Hicks v. Straub
| Decision Date | 29 July 2004 |
| Docket Number | No. 03-1124.,03-1124. |
| Citation | 377 F.3d 538 |
| Parties | Michael HICKS, Petitioner-Appellee, v. Dennis M. STRAUB, Warden, Respondent-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Appeal from the United States District Court for the Eastern District of Michigan, Arthur J. Tarnow, J.
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Carole M. Stanyar (argued and briefed), Detroit, MI, for Petitioner-Appellee.
Brad H. Beaver (argued and briefed), Asst. Atty. General, Lansing, MI, for Respondent-Appellant.
Before: KENNEDY, ROGERS, and COOK, Circuit Judges.
KENNEDY, J., delivered the opinion of the court, in which COOK, J., joined. ROGERS, J. (p. 559), delivered a separate concurring opinion.
The district court conditionally granted the petition for a writ of habeas corpus under 28 U.S.C. § 2254 of Petitioner Michael Hicks, a Michigan prisoner, on his claim that his Sixth Amendment right to confrontation was violated at his first-degree murder trial when the prosecutor, during his opening statement, advised the jury that petitioner had confessed to the murder to a fellow jail inmate and, yet, subsequently failed, despite a good faith effort, to produce that inmate as a witness.1 The district court found that the procedural default doctrine did not bar the review of petitioner's Confrontation Clause claim. Specifically, the court held that (1) petitioner had "fairly presented" his Confrontation Clause claim to the state courts on direct review; (2) to the extent that the state courts on direct review would have found that petitioner procedurally defaulted his Confrontation Clause claim as a result of trial counsel's failure to object to the underlying violation at trial, the ineffective assistance of trial counsel would have excused any such default; and, (3) petitioner had not procedurally defaulted his Confrontation Clause claim before the state courts on collateral review because the state procedural ground upon which the state courts denied petitioner leave to appeal was inadequate to bar federal habeas review.
In reaching the merits of petitioner's Confrontation Clause Claim, the district court found that the prosecutor's opening statement comment concerning petitioner's alleged confession violated petitioner's right to confrontation, and that this violation was not harmless error. The district court further found, pursuant to § 2254(d), that the prior state-court denial of petitioner's Confrontation Clause claim on the merits was an unreasonable application of the pertinent, clearly-established Supreme Court precedent.
Respondent Dennis Straub appeals this grant of the writ of habeas corpus on the following grounds: (1) the district court erred in reaching the merits of petitioner's claim because petitioner procedurally defaulted his claim by failing to raise it on direct review and because trial counsel's failure to object did not constitute ineffective assistance of counsel that would excuse this default; (2) the district court violated 28 U.S.C. § 2254(e)(2) when it held an evidentiary hearing on petitioner's claim of ineffective assistance of trial counsel because petitioner had failed to develop the factual basis underlying that claim in the state courts; and (3) assuming that the district court had the authority to reach the merits of petitioner's Confrontation Clause claim, it erred in granting relief because the prosecutor's remark did not violate petitioner's right to confrontation under the relevant, clearly-established Supreme Court precedent.
For the reasons explained below, we REVERSE the district court's grant of a writ of habeas corpus to petitioner under 28 U.S.C. § 2254.
Adjudication of respondent's present appeal requires an understanding of the complex procedural history that bears upon that appeal in the state courts.
On July 25, 1993, petitioner was arrested and charged with the first-degree murder of Shawn Stalworth, who had been shot to death earlier that day as he was leaving his house in Battle Creek, Michigan. Following his arrest, petitioner was confined in a local jail, where he allegedly confessed to another inmate, Lorenzo Brand ("Brand"), that he had committed the murder. Brand testified to this confession at petitioner's preliminary hearing. At petitioner's jury trial, the prosecutor, during his opening statement, stated, in pertinent part:
Defendant was arrested. He was charged. He was arraigned. He was taken to the City of Battle Creek lockup, not the county jail, but the lockup pending transfer, moving him over here. While he was there[,] there was another person in the lockup. He goes, hey, my mom just saw you on a videotape.... He said my mom told me she just saw a person and they accused him of homicide. You kill that man? What did he say? Yep, yep.
At the close of the state's case, the prosecutor informed the court that the state would not call Brand as a witness because it had been unable to locate him. The prosecutor admitted that he did not believe that the state's efforts to locate Brand met with the due diligence required under Michigan case law for the admission of preliminary examination testimony. The trial court agreed and declined to admit the testimony. Despite the prosecutor's failure to produce Brand, defense counsel neither objected to nor requested a mistrial based upon the prosecutor's opening statement relaying that confession. Further, defense counsel never mentioned the prosecutor's statement regarding petitioner's alleged confession in his opening statement, which he had reserved until the close of the prosecution's case. Neither defense counsel nor the prosecutor mentioned the alleged confession in closing arguments.
The trial court gave the jury the customary instruction that "[t]he lawyers' statements and arguments are not evidence," and further instructed:
Lorenzo Brand is a missing witness whose appearance was the responsibility of the [p]rosecution. You may infer that the witness' testimony would have not been favorable to the [p]rosecution's case.
However, because the prosecutor's opening statement never named the jail inmate to whom petitioner allegedly confessed, and because no mention was ever made before the jury that Brand was that inmate, the jury had no knowledge with which to tie the trial court's "Brand" instruction to the prosecutor's opening statement regarding the alleged confession.2 Moreover, immediately after this instruction, the district court gave an instruction as to when the jury could properly consider an unrelated out-of-court statement made by petitioner that had been admitted into evidence.
The jury convicted petitioner of first-degree murder and possession of a firearm during the commission of a felony. The trial court sentenced petitioner to life imprisonment without parole on the murder conviction and to two years' imprisonment on the felony-firearm conviction.
Petitioner filed an appeal as of right in the Michigan Court of Appeals. Petitioner presented, among others, the following two claims:
I. Defendant ... was denied a fair trial by the prosecutor's numerous instances of misconduct, including arguing matters not in evidence, such as defendant's supposed admission to committing the murder, and by repetitively cross-examining defendant on the irrelevant matter of his being a marijuana dealer.
II. Because of defense counsel's failures[,] ... [defendant] was denied his rights to the effective assistance of counsel, to present an effective defense, and to a fair trial.
Petitioner only asserted that these instances of prosecutorial misconduct violated defendant's rights to due process and a fair trial; he never argued that this misconduct also violated his Sixth Amendment right to confrontation. During his appeals in the state courts, petitioner argued that no curative instruction could have remedied the prejudice to defendant. During the direct appeal, no one mentioned that the curative instruction that identified Brand was referring to the jail inmate in the prosecutor's opening statement to whom petitioner allegedly confessed. Since trial counsel never objected to this alleged prosecutorial misconduct, petitioner argued that this failure to object resulted in the requisite manifest injustice which rendered any such objection unnecessary, and, alternatively, that the failure amounted to an ineffective assistance of counsel. Thus, petitioner's independent claim of ineffective assistance of counsel rested, in part, upon this failure by trial counsel.3
Petitioner filed a motion to remand the case to the trial court for an evidentiary hearing on his claim of ineffective assistance of trial counsel. The Michigan Court of Appeals affirmed petitioner's conviction and sentence. People v. Hicks, No. 171833, 1996 WL 33348772 (Mich.Ct.App. Nov. 8, 1996). As to the first claim, the court found that trial counsel, by failing to object to the alleged instances of prosecutorial misconduct at trial, had failed to preserve this claim for review absent a miscarriage of justice. Id. Noting that only a miscarriage of justice would excuse this failure, the court further found that there was "no manifest injustice in the prosecutor's comment during his opening statement that defendant allegedly confessed to the crime to a fellow inmate, even though the prosecution later failed to produce that witness." Id. The court reasoned that the trial judge's instruction to the jury that it "could assume that the witness the prosecution was unable to produce would have testified unfavorably to the prosecution, and that ... [it was] not to consider defendant's alleged out-of-court admission as evidence of his guilt" remedied any potential prejudice that may have resulted from this comment.
After noting that the defendant failed to properly preserve the issue, the court of appeals...
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