Guilmette v. Howes

• Decision Date: 12 January 2010
• Docket Number: No. 08-2256.,08-2256.
• Citation: 591 F.3d 505
• Parties: Bruce GUILMETTE, Petitioner-Appellee, v. Carol R. HOWES, Warden, Respondent-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

591 F.3d 505

Bruce GUILMETTE, Petitioner-Appellee, v. Carol R. HOWES, Warden, Respondent-Appellant.

No. 08-2256.

United States Court of Appeals, Sixth Circuit.

Argued: October 16, 2009.

Decided and Filed: January 12, 2010.

ARGUED: Janet A. Van Cleve, Michigan Attorney General's Office, Lansing, Michigan, for Appellant. Kimberly Thomas, University of Michigan, Michigan Clinical Law Program, Ann Arbor, Michigan, for Appellee. ON BRIEF: William C. Campbell, Assistant Attorney General, Office of the Michigan Attorney General, Lansing, Michigan, for Appellant. Kimberly Thomas, University of Michigan,

Michigan Clinical Law Program, Ann Arbor, Michigan, for Appellee.

Before: MARTIN, ROGERS, and COOK, Circuit Judges.

ROGERS, J., delivered the opinion of the court, in which COOK, J., joined. MARTIN, J. (pp. 512-17), delivered a separate dissenting opinion.

OPINION

ROGERS, Circuit Judge.

A Michigan jury convicted petitioner Bruce Guilmette of first-degree home invasion. In a petition for a writ of habeas corpus, Guilmette alleges that his trial attorneys provided constitutionally ineffective assistance. The district court found that this claim was not procedurally defaulted and that petitioner's counsel were ineffective, and the district court therefore granted petitioner a conditional writ. Because our precedents dictate that petitioner procedurally defaulted his ineffective assistance of counsel claim, and because petitioner has not established cause and prejudice for that default, habeas relief was not warranted in this case.

At approximately noon on January 7, 1999, Joan McCormick was alone in her home in Howell, Michigan. A man walked past her window, approached her front door, and then repeatedly rang the doorbell. McCormick did not answer the door. The man went out past a van he had parked in McCormick's driveway, and she lost sight of him for a few minutes. He then returned to the front door, and, after again repeatedly ringing the doorbell, began banging on the door. After what McCormick described as "a lot" of such banging, she saw her doorknob move, and then the locked door came "crashing open." McCormick screamed and attempted to run away from the door. She tripped and fell, and when she then glanced back at the door, the man had disappeared from the doorway. From her window, McCormick saw the man circle the van from the passenger side to the driver side, enter the van, and drive away. McCormick identified the van as a gray Chevy Astro with a red pinstripe.

Just after she fell, McCormick called 911 and described both the man and his vehicle to the operator. Trooper Jennifer Coulter responded to the call, and when she arrived at McCormick's residence, Coulter noticed footprints in the snow leading up to the front door. After interviewing McCormick, Coulter photographed the best footprint she could find. Later that day, McCormick independently photographed a footprint in the snow on the threshold of her doorway. McCormick identified the petitioner, Bruce Guilmette, out of two photographic lineups during the next few weeks.

Guilmette was charged with home invasion. At the preliminary hearing on February 24, 1999, McCormick stated that Guilmette resembled the man she had seen at her door but said that Guilmette's brother, who was present at the hearing, bore a similar resemblance. She also described the man at her door as having hair that protruded from underneath his hat, probably by one or two inches.

At Guilmette's trial for first-degree home invasion, McCormick testified to the events of January 7 and stated that the man at her door "look[ed] a lot like" Guilmette. She also testified that the man she identified in the lineups—Guilmette—was the man at her house. A police officer testified that McCormick had identified a picture of Guilmette's vehicle, a gray Astro with a red pinstripe, as the vehicle in which the man had driven away. The prosecution additionally introduced into evidence both Trooper Coulter's photograph of the footprint leading up to the house and McCormick's photograph of the footprint on the threshold of her home.

The defense maintained that Guilmette had been mistakenly identified, relying primarily on three arguments. First, the defense presented evidence that the driver-side door on Guilmette's van was inoperable, such that Guilmette could not have entered the van in the way that McCormick described. Second, the defense offered testimony and photographic evidence that, at least as of Christmas, 1998, Guilmette had short hair. They argued that this contradicted McCormick's testimony from the preliminary hearing that the man at her door had longer hair. Finally, the defense offered a time-stamped receipt from a methadone clinic that indicated that Guilmette was at that clinic, which was approximately fifty miles from McCormick's home, at 12:38 p.m. on the day of the alleged home invasion.

In rebuttal, the state presented evidence that Guilmette had previously pled guilty to a home invasion and larceny with a similar modus operandi and in connection with which Guilmette had been driving a similarly described van. The court instructed the jury to consider this testimony only for identification or as evidence of a scheme and pattern. The prosecution also elicited testimony that the clock in the computer that generated the methadone clinic receipts was often inaccurate and that nineteen days after the incident, the clock was running eighteen minutes slow. The prosecution finally offered testimony of a detective who had driven from McCormick's home to the methadone clinic in forty-five minutes, driving eighty to eighty-five miles per hour on the freeway and despite a six minute delay for road construction.

The jury convicted Guilmette of first-degree home invasion, and Guilmette was unsuccessful in his direct appeal. On state collateral review, Guilmette argued for the first time that his trial counsel were ineffective for failing to discover that the photographs of the two footprints admitted at trial apparently did not match. He argued that this constitutionally ineffective representation was prejudicial because the footprint from the door's threshold was the only proof of entry, a required element of first — degree home invasion. See Mich. Comp. Laws § 750.110a(2). The state trial court on collateral review denied this claim on the merits, finding that focusing on identification-rather than on whether there was entry—was a matter of trial strategy. Both the Michigan Court of Appeals and the Michigan Supreme Court denied leave to appeal, issuing identical orders citing Guilmette's "failure to meet the burden of establishing entitlement to relief under [Mich. Ct. R. 6.508(D)]."

Guilmette then filed a habeas petition seeking relief for the same alleged violation. The district court granted a conditional habeas writ, finding that Guilmette's trial counsel were constitutionally ineffective because they failed to investigate the differences between the two photographs. The warden now appeals, arguing that this ineffective assistance claim was procedurally defaulted and that Guilmette has failed to establish cause and prejudice for that default.

Guilmette's ineffective assistance of counsel claim is procedurally defaulted because, although the state trial court on collateral review addressed the merits of Guilmette's claim, both the state appellate and supreme courts denied the claim pursuant to Mich. Ct. R. 6.508(D). "When a habeas petitioner fails to obtain consideration of a claim by a state court ... due to a state procedural rule that prevents the state courts from reaching the merits of the petitioner's claim, that claim is procedurally defaulted and may not be considered by the federal court on habeas review." Willis v. Smith, 351 F.3d 741, 744 (6th Cir.2003) (internal quotation marks omitted). Guilmette did not raise his ineffective assistance of trial counsel claim on direct appeal, as required by Mich. Ct. R. 6.508(D)(3). Our decision in Munson v. Kapture, 384 F.3d 310 (6th Cir.2004), requires the conclusion that the Michigan courts enforced Rule 6.508(D)(3) in this case and thus that Guilmette's claim is procedurally defaulted. In Munson, as in the present case, the petitioner did not raise certain claims on direct appeal. 384 F.3d at 312-13. In both cases, the petitioner then raised the claims in a state trial court on collateral review, and the state trial court denied the claims on the merits.¹ Id. at 313. Then in both cases, the state appellate and state supreme courts each denied leave to appeal in brief orders, stating that the petitioner had "failed to meet the burden of establishing entitlement to relief under MCR 6.508(D)." Id. In Munson, we held that Rule 6.508(D) constituted an adequate and independent state ground and thus held the claims to be procedurally barred. Id. at 315. No relevant fact distinguishes Munson from the present case, and thus Guilmette's claim is similarly procedurally defaulted.

This result is consistent with Abela v. Martin, 380 F.3d 915 (6th Cir.2004). In that case, both the Michigan trial court and the Michigan Court of Appeals denied the petitioner's collateral claims on the merits before the Michigan Supreme Court denied review pursuant to Mich. Ct. R. 6.508(D). Id. at 920. In part because the lower state courts had "repeatedly ruled on the merits," we concluded in Abela that the invocation of Mich. Ct. R. 6.508(D) by only the Michigan Supreme Court did not sufficiently indicate that the court was invoking a procedural bar, and thus that the claim was not procedurally defaulted. Id. at 923-24. In the present case, however, both the state appellate and state supreme court denied leave to appeal pursuant to Rule 6.508(D); this case is thus squarely controlled by our decision in Munson.²

This conclusion is supported by five of this court's other cases, three of which post-date Abela, and all of which hold that habeas claims were...