265 F.3d 372 (6th Cir. 2001), 99-2472, Northrop v. Trippett Warden

Docket Nº:99-2472
Citation:265 F.3d 372
Case Date:September 07, 2001
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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265 F.3d 372 (6th Cir. 2001)




No. 99-2472

United States Court of Appeals, Sixth Circuit

September 7, 2001

Argued: April 25, 2001

Appeal from the United States District Court for the Eastern District of Michigan at Bay City. No. 98-10133--Victoria A. Roberts, District Judge.

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Jeffrey W. Caminsky, County OF Wayne Prosecutor's Office, Detroit, Michigan, for Appellant.

David A. Moran, State Appellate Defender Office, Detroit, Michigan, for Appellee.

Before: Boggs and Clay, Circuit Judges; Gwin, District Judge.[*]


Gwin, District Judge

In this case, Respondent-Warden David Trippett appeals the district court's grant of a writ of habeas corpus to Petitioner Charles Northrop pursuant to 28 U.S.C. § 2254. In granting Northrop's petition, the district court found Northrop had been denied his Sixth Amendment right to the effective assistance of counsel. Although for different reasons than those relied upon by the district court, we agree that Northrop did not receive effective assistance of counsel and thus AFFIRM the judgment of the district court.1


Petitioner Northrop seeks relief from his state conviction for possession of cocaine. He says his conviction cannot stand because he did not receive the effective representation due him under the Sixth Amendment.2 In particular, Northrop says his trial counsel should have moved to suppress the cocaine evidence offered against him at trial.

On August 29, 1990, an anonymous caller informed the Detroit Police Department that two black males, one wearing a green "Used" jeans outfit, were selling drugs at

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the Greyhound Bus Station in Detroit. The caller provided no other information.

That same day, Detroit Police Officers Robert Jackson and Oliver Collins received a radio call relaying the anonymous tip. Minutes later, the uninformed officers arrived at the bus station, where they observed two black males sitting and talking. One of the males wore an outfit matching the description included in the tip. The other male was Charles Northrop.

As the officers approached, Northrop took a duffel bag off his shoulder and placed it under his seat. He then rose from his seat and attempted to walk past the officers. Before he could do so, Collins stopped Northrop.

Collins and Jackson both asked Northrop for identification. Collins next asked Northrop to empty his pockets. Northrop complied. After finding no contraband in Northrop's pockets, Collins asked Northrop if he had any drugs on his person. In response, Northrop admitted that he had marijuana in his sock. Collins then arrested Northrop for violating a municipal marijuana ordinance.

After arresting Northrop, Collins seized the duffel bag that Northrop had placed under his seat just moments before. A search of the bag revealed a large quantity of cocaine.

Michigan charged Northrop with possession of a controlled substance. On November 29, 1990, after a bench trial in the Wayne County Circuit Court, Northrop was convicted of possessing between 50 and 225 grams of cocaine. The trial court sentenced Northrop to eight to twenty years in prison. Attorney Eric Braverman represented Northrop through the trial.

Northrop appealed his conviction, raising the Sixth Amendment claim he now advances in support of his habeas petition. The Michigan Court of Appeals rejected the claim. The Michigan Supreme Court denied Northrop's leave for a second appeal.

After unsuccessfully appealing his conviction, Northrop filed a petition for a writ of habeas corpus with the United States District Court for the Eastern District of Michigan. On November 16, 1998, the district court granted the writ.

Respondent-Warden David Trippett now appeals the district court's ruling.


We review the district court's decision to grant or deny a writ of habeas corpus de novo. Barker v. Yukins, 199 F.3d 867, 870 (6th Cir. 1999). In so doing, we consider the substantive standards governing the review of state court decisions challenged in a federal habeas petition. Id. at 871.

Because Northrop filed his petition after 1994, the Antiterrorism and Effective Death Penalty Act ("AEDPA") sets the standard for federal habeas review under 28 U.S.C. § 2254. The AEDPA amended the standard of review set forth in 28 U.S.C. § 2254(d) to provide:

An application for writ of habeas corpus on behalf of a person in custody pursuant to the judgment of the 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.

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The United States Supreme Court recently interpreted this statute, specifically addressing the distinction between decisions "contrary to" and involving an "unreasonable application" of clearly established federal law. Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed. 2d 389 (2000). The Court explained that a state court decision 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." Id. at 412-13.

In contrast, a state court decision involves an unreasonable application of clearly established federal law only where the state court's application of such law was "objectively unreasonable." Id. at 409. A federal habeas court may not find a state adjudication unreasonable "simply because that court concludes in its independent judgment that the relevant decision applied clearly established federal law erroneously or incorrectly." Id. at 411. "Rather, that application must also be unreasonable." Id.

The district court below reviewed Northrop's habeas petition upon the record developed at the state court. The district court conducted no evidentiary hearing. When a district court decides a habeas petition without evidentiary hearing, we review that district court's factual findings de novo. Wolfe v. Brigano, 232 F.3d 499, 501 (6th Cir. 2000) ("Any findings of fact made by the district court are normally reviewed only for clear error, but when the district court's decision in a habeas case is based on a transcript from the petitioner's state court trial, and the district court thus makes `no credibility determination or other apparent finding of fact,' the district court's factual findings are reviewed de novo")(citations omitted.); Moore v. Carlton, 74 F.3d 689, 691 (6th Cir. 1996) ("The district court made no credibility determination or other apparent finding of fact; its decision was based upon the transcript of Moore's trial. As such, it is reviewed de novo."). We therefore review the district court's factual findings de novo.


In his petition, Northrop says his trial counsel, Eric Braverman, made errors so serious that he ceased to function as the counsel guaranteed under the Sixth Amendment.3 U.S. Const. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assignment of Counsel for his defence."). He insists Braverman incompetently failed to move for the suppression of the cocaine evidence used against him at trial. According to Northrop, the police discovered this cocaine during an unlawful seizure and search.

The Fourth Amendment prohibits "unreasonable searches and seizures."4 U.S. Const. amend. IV. Evidence recovered from an illegal search is inadmissible. Weeks v. United States, 232 U.S. 383, 398, 34 S.Ct. 341, 346, 58 L.Ed. 652 (1914). Further, evidence recovered indirectly from an illegal search or seizure is also

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inadmissible as "fruit of the poisonous tree." Segura v. United States, 468 U.S. 796, 804, 104 S.Ct. 3380, 82 L.Ed. 2d 599 (1984); Wong Sun v. United States, 371 U.S. 471, 484-85, 83 S.Ct. 407, 9 L.Ed. 2d 441 (1963); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392-93; 40 S.Ct. 182, 64 L.Ed. 319 (1920).

But a defendant must seek the exclusion of such evidence at trial or on direct appeal. Because questions regarding the admissibility of otherwise relevant evidence seldom touch upon the "basic justice" of a conviction, the Supreme Court bars Fourth Amendment claims from habeas review. Kuhlmann v. Wilson, 477 U.S. 436, 447, 106 S.Ct. 2616, 91 L.Ed. 2d 364 (1986); Stone v. Powell, 428 U.S. 465, 494-95, 96 S.Ct. 3037, 49 L.Ed. 2d 1067 (1976).

However, a habeas petitioner may assert a Sixth Amendment claim based on his counsel's failure to move for the suppression of evidence that should be excluded under the Fourth Amendment. Kimmelman v. Morrison, 477 U.S. 365, 382-83, 106 S.Ct. 2574, 91 L.Ed. 2d 305 (1986). To establish a Sixth Amendment claim, the petitioner must show his counsel performed deficiently and that the deficient performance resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984).

Here, Northrop says Braverman's performance was both deficient and prejudicial. Northrop argues that Braverman performed deficiently by not seeking suppression of the cocaine evidence. He says the Fourth Amendment provided two grounds for excluding the cocaine. First, Northrop...

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