Caver v. Straub

• Decision Date: 19 November 2003
• Docket Number: No. 01-2649.,01-2649.
• Citation: 349 F.3d 340
• Parties: Robert Lee CAVER, Petitioner-Appellee, v. Dennis M. STRAUB, Warden, Respondent-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

349 F.3d 340

Robert Lee CAVER, Petitioner-Appellee, v. Dennis M. STRAUB, Warden, Respondent-Appellant.

No. 01-2649.

United States Court of Appeals, Sixth Circuit.

Argued: May 2, 2003.

Decided and Filed: November 19, 2003.

Petition for Rehearing Denied En Banc: February 5, 2004. Pursuant to Sixth Circuit Rule 206

COPYRIGHT MATERIAL OMITTED

ARGUED: Debra M. Gagliardi, OFFICE OF THE ATTORNEY GENERAL, Lansing, Michigan, for Appellant.

Elizabeth L. Jacobs, Detroit, Michigan, for Appellee.

ON BRIEF: Debra M. Gagliardi, OFFICE OF THE ATTORNEY GENERAL, Lansing, Michigan, for Appellant.

Elizabeth L. Jacobs, Detroit, Michigan, for Appellee.

Before: MOORE and ROGERS, Circuit Judges; HOOD, District Judge.^*

HOOD, D.J., delivered the opinion of the court, in which MOORE, J., joined. ROGERS, J. (pp. 353-54), delivered a separate concurring opinion.

OPINION

HOOD, District Judge.

Robert Lee Caver was convicted for violating Michigan Compiled Laws § 750.89, assault with intent to rob being armed. After exhausting his direct and state-collateral appeals, Caver filed a federal petition for a writ of habeas corpus, alleging the ineffectiveness of his trial and appellate counsel. The district court below found that Caver had demonstrated cause and prejudice sufficient to excuse the procedural default of his ineffective assistance of trial counsel claim by demonstrating the ineffectiveness of his appellate counsel. Accordingly, the district court granted Caver's petition for a writ of habeas corpus under 28 U.S.C. § 2254. The Michigan Attorney General appeals from the district court decision, arguing that (1) the ineffective assistance of appellate counsel claim was procedurally defaulted, and (2) assuming that the ineffective assistance of appellate counsel claim was not procedurally defaulted, the district court erred in finding that the state collateral courts had unreasonably applied clearly established federal law. For the reasons that follow, we affirm.

I. Factual and Procedural History

On October 1, 1992, Robert Lee Caver was convicted in the Detroit Recorder's Court of assault with intent to commit armed robbery and two counts of attempted assault with intent to commit armed robbery. Caver was prosecuted for entering and looting a local drug house with two other men while impersonating federal law enforcement agents. Caver is currently imprisoned only for assault with intent to commit armed robbery, as he has completed his sentences on the remaining convictions.

Caver directly appealed his convictions, asserting that the trial court erred in instructing the jury and that there was insufficient evidence regarding assault to support the verdict. The Michigan Court of Appeals affirmed Caver's convictions. Caver then filed a delayed, pro se application for leave to appeal to the Michigan Supreme Court. Caver's application reasserted the earlier-alleged errors plus two new issues. One claim asserted that Caver's appellate counsel, Neil Leithauser, had failed to investigate certain allegedly meritorious issues. While he did generally state that he had wished to pursue an ineffective assistance of trial counsel claim, Caver did not allege that Leithauser failed to investigate or pursue the absence of Caver's trial counsel, Samuel Simon, during the court's response to the jury note or during the subsequent jury re-instruction. The Michigan Supreme Court denied Caver's delayed application for leave to appeal.

Next, Caver filed a motion for relief from judgment in the trial court, alleging, inter alia, the ineffectiveness of his trial and appellate counsel. The motion referred to two instances of trial counsel ineffectiveness relevant to this appeal:

Defendant Caver's Trial Counsel ...

(9) Failed to be present during Open Court proceeding's [sic] (during Jury Instructions), Counsel wasn't present and Defendant was placed back in [sic] bullpen, and Defendant nor Counsel [sic] present during open court proceedings of his trial;

. . .

(11) Failed to remain with Defendant immediately after jury retired to deliberate, where within minutes the Jury sent a note requesting to see evidence etc.. [sic] and Counsel was not present....

Caver based his claim of ineffective appellate counsel on his appellate attorney's failure to raise these issues of ineffective trial counsel. The trial court denied Caver's motion, finding that Caver had not demonstrated the "good cause" or prejudice required under M.C.R. 6.508(D)¹ to excuse his failure to present the issues on his direct appeal. The court also concluded that Caver's ineffective assistance of trial counsel claim was without merit and could not satisfy the "good cause" requirement of M.C.R. 6.508(D)(3) "because appellate counsel is not required to raise every nonfrivolous issue on appeal." Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). The Michigan Court of Appeal denied Caver's delayed appeal and his motion for rehearing, which was, in substance, identical to his brief before the district court. The appellate court concluded that Caver had failed to meet the burden of establishing entitlement to relief under M.C.R. 6.508(D).

Caver then filed an application for leave to appeal to the Michigan Supreme Court. This application was notably different from Caver's earlier briefs in that Caver separated the presentation of his ineffective assistance of trial counsel claims and his ineffective assistance of appellate counsel claims. In treating his trial counsel claims, Caver again presented paragraphs nine and eleven, which alleged the absence of trial counsel when the court received a note back from the jury and again when the court went on to re-instruct the jury. Caver's treatment of his appellate counsel claims, however differed from his earlier applications. In Caver's application to the Michigan Supreme Court, unlike his earlier claims, he failed to argue that appellate counsel was ineffective for failing to present the ineffectiveness of Caver's trial counsel for being absent during critical stages of the trial. Instead, Caver asserted that appellate counsel was ineffective in not alleging trial counsel's ineffectiveness in failing to object to certain testimony, failing to cross-examine witnesses, and failing to investigate the illegality of Caver's arrest and his alibi. Caver also asserted appellate counsel's ineffectiveness in failing to assert error respecting the trial court's refusal to allow the testimony of res gestae witnesses. Caver's application did also provide general statements of his appellate counsel's ineffectiveness,² but these general statements appear to be in connection with his specifically-alleged instances of appellate counsel's ineffectiveness. The Michigan Supreme Court denied Caver's application for leave to appeal, concluding that Caver had failed to meet his burden under M.C.R. 6.508(D).

On February 17, 2000, Caver filed a petition for a writ of habeas corpus with the United States District Court for the Eastern District of Michigan, alleging ineffective assistance of trial and appellate counsel, among other constitutional errors. After an evidentiary hearing, the district court granted Caver's petition. The district court found that Caver's appellate counsel had been ineffective in failing to raise the ineffectiveness of Caver's trial counsel on direct appeal, thus establishing both a separate constitutional defect and cause and prejudice sufficient to excuse the procedural default of Caver's claim of ineffective assistance of trial counsel. The Attorney General now appeals the decision of the district court.

II. Standard of Review

Appellate courts, in reviewing federal habeas corpus proceedings, examine the district court's legal conclusions de novo and its factual findings under a "clearly erroneous" standard. Lucas v. O'Dea, 179 F.3d 412, 416 (6th Cir.1999).

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") was enacted on April 24, 1996. Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996) (relevant portions codified as amended at 28 U.S.C. § 2254). Caver filed his petition for relief on February 17, 2000. Caver's petition, therefore, is governed by 28 U.S.C. § 2254(d)(1), as amended by AEDPA. See Williams v. Taylor, 529 U.S. 362, 402, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Under the amended statute, a writ of habeas corpus

may issue only if ... the state-court adjudication resulted in a decision that either (1) "was contrary to ... clearly established Federal law, as determined by the Supreme Court of the United States," or (2) "involved an unreasonable application of ... clearly established Federal law, as determined by the Supreme Court of the United States."

Id. at 412, 120 S.Ct. 1495 (quoting 28 U.S.C. § 2254(d)(1)).

III. Discussion

A. The Court Need Not Reach Whether or Not Caver Procedurally Defaulted His Ineffective Assistance of Appellate Counsel Claims Because the State Failed to Raise the Issue in Proceedings Before the District Court

The Attorney General asserts that Caver did not fairly present, in the state court collateral proceeding, the ineffective assistance of appellate counsel claim upon which the district court relied in granting Caver's petition and that the claim was, thus, procedurally defaulted. It is true that before seeking federal habeas corpus relief, a state prisoner must exhaust his available state remedies by fairly presenting all claims to the state courts. 28 U.S.C. § 2254(b); see Hannah v. Conley, 49 F.3d 1193, 1196 (6th Cir.1995). The exhaustion requirement is satisfied after the petitioner fairly presents all claims to the highest court in the state in which the petitioner was convicted, thus giving it a fair and full opportunity to rule on his claims. See Rust v. Zent, 17 F.3d 155, 160 (6th Cir.1994). The petitioner bears the burden of proving that he has exhausted these remedies. See id.

Caver, however,...