Byrd v. Bauman

• Decision Date: 22 August 2018
• Docket Number: Case No. 15-13528
• Parties: CURTIS JEROME BYRD, Petitioner, v. CATHERINE BAUMAN, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

CURTIS JEROME BYRD, Petitioner, v. CATHERINE BAUMAN, Respondent.

Case No. 15-13528

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

August 22, 2018

Honorable Laurie J. Michelson

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS [17]

Curtis Byrd seeks a writ of habeas corpus. Previously, the Court denied all but one of Byrd's claims. In the surviving claim, Byrd alleges he was denied the effective assistance of trial counsel when his lawyer, Marvin Barnett, ignored a request to seek a plea and took the case to trial. And at trial, a jury convicted Byrd of felony murder, among other things, leading to a mandatory life sentence Byrd says he wished to avoid.

When Byrd filed his petition, the record pertaining to his ineffective-assistance claim contained only Byrd's side of the story. Byrd's affidavit indicated that he directed Barnett to seek a plea "prior to trial." Barnett refused. And Byrd's appellate counsel's affidavit suggested that Byrd's claim had merit. But the Court needed to know more. So on December 19, 2017, the Court held an evidentiary hearing to hear from Barnett and others.

Now, having reviewed the pleadings, the evidentiary hearing transcript, and the state court record, the Court denies Byrd's remaining claim.

I.

The Court has previously recited the facts underlying Curtis Byrd's conviction. See Byrd v. Bauman, No. 15-13528, 2017 WL 4098823 (E.D. Mich. Sept. 15, 2017). The following factual narrative, based on the testimony at the evidentiary hearing, picks up where the prior opinion left off.

A.

Marvin Barnett does not remember much about Curtis Byrd's 2010 case. (See, e.g., R. 25, PageID.2264-2265.) He could not locate a case file, could not remember how many times he met with Byrd pre-trial, and could not recall how long he spent discussing the case with Byrd. (Id. at PageID.2265-2266.) But Barnett could remember some discussions he had with Byrd about the state's case, conversations that likely took place at the Wayne County Jail. (Id. at PageID.2266.)

Barnett said any discussions he had with Byrd probably tracked his normal approach to criminal litigation. Barnett said he understands that the client "driv[es] the train." (R. 25, PageID.2322.) So upon taking any case, Barnett would normally sit down with his client and discuss "what was strong about the case, what was weak about the case." (Id. at PageID.2270.) And as part of his preliminary discussions, Barnett usually informed a client "about the consequences of going to court, what would happen if he were convicted." (Id. at PageID.2270.) Because the consequences of conviction could be severe, Barnett said he made it his "practice to make sure that the defendant understood the case not only factually but understood the legal issues related to the case." (Id.) All told, he insisted, he does "a very good job of discussing intimately the case."¹ (Id. at PageID.2307.)

Barnett also relayed his general approach to plea bargaining. Barnett understood it to be his "obligation" to seek a plea if a client asked for one. (R. 25, PageID.2344-2345.) And according to Barnett, "[i]f there is one thing you can do in Wayne County without objection, it is plea to a crime." (Id. at PageID.2325.) Barnett thought Wayne County was a "plea-bargaining machine" (Id. at PageID.2322), meaning if a client wanted "to plea, then there is going to be a plea." (Id. at PageID.2325). And Barnett said that "unless the defendant was of the mind that he did not want to entertain a plea, I certainly would have made some inquiry as to whether or not the People of the State of Michigan wanted to make a plea." (Id. at PageID.2274-2275.) If the state were ever to extend an offer, Barnett said he would certainly "bring that to the attention of the defendant." (Id. at PageID.2275.) Likewise, Barnett understood it to "be a violation of my oath" to take a case to trial over a client's objection. (Id. at PageID.2333-2334.) So Barnett "would never prevent anybody from entering into a plea if they wanted to plea." (Id. at 2332, 2335.)

But in Byrd's case, Barnett does not remember Byrd ever asking for a plea. (R. 25, PageID.2324.) Had Byrd wanted a plea, Barnett said, he would have inquired about one and would not have talked Byrd out of it. (Id. at PageID.2343-2345.) Instead, Barnett remembered Byrd persuasively proclaiming his innocence. (Id. at PageID.2347 ("I thought Mr. Byrd was innocent. That's all he said to me[.]"); id. at PageID.2332 ("And so [Byrd] was clear. He didn't do it. I believed he didn't do it.").) Barnett believed Byrd. (Id. at PageID.2274, 2306, 2325, 2327, 2332.) And because Byrd insisted on his innocence, Barnett recalled Byrd wanting "to go home." (Id. at PageID.2324; id. at PageID.2332 ("I don't know where this plea stuff is coming from. It is my firm conviction that Mr. Byrd was terrified of being in jail . . . Mr. Byrd was trying not to go to prison."); id. at PageID.2321 ("I thought he was innocent and trying to get out of jail.").) As Byrd's repeated claims of innocence combined with a desire to go home were inconsistent with pleadingguilty, Barnett was sure Byrd never asked Barnett for a plea. (Id. at PageID.2323, 2325, 2334.) So Barnett denied taking the case to trial over Byrd's objection. (Id. at PageID.2347-2348.) Instead, Barnett understood Byrd to want to fight the charges (id. at PageID.2332) and Barnett committed himself to "doing everything we can to win the case" (Id. at PageID.2325)

"Doing everything" to win the case meant mounting a defense. And based on what Byrd told him, (id. at PageID.2269) Barnett believed abandonment was a viable defense (id. at PageID.2326-2328). Yet Barnett understood that because Byrd's "was a complicated case, lots of issues involved[,]" winning on abandonment was not a given. (R. 25, PageID.2331-2332.) Barnett appreciated the risk involved in sending Byrd's case to a jury. (Id. at PageID.2328-2329). Yet risk aside, Barnett reiterated that Byrd wanted nothing to do with a plea, focused as Byrd was on an acquittal. (Id. at PageID.2331-2332.) So Byrd's case went to the jury. (Id. at PageID.2331.)

B.

The prosecutor's recollection of Byrd's case squared with Barnett's memory. The prosecutor said Barnett never asked for plea, (R. 25, PageID. 2219), so the state never offered one, and based on conversations with Barnett, the prosecutor did not think Byrd was interested in a plea (R. 25, PageID.2228-2229). However, the prosecutor said he would have been amenable to offering Byrd a plea to second-degree murder. (Id. at PageID.2219-2221.) And pleading to second-degree murder would have avoided a mandatory life sentence. (Id.at PageID.2221.)

C.

Byrd remembered things slightly differently. Prior to his arrest, Byrd had never been in much trouble. (R. 25, PageID.2351-2352, 2370.) And when trouble came, his family hired Barnett. (Id. at PageID.2351.) Byrd remembered meeting Barnett for the first time at the Wayne County Jail, before his preliminary examination. (Id. at PageID.2352.) Byrd said they talked for 30minutes. (Id.) After that, Byrd saw Barnett once more, the day before Byrd's trial, again for a 30 minute discussion. (Id. at PageID.2353.) In between, the two spoke over the phone once. (Id. at PageID.2354.)

Byrd remembered some of the substance of his conversations with Barnett. Generally, Byrd said Barnett highlighted the possibility of a life sentence, given Byrd's charges. (R. 25, PageID.2353-2354.) But most of the time, Barnett talked to Byrd "real bad." (Id. at PageID.2354.)

And more broadly, Byrd continued to profess his innocence. Byrd reiterated his belief that he was not guilty of murder because he did not intend to kill anyone. (R. 25, PageID.2362.) He certainly never meant for any murder to happen, and believed he abandoned his intent to rob someone once he arrived at the bank. (Id. at PageID.2364.) So Byrd said the whole time what he really wanted was "to get acquitted." (Id. at PageID.2365.)

Even so, Byrd remembered asking for a plea. But, said Byrd, Barnett brushed his request (or requests) aside and advised Byrd to go to trial. (R. 17, PageID.2355, 2358, 2363, 2367.)

Yet when asked to explain when he told Barnett to seek a plea, Byrd vacillated. (R. 25, PageID.2354). He provided the following inconsistent testimony: Byrd said he first asked in the middle of trial or at the preliminary examination; (id., at PageID.2362-2363, 2365-2367); Byrd reiterated that he asked in the middle of trial; (id., at PageID.2362, 2364, 2368); Byrd said he sought a plea on the phone call with Barnett; (id., at PageID.2374); Byrd said he never discussed a plea on the phone call with Barnett; (id. at PageID.2374-2376); Byrd returned to saying the first and only time he asked for a plea was in the middle of trial (id. at PageID.2374.) And in his affidavit, Byrd says he told Barnett to initiate plea negotiations "[p]rior to trial" after learning of his codefendant's plea. (R. 17, PageID.1896.)

All told, Byrd was most consistent in saying that the first and only time he asked about a plea was in the middle of trial. (R. 25, PageID.2354, 2362, 2363, 2367, 2374.) Byrd's trial began on a Monday. (Id. at PageID.2367.) As he "saw the case going on," Byrd recognized he "didn't have a good defense" (id. at PageID.2365), a realization that dawned on him when he heard his codefendant's testimony (id. at 2375-2376). So on Wednesday, Byrd said he asked Barnett—for the first time—to seek a plea. (Id. at PageID.2365-2366, 2374-2375.) But Byrd said Barnett told him not to worry, Barnett would "hit a home run" and Byrd would go home. (Id. at PageID.2375.) At that point Byrd said he told Barnett, "[g]o ahead on. Go ahead and go forward with the trial." (Id.) So the trial went on, and on Friday, Byrd was convicted. (Id. at PageID.2376.)

D.

Michael Mittlestat represented Byrd on appeal. Early on, Mittlestat met with Byrd and remembered Byrd telling him about Barnett. (Id. at PageID.2251-2252.) Byrd told Mittlestat...