XIII. Post-Conviction Remedies
Sixth Circuit
• Ineffective Assistance of Counsel
U.S. v. Ballard, 03-5117 (3/10/05)
> Defendant was indicted for one count of conspiracy to distribute cocaine, cocaine base, and marijuana. At trial, the jury returned a general verdict finding the defendant guilty of conspiracy. At sentencing, the district court determined that the defendant had distributed cocaine only, and sentenced her accordingly. While the appeal was pending, the Supreme Court decided the case of Apprendi v. New Jersey, but appellate counsel did not raise an Apprendi issue on appeal. Defendant then filed a habeas petition, claiming that her appellate counsel was ineffective for failing to raise Apprendi on direct appeal.
* Holding: Applying Strickland v. Washington, the court held that appellate counsel was ineffective for failing to raise Apprendi on direct appeal. Under Apprendi, if the government seeks a sentence reflecting culpability for an object of a conspiracy carrying greater than the least grave sentence, it must also seek a special verdict from the jury. Thus, the district court committed plain error in sentencing defendant based upon the cocaine where the jury had not specifically found that the defendant was responsible for the cocaine in its verdict. Accordingly, appellate counsel was ineffective for not raising an issue that would have resulted in a remand for resentencing.
• Ineffective Assistance of Appellate Counsel
Franklin v. Anderson, 03-3636 (1/9/06)
> Defendant was convicted in state court of murder and sentenced to death. Two attorneys were appointed to represent defendant in his appeals, but the attorneys failed in both the court of appeals and the Ohio Supreme Court to raise an obvious issue of juror bias. (See supra, VI. Sixth Amendment). Defendant subsequently filed a federal habeas petition in which he claimed that he was provided ineffective assistance by his two appellate attorneys. The district court granted the petition, and the state appealed.
* Holding: The court first held that a criminal defendant is entitled to effective assistance of counsel in his direct appeal. The court then found that defendant’s appellate attorneys were embarrassingly ineffective in representing defendant in his state appeals. Among the many egregious errors by counsel, they refused to answer certain questions from the court of appeals during oral argument, failed to meet with the defendant even one time, engaged in inappropriate laughing and irresponsible representations before the Ohio Supreme Court, and were generally unprepared. More importantly, the court found that the attorneys had failed to raise the issue of juror bias, an obvious error in the case. Accordingly, the court found the attorneys’ representation to be constitutionally deficient.
•Ineffective Assistance of Counsel
Pough v. U.S., 04-3863 (3/31/06)
> Defendant was convicted in federal court of drug charges and in state court for murder. During the pendency of the case in federal court, defendant’s counsel advised him not to cooperate with state authorities in their investigation until his state attorney was able to negotiate a plea deal, or until the government in the federal case made a plea bargain that would give him a benefit for his cooperation. After defendant’s sentencing in federal and state courts, and a loss in his direct federal appeal, defendant pursued a federal habeas petition. Therein, defendant claimed that his attorney’s advice to not cooperate with state authorities resulted in less favorable sentencing determinations. The district court denied the petition and defendant appealed. On appeal, defendant claimed that his appointed appellate attorney was ineffective for failing to independently research and write the brief.
* Holding: Applying the Strickland standard, the court first held that defendant’s trial counsel was not ineffective. The court held that the attorney’s advice to forego cooperating until plea agreements could be reached was not unreasonable. Regarding the appellate counsel’s performance, the court, in a two-judge majority, held that the attorney’s decision to sign and file a brief that was mostly written by defendant himself was not unreasonable. The court found that, given defendant’s insistent need to control his own case, the attorney’s actions did not constitute deficient representation. Additionally, the court found that defendant was not prejudiced because all pertinent issues were addressed in the brief with appropriate citations to authorities. Accordingly, the district court ruling was affirmed.
• Ineffective Assistance of Counsel
Gillard v. Mitchell, 03-4261 (4/26/06)
> The attorney representing defendant on state murder charges also represented defendant’s brother on the same charges. The brother was investigated, but not prosecuted. At the murder trial, the attorney presented the brother as a witness for defendant, and the state objected to the potential conflict of interest. The attorney assured the court that no conflict existed, but the court nonetheless appointed the brother an attorney to advise the brother during his testimony. Defendant appealed through the state courts and then filed a federal habeas petition claiming that his attorney operated under an actual conflict of interest and was ineffective for failing to present the defense that his brother committed the murder, not defendant. The district court granted the petition and the state appealed.
* Holding: Where an attorney labors under an actual conflict of interest, ineffectiveness is established and prejudice to the defendant’s case is presumed. In the case, however, the court found no actual conflict of interest in the attorney’s representation of defendant because the attorney was no longer representing the brother at the time that the attorney cross examined him. In so holding, the court emphasized the difference between simultaneous versus successive representation. In successive representation, the attorney “is no longer beholden to the former client,” and thus, the court ruled that no actual conflict exists. Further, the court found no error in the trial court’s failure to hold an evidentiary hearing regarding the conflict. The trial court appropriately inquired into the matter and appointed a separate attorney for the brother. Under these circumstances, the trial court had no further obligation to conduct an evidentiary hearing into the conflict issue, particularly where the defense attorney represented to the trial court that no conflict existed. Accordingly, the district court ruling was reversed and the conviction affirmed.
• Ineffective Assistance of Counsel
Stewart v. Wolfenbarger, 04-2419 (11/9/06)
> Johnson was charged with murder and hired counsel. Johnson’s case was ultimately dismissed, and the state then charged defendant. Defendant hired the same attorney who had previously represented Johnson. During the trial, defendant’s counsel did not call Johnson as a witness, did not file a proper alibi notification as required by state law, and failed to investigate or call a witness to refute the testimony of a key state witness. Defendant was convicted, lost his state court appeal, and filed a federal habeas petition alleging that his counsel had a conflict of interest and that his attorney was ineffective. The district court denied the petition and defendant appealed.
* Holding: First, the court held that defendant’s counsel did not operate under a conflict of interest that rendered her ineffective. As a general matter, where an attorney operates under an actual conflict of interest, prejudice is presumed. This presumed prejudice standard applies only in cases of “multiple concurrent representation.” Where, however, the potential conflict is due to successive representation, then the normal Strickland standard for ineffective assistance is applied. In the case, the court found that defendant’s lawyer had engaged in successive representation of he and Johnson, and thus, Strickland applied. The court then held that the attorney’s failure to call Johnson as a witness to try to shift blame to him was not deficient performance because Johnson would likely have invoked the Fifth Amendment anyway. Thus, the district court ruling was affirmed on this point.
Second, the court found that the attorney rendered ineffective assistance by failing to file the proper alibi notification and in failing to investigate a key witness. Regarding the alibi, the court held that the failure to file a proper alibi notification pursuant to Michigan law was clearly deficient performance that prejudiced defendant because two of defendant’s three alibi witnesses were excluded as a result of the attorney’s deficiency. The court found that the alibi witnesses would not have been merely cumulative. Regarding the investigation of the witness, the court found that the attorney’s performance was deficient and that the deficiency prejudiced defendant because the witness would have severely undercut the credibility of the state’s central witness. Thus, the court concluded that the outcome of the trial would likely have been different but for counsel’s errors and accordingly reversed defendant’s conviction.
• Ineffective Assistance of Counsel
U.S. v. Morris, 05-2133 (12/7/06)
> Defendant was charged in state court with firearm and drug-related offenses and the state prosecutor, after consultation with an Assistant U.S. Attorney (AUSA), offered defendant a plea agreement in state court in order to avoid federal charges. Pursuant to state court practices, defendant was assigned an attorney on the same day the plea offer was made and defendant was expected to make a decision regarding the plea offer that same day, after a brief consultation with the attorney in a non-private setting. Defendant’s state attorney misadvised defendant as to the potential federal jail time exposure and defendant ended up rejecting the state plea offer. Defendant was then indicted in federal court and he moved to dismiss the indictment based upon his attorney’s ineffective assistance. The district court granted the motion, and the government appealed.
* Holding: The court first held that the district court possessed the authority to dismiss the federal indictment based upon principles of contract law. (See supra, IX. Plea and Sentencing Hearings). Second, the court found that defendant’s state attorney had provided ineffective assistance of counsel. Pursuant to the Supreme Court decision U.S. v. Cronic, a court may find that a defendant was denied effective assistance of counsel based upon the rule of “constructive absence of counsel.” This rules applies to three types of cases: (1) complete denial of counsel; (2) counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing; and (3) counsel is placed in circumstances where a competent attorney could not likely render assistance. If one of these situations applies, then prejudice to the defendant is presumed. In the case, the court found that the third situation applied and that defendant’s counsel was placed in a situation where she could not render effective assistance due to the time constraints and the lack of privacy.
The court alternatively held that defendant was denied effective assistance of counsel under the standards of the Supreme Court’s decisions in Strickland and Hill. In the plea context, an attorney is ineffective if: (1) she fails to properly inform her client of a plea offer and the potential penalties; and (2) there is a reasonable probability that the defendant would have pled guilty with the proper advice. The court ruled that the attorney’s advice about potential federal penalties was so substantially below the actual possible penalties that the advice fell below and objective standard of reasonableness and “severely undermined” defendant’s ability to make an intelligent decision regarding the plea offer. Accordingly, the court found that defendant’s attorney had rendered ineffective assistance and affirmed the district court decision to dismiss the federal indictment.
• Ineffective Assistance of Counsel
Higgins v. Renico, 05-1564 (11/20/06)
> Defendant was charged in state court with murder and during the trial the key prosecution witness failed to appear, so the state introduced the witness’ prior testimony from a preliminary hearing. Three days later in the trial, the witness was found and appeared for testimony. After the witness testified on direct examination, defendant’s attorney requested additional time before cross examination because he had not reviewed the witness’ prior testimony and was unprepared to conduct cross. The trial court denied the request and the attorney refused to conduct any cross examination of the witness. Defendant was convicted, lost his state court appeals, and filed a federal habeas petition claiming ineffective assistance of counsel. The district court granted the petition, and the state appealed.
* Holding: Applying the Strickland two-part standard, the court found defendant’s counsel to be ineffective. First, the court held that counsel’s performance fell below an objectively reasonable standard and that no sound trial strategy justified the failure to cross examine the government’s key, and only, eye witness. Second, the court found that the jury may well have had reasonable doubt about defendant’s guilt had his attorney cross examined the key witness, especially given that the witness had provided inconsistent statements and was, himself, a suspect in the murder. Accordingly, the district court’s ruling was affirmed and defendant’s conviction was vacated.
• Ineffective Assistance of Appellate Counsel
Smith v. State of Ohio, 04-4280 (9/8/06)
> Defendant was convicted in state court of robbery and weapons violations and lost his appeal in the state appellate court. Defendant’s attorney failed to notify him of the appellate court decision until the time to appeal to the Ohio Supreme Court had almost run. Defendant waited until five months after the deadline to file a motion for a delayed appeal to the Ohio Supreme Court, and the court denied the motion. Defendant then filed a federal habeas petition alleging errors in his state court trial. The district court denied the petition because defendant had not properly appealed to the Ohio Supreme Court before filing the habeas action. Defendant appealed and claimed that his state appellate attorney was ineffective for failing to notify him of the court of appeals’ decision.
* Holding: Applying the Strickland standard, the court held that the appellate attorney rendered ineffective assistance of counsel in failing to timely notify defendant of the state appellate court’s decision. The court ruled, however, that defendant was not prejudiced by his attorney’s deficient performance because defendant did not make a showing that he would have timely appealed even had he known about the decision. Defendant did not file his motion for a delayed appeal until five months after learning of the decision. Accordingly, the court found no prejudice and affirmed the district court ruling.
• Ineffective Assistance of Counsel
Harrison v. Motley, 04-6157 (2/23/07)
> Defendant was charged with murder and his two attorneys decided to pursue an alibi defense. The attorneys told the jury during opening statement that defendant was not present at the crime scene at the time of the murder. Immediately prior to trial, one of the two alibi witnesses recanted their story, and during the trial, the other did the same. The witness problems created a rift between defendant’s two attorneys and they both moved separately to withdraw during the trial, claiming that their continued representation would violate the state ethics rules. The trial court denied the motions. After consultation with his two attorneys, defendant decided to not present any witnesses to support the alibi defense and he chose not to testify. Defendant was convicted, exhausted his state appeals, and filed a federal habeas petition claiming that his attorneys were ineffective. The district court denied the petition and defendant appealed.
* Holding: In United States v. Cronic, the Supreme Court identified two instances where courts may presume that counsel was ineffective: (1) where the accused is denied counsel entirely at a critical stage of trial; and (2) where counsel entirely fails to subject the prosecutions case to adversarial testing. In the case, the court held that neither the failure of the attorneys to put on a defense, nor the conflicting advice defendant received from his attorneys amounted to a violation of Cronic. Further, the court held that the attorney’s representation was not ineffective under the Strickland standard. The court found that neither the attorneys’ ethical concerns nor the dispute among the two attorneys amounted to a conflict of interest, and that the decision not to present witnesses for the defense was made by defendant himself, not his counsel. Likewise, the court found that the attorneys’ failure to fulfill the promise in opening statement about an alibi defense was not unreasonable given the witnesses’ recantations and other witness inconsistencies. Thus, the court affirmed defendant’s conviction.
• Ineffective Assistance of Counsel
Ramonez v. Berghuis, 06-1852 (6/18/07)
> Defendant was charged in state court with home invasion, assault, and stalking. At trial, defendant’s ex-girlfriend testified that defendant came to her apartment, pushed his way inside, and assaulted her. During the trial, defendant complained that he had requested that his attorney interview three witnesses who were present, but outside, during the alleged altercation. The attorney admitted that he had not interviewed the witnesses based upon his trial strategy to focus on what occurred inside the apartment. Defendant then testified in his own behalf and was convicted. During post-conviction proceedings, defendant presented the testimony of the three witnesses and they provided some corroboration of defendant’s version of events, and testified that they were able to see the events transpire in the apartment. Defendant lost his state court appeals and filed a federal habeas petition, which was denied by the district court. Defendant appealed and argued that his state court attorney was ineffective for failing to interview and present the witnesses at trial.
* Holding: Applying the Strickland standard, the court first held that the attorney’s performance at trial was deficient. While an attorney may make tactical decisions that are generally not subject to attack on habeas review, the investigation leading to the tactical decisions must be reasonable. The court found that defense counsel’s decision to not interview the witnesses was deficient performance under the circumstances, given defendant’s request for him to do so months before trial. Further, the court ruled that defendant was prejudiced by his attorney’s deficiency. The witnesses would have provided some substantial contradictions to the testimony of the girlfriend, and would have corroborated some of defendant’s claims during his testimony. Given that the trial amounted to the girlfriend’s testimony against defendant’s, the jury may very well have been influenced to reach a different conclusion had the three witnesses been presented. Accordingly, the district court ruling was reversed and the case remanded to the state court for retrial.
• Attorney-Client Privilege
In re: Lott, 05-3532 (9/9/05)
> Defendant was convicted in state court of murder, and after unsuccessful appeals and a federal habeas petition, defendant filed a second habeas petition raising a claim of actual innocence. The district court ruled that, by claiming actual innocence, defendant had implicitly waived his attorney-client privilege, thus allowing the state to depose his attorney to explore any statements made by defendant to his counsel, or other evidence, that was inconsistent with his innocence. Defendant petitioned the Sixth Circuit for mandamus relief from the district court’s order.
* Holding: The court held that a claim of actual innocence does not implicitly waive the attorney-client privilege. Generally, the privilege may be waived by voluntary disclosure of private communications to a third party, by conduct of the client that implies a waiver of the privilege or consent to disclosure, or by claiming ineffective assistance of counsel. The court found, however, no authority for waiving the privilege in the context of an actual innocence claim in a habeas petition. Accordingly, the court issued the writ of mandamus and vacated the district court’s order.
• 18 USC § 3582(c)(2)-Motion for Reduction
U.S. v. Carter, 05-5717 (9/11/07)
> Defendant was sentenced for drug trafficking and carrying a firearm in relation to drug trafficking. Defendant filed no direct appeal, but instead filed and lost a habeas petition. Booker was subsequently decided and defendant then filed a motion under § 3582(c)(2), claiming that Booker had changed his guideline range. The district court denied the motion and defendant appealed.
* Holding: Under § 3582, a defendant who has been sentenced based upon a guideline range that was subsequently lowered by the Sentencing Commission may move the district court to reduce the sentence. In the case, the court held that Booker was not a proper basis for a § 3582 motion because § 3582 only applies to situations where the Sentencing Commission reduces the guideline range. To the extent that defendant’s motion was properly characterized as a second habeas petition, the court held that Booker is not retroactively applied to cases on collateral review. Thus, the district court ruling was affirmed.
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