Mitchell v. Mason

• Citation: 257 F.3d 554
• Decision Date: 01 December 2000
• Docket Number: No. 99-1839,99-1839
• Parties: (6th Cir. 2001) Charlie Lee Mitchell, Petitioner-Appellee, v. Warden Gerald Mason, Respondent-Appellant. Argued:
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 554

257 F.3d 554 (6th Cir. 2001)

Charlie Lee Mitchell, Petitioner-Appellee, v. Warden Gerald Mason, Respondent-Appellant.

No. 99-1839

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: December 1, 2000

Decided and Filed: July 12, 2001

Appeal from the United States District Court for the Eastern District of Michigan at Detroit, No. 98-71338, Arthur J. Tarnow, District Judge. [Copyrighted Material Omitted] Rolf E. Berg, STATE APPELLATE DEFENDER'S OFFICE, Detroit, Michigan, for Appellee.

Jeffrey W. Caminsky, COUNTY OF WAYNE PROSECUTOR'S OFFICE, Detroit, Michigan, for Appellant.

Before: DAUGHTREY and MOORE, Circuit Judges; CARR, District Judge. ^*

MOORE, J., delivered the opinion of the court, in which DAUGHTREY, J., joined. CARR, D. J. (pp. 574-81), delivered a separate dissenting opinion.

OPINION

MOORE, Circuit Judge.

Petitioner-Appellee Charlie Lee Mitchell ("Mitchell") was convicted in a Michigan state court of second-degree murder and sentenced to a term of ten to fifteen years' imprisonment. Throughout his six-month confinement in custody awaiting trial, Mitchell sought to have new counsel appointed to his case because he claimed that his court-appointed lawyer refused to meet with him. Mitchell's motion to replace his counsel was addressed by the state trial court on the second day of jury selection and was subsequently denied. On direct appeal, Mitchell raised a claim of ineffective assistance of counsel, which was rejected by the Michigan Court of Appeals and then the Michigan Supreme Court. Having exhausted his state remedies, Mitchell filed an application for a writ of habeas corpus in federal district court in the Eastern District of Michigan, which granted Mitchell's habeas petition. We believe that Mitchell's petition for habeas relief must be granted because the Michigan Supreme Court unreasonably applied clearly established Supreme Court precedent in its review of Mitchell's claim. Therefore, we AFFIRM the district court's order.

I. JURISDICTION

We have jurisdiction to hear Warden Mason's appeal from the district court's grant of Mitchell's petition for habeas corpus under 28 U.S.C. §2253.

II. BACKGROUND

Charlie Lee Mitchell was arrested and charged with first-degree murder for the death of Raymond Harlin, who was killed after a fight broke out in Mitchell's kitchen on October 3, 1988. ¹ On October 6, 1988, Gerald K. Evelyn was appointed counsel for Mitchell. Evelyn represented Mitchell at a preliminary examination on October 14, 1988, during which he called one witness and argued against the denial of bail. Evelyn next represented Mitchell, close to four months later, at the final conference on February 3, 1989. On April 5, 1989, Evelyn was suspended from practicing law in the State of Michigan. ² He was reinstated on May 8, 1989, the day jury selection began for Mitchell's trial.

According to the facts offered at trial by the prosecution, Mitchell was the leader of a drug-trafficking ring and his Detroit apartment served as a wholesale warehouse for several street-level sellers who sold drugs in the lobby of the building. Harlin, the deceased, allegedly worked for Mitchell as a drug seller. The prosecution's theory was that Mitchell directed the events that took place in his apartment surrounding Harlin's murder. On the night in question, Mitchell, Harlin, co-defendant Antonio Moore, and several others were present in Mitchell's apartment around 10:00 p.m. According to trial testimony, a fight broke out between Moore and Harlin in Mitchell's kitchen. ³ The only reason offered at trial for the start of the fight was that Moore did not like the way Harlin was looking at him. After the fight began, Tyrone Thompson and another individual arrived. Thompson, who was the prosecution's principal witness, testified that when he arrived at the apartment he saw a gun in plain view on the windowsill and that he took it for fear that Mitchell would use it to shoot Harlin. Thompson also testified that Mitchell said "shoot a hole in his [Harlin's] heart" and thereby ordered the killing. Soon thereafter, co-defendant Lamont Mason and Nehemiah Anderson arrived at the apartment. Mason was another drug seller and Anderson had come to purchase drugs. Thompson testified that by the time Mason and Anderson arrived, he thought the situation had calmed down so he put the gun down. At that point, Mason then picked up the gun and shot Harlin in the neck and back. ⁴

Mitchell, Mason, and Moore were all charged with first-degree murder. Separate juries heard Mitchell's and Mason's cases, while Moore opted for a bench trial. Mason, the alleged killer, was acquitted at trial. Moore, who was the primary aggressor in Harlin's beating, received probation for his conviction on felonious assault.

At Mitchell's trial, Evelyn did not present an opening argument. Mitchell did not testify, nor did Evelyn present any witnesses on Mitchell's behalf. At the close of the prosecution's case, Evelyn moved for a directed verdict. The court partially granted the motion by reducing the charge to second-degree murder. During closing arguments, Evelyn argued that Thompson's testimony was equivocal and that the prosecution had not carried its burden of proof. The jury convicted Mitchell of second-degree murder on May 17, 1989. Mitchell was sentenced by the trial judge to ten to twelve years' imprisonment and then resentenced to ten to fifteen years' imprisonment due to a miscalculation in his original sentence.

Prior to the trial, Mitchell wrote six separate letters to the trial judge, the chief judge, and others requesting new counsel. Mitchell alleged that Evelyn had not visited him once in prison nor had he had the opportunity to speak with his lawyer in court. On April 27, 1989, eleven days before jury selection was to begin, the trial court held a hearing on Mitchell's "Motion for Withdrawal of Counsel" at which Mitchell appeared on his own behalf. Evelyn did not appear for the hearing, although he had notice of it. At the hearing, Mitchell informed the court that he had received a letter from his counsel informing him that he was suspended for a month. He also asked for a new lawyer and a postponement of the trial to afford a new lawyer the chance to review his case. Because Evelyn was not present, the trial court held the motion under advisement.

On the second day of jury selection, May 9, 1989, Mitchell again renewed his motion for new counsel. At that point, Evelyn, who had been reinstated the day before, informed the court that Mitchell wanted him removed because he had failed to visit him the night before in prison as promised. The district court denied Mitchell's motion without prejudice.

On May 15, 1989, the sixth day of trial, Evelyn informed the court that he had received a grievance letter filed by Mitchell with the Attorney Grievance Commission on May 1, 1989. He then offered to have himself removed from the case. In response to questions from the court, Mitchell then stated: "I would like to, you know, cancel that grievance, you know, because all the motions and everything that I requested have been answered. ... I'm satisfied, your Honor." J.A. at 192.

Mitchell filed an appeal as of right in the Michigan Court of Appeals challenging his conviction and sentence. In his appeal, Mitchell raised eight issues, including a claim that the trial court erred by failing to appoint substitute counsel. Mitchell also requested a remand for the purposes of holding an evidentiary hearing, known as a Ginther hearing, on the effective assistance of his trial counsel. See People v. Ginther, 212 N.W.2d 922 (Mich. 1973). The Court of Appeals remanded to allow Mitchell a Ginther hearing.

At the hearing, which occurred before the same judge who had presided over the trial, Mitchell presented the testimony of four witnesses, including Mitchell's mother. Mitchell himself also testified. Mitchell's appellate counsel did not call his trial counsel, Evelyn, to the stand. Appellate counsel introduced two witnesses who had been present at Mitchell's apartment on the night of Harlin's murder to establish that they were material witnesses and that Evelyn neither contacted them nor called them to testify at trial. Mrs. Mitchell's testimony was offered to establish her numerous efforts to contact Evelyn and to inform him that there were other witnesses whom he should interview. Mitchell also testified to his efforts to contact Evelyn and discuss his case with his lawyer.

After the hearing, the trial judge found that Mitchell had not demonstrated objective unreasonableness or prejudice as required by state law and that he had received effective assistance of counsel.

The Michigan Court of Appeals upheld Mitchell's conviction in a per curiam decision. See People v. Mitchell, No. 118832 (Mich. Ct. App. January 5, 1994). J.A. at 105.

The Michigan Supreme Court granted Mitchell leave to file an appeal on two issues, only one of which is relevant to this case: whether defendant was denied his right to counsel or effective assistance of counsel. On March 25, 1997, the Michigan Supreme Court affirmed Mitchell's conviction: three Justices voted to uphold Mitchell's conviction, two abstained, and two dissented. People v. Mitchell, 560 N.W.2d 600, 602 (Mich. 1997). On Mitchell's ineffective assistance of counsel claims, the Michigan Supreme Court first found that Evelyn's suspension did not constitute a "per se" denial of counsel during a critical stage of the proceedings under United States v. Cronic, 466 U.S. 648 (1984). That court rejected Mitchell's contention that his case warranted a presumptive finding of ineffectiveness under the Sixth Amendment, concluding that Mitchell's claim presented neither a circumstance in which it was unlikely that any lawyer could provide effective assistance of counsel, a constructive denial of counsel, nor an unconstitutional failure to grant a continuance. See Mitchell, 560 N.W.2d at 607-08....