Blackburn v. Foltz

• Decision Date: 17 September 1987
• Docket Number: No. 86-1815,86-1815
• Citation: 828 F.2d 1177
• Parties: William BLACKBURN, Petitioner-Appellant, v. Dale FOLTZ, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1177

828 F.2d 1177

William BLACKBURN, Petitioner-Appellant, v. Dale FOLTZ, Respondent-Appellee.

No. 86-1815.

United States Court of Appeals Sixth Circuit.

Argued May 21, 1987.

Decided Sept. 17, 1987.

Martin A. Geer (argued), Ann Arbor, Mich., for petitioner-appellant.

Eric J. Eggan, Asst. Atty. Gen., Corrections Div., Lansing, Mich., Edgar L. Church, Jr. (argued), Asst. Atty. Gen., for respondent-appellee.

Before KEITH and NORRIS, Circuit Judges, and PECK, Senior Circuit Judge.

JOHN W. PECK, Senior Circuit Judge.

Petitioner William Blackburn appeals from a district court judgment which denied his petition for writ of habeas corpus filed pursuant to 28 U.S.C. Sec. 2254. Blackburn was tried initially in September 1977 on three counts of armed robbery in Michigan. The proceeding ended in a mistrial due to a deadlocked jury. Blackburn was retried before a jury in November 1977 and convicted on all three counts. Blackburn contends on appeal that he was denied effective assistance of counsel at the second trial in three ways: Blackburn's counsel failed to move for suppression of Blackburn's prior convictions and gave him erroneous legal advice concerning the possible use of those convictions if he testified; he failed to obtain the transcript from the first trial in order to impeach the sole identifying witness at the second trial; and he did not investigate or file a notice of Blackburn's alibi. For the reasons stated herein, we reverse the district court's denial of the writ.

I

Blackburn was charged with the armed robbery of the Redmond family residence. At the first trial Mrs. Redmond testified that around 10 a.m. on February 17, 1976, two men came to her door to deliver a package. She testified that the men were standing approximately five feet away from her. Mrs. Redmond recalled that the man closer to her asked her to sign for the box. This man was Anthony Zielinski who was apprehended shortly after the robbery with the stolen property on his person. Mrs. Redmond turned to a nearby desk to get a pen and when she turned back around, the men were wearing ski masks. Mrs. Redmond estimated that this all occurred in less than one minute's time. She testified that the man in a green ski mask, Zielinski, held a gun on her, while the other robber in a red ski mask went upstairs. Mrs. Redmond testified that Zielinski then tied her up face down on a bed. He did the same to her husband, who had been dressing in another room and did not see the men unmasked. Jewelry and part of a coin collection were taken.

At the trial Mrs. Redmond identified Blackburn as the robber who donned the red ski mask, but could not remember particulars about his appearance. She also stated that at the front door, the only time she saw the men unmasked, the man she identified as Blackburn "always looked toward the west.... [M]ost of the time I was only seeing a profile of his face, not a full view of his face.... [H]e was turned on an angle." Mrs. Redmond further testified that she identified one of the robbers from a photographic array shown to her by the police, but could not remember whether it was Zielinski or the defendant.

Zielinski, who pled guilty to armed robbery, also testified for the prosecution at the first trial. He admitted that he pled guilty to the armed robbery in exchange for certain benefits from the state. He also admitted that his testimony against Blackburn was partly motivated by revenge. He testified that he, Blackburn and Joe May, who was tried separately, ¹ planned the robbery. Zielinski testified that he and Blackburn committed the robbery after May drove them to the Redmonds' residence. Zielinski stated that Blackburn held a gun on Mrs. Redmond while he ran upstairs to ransack the house. Zielinski also testified that when he came downstairs Blackburn told him to tie up the Redmonds. Zielinski recalled that he telephoned May to come pick them up. When May was late, Zielinski testified that he went outside to look for him and that, when he shortly thereafter saw a man run from the house, he knew that the plan had fallen apart. Zielinski testified that he saw a police car pull up at the house and he quickly left the immediate area. Zielinski stated that he saw Blackburn and May drive past him, but they did not stop to pick him up. Zielinski testified that he went into a doctor's office to telephone a cab. He was apprehended there with the stolen property, a knife, and green ski mask on his person.

Two other witnesses testified that they saw a man wearing a green mask at the Redmonds. Neither saw the other robber. As indicated above, the jury was unable to reach a verdict and a mistrial was declared.

At the second trial conducted in November 1977 Mrs. Redmond again testified. Although she still maintained that Blackburn was the robber, her testimony differed from the first trial in some respects. She testified that she was no more than three feet away from the robbers at the front door. She also testified that she talked to them about ten minutes and that she could see the full faces of both men. Mrs. Redmond also stated that she selected Blackburn's photo from the photographic array. Mrs. Redmond initially stated that one ski mask was blue, but on seeing the exhibit in the courtroom, corrected herself to state that it was red. Zielinski's testimony remained essentially unchanged. Unlike the first trial, Blackburn was convicted on all counts, and was sentenced to two concurrent life terms and a third term of 60 to 90 years.

The Michigan Court of Appeals affirmed the conviction. People v. Blackburn, 94 Mich.App. 711, 290 N.W.2d 61 (1980). The Michigan Supreme Court denied Blackburn's request for review. People v. Blackburn, No. 64671 (Mich.S.Ct. Nov. 19, 1981). In October 1981 Blackburn filed for a writ of habeas corpus. Then District Court Judge Guy ordered an evidentiary hearing on Blackburn's claim of ineffective assistance of counsel with regard to counsel's failure at the second trial to move for exclusion of prior convictions, failure to investigate Blackburn's alibi defense, and failure to procure the transcript from the first trial for impeachment purposes. The evidentiary hearing was held before a magistrate on September 21, 1982. ² On March 21, 1985, the magistrate issued a report and recommendation for denial of the petition. Blackburn timely filed objections to the report. Judge Hackett, to whom the case was reassigned, denied the petition on August 8, 1986. Blackburn then timely filed his notice of appeal on September 5, 1986.

II.

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court set forth a two-pronged test for determining whether counsel's representation of a criminal defendant at trial or a capital sentencing proceeding is so deficient as to require reversal of the defendant's conviction:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Id. at 687, 104 S.Ct. at 2064. Under the Strickland test, a reviewing court's "scrutiny of counsel's performance must be highly deferential," and must strongly presume that counsel's advocacy fell "within the wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. at 2065. In evaluating counsel's performance the court should also "keep in mind that counsel's function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case." Id. at 690, 104 S.Ct. at 2066. A reviewing court must not indulge in hindsight, but must evaluate the reasonableness of counsel's performance within the context of the circumstances at the time of the alleged errors. Id. at 689-90, 104 S.Ct. at 2065-66; Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 2586, 91 L.Ed.2d 305 (1986). Although the district court's findings of fact are subject to the clearly erroneous standard of review, Fed.R.Civ.P. 52(a), the performance and prejudice components of the Strickland test are mixed questions of law and fact freely reviewable by the appellate court. Strickland, 466 U.S. at 698, 104 S.Ct. at 2070; Meeks v. Bergen, 749 F.2d 322, 327 (6th Cir.1984). With these principles in mind, we turn to the merits of Blackburn's argument that he was denied effective assistance of counsel as guaranteed him by the Sixth Amendment.

III.

Blackburn first asserts that the failure of his counsel, Mr. Girard, to move for suppression of his three prior convictions deprived him of effective assistance of counsel. These three prior convictions were: a 1945 larceny conviction; a 1948 armed robbery conviction; and a 1977 conviction for aiding and abetting the carrying of a concealed weapon in an automobile. At the magistrate's evidentiary hearing, Girard testified that he believed that such a motion was unnecessary because Blackburn had signaled his intent from the beginning not to testify. Girard also recalled that he advised Blackburn that if he were to testify on his own behalf, the prosecution would probably produce Joe May as a damaging rebuttal witness. Girard did not recall advising Blackburn during the second trial that all prior convictions could be used against him. However, Blackburn testified at the evidentiary hearing that he told Girard that he wanted to testify after the prosecution had rested at the second trial, but Girard advised him that the prosecution could impeach him "back to...