English v. Romanowski
| Decision Date | 15 April 2010 |
| Docket Number | No. 08-2611.,08-2611. |
| Parties | Billy Joe ENGLISH, Petitioner-Appellee, v. Kenneth ROMANOWSKI, Respondent-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
COPYRIGHT MATERIAL OMITTED
ARGUED: Laura G. Moody, Office of the Attorney General, Lansing, Michigan, for Appellant. Todd A. Shanker, Federal Defender Office, Detroit, Michigan, for Appellee. ON BRIEF: Laura G. Moody, Office of the Attorney General, Lansing, Michigan, for Appellant. Todd A. Shanker, James R. Gerometta, Federal Defender Office, Detroit, Michigan, for Appellee.
Before KENNEDY, MOORE, and SUTTON, Circuit Judges.
KENNEDY, J., delivered the opinion of the court, in which SUTTON, J., joined. MOORE, J. (p. 730), delivered a separate opinion concurring in part and dissenting in part.
Respondent-Appellant Warden Kenneth Romanowski appeals the district court's decision to grant Petitioner-Appellee Billy English conditional habeas relief. The district court found that English was entitled to habeas relief because his trial counsel rendered him ineffective assistance in violation of the Sixth Amendment when he failed to call a witness after promising her to the jury, or alternatively, when he failed to properly investigate the case. For the following reasons, we REVERSE in part and AFFIRM in part the district court's grant of habeas relief to English based on his ineffective-assistance-of-counsel claims.
On the night of April 28, 2002, a fight broke out between Petitioner-Appellee Billy English and one Ronald Higdon in an apartment at 19 Clark Street ("Clark Street apartment" or "apartment") in Pontiac, Michigan. The fight resulted in Higdon sustaining multiple stab wounds requiring an ambulance trip to the hospital and over 100 stitches. After a police investigation of the incident, the government charged English with assault with intent to murder and carrying a concealed weapon. English pleaded not guilty and proceeded to trial. At trial, the government and the defense presented substantially different versions of the facts.
The prosecution's theory of the case was that English committed an unprovoked and violent attack on Higdon. Although the prosecution offered the testimony of multiple witnesses to support its case,1 the witness testimony relevant to the issues before this Court is that of Ronald Higdon, Daniel Lamont, and Kevin Whitehouse.
Ronald Higdon testified that, in the months leading up to the attack, he had been living at the Clark Street apartment with his then-girlfriend Lydia Ceruti,2 Lydia's three children,3 and one Daniel Lamont, a friend of Higdon who had moved into the apartment when he did. However, on April 28, 2002, the date of the incident, Higdon and Ceruti were no longer involved in an intimate relationship and Higdon was scheduled to move out of the apartment on May 3, 2002. At this time, Higdon was aware not only that Ceruti had recently become romantically involved with English, but also that English was actually the father of Ceruti's youngest child, Brice, who was conceived at a time when Ceruti was cohabitating with Higdon.
At approximately 9:30 p.m., Higdon saw English, Ceruti, and Brice sitting in a car in front of the Clark Street apartment.4 Higdon went up to the car and had a brief conversation with Ceruti. Higdon then left for a period of time, at which point English, Ceruti, and Brice entered the apartment. Later in the evening, Higdon returned to the area and went up to the apartment. The apartment was the second-floor unit of a two-unit, two-floor apartment building. Two doors needed to be unlocked in order to gain access to the apartment in question. According to Higdon, he used a key to open the first door, then used a standard household butter knife to "jimmy open" the second door. According to Higdon, the lock to this second door was broken and always had to be jimmied open. After Higdon opened these doors and entered the apartment, he noticed that Ceruti and the three children were present along with English, who was sitting on the edge of a pull-out sofa bed that had been opened in the middle of the family room. Daniel Lamont was also present in the apartment at this time. According to Higdon, as he entered the apartment, he immediately placed the butter knife he used to open the second door on the entertainment center in the family room. He then went up to English and started a conversation about the children. At the end of the conversation, Higdon offered to shake hands. English originally refused but then agreed after Higdon asked a second time. Higdon then turned his back to English and walked toward Ceruti, who was standing at or near the door leading out of the apartment. Higdon began talking to Ceruti, apparently asking her to let him stay for a few extra days. During the conversation, Higdon unexpectedly felt an extreme pain in his lower back that he described as a burning and stinging sensation. He turned around and saw English standing before him with a knife in his hand. Higdon testified that he then grabbed English's hand and threw English against the wall. Just as Higdon was about to get the knife out of English's hand, English pulled out another knife with his other hand and started slashing at Higdon. Higdon was cut multiple times on his face and hands. Higdon also testified that during the fight, English repeatedly said, "I'm going to kill you."
At some point during the altercation, Higdon became weak (apparently from blood loss), released English and went into one of the bedrooms, slammed the door, and leaned his body against the door so that English could not enter the room. Higdon then used a cell phone to call 911. Higdon testified that while he was waiting for the police to arrive, he could hear English on the other side of the door, yelling that "if I open the door or if I come out out of that room, that he's going to give me some more of what I just got ... that this time he's going to kill me." An ambulance eventually arrived, and Higdon was taken to a nearby hospital for treatment.5
Daniel Lamont, who is legally deaf and testified with the aid of a qualified sign language interpreter, essentially corroborated Higdon's testimony. Lamont, a friend of Higdon, was also living in the Clark Street apartment in April 2002 and was present at the apartment when the fight occurred. Lamont testified that Higdon had been at the apartment earlier in the day but had left for a period of time in the evening. While he was gone, the police came to the apartment with Ceruti in search of Higdon but left when they determined that he was not there. Some time after the police had left, Higdon returned to the apartment and noticed English sitting on the pull-out bed. Higdon approached English and had a brief conversation with him. Higdon then turned, walked to Ceruti, and began asking if he could stay for a few extra days.6 Higdon had his hands in his pockets during this conversation. According to Lamont, Higdon did not have a knife on his person. Eventually, English got up, walked over to Higdon, and stabbed him with a knife.7 Higdon and English then struggled over the knife before English pulled another knife and slashed at Higdon with it. Higdon then escaped to a bedroom, and English stood outside the room, telling Higdon to come out of the room so that they could continue to fight.
Lamont also testified that while Higdon was in the bedroom, English and Ceruti had a brief conversation that ended in Ceruti grabbing a knife from the kitchen and throwing it on the floor near the bedroom where Higdon was hiding. Lamont also claimed that he received threats from both Ceruti and English before trial about his testimony. At the preliminary examination, Lamont testified that Ceruti asked him to change his story. At the trial, Lamont testified that two days after the preliminary examination, Ceruti and English both approached Lamont, accused him of allowing Higdon into the apartment on the night of the fight, attempted to take his keys, and pushed and shoved him. According to Lamont, English eventually said that Lamont was "not worth it" and let him go.
Kevin Whitehouse, the third damaging prosecution witness, was Higdon's brother-in-law.8 Whitehouse was not a witness to the attack. Rather, he testified that he had received a phone call from English some time after the attack, in which English told Whitehouse that he "wished he would have killed the son of a bitch." Whitehouse also testified that he received threats from Ceruti regarding his expected testimony at trial. He claimed that he received at least thirteen phone calls from Ceruti, which included threats that she would send her people to his house, presumably to harm him.
The defense's theory of the case was self-defense, and it attempted to present a version of the facts consistent with that theory. In his opening statement, defense counsel stated to the jury that it would hear from Lydia Ceruti, who would testify that Higdon was attempting to hit her when English attacked him. However, when the defense actually presented its case, defense counsel did not call Ceruti as a witness. Instead, English's attorney opted to call only Billy English himself.
A. Billy English's Testimony
English testified that at around 5:00 p.m. on April 28, 2002, Ceruti came to his house with her son, Brice, and asked to use English's cell phone to call the police. After she called the police, English, Ceruti, and Brice drove back to the Clark Street apartment and waited in Ceruti's car for the police to arrive. While they were waiting, they saw Higdon twice. The first time, Higdon walked up to the driver side where Ceruti was sitting and asked to talk to her. When she refused, he left. Later,...
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