Gabrion v. United States

• Decision Date: 04 August 2022
• Docket Number: 18-2382
• Citation: 43 F.4th 569
• Parties: Marvin Charles GABRION, II, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

43 F.4th 569

Marvin Charles GABRION, II, Petitioner-Appellant,

v.UNITED STATES of America, Respondent-Appellee.

No. 18-2382

United States Court of Appeals, Sixth Circuit.

Argued: May 24, 2022

Decided and Filed: August 4, 2022

ARGUED: Monica Foster, INDIANA FEDERAL COMMUNITY DEFENDERS, INC., Indianapolis, Indiana, for Appellant. Timothy P. VerHey, UNITED STATES ATTORNEY'S OFFICE, Grand Rapids, Michigan, for Appellee. ON BRIEF: Monica Foster, Jean E. Giles, Joseph M. Cleary, INDIANA FEDERAL COMMUNITY DEFENDERS, INC., Indianapolis, Indiana, Scott Graham, SCOTT GRAHAM PLLC, Portage, Michigan, for Appellant. Timothy P. VerHey, Jennifer L. McManus, UNITED STATES ATTORNEY'S OFFICE, Grand Rapids, Michigan, for Appellee.

Before: BATCHELDER, MOORE, and GIBBONS, Circuit Judges.

BATCHELDER, J., delivered the opinion of the court in which GIBBONS, J., joined. MOORE, J. (pp. 590-94), delivered a separate opinion concurring in part and dissenting in part.

ALICE M. BATCHELDER, Circuit Judge.

This is an appeal from the denial of a 28 U.S.C. § 2255 motion for relief. We granted a certificate of appealability (COA) on four issues: an ineffective-assistance-of-counsel (IAC) claim concerning an alleged conflict of interest, a Brady claim concerning the FBI's method of analyzing hair samples, an IAC claim concerning the investigation at the guilt stage, and an IAC claim concerning the mitigation investigation and presentation at the penalty stage.

We find no merit to any of these claims and AFFIRM.

I.

In August 1996, Marvin Gabrion, then 43 years old, raped 19-year-old Rachel Timmerman. It is believed that shortly after his arrest and release on bond, Gabrion murdered Wayne Davis, a named witness to the rape. Davis's corpse was later found in a remote lake near Gabrion's home.

In June 1997, just days before the rape trial was set to begin, Gabrion murdered Timmerman and likely murdered her 11-month-old baby, Shannon Verhage. Shannon's body has never been found. But a month later, two fishermen found Timmerman's corpse tangled in some weeds in Oxford Lake, in the Manistee National Forest. Her eyes and mouth, but not her nose, had been wrapped in duct tape. Her hands were handcuffed behind her back, and chains were wrapped around her body and attached to cinderblocks. It is believed that a short time later, Gabrion murdered his accomplice, John Weeks, who persuaded Timmerman to accompany him on a date, and to bring Shannon with her, and then delivered them both to Gabrion. Weeks's body has never been found.

In October 1997, the FBI apprehended Gabrion in Sherman, New York, where he was attempting to collect a Social Security check for a mentally disabled man named Robert Allen. It is believed that Gabrion murdered Allen in 1995. Allen's body has never been found.

The federal prosecutor obtained an indictment from a federal grand jury, charging Gabrion with first-degree murder with a federal death-penalty specification. In the proceedings leading up to trial, Gabrion's behavior raised concerns among the district court judge and the attorneys as to his mental stability. The judge ordered a series of mental competency evaluations. All told, eight psychiatric experts have evaluated Gabrion in person, and all eight found that he was feigning mental illness or incompetence. The prosecutor eventually tried the case to a jury in 2002.

At trial, the prosecutor presented overwhelming evidence that Gabrion murdered Timmerman by restraining her with tape, handcuffs, chains, and cinderblocks, and throwing her into Oxford Lake to sink and drown at the location where her body was found. The prosecutor also proved that the aggravating factors (two statutory, four non-statutory) outweighed the mitigating factors. The jury convicted Gabrion of first-degree murder, found the aggravating factors outweighed the mitigating factors, and recommended the death penalty. The district court imposed the death penalty, and we affirmed the conviction and sentence. United States v. Gabrion , 719 F.3d 511 (6th Cir. 2013) (en banc); see also United States v. Gabrion , 517 F.3d 839 (6th Cir. 2008).

Gabrion filed a § 2255 motion for relief, raising numerous claims of error. The district court considered the motion and issued a thorough and detailed opinion, denying the motion as to all issues and denying any COA from it. Gabrion v. United States , No. 1:15-cv-447, 2018 WL 4786310 (W.D. Mich., Oct. 4, 2018). Gabrion appealed and we granted a COA on four issues. Gabrion v. United States , 820 F. App'x 442 (6th Cir. 2020).

II.

When the district court denies a petitioner's § 2255 motion, we review the legal issues de novo and uphold the factual findings unless they are clearly erroneous. Wingate v. United States , 969 F.3d 251, 255 (6th Cir. 2020). For the specific claims here, concerning IAC and Brady , our review is also de novo. Id . ; United States v. Hofstetter , 31 F.4th 396, 430 (6th Cir. 2022).

A petitioner seeking § 2255 relief "must allege one of three bases as a threshold standard: (1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid." Harris v. United States , 19 F.4th 863, 866 (6th Cir. 2021) (citation omitted). "[C]onclusory allegations alone, without supporting factual averments, are insufficient to state a valid claim under § 2255." Jefferson v. United States , 730 F.3d 537, 547 (6th Cir. 2013) (citation omitted).

A.

Gabrion claims that he was deprived of conflict-free counsel by a Federal Public Defender who assisted his defense team and met with him, but who also represented a key government witness who testified against him. We review this claim de novo. Wingate , 969 F.3d at 255.

The right to the effective assistance of counsel includes the right to representation free from conflicts of interest. Wood v. Georgia , 450 U.S. 261, 271, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981) ; United States v. Kilpatrick , 798 F.3d 365, 374 (6th Cir. 2015). A defendant who claims ineffective assistance of counsel arising from an alleged conflict of interest and who raised no objection at trial "must demonstrate that an actual conflict of interest adversely affected his lawyer's performance." Cuyler v. Sullivan , 446 U.S. 335, 348, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). The Sullivan standard applies to claims of multiple concurrent representation. Stewart v. Wolfenbarger , 468 F.3d 338, 351 (6th Cir. 2006). Multiple concurrent representation "occurs where a single attorney simultaneously represents two or more codefendants in the same or separate proceeding(s)." Jalowiec v. Bradshaw , 657 F.3d 293, 315 (6th Cir. 2011) (citation omitted). To show an actual conflict, the defendant must show that counsel chose between possible alternative courses of action that were helpful to one client but harmful to the other. McFarland v. Yukins , 356 F.3d 688, 705 (6th Cir. 2004).

In early June 1997, a man named Joe Lunsford, was threatening to murder President Clinton. The federal prosecutor indicted Lunsford and the district court appointed a Federal Public Defender named Christopher Yates to represent him.¹ Lunsford entered a guilty plea in August 1997 and waited in the Newaygo County Jail for a sentencing hearing in January 1998.

Meanwhile, in October 1997, the FBI apprehended Gabrion and delivered him to Michigan for prosecution. While preparing the murder charge and the death-penalty specification, the federal prosecutor indicted Gabrion for Social Security fraud. In November 1997, the district court appointed a Federal Public Defender named Sharon Turek to represent Gabrion on the Social Security fraud charge. She withdrew three days later. The court appointed Jeff Balgooyen. He withdrew 26 days later. Finally, in December 1997, the court appointed David Kaczor.

Meanwhile, Gabrion waited in the Newaygo County Jail, where he shared a space with Lunsford from late December 1997 through January 1998.² During that time, Gabrion said and did odd things, such as concocting outrageous stories, showering five or more times per day, keeping his entire body shaved bald, and antagonizing everyone. He also sent numerous letters and motions to the court, such as a motion for the court to provide him with the judge's home address and phone number. And he wrote letters and made phone calls to Timmerman's family.

On March 3, 1998, the district court began Gabrion's trial for Social Security fraud regarding Allen's benefits. Kaczor represented Gabrion despite Gabrion's repeated efforts to remove or replace him. After a three-day trial, the jury convicted Gabrion as charged.

About three weeks later, on March 30, 1998, Lunsford spoke with the FBI about Gabrion. Christopher Yates represented Lunsford at the interview. According to the FBI records, Lunsford revealed, among other things, what Gabrion had told him about the Social Security fraud:

Gabrion [told Lunsford] that he was incarcerated because of Social Security fraud. Gabrion claimed he had been using Allen's identification, such as birth certificate and Social Security card to obtain Allen's Social Security benefits for him. Gabrion claimed to be receiving $3,000.00 a month in Social Security benefits. Lunsford found that difficult to believe unless he had received more than one person's benefits. Gabrion claimed to have taken Allen to New York to open a bank account, and Gabrion had commented ‘They won't find him in this state.’

More pertinent to the murder case, Lunsford told the FBI that Gabrion admitted to raping Timmerman and said he "got rid of her to close her mouth"; boasted about killing at least two people, one by drowning; worried when the TV news reported that police were conducting another search of Oxford Lake; and masturbated to a photo of Shannon.

In July 1998, Kaczor continued to represent Gabrion on the Social Security fraud case, at sentencing and the beginning of his appeal. But in August 1998, in the...