Abela v. Martin

• Decision Date: 27 August 2004
• Docket Number: No. 00-2430.,00-2430.
• Citation: 380 F.3d 915
• Parties: Kevin Mark ABELA, Petitioner-Appellant, v. William MARTIN, Director, Michigan Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

380 F.3d 915

Kevin Mark ABELA, Petitioner-Appellant, v. William MARTIN, Director, Michigan Department of Corrections, Respondent-Appellee.

No. 00-2430.

United States Court of Appeals, Sixth Circuit.

Argued: April 21, 2004.

Decided and Filed: August 27, 2004.

Appeal from the United States District Court for the Eastern District of Michigan, Robert H. Cleland, J.

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James Sterling Lawrence (argued and briefed), Detroit, MI, for petitioner-Appellant.

Raina I. Korbakis, Asst. Atty. General, Office of the Attorney General, Habeas Corpus Division, William C. Campbell (argued and briefed), Office of the Attorney General, Lansing, MI, for Respondents-Appellees.

Before: SILER, COLE, and CLAY, Circuit Judges.

OPINION

COLE, Circuit Judge.

Petitioner Kevin Mark Abela, a former Michigan prisoner who was convicted of manslaughter and carrying a concealed weapon in 1991, appeals the federal district court's dismissal of his petition for a writ of habeas corpus, which he filed pursuant to 28 U.S.C. § 2254 on April 26, 1999. Petitioner contends that: (1) his Fifth Amendment rights were violated when police elicited statements from him following his request for counsel and when they interrogated him while he was allegedly intoxicated, in pain, and on pain medication; (2) his due process and Sixth Amendment rights were violated because of prosecutorial misconduct at trial; and (3) he was denied the effective assistance of both trial and appellate counsel. Respondent contends that Abela's claims are barred by procedural default.

Because we find that Abela's claims are not barred by procedural default, and that his Fifth Amendment claim concerning statements elicited after he invoked his right to counsel is meritorious, we REVERSE the district court's judgment and REMAND to the district court with instructions to grant the writ of habeas corpus, unless the state elects to retry Abela within ninety days of the date of this opinion's entry.

I. BACKGROUND

A. Factual Background

Abela's convictions stemmed from the stabbing death of Stanley Underwood at a party in the early morning hours of May 19, 1990. Abela arrived at a party at the home of Allen Howard in Rochester Hills, Michigan, sometime during the evening of May 18. At approximately 1:00 a.m., Abela and a friend, Ronald Wright, noticed a man, J.J. Sullivan, pushing a car out of the driveway of the home. Abela confronted Sullivan and an argument ensued; it turned into a fistfight. After the fight broke up, Sullivan ran into the house, where he told his older brother, Jerry, that someone had beaten him up.

A second fight began when Jerry Sullivan and Allen Howard ran outside to confront Abela. Abela's nose was broken in the fight, which ended with Howard holding Abela down on the ground. Howard promised Abela that he would release him if he left the party immediately. Abela then left the party with Wright.

Upon reaching their car, however, Wright realized that he had forgotten his jacket at the party, and he returned to the house to retrieve it. Abela waited at the edge of the driveway. Suddenly, however, several people from the party, including Stanley Underwood, attacked Abela, knocked him down, and surrounded him. Abela was kicked and punched in the face and body. Among the group of attackers was Stanley Underwood, who, during the course of the brawl, straddled Abela's chest. Abela thereupon drew a knife from a sheath on his belt and stabbed Underwood in the chest and left arm three times. Underwood died a short time later from the stab wounds.

Abela fled to a friend's house, where he called 911 and told the operator that he had stabbed someone. After meeting the police back at Howard's house, Abela was taken to a hospital emergency room for treatment. While at the emergency room, but before being treated for his injuries, Oakland County Police Sergeant Michael McCabe began interrogating Abela about the events leading up to the stabbing. Abela responded by stating, "maybe I should talk to an attorney by the name of William Evans," and he showed Sergeant McCabe Evans's business card. Sergeant McCabe agreed to call Evans for Abela and left the room, presumably to contact Evans. Upon returning, McCabe made no mention of Evans, and proceeded to read Abela his Miranda rights. Abela then signed a form waiving those rights and gave a statement to Sergeant McCabe. After being treated at the hospital, Abela was taken to the police station. He gave another statement there. In both statements, Abela admitted to stabbing Underwood, but claimed that he did so in self defense. The statements were admitted at trial and used by the prosecution against Abela.

B. Procedural History

Abela was charged with second degree murder and carrying a concealed weapon. Prior to trial in the Oakland County Circuit Court, Abela's counsel filed a motion to dismiss the concealed weapon charge because the knife was not concealed — Abela carried it in a sheath attached to the outside of his belt. The trial judge granted the motion and dismissed the concealed weapon charge on September 12, 1990. On November 5, 1990 — outside the fourteen-day time limit prescribed by Mich. Ct. Rule 2.119(F)(1) — the prosecution filed a motion for reconsideration of the dismissal. Abela's counsel did not object to this motion. On June 3, 1991, the trial judge granted the prosecution's motion for reconsideration and reinstated the concealed weapon charge.

The trial commenced in June 1991. During closing arguments, the prosecutor presented a hypothetical conversation between Abela and Ronald Wright. The prosecutor stated:

Do you think when they [Abela and Wright] got back to that car they were mad as hell? Both of them got shot down, pretty damn drunk, they are pretty pissed off. They've lost the fight. They've been thrown out. They've been humiliated. They've been embarrassed. Not only that, Ron Wright says, "My damn coat's back there. Let's go get it." [Abela then replied,] "Ronnie, better take this [Abela's knife] when we go back. Ain't nobody going to kick our ass anymore. Let's go back."

This statement is the basis for Abela's prosecutorial misconduct claim, which will be discussed below.

Abela was convicted by a jury of voluntary manslaughter and carrying a concealed weapon on July 24, 1991. He was sentenced to seven to fifteen years' imprisonment for the voluntary manslaughter count, and a concurrent forty months to five years of imprisonment for carrying a concealed weapon.

Abela appealed his convictions, raising three issues in the Michigan Court of Appeals on February 17, 1992. The three issues were: (1) that his sentence was disproportionate to the crime; (2) that the trial court erred by reinstating the weapons charge; and (3) that the trial court erred by allowing the prosecution to present rebuttal testimony not raised in its case-in-chief. The Michigan Court of Appeals affirmed Abela's conviction and sentence in an unpublished disposition. People v. Abela, No. 144005 (Mich.Ct.App. July 22, 1994). The Michigan Supreme Court denied Abela's delayed application for leave to appeal these issues on March 31, 1995. People v. Abela, 448 Mich. 901, 533 N.W.2d 313 (Mich.1995).

In August 1996, Abela filed a motion for relief from judgment in the Oakland County Circuit Court, raising six claims: (1) that his statement at the hospital was unconstitutionally elicited and admitted because Sergeant McCabe ignored Abela's request for an attorney; (2) that his statement at the hospital was involuntary because he was injured, under the influence of alcohol, and on pain medication at the time of questioning; (3) that the trial court improperly granted the prosecution's untimely motion to reconsider the dismissal of the concealed weapon charge; (4) that the prosecutor unfairly prejudiced Abela by presenting witness testimony in his closing argument that was unsupported by the record; (5) that Abela's trial counsel provided ineffective assistance; and (6) that Abela's appellate counsel provided ineffective assistance, constituting "good cause" for Abela's failure to raise the other claims in his direct appeal. The motion was denied "for lack of merit on the grounds presented." People v. Abela, No. 90-101083 (Oakland County Cir. Ct. Oct. 22, 1996). Abela raised the same six issues on appeal to the Michigan Court of Appeals, which likewise denied his petition "for lack of merit in the grounds presented." People v. Abela, No. 200930 (Mich.Ct.App. July 22, 1997). On August 9, 1997, Abela again raised these six issues in his delayed application for leave to appeal to the Michigan Supreme Court, which denied his petition in a summary disposition, stating: "Defendant has failed to meet the burden of establishing entitlement to relief under M.C.R. 6.508(D)." People v. Abela, 457 Mich. 880, 586 N.W.2d 923 (Mich.1998). On August 3, 1998, Abela filed a petition for certiorari with the U.S. Supreme Court, which was denied on October 19, 1998. Abela v. Michigan, 525 U.S. 948, 119 S.Ct. 374, 142 L.Ed.2d 309 (1998).

Abela was released to parole status on March 16, 1998, and discharged from parole on March 16, 2000, which terminated his seven to fifteen year sentence for manslaughter. His three to five year sentence for carrying a concealed weapon ended on October 22, 1995. However, it was on April 26, 1999, before his parole term ended, that Abela petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, raising most of the same claims as were in his motion for relief from judgment (except for his claim that the trial court erred in reconsidering its dismissal of the concealed weapon charge). Specifically, Abela asserted that: (1) his statement to police at the hospital was unconstitutionally elicited and admitted because he had invoked his right to counsel; (2) his statement at the hospital was involuntary and inadmissible because he was injured, intoxicated, and...