Ambrose v. Romanowski
| Decision Date | 13 July 2015 |
| Docket Number | Case No. 14-1545 |
| Parties | SAMUEL AMBROSE, Petitioner-Appellant, v. KENNETH ROMANOWSKI, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0500n.06
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
BEFORE: ROGERS and McKEAGUE, Circuit Judges; SARGUS, District Judge.*
McKEAGUE, Circuit Judge. Samuel Ambrose was convicted of second-degree murder in 1979 after an altercation outside of a bar in Detroit. The district court denied his petition for a writ of habeas corpus, and issued a certificate of appealability on two of his twelve claims: (1) the series of jury instructions—an error followed by a retraction and two later clarifications—resulted in an unfair trial in violation of the Due Process Clause; and (2) ineffective assistance of counsel during the plea process in violation of the Sixth Amendment. The state court addressed the jury-instructions claim on direct appeal, and, applying AEDPA deference, that decision wasnot an unreasonable application of clearly established Supreme Court precedent. Ambrose's ineffective-assistance claim is procedurally defaulted as inexhaustible because his state-court ineffective-assistance claim is markedly different from his federal-court claim, and he cannot establish cause and prejudice to excuse the default. But even if we were to construe these two arguments as the same claim, it fails on the merits. We accordingly affirm.
In April 1979, Ambrose got into a fight with Kenneth Brown outside of a bar in Detroit, Michigan. Brown died 15 days later from his injuries, and Ambrose was charged with second-degree murder in the former Recorder's Court for the City of Detroit. He argued self-defense at trial, but a jury convicted him of second-degree murder and the court sentenced him to life imprisonment. Ambrose filed many actions in state court before filing for a federal writ of habeas corpus in 2008. The district court denied all twelve of his claims and ultimately granted a certificate of appealability on two claims: (1) the jury instructions violated Ambrose's rights under the Due Process Clause; and (2) Ambrose's trial counsel was ineffective for failing to inform him of a plea offer. Ambrose v. Romanowski, No. 14-1545 (6th Cir. Oct. 27, 2014). The relevant facts and procedural history for each of the two claims are laid out below.
Ambrose's first claim challenges the trial court's series of jury instructions that began with an error. At the completion of the proof stage, the court initially instructed the jury in a way that violated Michigan law: before the jury could consider the lesser-included manslaughter offense, they had to find him not guilty of the charged offense, second-degree murder. The prosecutor immediately objected to this instruction, and the court informed the jury that it haderred. In the next set of instructions, the court emphasized to the jury that it could consider the charges in any order. The court explained:
I'm in error on that [instruction]. So, the two possible charges are—or the two charges are Murder in the Second Degree, the lesser included offense of Manslaughter, and you can only have one finding of—you can only find him guilty of one or the other or not guilty, all right, but you cannot find him guilty of both; one or the other or not guilty.
R. 2 at Page ID # 67. Before deliberations began, the trial court explained, Id.
The jury deliberated for about 30 minutes before being excused for the day. The jury returned for deliberations the following morning. After about 50 minutes of deliberations, the court summoned the jury, explaining, Id. at Page ID # 67-68. The court emphasized, "Now, you can consider those in any sequence you want." Id. at Page ID # 68. The court referred to its original error once more, acknowledging that it and "wanted to make sure [the jury] understand[s]" that the verdicts can be considered in any order. Id.
About fifteen minutes later, the jury requested reinstruction on the second-degree murder and manslaughter elements. The Court instructed:
If the evidence does not convince you beyond a reasonable doubt that the Defendant intended to kill, you must consider whether he acted with an unreasonable disregard for human life. It is sufficient for Murder of the Second Degree if the Defendant consciously created a very high degree of risk of death, and if he had knowledge of the probability of those consequences. However, ifyou find that the Defendant's acts did not amount to such a criminal purpose aimed against life, you must find the Defendant not guilty of Murder and consider whether or not he is guilty of Manslaughter.
Id. Ambrose appealed his conviction and raised this claim. A two-judge majority in the Michigan Court of Appeals held that the instructions did not taint Ambrose's conviction because the jurors "were neither expressly [n]or impliedly coerced to reach a unanimous agreement of innocence on second-degree murder before they were at liberty to consider the lesser offense of manslaughter." Id. The Michigan Supreme Court denied leave to appeal in 1983.
Ambrose's second claim involves an alleged plea offer during the pre-trial process. Ambrose was first represented by Attorney Oliver Nelson. Judge Gardner in the Recorder's Court heard the case during pre-trial proceedings. At some point after the re-pretrial conference, the state provided Ambrose with a new attorney, Richard Nelson (no relation to Oliver Nelson), and the case was reassigned to Judge Roberts. According to Ambrose, Ambrose spoke with his first attorney, Oliver Nelson, about a plea offer "shortly after the preliminary examination." R. 71 at Page ID # 2211. Under the terms of the alleged agreement, Ambrose would plead guilty to manslaughter with a sentence of five-to-fifteen-years' imprisonment. Ambrose testified that at some later time, Oliver Nelson told him that the prosecutor had "finally" agreed to the plea bargain. Ambrose allegedly informed Oliver Nelson he was interested in the plea bargain. He testified that he went to court and appeared before Judge Gardner and that Judge Gardner consented to the agreement and wrote it down. But nothing happened.
After he was assigned to a new attorney, Ambrose claims that he also spoke to his second attorney, Richard Nelson, about that plea offer and that Richard Nelson told him "he would check into it or check something . . . ." R. 65 at Page ID # 1968. Nevertheless, Ambrose claims,the case proceeded to trial. During trial, when the parties began discussing jury instructions and the lesser-included offense of manslaughter, Ambrose stated that it seemed like Richard Nelson had forgotten to investigate the plea. Ambrose testified that he would have accepted the plea at any point before trial.
Ambrose did not raise the issue on direct review or in state habeas proceedings, but did so pro se via motions for relief from judgment under Michigan Court Rules 6.500, et seq. Beginning in 1996, Ambrose unsuccessfully filed three motions for relief from judgment and a motion for a new trial based on his trial counsel's alleged failure to convey to him a plea offer. Ambrose v. Romanowski, No. 08-CV-12502, 2014 WL 526131, at *7 (E.D. Mich. Feb. 10, 2014). These were rejected under an amendment to Michigan Court Rule 6.502 as a second or successive motion. In 1998, the Michigan Supreme Court informed Ambrose that he could file for relief from judgment under Rule 6.502. In that filing, Ambrose relied solely on a "re-pretrial notice" document. On that document, the initial trial judge, Judge Gardner, had handwritten "Manslaughter" and "5-15." See R. 2 at Page ID # 100. Ambrose claimed that this notation showed that the judge was documenting the prosecution's legitimate plea offer and that he would have accepted that offer had he been informed of it.
In 1998, he filed another motion for a new trial on the same grounds. At that point, Ambrose exchanged correspondences with Judge Gardner and provided him a copy of the re-pretrial notice. Judge Gardner responded, informing Ambrose that he did not remember the case, but that "the writing appears to be my writing." Ambrose, 2014 WL 526131, at *1. Ambrose successfully filed a motion to supplement the record with this evidence. Ambrose filed another series of motions beginning in 2005. In 2005, Ambrose filed an amended motion for relief again based on ineffective assistance. That motion was denied, and Ambrose filed a motion fordelayed appeal of the denial and a motion to remand based on that same claim. Those motions were denied in 2006. On appeal, the Michigan Court of Appeals denied both "for failure to meet the burden of establishing entitlement to relief under MCR 6.508(D)" on June 18, 2007. R. 2 at Page ID # 93. The Michigan Supreme Court denied his application for leave to appeal and his motion to remand on the same basis in 2008. The Michigan Supreme Court likewise denied his motion for reconsideration.
Ambrose filed for a federal writ of habeas corpus in 2008, raising twelve claims in the district court. The court initially held that Ambrose's petition was time-barred, but this Court vacated the judgment and held that Ambrose may be able to show the limitations period lapsed "with a colorable showing that equitable tolling should apply given the state trial court's improper refusal to consider his 1996 motion." Ambrose v. Romanowski, No. 09-1937 (6th...
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