Mitchell v. Mason

Decision Date07 April 2003
Docket NumberNo. 99-1839.,99-1839.
PartiesCharlie Lee MITCHELL, Petitioner-Appellee, v. Warden Gerald MASON, Respondent-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

Rolf E. Berg, State Appellate Defender Office, Detroit, MI, for Petitioner-Appellee.

Jeffrey W. Caminsky, County of Wayne Prosecutor's Office, Detroit, MI, for Respondent-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. 748-49), 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. Mitchell's claim of ineffective assistance of counsel was rejected in his direct appeals in the Michigan courts, but the federal district court in the Eastern District of Michigan granted Mitchell's habeas petition on the ineffective assistance claim. We affirmed, Mitchell v. Mason, 257 F.3d 554 (6th Cir.2001), but the Supreme Court vacated our decision and remanded the case for our further consideration in light of Bell v. Cone, 535 U.S. 685, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). Although Bell changes our analysis, it does not change our conclusion that Mitchell was denied the effective assistance of counsel, and we AFFIRM the district court.

I. 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. 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.1 He was reinstated on May 8, 1989, the day jury selection began for Mitchell's trial.

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 Mitchell 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 on 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.

On direct appeal, Mitchell was granted an evidentiary hearing, known as a Ginther hearing, on the effective assistance of his trial counsel. See People v. Ginther, 390 Mich. 436, 212 N.W.2d 922 (1973). At the hearing, which occurred before the same judge who 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, see People v. Mitchell, No. 118832 (Mich.Ct. App. Jan. 5, 1994), and the Michigan Supreme Court, see People v. Mitchell, 454 Mich. 145, 560 N.W.2d 600, 602 (1997), affirmed Mitchell's conviction. 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, 104 S.Ct. 2039, 80 L.Ed.2d 657 (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. The Michigan Supreme Court thus analyzed Mitchell's claims under the Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), standard for ineffective assistance of counsel which requires deficient performance and a showing of prejudice, and it found that because Mitchell had not adequately developed a record at the Ginther hearing "regarding what Mr. Evelyn did or did not do, or whether Mr. Evelyn knew of the alleged eyewitnesses," there was "no factual basis for a conclusion that counsel's performance was constitutionally deficient." Mitchell, 560 N.W.2d at 609. The court concluded that "[a]n inference of constitutional ineffectiveness cannot be established on the basis of the `circumstance' of counsel's thirty-day suspension during seven months of representation, without any inquiry into the conduct of the trial or any record being developed regarding counsel's actual preparedness and its effect on the result." Id. at 613.

Two Justices dissented, finding that Evelyn's performance was "per se" ineffective under United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), and Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976), because of a confluence of factors including Evelyn's suspension, which rendered him completely unavailable for thirty days during the critical stage of pretrial investigation; the fact that Evelyn failed to hold a private meeting with the defendant during the seven-month period of his representation; and the gravity of the first-degree murder charge against Mitchell. See Mitchell, 560 N.W.2d at 621-22. The dissent concluded that the surrounding circumstances made it so unlikely that any lawyer could provide effective assistance of counsel that Mitchell was constructively denied counsel.2

On March 25, 1998, Mitchell filed a petition for habeas corpus relief with the district court under 28 U.S.C. § 2254, asserting that he was denied his right to the effective assistance of counsel. The district court granted Mitchell's petition, and on July 12, 2001, we affirmed, reasoning that because Mitchell was constructively denied the assistance of counsel during the critical pre-trial period, the state courts' refusal to grant him relief was an unreasonable application of United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). After the Supreme Court decided Bell v. Cone, 535 U.S. 685, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002), which further explicated the line between claims based on United States v. Cronic and claims based on Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Court vacated our decision in this case and remanded the case to us for further consideration in light of Bell. Mason v. Mitchell, 536 U.S. 901, 122 S.Ct. 2354, 153 L.Ed.2d 177 (2002). Upon careful consideration, we affirm the district court.

II. ANALYSIS
A. Standard...

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