “issue or deny a certificate of appealability
when it enters a final order adverse to the applicant.”
To obtain a certificate of appealability, a prisoner must make a
substantial showing of the denial of a constitutional right. 28 U.S.C. §
2253(c)(2). Section 2253(c)(2) is satisfied only if reasonable jurists could
find either that the district court’s assessment is debatable or wrong or
that the issues presented deserve encouragement to proceed further.
Slack v. McDaniel, 529 U.S. 473, 483–84 (2000).
For the reasons set forth above, reasonable jurists could not find
this Court’s assessment of Petitioner’s claims to be debatable or wrong.
Nor would reasonable jurists conclude that the issues presented are
adequate to deserve encouragement to proceed further. See Millender v.
Adams, 187 F. Supp.2d 852, 880 (E.D. Mich. 2002). Consequently,
Petitioner is not entitled to a certificate of appealability.
Further, an appeal from this decision would be frivolous and could
not be taken in good faith. See Coppedge v. U.S., 369 U.S. 438, 444 (1962).
Therefore, Petitioner may not proceed in forma pauperis on appeal. Fed.
R. App. P. 24(a)(3)(A).
V. Conclusion
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For the reasons set forth above, the petition for a writ of habeas
corpus (ECF No. 1) is DISMISSED WITH PREJUDICE; and a
certificate of appealability and permission to appeal in forma pauperis
are DENIED.
IT IS SO ORDERED.
Dated: July 27, 2020
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on July 27, 2020.
s/William Barkholz
WILLIAM BARKHOLZ
Case Manager

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