Hereford v. Warren

• Decision Date: 07 August 2008
• Docket Number: No. 07-1507.,07-1507.
• Citation: 536 F.3d 523
• Parties: Darron HEREFORD, Petitioner-Appellee, v. Millicent WARREN, Respondent-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

536 F.3d 523

Darron HEREFORD, Petitioner-Appellee, v. Millicent WARREN, Respondent-Appellant.

No. 07-1507.

United States Court of Appeals, Sixth Circuit.

Argued and Submitted: January 29, 2008.

Decided and Filed: August 7, 2008.

ARGUED:

Brian O. Neill, Office of the Michigan Attorney General, Lansing, Michigan, for Appellant.

ON BRIEF:

Brian O. Neill, Office of the Michigan Attorney General, Lansing, Michigan, for Appellant. Mark N. Awada, Warren, Michigan, for Appellee.

Before: SILER, CLAY, and COOK, Circuit Judges.

COOK, J., delivered the opinion of the court, in which SILER, J., joined. CLAY, J. (pp. 534-42), delivered a separate dissenting opinion.

OPINION

COOK, Circuit Judge.

Certain facets of criminal proceedings are so critical that the absence of a criminal defendant's lawyer at those stages renders the proceedings inherently flawed. See United States v. Cronic, 466 U.S. 648, 659 n. 25, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). The Michigan Court of Appeals held that a sidebar discussion between the prosecutor and judge during Petitioner Darron Hereford's bench trial was not one of those critical stages, and that any error arising from defense counsel's absence was harmless. The district court granted habeas relief after concluding that the state court's holding represented an unreasonable application of clearly established federal law, as determined by the United States Supreme Court. 28 U.S.C. § 2254(d)(1). We disagree and reverse.

I.

Michigan charged Darron Hereford, Alvin Smith, and Kyle Davis with armed robbery of the Hungry Howie's pizzeria where Hereford worked. Mich. Comp. Laws § 750.529. Smith's separate trial resulted in his conviction. Hereford and Davis stood trial together, with Davis before a jury and Hereford before the bench. The Michigan Court of Appeals summarized the evidence against Hereford as follows:

Both the assistant manager and the restaurant's part owner recalled that the assistant manager had worked with defendant for at least a month, on several occasions each week. The assistant manager testified repeatedly and with certainty that he recognized defendant as one of the robbers when defendant's mask briefly slipped from his face. A police officer who responded to the restaurant after the robbery testified that the assistant manager positively identified defendant as a participant in the robbery.

People v. Hereford, No. 227296, 2003 WL 193523, at *1 (Mich.Ct.App. Jan.28, 2003).

Smith, who by this time was convicted but not sentenced, also testified against Hereford. When the prosecutor called Smith to the stand and the judge asked whether he understood his privilege against self-incrimination, Smith indicated that he wanted to consult his absent attorney. The court halted the trial to track down the lawyer, at which time Hereford's lawyer, William Mitchell, attended an arraignment in another courtroom. The prosecutor also left, and in the hallway he spoke to Smith and Smith's mother in the presence of the lead detective. Smith's mother lodged her concern that her son did not understand his rights.

Armed with this tip, the prosecutor returned and (with Mitchell still gone) approached the bench alongside codefendant Davis's lawyer, Sharon Woodside:

Prosecutor: Your Honor, may Ms. Woodside and I approach? Maybe she can speak on behalf of Mr. Mitchell?¹

The Court: We really shouldn't. Is this just your case?

Prosecutor: No. It's not [Hereford]— I'm not going to go into it a whole lot. I just want to ask a quick question. I think maybe he'll get around to it. It doesn't have to be on the record. I might have a way to resolve this problem. When myself and the detective spoke to him outside, I went over his Fifth Amendment rights with him and he said he wanted to waive those and testify. Okay. Mr. Williams had told me after the trial that he was going to testify. In fact, we had a sense to get adjourned because—

The Court: But, you know—see, he's mentally slow and—

Prosecutor: Well, that's what I mean.

The Court: I don't want to—

Prosecutor: All I want to indicate is that his mom said, "I don't think he understands what you were asking him." Would you have him talk to his mom?

The Court: Yeah. Uh-huh.

Prosecutor: Okay.

The Court: That's good. We'll wait for him.

Prosecutor: Okay. I mean—okay, that was it your Honor.

JA 53-54, 74-76, 138-39.²

After Mitchell returned, Smith spoke to his lawyer by phone and waived his Fifth Amendment privilege. Over Mitchell's objection, the court permitted the prosecutor to treat Smith as a hostile witness, but first let Mitchell voir dire him. In response to Mitchell's questions, Smith could not recall if he spoke to a law enforcement representative about the case since the previous December, although at the bench conference the prosecutor said that he and the lead detective just spoke to Smith in the hallway. Smith eventually testified, offering that Hereford held the gun during the robbery. See Hereford, 2003 WL 193523, at *2. The court convicted Hereford and sentenced him to between nine and twenty years in prison.

Hereford appealed his conviction but did not raise the Sixth Amendment challenge in his appellate brief. He was not at fault inasmuch as the transcript of the bench conference was neither noted in the trial court docket entries nor provided to appellate counsel along with the trial transcripts. Only after obtaining the trial video one day before filing the appeal did Hereford's attorney learn of it. Upon Hereford's motion, the Michigan Court of Appeals allowed him to file a supplemental brief raising the claim.

The Michigan Court of Appeals affirmed Hereford's conviction in an unpublished per curiam decision but neglected to address the ex parte bench conference. Based on this omission, Hereford petitioned the court to rehear his case. As to Hereford's argument that he was denied counsel during a critical stage of his trial, the Michigan Court of Appeals stated:

We agree with defendant that it was improper to conduct a bench conference without defense counsel's presence. See generally People v. Riggs, 223 Mich.App. 662, 677, 568 N.W.2d 101 (1997) (Sixth Amendment right to counsel attaches at "critical stage" of proceedings); People v. Gonzalez, 197 Mich.App. 385, 402, 496 N.W.2d 312 (1992) (improper ex parte communications deny right to fair trial). However, we conclude that the error was harmless beyond a reasonable doubt. See People v. Watson, 245 Mich. App. 572, 585, 629 N.W.2d 411 (2001) (violation of right of confrontation may not be redressed unless error is harmless beyond a reasonable doubt). As we have previously stated, disregarding Smith's entire testimony, the balance of the trial testimony supports defendant's conviction for aiding and abetting an armed robbery. Id. Further, the court, sitting as the trier of fact, was well aware of the problems with Smith's testimony, and knew from the bench conference that Smith had, in fact, spoken with the detective.

Hereford, 2003 WL 193523, at *4.

The Michigan Supreme Court, over Justice Kelly's dissent, denied Hereford leave to appeal. People v. Hereford, 469 Mich. 921, 670 N.W.2d 226 (2003) (table). Hereford then filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Michigan challenging his conviction on two grounds. He argued that the ex parte conference violated his Sixth Amendment right to the presence of counsel at all critical stages of the proceedings, and he also alleged ineffective assistance of counsel. The district court referred Hereford's motion for summary judgment on the critical-stage claim to a magistrate judge. The magistrate—heavily relying on our decision in United States v. Minsky, 963 F.2d 870 (6th Cir.1992)—recommended issuing a conditional writ after concluding that the trial court conducted a critical stage in Hereford's trial without defense counsel, and that, therefore, the state appellate court improperly reviewed the claim for harmless error. The district court adopted the magistrate's Report and Recommendation, granting summary judgment and conditionally granting the writ. Hereford v. Warren, 486 F.Supp.2d 659 (E.D.Mich.2007). Michigan appeals, and we now reverse the district court.

II.

We review de novo the district court's decision granting habeas relief. Dyer v. Bowlen, 465 F.3d 280, 283-84 (6th Cir. 2006). Because Hereford filed his habeas petition after 1996, the Antiterrorism and Effective Death Penalty Act ("AEDPA") governs his appeal.

Under AEDPA, we must presume correct the state court's factual findings unless Hereford rebuts them with clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Moreover, AEDPA prohibits a federal court from granting a writ of habeas corpus for any claim adjudicated on the merits in state court unless the adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law as determined by the Supreme Court of the United States." Id. § 2254(d)(1).

This case implicates § 2254(d)(1)'s "unreasonable application" clause. Under this clause, we cannot grant relief unless the state court "identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the [petitioner's] case," or "either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Williams v. Taylor, 529 U.S. 362, 407, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Our task is not to determine whether the state court reached the correct outcome, but rather to determine whether the court's application of clearly established federal law is objectively unreasonable—"a substantially higher threshold." Schriro v. Landrigan, ___ U.S. ___, 127 S.Ct. 1933, 1939, 167 L.Ed.2d 836 (2007).

AEDPA also restricts the body of...