Foster v. Wolfenbarger

• Decision Date: 20 July 2012
• Docket Number: No. 10–2023.,10–2023.
• Citation: 687 F.3d 702
• Parties: Demetrius FOSTER, Petitioner–Appellant, v. Hugh WOLFENBARGER, Warden, Respondent–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

687 F.3d 702

Demetrius FOSTER, Petitioner–Appellant,

v.Hugh WOLFENBARGER, Warden, Respondent–Appellee.

No. 10–2023.

United States Court of Appeals,Sixth Circuit.

Argued: March 1, 2011.

Decided and Filed: July 20, 2012.

ARGUED:Phillip D. Comorski, Detroit, Michigan, for Appellant. Laura Graves Moody, Office of the Michigan Attorney General, Lansing, Michigan, for Appellee. ON BRIEF: Chari Grove, State Appellate Defender Office, Detroit, Michigan, for Appellant. Laura A. Cook, Office of the Michigan Attorney General, Lansing, Michigan, for Appellee.

Before: COLE and STRANCH, Circuit Judges; CARR, District Judge. ^*

OPINION

COLE, Circuit Judge.

Demetrius Foster was convicted of second-degree murder in connection with the shooting death of Bobby Morris. After trial, the Michigan trial court conducted a Ginther hearing and concluded that Foster's trial counsel was ineffective for failing to raise an alibi defense, stemming primarily from the testimony of a witness who said that Foster was with him at the time of the killing. The Michigan Court of Appeals, however, concluded that the failure to raise the alibi defense was an exercise of sound trial strategy by Foster's trial counsel. On habeas review, the district court held that Foster's trial attorney was deficient for failing to raise the alibi defense, but that the deficiency did not prejudice Foster. We AFFIRM the district court with respect to the deficient performance finding, REVERSE with respect to the prejudice determination, and GRANT a conditional writ of habeas corpus giving the State of Michigan 180 days to retry Foster or, failing that, to release him.

I. BACKGROUND

Around 11 p.m. on the evening of November 16, 1998, Foster went to the home of Monique Brassell in Detroit, Michigan. People v. Foster, No. 226311, 2003 WL 1558238, at *1 (Mich.Ct.App. Mar. 25, 2003) (unpublished). Brassell testified that she had never met Foster prior to that evening. Id. At approximately 1 a.m. on November 17, Brassell and Foster decided to have sex in an upstairs room. An hour later, Bobby Morris arrived at the Brassell home, accompanied by three friends, Deborah Hollins, Javan Carter, and Jerry Wallace. Id. Morris was the former long-term boyfriend of Brassell and father of Brassell's children. Morris began banging on the outside door, and pushed past Brassell when she opened it. Morris assaulted Brassell, and, after leaving the Brassell home, smashed the back window of Foster's late-model Ford Bronco truck with a sledgehammer. Id. Brassell later testified that Foster was angry over the damaged window. Brassell also testified that Foster overheard her telling police officers where Morris lived. Id.

After leaving the Brassell home, Hollins began driving Morris, Carter, and Wallace home. As Hollins drove down Flanders Street to Morris's home at approximately 2:45 a.m., she observed an individual walking alongside the car on the sidewalk, wearing a green jacket. Id. When Hollins stopped the car in front of Morris's home, the man approached the car on the driver's side. The man had a gun, and Hollins identified him at trial as Foster.¹Id. The assailant fired multiple shots at Morris as he tried to flee the car. Hollins, Carter, and Wallace fled the scene. Police officers later found Morris, unconscious, with at least one gunshot wound. Morris was pronounced dead upon arrival at the hospital. Id.

Foster was charged with first-degree murder. Foster's primary defense at trial was mistaken identification by Hollins. Prior to trial, Arthur Daniels sent a letter to Foster's trial counsel, claiming that Foster was at his home from 2:15 to 6 a.m. on the day of the shooting. Foster's trial counsel eventually spoke to Daniels over the telephone for roughly fifteen to twenty minutes. Daniels was not called as a witness during trial. After initially deadlocking, the jury eventually returned a guilty verdict on the lesser included charge of second-degree murder.

On appeal, Foster requested a remand to the trial court, pursuant to People v. Ginther, 390 Mich. 436, 212 N.W.2d 922 (1973), for consideration of whether his trial counsel was ineffective for failing to call Daniels as a witness. The Michigan Court of Appeals granted the request for a Ginther hearing. At the hearing, the trial court took the testimony of Daniels and Foster's trial counsel. The court concluded that Foster's counsel was deficient for failing to raise an alibi defense, that this deficiency prejudiced Foster, and that Foster should have a new trial. The Michigan Court of Appeals vacated the new trial order on procedural grounds, and ruled that the decision not to call Daniels was a function of sound trial strategy on the part of Foster's counsel, and thus Foster's counsel was not ineffective. Foster, 2003 WL 1558238, at *6–7. The Michigan Supreme Court denied leave to appeal. People v. Foster, 471 Mich. 895, 688 N.W.2d 83 (2004) (table decision). Foster unsuccessfully sought post-conviction relief under Michigan law. See People v. Foster, No. 264647 (Mich.Ct.App. Mar. 23, 2006) (unpublished); People v. Foster, 476 Mich. 865, 720 N.W.2d 281 (2006) (table decision).

Foster filed his amended petition for habeas corpus in federal court on September 21, 2006, raising a number of claims including ineffective assistance of trial counsel for the failure to mount an alibi defense. On March 3, 2009, a magistrate judge issued a Report and Recommendation, recommending denial of the petition on all counts. The district court modified the magistrate judge's Report, holding that Foster's trial counsel was deficient in failing to mount an alibi defense, but that this deficiency did not prejudice Foster in light of the “substantial” evidence of his guilt. Therefore, the district court denied the petition, but issued a Certificate of Appealability on the ineffective assistance of counsel question. This appeal followed.

II. ANALYSIS

A. Standard of Review

“In a habeas proceeding, we review de novo the district court's legal conclusions, including its ultimate decision to grant or deny the writ, and we review for clear error its factual findings.” Satterlee v. Wolfenbarger, 453 F.3d 362, 365 (6th Cir.2006). A factual finding by the district court “is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Id. at 366 (quoting Norris v. Schotten, 146 F.3d 314, 323 (6th Cir.1998)) (internal quotation marks omitted).

However, as Foster's conviction became final after April 24, 1996, his petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”):

Under AEDPA, a federal court may grant a writ of habeas corpus with respect to a “claim that was adjudicated on the merits in state court proceedings” if the state court's decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” A habeas petition may also be granted if the state court's decision “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”

Murphy v. Ohio, 551 F.3d 485, 493 (6th Cir.2009) (quoting 28 U.S.C. § 2254(d)(1)-(2)). “A state-court decision is contrary to clearly established federal law if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases or if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [that] precedent.” Id. at 493–94 (quoting Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)) (alterations in original) (internal quotation marks omitted). An unreasonable application of federal law is one where the state court either “correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case,” id. at 494 (quoting Williams, 529 U.S. at 407–08, 120 S.Ct. 1495), or “either unreasonably extends or unreasonably refuses to extend a legal principle from Supreme Court precedent to a new context,” id. (quoting Seymour v. Walker, 224 F.3d 542, 549 (6th Cir.2000)).

The only issue before us is whether Foster's counsel was ineffective for failing to raise an alibi defense during trial. For ineffective assistance of counsel claims, the Supreme Court explained in Strickland v. Washington, “[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also Matthews v. Parker, 651 F.3d 489, 507 (6th Cir.2011)(quoting Strickland ). The Matthews court stated:

[T]o prevail on an ineffective assistance of counsel claim, a petitioner must demonstrate that counsel's representation fell below an objective standard of reasonableness and that the [petitioner] was prejudiced by the ineffective assistance of counsel. Representation is deficient, under the Strickland test, when counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. Moreover, to satisfy the prejudice prong of Strickland, a petitioner need not show that counsel's deficient conduct more likely than not altered the outcome in the case, rather, only that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Id. at 507–08 (internal citations and quotation marks omitted). Thus, a petitioner seeking a writ of habeas corpus based on ineffective assistance of trial counsel must show: (1...