Byrd v. Skipper
| Decision Date | 08 October 2019 |
| Docket Number | No. 18-2021,18-2021 |
| Citation | 940 F.3d 248 |
| Parties | Curtis Jerome BYRD, Petitioner-Appellant, v. Greg SKIPPER, Warden, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Petitioner Curtis Byrd seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Byrd is serving life in prison without the possibility of parole for aiding and abetting a first-degree felony murder, despite the fact that the prosecutor in his case was interested in—and, indeed, would have preferred—negotiating an agreement that could have allowed Byrd to plead guilty to a lesser charge and receive a lighter sentence. Byrd argues that his counsel’s ineffectiveness deprived him of the opportunity to secure a plea deal. Specifically, he alleges that, based on an egregious misunderstanding of the law, his attorney conveyed to the prosecutor an unwillingness to consider a plea and conveyed to Byrd an assurance of acquittal—effectively halting plea negotiations before they could begin.
We find that Byrd’s counsel was deficient and that it is reasonably probable that, absent this incompetency, Byrd would have negotiated a more favorable outcome. Accordingly, we conclude that Byrd was denied his Sixth Amendment right to effective counsel, reverse the judgment of the district court, and remand the case for entry of a writ of habeas corpus unless new state proceedings consistent with this opinion are reopened within 180 days of the issuance of our mandate in this matter.
In February 2010, Byrd and his then-girlfriend, Charletta Atkinson, attempted to rob Richard Joiner at a bank ATM. Byrd, who had no criminal record to that point, suggested the plan and provided the gun, but at the last minute had a change of heart. He told Atkinson, The record is unclear as to whether Atkinson took the gun or Byrd gave her the gun. It is clear, however, that, while armed, Atkinson approached Joiner and demanded that he hand over his money. Joiner resisted and, in a struggle with Atkinson, the gun went off. Joiner suffered a fatal wound
to the head. Atkinson returned to the car and Byrd drove away. Later, the couple drove by the scene, saw that paramedics and police had arrived, and drove off. Shortly thereafter, Byrd turned himself in to the police.
Byrd and Atkinson were charged with first-degree premediated murder, first-degree felony murder, assault with intent to rob while armed, and possession of a firearm while committing a felony.1 Byrd was charged on a theory of aiding and abetting. Because Michigan law provides that an aider and abettor is subject to the same penalties as the principal, Byrd faced a mandatory sentence of life without parole.2
Atkinson, the principal defendant, negotiated a plea agreement with the prosecution, allowing her to plead guilty to charges of second-degree murder and felony firearm. She received a sentence of 30 to 50 years in exchange for providing testimony in Byrd’s trial. This outcome comports with the Wayne County prosecutor’s demonstrated record of preferring plea deals over trials.3 As David Braxton, the prosecutor in Byrd and Atkinson’s cases, explained in an evidentiary hearing in the district court, Wayne County prosecutors have a practice of waiting for defense counsel to request an offer before beginning negotiations. After a request is made, the prosecutor will develop a proposal and consult with the interested parties. Braxton testified that once a principal defendant has pleaded guilty, prosecutors have even more incentive to reach plea agreements with aiders and abettors. He also explained that, in his experience, Wayne County judges rarely reject plea agreements. Nevertheless, Byrd was denied the opportunity to accept a lesser charge and more lenient sentence because his trial counsel, Marvin Barnett, never initiated plea negotiations with the prosecutor’s office.
From the outset, Byrd’s counsel was determined to go trial. According to Byrd, Barnett met with him for approximately 30 minutes before Byrd’s preliminary hearing and for another 30 minutes the night before trial began. Byrd and Barnett also spoke on the phone once in between these meetings, at which point Barnett told Byrd about Atkinson’s plea agreement. These brief conversations comprise the entirety of Barnett’s time in preparation with Byrd in advance of trial. Byrd testified that, throughout their brief interactions, Barnett insisted that they were going to trial, assured Byrd that he would "hit a home run" for him by securing an acquittal, and that Byrd would be "going home" instead of going to prison. Byrd also asserts that during their meetings, Barnett did not review the sentencing guidelines with him and did not explain aiding and abetting or other legal concepts underlying Byrd’s case. Barnett baldly denied these allegations but also testified that he did not remember his conversations with Byrd "precisely" or "particularly." In much of his testimony, Barnett discussed his usual practices as a defense attorney, but he did not confirm whether he engaged in any specific ones in representing Byrd.4
Despite Barnett’s assurances of acquittal, Byrd specifically asked Barnett about the possibility of pleading guilty. Barnett convinced Byrd that a guilty plea was unnecessary and against his interest. In the district court, Barnett testified that he did not seek a plea deal on Byrd’s behalf because Byrd asserted his innocence and "wanted to go home." Further, Barnett apparently thought that Byrd was not guilty as a matter of law solely due to Byrd’s supposed "abandonment" of the crime.
Barnett’s reliance on the abandonment defense reflects his confusion about—and possibly his abject ignorance of—the law. Michigan requires a defendant claiming abandonment as an affirmative defense to establish "by a preponderance of the evidence voluntary and complete abandonment of a criminal purpose." People v. Akins , 259 Mich.App. 545, 675 N.W.2d 863, 873 (2003). In Akins , the Michigan Court of Appeals ruled that, despite the defendant’s protestation that he changed his mind about a robbery, his abandonment defense failed because, among other things, he "gave his gun to [the principal], knowing that it would be used to commit the robbery." Id. This act, in the eyes of the Akins court, showed that the defendant intended to aid the commission of the crime and that a jury could reasonably find him guilty of felony murder. Id.
Despite this prior case law, which virtually mirrored the facts in Byrd’s case, Barnett continued to rely on and vastly overestimate the strength of the abandonment defense. At the preliminary hearing, he moved for dismissal of the charges, describing the case to the trial judge as "real simple" and "straightforward," i.e. , a clear case of abandonment. Post-trial in the district court, Barnett once again displayed confusion about the case when he asserted his continued belief that abandonment was "an excellent defense" for his client. He went so far as to say that he believed "that Mr. Byrd should have been found not guilty."
The trial transcript demonstrates that the defense Barnett crafted for Byrd was further hindered by Barnett’s misunderstanding of accomplice liability. For instance, in closing, Barnett told the jury:
As a legal proposition, this theory is flatly wrong. Michigan law does not require an aider or abettor to intend the commission of the crime. A defendant need only have knowledge of the principal’s intent. See Michigan Compiled Laws § 767.39 ; Michigan Model Criminal Jury Instruction 8.1(3)(c) (). Moreover, Byrd’s felony-murder charge meant that the prosecutor in Byrd’s case needed to establish only that Byrd knew of Atkinson’s intention to rob the victim; not that she intended to kill him. See Michigan Compiled Laws § 750.316(1)(b) ; Michigan Model Criminal Jury Instruction 16.4(3). As long as Byrd was aware of Atkinson’s plans, his actions in support of those plans need not have been considerable because "[t]he amount of advice, aid or encouragement is not material if it had the effect of inducing the commission of the crime." People v. Palmer , 392 Mich. 370, 220 N.W.2d 393, 397 (1974). Thus, a decidedly low evidentiary threshold stood between Byrd and conviction for aiding and abetting felony murder.
Not surprisingly, the abandonment defense failed at trial. Byrd was convicted of first-degree felony murder, assault with intent to rob, and felony firearm, and he was sentenced to life imprisonment without the possibility of parole.5 Michigan courts denied Byrd’s direct appeal of his conviction and rejected his motion for post-conviction relief. He then made his way to federal court seeking a writ of habeas corpus.
The district court dismissed all of Byrd’s claims except one: ineffective assistance based on Barnett’s alleged misunderstanding of the law and resultant failure of representation at the pleading stage. Following an evidentiary hearing, the district determined that, although Byrd’s petition "allowed for the possibility that Barnett performed deficiently," Byrd did not make a sufficient showing of prejudice because it was not clear that Byrd would have accepted a plea. Byrd v. Bauman , No. 15-13528, 2018 WL 4005549, at *5 (E.D. Mich. Aug. 22, 2018). The court denied Byrd...
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