Bray v. Andrews

• Decision Date: 26 April 2011
• Docket Number: No. 09–4151.,09–4151.
• Citation: 640 F.3d 731
• Parties: Sabrina BRAY, Petitioner–Appellee,v.Pat ANDREWS, Respondent–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

640 F.3d 731

Sabrina BRAY, Petitioner–Appellee,

v.Pat ANDREWS, Respondent–Appellant.

No. 09–4151.

United States Court of Appeals, Sixth Circuit.

Argued: Jan. 20, 2011.Decided and Filed: April 26, 2011.

ARGUED: M. Scott Criss, Office of the Ohio Attorney General, Columbus, Ohio, for Appellant. Melissa M. Prendergast, Office of the Ohio Public Defender, Columbus, Ohio, for Appellee. ON BRIEF: M. Scott Criss, Office of the Ohio Attorney General, Columbus, Ohio, for Appellant.

Melissa M. Prendergast, Office of the Ohio Public Defender, Columbus, Ohio, for Appellee.Before: MARTIN and STRANCH, Circuit Judges; THAPAR, District Judge. ^*

OPINION

THAPAR, District Judge.

An Ohio jury found Sabrina Bray guilty of complicity in a drug-related murder, and the trial court sentenced her to eighteen years to life in prison. Bray appealed, claiming that she received ineffective assistance of counsel during plea negotiations. The Ohio Court of Appeals rejected this claim because, based on the evidence in the record before it, Bray had not established that her lawyer's deficient performance caused her prejudice. Because this determination was neither “contrary to” nor “an unreasonable application of [ ] clearly established federal law,” 28 U.S.C. § 2254(d)(1), we reverse the district court's decision below conditionally granting Bray's application for a writ of habeas corpus.

I.

This case began with a drug deal and ended with a murder. Sabrina Bray helped a friend, Alyson Buckner, buy some crack-cocaine. State v. Bray, No. 04–MA–27, 2005 WL 1018437, at ¶ 7 (Ohio Ct.App. April 25, 2005). Bray arranged the deal with Daniel “TJ” Carter, a drug-dealer. Buckner did not have the money to pay for the drugs up front, so Bray vouched for her, and Buckner promised to get Carter the money soon. When Buckner failed to pay, Carter offered a bounty for anyone who brought her to him. One of Carter's cronies dragged Buckner to Carter's house. Bray was also there. Carter demanded his money. Buckner said she still did not have the money but said that she could get the money from a friend. Buckner went to her friend's house, but came back empty-handed. This made Carter angry. He and Bray drove Buckner out to a field, where she was shot and killed. Carter and Bray both fled the scene. Id. ¶¶ 7–8.

An Ohio grand jury indicted Bray for murder. The state offered to let Bray plead guilty to involuntary manslaughter, which carried a maximum sentence of thirteen years. Id. ¶ 35. Bray rejected the state's plea offer and went to trial. The jury acquitted her on the murder charge but found her guilty of complicity to murder. The court sentenced Bray to fifteen years to life in prison for the complicity conviction and an additional three years because a firearm was used in the offense. Id. ¶¶ 1, 9.

Bray appealed her conviction to the Ohio Court of Appeals. In her brief to that court she argued, among other things, that her “trial counsel's failure to file a request or motion for a bill of particulars” violated her right to effective assistance of counsel. Id. ¶ 33. As the Ohio Court of Appeals put it: “Bray claims that she was prejudiced by [her counsel's failure to request a bill of particulars] in that she was unaware that she was going to be tried for complicity. More specifically, Bray claims that had her counsel advised her that she could have been tried for complicity, she would have taken the plea offered to her by the State for involuntary manslaughter.” Id. ¶ 34. Although the state appellate court indicated that “the assistance of counsel rendered in this case appears to be ineffective,” it held that the evidence in the record before it did not establish that Bray was prejudiced by this deficiency— i.e., that there was “a reasonable probability that [she] would have accepted [the] available plea offer” if she had been properly advised about the possibility of the complicity conviction. Id. ¶¶ 43–44. The court noted that critical evidence, including the state's original plea offer, was outside of the record on direct appeal. Id. ¶ 6. Therefore, the court held that Bray's claim was “meritless” and advised Bray that it was “more appropriate for post-conviction proceedings,” where she could introduce additional evidence. Id. ¶ 44.

Instead of following the court of appeals' advice and instituting a post-conviction proceeding under Ohio Rev.Code § 2953.21, Bray appealed to the Ohio Supreme Court. She reiterated her ineffective assistance claim in her brief, arguing that her trial counsel was “constitutionally ineffective for failing to inform [her] that she could have been tried for complicity.” Bray v. Andrews, No. 4:07–16 (N.D.Ohio), R. 7, Ex. F at 3. The Ohio Supreme Court dismissed Bray's appeal with a one-sentence order. R. 7, Ex. H.

Again ignoring the court of appeals' advice to file a post-conviction motion, Bray next filed a petition for a writ of habeas corpus in federal district court under 28 U.S.C. § 2254. In the petition she argued that she “was denied the effective assistance of counsel when her counsel neglected to inform her that, if she went to trial, she could be convicted of complicity to murder, even if she were found not guilty of committing the murder herself.” R. 1 at 4. On August 13, 2009, the district court conditionally granted Bray's habeas petition. Bray v. Andrews, 650 F.Supp.2d 710, 722 (N.D.Ohio 2009). The court reviewed Bray's ineffective assistance claim de novo after concluding that the Ohio courts had not adjudicated the claim on the merits. Id. at 719. The court held that Bray's counsel had performed deficiently by failing to advise her that she could be convicted of complicity, id. at 720, and that this deficiency prejudiced Bray because there was a reasonable probability that she would have accepted the state's plea offer if she had been properly advised. Id. at 722. The respondent appealed the district court's decision to this Court.

II.

We review the district court's decision to grant habeas relief de novo. See Hodgson v. Warren, 622 F.3d 591, 598 (6th Cir.2010). The district court did not hold an evidentiary hearing, and therefore did not make any factual findings to which we should defer. See id. The state courts' factual findings, in contrast, “are presumed correct and may be rebutted only by clear and convincing evidence.” Id. (citing 28 U.S.C. § 2254(e)(1)).

III.

Before we can reach the merits of Bray's habeas petition, we first must determine whether her claim is barred by a failure to exhaust state remedies or a procedural default. The respondent argues that Bray tripped over both procedural hurdles and therefore urges us to reject her petition without considering the merits of her claim. We disagree. Bray cleared both hurdles with room to spare.

Exhaustion. The Antiterrorism and Effective Death Penalty Act (“AEDPA”) prohibits a federal court from granting a writ of habeas corpus unless the petitioner “has exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). Exhaustion, in turn, requires the petitioner to “fairly present[ ]” her claim “to the state courts[, including] the state court of appeals and the state supreme court.” Wagner v. Smith, 581 F.3d 410, 414 (6th Cir.2009) (citations omitted); see O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999) (“[S]tate prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.”). In her habeas petition, Bray claims that her lawyer was ineffective because he did not tell her that she could be convicted of complicity and that, had he done so, she would have accepted the state's plea offer. In order to have fully exhausted this claim, Bray must have “fairly presented” it to both the Ohio Court of Appeals and the Ohio Supreme Court. Wagner, 581 F.3d at 414.

As the respondent concedes, Bray clearly advanced the present claim to the Ohio Supreme Court. See R. 7, Ex. F at 3. But the respondent argues that Bray presented a different claim to the Ohio Court of Appeals. There, she asserted that her “trial counsel's failure to file a request or motion for a bill of particulars” violated her right to effective assistance of counsel. R. 7, Ex. C at 6. The phraseology is different, but the gist of the claim is not. Saying that her counsel failed to request a bill of particulars is just another way of saying that he failed to find out, and advise her of, the particular charges she was facing—including complicity. See Ohio R.Crim. P. 7(E) (when defendant requests bill of particulars, the prosecutor must “specifically [identify] the nature of the offense charge and of the conduct of the defendant alleged to constitute the offense”). Fair presentation does not require “word-for-word replication.” Carter v. Bell, 218 F.3d 581, 606 (6th Cir.2000). Rather, the petitioner need only give the state courts “the opportunity to see both the factual and legal basis for [the] claim.” Wagner, 581 F.3d at 414–15. The Ohio Court of Appeals unquestionably had that opportunity. In its opinion, the court framed Bray's claim in exactly the same way that she presented it in her habeas petition: “Bray claims that had counsel advised her that she could have been tried for complicity, she would have taken the plea offered to her by the State for involuntary manslaughter.” Bray, 2005 WL 1018437, at ¶ 34. Bray thus presented her claim to the Ohio Court of Appeals in a way that allowed that Court “an opportunity to correct the constitutional violation in the first instance.” O'Sullivan, 526 U.S. at 844–45, 119 S.Ct. 1728. That is all that exhaustion demands.

Procedural Default. The respondent next argues that Bray procedurally defaulted her ineffective assistance claim by failing to present it in a separate post-conviction proceeding in the trial court, as the Ohio Court of Appeals advised her to do. Under...