Boykin v. Webb

• Decision Date: 04 September 2008
• Docket Number: No. 06-5775.,06-5775.
• Citation: 541 F.3d 638
• Parties: Terrance BOYKIN, Petitioner-Appellant, v. Patti WEBB, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

541 F.3d 638

Terrance BOYKIN, Petitioner-Appellant, v. Patti WEBB, Respondent-Appellee.

No. 06-5775.

United States Court of Appeals, Sixth Circuit.

Argued: June 10, 2008.

Decided and Filed: September 4, 2008.

ARGUED: Brenda Popplewell, Brenda Popplewell, Attorney at Law, Somerset, Kentucky, for Appellant. Michael L. Harned, II, Office of the Kentucky Attorney General, Frankfort, Kentucky, for Appellee. ON BRIEF: Brenda Popplewell, Brenda Popplewell, Attorney at Law, Somerset, Kentucky, for Appellant. Michael L. Harned, II, Office of the Kentucky Attorney General, Frankfort, Kentucky, for Appellee.

Before: MARTIN and BATCHELDER, Circuit Judges; JORDAN, Senior District Judge.^*

MARTIN, J., delivered the opinion of the court, in which JORDAN, D.J., joined. BATCHELDER, J. (pp. 648-51), delivered a separate dissenting opinion.

OPINION

BOYCE F. MARTIN, JR., Circuit Judge.

Terrance Boykin petitioned the district court for a writ of habeas corpus. Boykin sought to overturn his state conviction for complicity to murder and wanton endangerment, arguing that he received ineffective assistance of counsel. According to Boykin, because his trial counsel represented both Boykin and his co-defendant Treon McElrath, trial counsel could not pursue facts that would have exculpated Boykin but inculpated McElrath, and thus trial counsel's performance was constitutionally ineffective. Boykin also argues that he received ineffective assistance of counsel on appeal due to the same conflict of interest. We agree with Boykin and find that his right to counsel was violated due to ineffective assistance of counsel, and REVERSE the district court's denial of his petition for a writ of habeas corpus.

I.

Boykin was tried along with his co-defendants Treon McElrath and Andra Everett in Hickman County Circuit Court for the murder of Natasha Wilson and related charges. Boykin and McElrath, who are cousins, were represented by the same attorney at trial, while Everett was represented by separate counsel. All three were convicted of one count of complicity to murder and six counts of complicity to wanton endangerment, and received sentences of 52 years' imprisonment.

The jury heard evidence that on the evening of June 21, 1998, Natasha Wilson and her boyfriend Corey Fitts were sitting on the front porch of her grandmother's house in Clinton, Kentucky. While sitting on the porch, Wilson and Fitts observed McElrath drive his yellow Mustang by her house. Wilson called the police asking for protection from McElrath, and his cousin, Boykin. Wilson had reason to fear Boykin because she had recently taken out a warrant against him for unlawful imprisonment, burglary and sexual abuse. Fitts was also in fear as he had recently filed charges against Boykin and Everett for terroristic threatening. Wilson's call came in to the police department at approximately 9:12 p.m.

Police Officer Brian Morrison had been driving near Wilson's grandmother's house before Wilson initially called the police for protection. Wilson had seen McElrath driving his yellow Mustang with three individuals in the car with him. He could not identify the other three individuals because they had ducked down inside the car. After seeing McElrath and the Mustang, Morrison received a call from dispatch that Natasha Wilson had called seeking protection from McElrath and Boykin. Morrison returned to the dispatch office and ran a check to see if McElrath had any outstanding warrants.

At approximately 9:23 p.m., Morrison received a call from Wilson's grandmother stating that Wilson had been shot. Morrison immediately drove to the scene of the shooting. When he entered the house, he saw blood on the carpet just inside the door and also on the wall. He found Wilson lying on the floor with gunshot wounds in her wrist and shoulder; she was gasping for breath. Morrison radioed for emergency medical service and back-up, and then performed CPR on Wilson. Wilson ultimately died as a result of the gunshot wounds, and was unable to talk to Morrison before passing away.

Wilson's boyfriend, Corey Fitts, was the only eye-witness to the murder. At the scene, he told police that he and Wilson had been sitting on the porch when they saw McElrath drive his yellow Mustang by the house. He and Wilson became concerned and called the police. About twenty minutes later, two men came around the corner of the house and began shooting. He and Wilson ran into the house. That night, Fitts could only identify McElrath as one of the shooters. However, at trial, Fitts identified Boykin and Everett as the shooters.

Brothers Eric and Sammy Hunter were home visiting their parents on the night of the shooting. Their parents lived near the murder scene. While they were visiting their parents, McElrath came by unannounced and unexpectedly to visit with them. Ten minutes after McElrath arrived, they heard gunfire. As soon as they heard the gunshots, McElrath left.

On the night of the shooting, Officer Cummings of the Union City, Tennessee Police Department saw Boykin and McElrath together in Union City before 9:00 p.m. Apparently, Union City is very close to Clinton, Kentucky. Cummings stopped McElrath's car at 6:27 p.m. for a traffic violation; Boykin was in the passenger seat. Cummings was well enough acquainted with the two to know them by sight.

Later that night, after receiving a call about the shooting and the suspected involvement of McElrath and Boykin, Cummings went to McElrath and Boykin's grandmother's home, where McElrath was known to reside. He arrived at 9:57 p.m. and found Boykin and McElrath in front of the house. The yellow Mustang was also there. A search warrant executed on the residence revealed a Llama .45 handgun and ammunition in a bedroom closet. Two .45 cartridge casings and a .45 bullet recovered at the murder scene were identified as having come from the Llama .45 handgun.

II.

At trial, the prosecution called as witnesses Officer Morrison, Corey Fitts, Kelta O'Neil, the coroner, Officer Cummings, and Eric and Sammy Hunter. They testified to the facts presented above. Boykin's attorney only called one witness in his defense, the ballistics expert, who testified that Fitts could not have been the shooter.

On September 28, 2000, the Kentucky Supreme Court affirmed Boykin's and McElrath's convictions on direct appeal; and denied rehearing on April 26, 2001. On August 21, 2001, Boykin filed a pro se motion under Kentucky Rule of Criminal Procedure 11.42 alleging ineffective assistance of counsel at trial and on direct appeal. The Hickman Circuit court denied the motion, and the Kentucky Court of Appeals also denied the motion. The Kentucky Supreme Court denied discretionary review.

Boykin then filed a petition for writ of habeas corpus in the Western District of Kentucky. The district court adopted the magistrate judge's report and recommendations denying Boykin's petition.

III.

1. Standard of Review

We review de novo a district court's legal conclusions and mixed questions of law and fact, and we review its factual findings for clear error. Armstrong v. Morgan, 372 F.3d 778, 781 (6th Cir.2004); Lucas v. O'Dea, 179 F.3d 412, 416 (6th Cir.1999). Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a district court shall not grant a habeas petition with respect to any claim that was adjudicated on the merits in the state courts unless the adjudication resulted in a decision that (1) was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the United States Supreme Court; or (2) was based on an unreasonable determination of the facts in light of the evidence presented to the state courts. 28 U.S.C. § 2254(d).

Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law, or if the state court decides a case differently than the Supreme Court on materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct legal principle from the Supreme Court's decisions but unreasonably applies it to the facts of the petitioner's case. Id. The court may look to lower courts of appeals' decisions, not as binding precedent, but rather to inform the analysis of Supreme Court holdings to determine whether a legal principle had been clearly established by the Supreme Court. Hill v. Hofbauer, 337 F.3d 706, 716 (6th Cir.2003). Finally, the habeas petitioner has the burden of rebutting, by clear and convincing evidence, the presumption that the state court's factual findings were correct. See 28 U.S.C. § 2254(e)(1); McAdoo v. Elo, 365 F.3d 487, 493-94 (6th Cir.2004).

2. Boykin's Claim of Ineffective Assistance of Trial Counsel Due to a Conflict of Interest.

The Supreme Court set forth the standard for reviewing claims of ineffective assistance of counsel resulting from a conflict of interest in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), and summarized it again in Strickland v. Washington, 466 U.S. 668, 692, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "[P]rejudice is presumed when counsel is burdened by an actual conflict of interest. In those circumstances, counsel breaches the duty of loyalty, perhaps the most basic of counsel's duties. Moreover, it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests." Strickland, 466 U.S. 668, 692, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (citing Sullivan, 446 U.S. at 345-50, 100 S.Ct. 1708). However, "[p]rejudice is presumed only if the defendant demonstrates that counsel `actively represented conflicting interests' and that `an actual conflict of interest adversely affected his lawyer's performance.'" Id. (quoting ...