Dando v. Yukins

• Decision Date: 30 August 2006
• Docket Number: No. 04-1691.,04-1691.
• Citation: 461 F.3d 791
• Parties: Debra DANDO, Petitioner-Appellant, v. Joan YUKINS, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

461 F.3d 791

Debra DANDO, Petitioner-Appellant, v. Joan YUKINS, Warden, Respondent-Appellee.

No. 04-1691.

United States Court of Appeals, Sixth Circuit.

Argued: April 28, 2006.

Decided and Filed: August 30, 2006.

COPYRIGHT MATERIAL OMITTED

ARGUED: Carol Wright, Columbus, Ohio, for Appellant. Janet A. VanCleve, Office of the Attorney General, Lansing, Michigan, for Appellee. ON BRIEF: Carol Wright, Columbus, Ohio, for Appellant. William C. Campbell, Office of the Attorney General, Lansing, Michigan, for Appellee.

Before: MARTIN, GUY, and CLAY, Circuit Judges.

MARTIN, J., delivered the opinion of the court, in which CLAY, J., joined.

GUY, J. (pp. 802-805), delivered a separate dissenting opinion.

OPINION

BOYCE F. MARTIN, JR., Circuit Judge.

Debra Dando appeals the district court's denial of her habeas corpus petition. Dando had been involved in a crime spree with her boyfriend, and pled no contest to several counts of robbery and related charges. Dando later sought unsuccessfully to vacate her plea. Her habeas petition challenged the Michigan state courts' denial of her request for a mental health expert and her claim of ineffective assistance of counsel. For the following reasons, we reverse the district court's denial of her habeas petition.

I.

The district court found the following uncontested facts regarding the crimes to which Dando pled no contest:

On January 28, 2000, Petitioner Debra Dando and her boyfriend Brian Doyle committed a string of armed robberies and assaults in Oakland County, Michigan. At approximately, 6:10 a.m., Petitioner requested a ride from George Cubitt in White Lake Township. Mr. Cubitt drove Petitioner to the Kroger store in White Lake as she requested. Doyle followed Mr. Cubitt and Petitioner in his pickup truck. When Mr. Cubitt stopped at the Kroger store, Doyle confronted him with a sawed off shotgun. Mr. Cubitt was robbed of his wallet and car keys and Petitioner and Doyle fled in Doyle's truck.

At approximately 6:46 a.m., Petitioner attempted to use two of Mr. Cubitt's stolen credit cards at an Amoco Gas Station in Waterford Township to purchase gasoline. Both of the credit cards were rejected by the Amoco station and Petitioner and Doyle fled the gas station in their truck with [out] paying for $ 32.00 in gasoline.

At approximately 7:15 a.m., Doyle attempted the armed robbery of Cheryl Gibbons at the Mobil gas station in Pontiac. Petitioner and Doyle were inside their truck at the gas station parking lot. Ms. Gibbons, a customer of the gas station, had re-entered her motor vehicle when Doyle approached her and put the sawed off shotgun to her cheek. Doyle told Ms. Gibbons to move over inside of her car, but Ms. Gibbons refused to comply and exited her vehicle. Doyle yelled at Ms. Gibbons to give him her money. When Ms. Gibbons refused to comply, Doyle ran back to the truck and Petitioner drove away with him from the gas station.

At approximately 9:06 a.m., Scott Cooper was sitting in his motor vehicle at the parking lot the Great Lakes Crossing Shopping Mall in Auburn Hills. Petitioner drove Doyle's truck and parked behind Mr. Cooper's vehicle. Doyle exited the truck and put the sawed-off shotgun to Mr. Cooper's face and robbed him of his wallet and car keys. Doyle re-entered the truck and Petitioner drove away from the crime scene.

At approximately 12:30 p.m., Petitioner and Doyle drove to Shanigan's restaurant in Pontiac. Doyle entered the restaurant and pointed the sawed-off shotgun at a waitress, Jennifer Sanchez, demanding her money. Ms. Sanchez refused to comply with this demand and ran into the kitchen to call the police. Doyle left without obtaining any money and he and Petitioner drove to a nearby party store.

Petitioner was seen walking into a party store where Mitchell Figa was working behind the counter. Petitioner asked Mr. Figa if he was the only person present and then left. Doyle entered the store and committed armed robbery of Mr. Figa with the sawed-off shotgun, obtaining $100.00 from Mr. Figa. Petitioner drove away from the party store.

Several law enforcement agencies became engaged in an attempt to apprehend Petitioner and Doyle. During the late afternoon hours of January 28, 2000, Petitioner and Doyle were spotted in their truck by a Waterford Township police officer. A traffic stop of the truck was attempted and Petitioner exited the truck and began to flee. The officer was subsequently confronted by Doyle who was still in possession of the sawed-off shotgun. Doyle was fatally shot by the officer who was forced to act in self-defense. Petitioner was apprehended in her flight on foot a short while later.

D. Ct. Op. at 2-4.

After Dando was apprehended on January 28, 2000, she waived her Miranda rights and confessed to participating in the robberies. She received appointed counsel, who subsequently recommended that she plead no contest to all charges. According to Dando, she informed her attorney that she had a long history of violent sexual and physical abuse and that Doyle beat her and threatened to kill her immediately before she participated in the robberies. She requested that counsel seek a mental health expert before she enter a no contest plea. Counsel allegedly refused to request expert assistance, explaining that an expert would cost too much money. Counsel also allegedly continued to insist that Dando enter a no contest plea. On March 12, 2000, Dando followed her attorney's advice and pled no contest to three counts of armed robbery, one count of conspiracy to commit armed robbery, two counts of assault with intent to rob while armed, and two counts of unlawful possession or use of a financial transaction device. The plea was entered pursuant to a Cobbs agreement, whereby the circuit court agreed to sentence Dando at the low end of the state's sentencing guidelines. On April 24, 2000, the circuit court sentenced Dando to ten to thirty years imprisonment, explaining:

Miss Dando's 30, and certainly by sentencing her at the low end of the guidelines we are recognizing the fact that she was apparently misused by Mr. Doyle, but I've indicated on the record already she had several opportunities to remove herself from that and cease in the agreement to perpetrate these crimes ...

Sentencing Hr'g Tr. at 13.

On May 22, 2000, Dando obtained new counsel for the appeals process. On January 17, 2001, Dando's appellate counsel moved in the Michigan circuit court for the appointment of an expert on Battered Woman's Syndrome to assist with the appeals process. The motion indicated that Petitioner was considering whether to move to withdraw her plea and enter a duress defense based on Battered Woman's Syndrome. Along with the motion, Dando submitted three affidavits, one from her aunt, Barbara Ditch, one from a friend, Luther Early, and one from herself. The affidavits documented a history of physical and sexual abuse.

The circuit court held a hearing on the motion on January 24, 2001. At the hearing, appellate counsel explained that she needed an expert to assess whether Dando should move to withdraw her no contest plea. The circuit court construed the request as one for an expert to assist with an ineffective assistance of counsel claim, presumably because Dando would need such a claim to withdraw her plea. The circuit court denied this request, holding that Dando had not received ineffective assistance of counsel. The court reasoned that Dando's trial counsel had made a strategic choice to recommend a no contest plea and that this strategic choice was "very appropriate" in light of the lessened sentence.

On March 1, 2001, Dando filed a "delayed application for leave to appeal" and a "motion to remand to permit Petitioner to withdraw her plea" with the Michigan Court of Appeals. In the application for leave to appeal, Dando argued that the trial court abused its discretion in denying her motion for an expert on Battered Woman's Syndrome because counsel needed the assistance of a Battered Woman's Syndrome expert in determining whether she should move to withdraw her plea. The motion expressly stated that Dando's trial counsel was "ineffective for failing to request an expert witness prior to determining how Ms. Dando should proceed." The Michigan Court of Appeals denied both motions, stating that the application for leave to appeal was denied "for lack of merits in the grounds presented." The Michigan Supreme Court subsequently denied leave to appeal.

Dando filed a petition for writ of habeas corpus on July 22, 2002 with the United States District Court for the Eastern District of Michigan, claiming "the trial court abused its discretion when it denied the motion for payment of a Battered Woman's Syndrome expert on appeal." The district court noted that an abuse of discretion claim based on the state's rules of evidence is not a recognized basis for habeas relief, as it only involves a question of state law. D. Ct. Op. at 10. However if the state courts' rulings amounted to "a functional denial of the right to present a meaningful defense," the decision constituted a violation of Dando's Sixth Amendment rights, and presented a ground for federal habeas relief. Id. Further, Dando's claim that her trial counsel was ineffective for failing to investigate a duress defense was another cognizable ground for federal habeas relief under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Id.

Ultimately, however, the district court denied the writ, reasoning that duress was not a tenable defense on the facts of Dando's case. Id. at 11-17. Consequently, the district court determined that Dando was not prejudiced either by her counsel's failure to pursue a duress defense, or the denial of a mental health expert, and that there was no basis to grant habeas relief on either ground. Id. at 17-18. The district court also reasoned that since a duress defense "would have been hopeless," Dando had no legitimate grounds to...