Robinson v. Howes

Decision Date31 January 2012
Docket NumberNo. 10–2696.,10–2696.
Citation663 F.3d 819
PartiesBrandon ROBINSON, Petitioner–Appellant, v. Carol R. HOWES, Warden; Michigan Parole Board, Respondents–Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

OPINION TEXT STARTS HERE

ARGUED: Martin J. Beres, Clinton Township, Michigan, for Appellant. Andrea Marion Christensen, Office of the Michigan Attorney General, Lansing, Michigan, for Appellees. ON BRIEF: Martin J. Beres, Clinton Township, Michigan, for Appellant. Andrea Marion Christensen, Office of the Michigan Attorney General, Lansing, Michigan, for Appellees.Before: BATCHELDER, Chief Judge; McKEAGUE and STRANCH, Circuit Judges.

OPINION

McKEAGUE, Circuit Judge.

Petitioner Brandon Gregory Robinson appeals the district court's denial of his petition for habeas corpus, in which he asserts a violation of his Sixth Amendment right to effective assistance of counsel. We AFFIRM.

I. Background

This case arose from a 911 call placed on September 28, 2004, which reported shots fired from a yellow vehicle at 56 Elmhurst in Highland Park, Michigan. Based on this dispatch, police officers apprehended Petitioner and recovered a gun from his vehicle. Petitioner waived his right to a jury trial and proceeded to a bench trial in Wayne County Circuit Court. The parties stipulated that Petitioner was not eligible to carry a firearm on the day in question because he had previously been convicted of a felony and his rights had not yet been restored.

At trial, the defense presented no witnesses and argued that someone else had placed the gun in the vehicle and then set Petitioner up by falsely reporting a shooting. The prosecution offered Wayne County Deputy Sheriffs Michael Kasholo and Phillip Kozlowski, two officers involved in Petitioner's arrest, as trial witnesses.

Deputy Kasholo testified that he was dispatched to 56 Elmhurst Street in Highland Park on the afternoon of September 28, 2004 based on a radio run reporting “shots fired from a yellow vehicle.” Upon arrival at the scene, he saw a bright yellow Chevy parked across from 56 Elmhurst. He approached the driver's side of the vehicle with his gun drawn, and when he was about 10 feet away, Petitioner saw him and exited the car, shouting that he had done nothing wrong. Kasholo instructed Petitioner to stay put and then noticed a handgun on the front seat of the car. Kasholo yelled to the other officers that there was a gun and attempted to close the gap between him and Petitioner. Petitioner began walking away from Kasholo, towards the rear of the car, and Deputy Kozlowski attempted to intercept him. Then, Deputy Kasholo testified, “it turned into a fleeing situation” and “a wrestling match ensued.” After a struggle, during which one officer sprayed Petitioner with pepper spray, Deputy Kozlowski and Officer Dan Carmona subdued Petitioner and placed him under arrest. On cross examination, Deputy Kasholo stated that after Petitioner was secured and the weapon recovered, he spoke with some pedestrians who told him no shots had been fired in the area.

Deputy Kozlowski testified that when he arrived at the scene, he saw Deputy Kasholo approaching the vehicle. Kozlowski positioned himself behind Deputy Kasholo, at which time Petitioner was still seated in the car. Kasholo told Petitioner to stay in the car, but Petitioner exited the vehicle and kept saying that he did not do anything wrong. Kozlowski then tried to grab Petitioner by the back of the collar and told Petitioner to turn around and put his hands on the car. Petitioner swung around, trying to break loose from Kozlowski's hold, and attempted to run towards the street. At the same time, Deputy Kasholo yelled, “Gun.” Kozlowski and his partner Officer Carmona struggled with Petitioner for 3–5 minutes, sprayed Petitioner with pepper spray, and eventually secured him. On cross examination, Deputy Kozlowski testified that he and Deputy Kasholo had their guns drawn when approaching Petitioner's vehicle. He claimed that there were no pedestrians when they approached Petitioner's vehicle but that he heard the voices of bystanders during the scuffle.

The court, crediting the testimony of the two police officers, found Petitioner guilty of being a felon in possession of a firearm, resisting a police officer, and possession of a firearm during the commission of a felony.

On direct appeal, Petitioner argued that his arrest violated his Fourth Amendment rights because it was based on uncorroborated information from an anonymous caller and that his trial counsel was constitutionally ineffective for failing to file a motion to suppress the gun. The Michigan Court of Appeals, noting that the circumstances of the 911 call were not in the record, denied Petitioner's Fourth Amendment claim, finding that the investigatory stop and subsequent arrest were justified, and denied Petitioner's ineffective assistance claim on the basis of the unmeritorious Fourth Amendment claim. People v. Johnson, No. 268413, 2007 WL 1374836 (Mich.Ct.App. May 10, 2007) (unpublished per curiam opinion).1 The Michigan Supreme Court denied leave to appeal. People v. Johnson, 480 Mich. 860, 737 N.W.2d 697 (2007).

Petitioner filed a habeas petition in the United States District Court for the Eastern District of Michigan, alleging the same Fourth Amendment and ineffective assistance of counsel claims as on direct appeal. The district court properly dismissed Petitioner's Fourth Amendment claim as barred under Stone v. Powell, 428 U.S. 465, 482, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). After an evidentiary hearing on his ineffective assistance of counsel claim, the district court denied the petition but granted a certificate of appealability. Robinson v. Howes, No. 07–15419, 2010 WL 4942839 (E.D.Mich. Nov. 30, 2010).

II. Application of AEDPA

Before reaching the merits of his petition, we address the threshold question of the proper standard of review—specifically, whether AEDPA deference or de novo review applies. AEDPA's deferential standard of review applies to a state prisoner's habeas claims that were “adjudicated on the merits in State court proceedings.” 28 U.S.C. § 2254(d). Claims that were not “adjudicated on the merits in State court proceedings” receive the pre-AEDPA standard of review: de novo for questions of law (including mixed questions of law and fact), and clear error for questions of fact. Brown v. Smith, 551 F.3d 424, 428, 430 (6th Cir.2008).

This threshold inquiry has become more significant in light of the Supreme Court's recent decision in Cullen v. Pinholster, ––– U.S. ––––, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011). Under Pinholster, review under § 2254(d)(1) is not only deferential but also limited to the record that was before the state court that adjudicated the claim on the merits. Pinholster, 131 S.Ct. at 1398. In other words, a federal habeas court may not rely on evidence introduced for the first time in that court and reviewed by that court in the first instance to determine that a state court decision was “contrary to” to or an “unreasonable application of” clearly established federal law. Id. at 1399. However, if the claim was never “adjudicated on the merits” in state court, the claim does not fall under 28 U.S.C. § 2254(d) and Pinholster does not apply. In such cases, a federal habeas court may order an evidentiary hearing, provided the threshold standards for admitting new evidence in federal district court are met, see 28 U.S.C. § 2254(e)(2), and decide the habeas petition under pre-AEDPA standards of review. See Pinholster, 131 S.Ct. at 1401 (Section 2254(e)(2) continues to have force where § 2254(d)(1) does not bar federal habeas relief.... [N]ot all federal habeas claims by state prisoners fall within the scope of § 2254(d), which applies only to claims ‘adjudicated on the merits in State court proceedings.’).

Petitioner argues that his ineffective assistance claim was never adjudicated on the merits because the state appellate court did not have before it a complete record. His contention is based on the fact that the state record did not include the circumstances of the 911 call that initiated Petitioner's encounter with the police or trial counsel's reasons for failing to file a motion to suppress, evidence that would be necessary to determine whether trial counsel's performance was constitutionally defective. The State summarily concludes that the ineffective assistance claim was fully adjudicated on the merits in state court, citing to only the state court decision.

Because we find that Petitioner fails to make a showing of ineffective assistance of counsel even under the pre-AEDPA standard, we assume without deciding that his ineffective assistance claim was never “adjudicated on the merits in State court proceedings” and apply the pre-AEDPA standard of review. 2

III. Evidentiary Hearing

A district court's decision to grant an evidentiary hearing is reviewed for abuse of discretion. Couch v. Booker, 632 F.3d 241, 244 (6th Cir.2011). Under 28 U.S.C. § 2254(e)(2), if an applicant for habeas relief “has failed to develop the factual basis of a claim in State court proceedings,” a district court may not grant an evidentiary hearing on the claim unless the applicant shows that:

(A) the claim relies on—

(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or

(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and

(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.”

28 U.S.C. § 2254(e)(2)(A)(B). The strictures of § 2254(e)(2)(A)(B) do not apply, however, where an applicant has not failed to develop—i.e., has been diligent in developing—the factual...

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