Brown v. Smith

• Decision Date: 31 December 2008
• Docket Number: No. 06-2295.,06-2295.
• Citation: 551 F.3d 424
• Parties: Michael W. BROWN, Petitioner-Appellant, v. David SMITH, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

551 F.3d 424

Michael W. BROWN, Petitioner-Appellant, v. David SMITH, Respondent-Appellee.

No. 06-2295.

United States Court of Appeals, Sixth Circuit.

Argued: July 23, 2008.

Decided and Filed: December 31, 2008.

ARGUED: Todd Shanker, Federal Defender Office, Detroit, Michigan, for Appellant. Janet A. VanCleve, Office of the

Michigan Attorney General, Lansing, Michigan, for Appellee. ON BRIEF: Todd Shanker, James R. Gerometta, Federal Defender Office, Detroit, Michigan, for Appellant. Raina I. Korbakis, Office of the Michigan Attorney General, Lansing, Michigan, for Appellee.

Before: BOGGS, Chief Judge; and MOORE and CLAY, Circuit Judges.

BOGGS, C. J., delivered the opinion of the court, in which MOORE, J., joined. CLAY, J. (pp. 435-38), delivered a separate concurring opinion, in which MOORE, J., also joined.

OPINION

BOGGS, Chief Judge.

Michael Brown, who was convicted of sexually molesting his teenage daughter, appeals the district court's denial of his habeas petition. He argues that his trial attorneys' failure to investigate and obtain records related to his daughter's counseling sessions—which records would have undermined her credibility—denied him the effective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The district court, applying the standard of review mandated under the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), agreed that Brown's counsels' performance was deficient, but held that Brown had not been prejudiced thereby. For the reasons that follow, we hold that AEDPA deference does not apply to this case, and, judging under a de novo standard, we conclude that Brown was indeed prejudiced by his trial counsels' deficient performance. We therefore reverse.

I. Background

In March 2000, Michael Brown was convicted by a jury in Midland County, Michigan, of two counts of first-degree criminal sexual conduct (CSC) and one count of second-degree CSC, stemming from an incident in which Brown was alleged to have sexually fondled his fourteen-year-old daughter, H.B., and forced her to perform oral sex on him. The defense theory was that H.B. fabricated the story of abuse to thwart her father's impending marriage to his live-in girlfriend, Jane Romankewiz, whom the daughter detested.

At trial, the only direct evidence the prosecution presented of the crime was H.B.'s own testimony that her father had sexually assaulted her on one occasion sometime in early March 1999. She also testified that, prior to the assault, her father had made inappropriate comments about her developing body, had touched her inappropriately on several occasions, and was physically abusive toward her. This testimony was partly corroborated by a friend of H.B.'s who testified at the trial, but was also categorically refuted by two other witnesses, Romankewiz and Brown's father. Approximately four months after the alleged sexual assault, during the second week of July, H.B. told her friend that her father had molested her, and her friend encouraged her to tell her mother (Brown's ex-wife), which she did the next day. This revelation occurred the week after Romankewiz told H.B. that her divorce would soon become final, thereby paving the way for Romankewiz to marry Brown. Romankewiz testified that H.B. "didn't seem happy at all" about this news.

In her testimony, H.B. denied any dislike for Romankewiz, stating that Romankewiz caused "a little bit" of trouble in her relationship with her father, but that she liked Romankewiz as a person and bore no animosity toward her. She acknowledged that she did not want her father to marry Romankewiz, but said it was because they "didn't get along" and were abusive toward each other. After initially denying that she had written, in a school assignment, that one of her goals was "to make sure [that her] father didn't marry [Romankewiz]," she was forced to recant when defense counsel showed her the assignment in which she had written that goal. The jury, however, resolved the credibility issue in favor of H.B., and convicted Michael Brown on all counts. He was sentenced to ten and a half to twenty-five years in prison.

On direct appeal, Brown unsuccessfully argued that he had been deprived of the effective assistance of counsel because his trial lawyers had failed to investigate H.B.'s counseling sessions with Nancy Parsons (then Nancy Rachow), a therapist with whom H.B. met regularly in the months prior to and immediately after the alleged assault. After denying Brown's request for a Ginther hearing to develop this issue,¹ the Michigan Court of Appeals rejected Brown's argument:

[T]he decision whether to present the victim's counselor in order to impeach the victim was a matter of trial strategy. The proposed impeachment evidence was not substantially different from other evidence presented at trial. Indeed, there are indications in the record, including the attachments to defendant's sentencing memorandum, that the counselor was defendant's friend, that defense counsel did not find her to be credible, and that she did not have knowledge of any inconsistencies or recantations, only her personal opinion that the victim may be fabricating the allegations of abuse. Defendant has failed to overcome the presumption of sound trial strategy or shown that there is a reasonable probability that counsel's failure to call this witness deprived him of a substantial defense or otherwise affected the outcome.

People v. Brown, No. 227953, 2003 WL 133055, at *4 (Mich.Ct.App. Jan.3, 2003) (internal citations omitted).

Brown timely filed a habeas petition with the district court in 2003, raising, inter alia, this ineffective-assistance-of-counsel claim. The district court held a hearing on the matter and reviewed Parsons's counseling records in camera, after which the district court made the records available to both Brown and the State.

The records could have provided additional grounds for impeachment of H.B.'s testimony. For example, at trial, H.B. downplayed any animosity between her and her would-be step-mother. The counseling notes, however, reveal that H.B. told Parsons that "she can't stand [Romankewiz]" and that "she hates [Romankewiz] for the way she tries to change her dad and his relationship with [her]." Similarly, during the session held immediately prior to her publicly accusing her father of molesting her, H.B. vented about Romankewiz to Parsons: "[H.B.] says she's not used to no relationship with her dad. They have always had one, [Romankewiz] got mad, the D.T. which stood for `Damned Tramp' called [her] a `Spoiled Little Bitch', and [Brown]'s `Precious Little Daughter'." In sum, the notes reveal that H.B. harbored an antipathy towards her probable stepmother much more intense than any revealed at trial.

Additionally, the notes reveal that H.B. was suicidal about two months before the alleged assault (she "stuck a gun in her mouth"), show that H.B. was not always truthful with her father (contradicting her testimony at trial), and contain a somewhat cryptic reference to H.B.'s peculiar involvement in an uncle's rape trial: "Uncle Tim Brown, dad's brother was sentenced for rape and [H.B.] gave police witness and she worries about what her uncle will do when he gets out. Uncle did not rape girl, the girl consented willing."

The district court, operating under the assumption that AEDPA deference applied, "agree[d] that defense counsel should have investigated what Ms. Parsons had to say.... Counsel could not have evaluated or weighed the risks and benefits of calling Ms. Parsons as a witness without so much as contacting her and determining what she would say if called." Brown v. Smith, No. 03-CV-73247-DT, 2006 WL 2669194, at *9 (E.D.Mich. Sept.18, 2006). Nevertheless, the district court determined that there was no prejudice, because defense counsel had already impeached the daughter's testimony to a considerable extent on cross-examination, and because much of what the daughter told Parsons was consistent with her testimony at trial—a point the prosecution would surely have emphasized. The district court concluded:

Calling Ms. Parsons as a witness would have entailed some risks. Although she might have been a good ... witness for [Brown], she also could have provided evidence favorable to the prosecution on cross-examination. The Court's confidence in the outcome of the trial is not undermined by defense counsel's failure to investigate and present Ms. Parsons as a witness.

Id. at *10. Consequently, the district court denied habeas relief.

II. Analysis

The district court erred in presuming that AEDPA's deferential standard applied to this case, and thus its conclusion as to ineffectiveness and prejudice cannot stand.² Examining Brown's habeas petition de novo, we conclude that his ineffective-assistance-of-counsel claim has merit, and that he is thus entitled to the writ.

A. Standard of Review

AEDPA requires that a state court's adjudication with respect to a habeas claim cannot be overturned unless it is contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court. 28 U.S.C. § 2254(d). This deferential standard of review, however, applies only to a claim that has been "adjudicated on the merits in State court proceedings." Ibid. Brown argues, and we agree, that his ineffective-assistance-of-counsel claim has not been "adjudicated on the merits" because the counseling notes that form the basis of the claim were not in the record before the Michigan Court of Appeals, and that court explicitly acknowledged that its review was "limited to mistakes apparent on the record." Brown, 2003 WL 133055, at *2.

This circuit has held that, in the context of a Brady claim, when the petitioner's habeas claim involves Brady material that was uncovered only during the federal habeas proceedings, AEDPA deference does not apply to an earlier, state-court Brady...