Ivory v. Jackson

Decision Date15 November 2007
Docket NumberNo. 06-2294.,No. 05-1672.,05-1672.,06-2294.
PartiesCedric IVORY, Petitioner-Appellant, v. Andrew JACKSON, Warden, Respondent-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

ARGUED: Christina J. Moser, Baker & Hostetler, Cleveland, Ohio, for Appellant. Debra M. Gagliardi, Office of the Attorney General, Lansing, Michigan, for Appellee. ON BRIEF: Christina J. Moser, Thomas D. Warren, Stephan J. Schlegelmilch, Baker & Hostetler, Cleveland, Ohio, for Appellant. Debra M. Gagliardi, Office of the Attorney General, Lansing, Michigan, for Appellee.

Before: BATCHELDER and GILMAN, Circuit Judges; STAFFORD, District Judge.*

OPINION

RONALD LEE GILMAN, Circuit Judge.

In January of 1998, Cedric Ivory was charged with the murder of his girlfriend, Alanna Napier. Following a bench trial before a Michigan state court later that year, Ivory was convicted of second-degree murder and a related firearm offense. He was sentenced to a lengthy term of imprisonment on the two charges. Ivory then petitioned for state postconviction relief, but was turned down at all levels of the state judiciary. He subsequently filed a motion for federal habeas corpus relief, with his principal argument being that his trial counsel provided ineffective assistance due to counsel's addiction to drugs and alcohol. The district court determined that Ivory's ineffective-assistance-of-counsel claim was procedurally defaulted and, in any event, without merit. For the reasons set forth below, we AFFIRM the judgment of the district court.

I. BACKGROUND
A. Factual background
1. Ivory's conviction

The district court summarized the facts of Ivory's case as follows:

Petitioner's convictions stem from the shooting death of his girlfriend, Alanna Napier, on Ilene Street in Detroit, Michigan on July 28, 1996. At trial, Dwayne Glen testified that he was at his home on Ilene Street at 3:00 p.m. on July 28, 1996 when he heard a female voice say, "you want to fight, you want to fight." He looked outside and saw Napier walking on the sidewalk toward his home conversing with Petitioner who was following her in a burgundy Buick LaSabre. As they neared Glen's home, Petitioner got out of the car, took a few steps, and fired five to seven shots at Napier who fell to the ground. Petitioner was 10 to 12 feet from Napier when he fired the gun. Glen did not see Napier approach Petitioner or make threatening gestures toward him. He could not recall whether Napier had anything in her hands, but said she might have had a purse. After the shooting, Glen called 911 and went outside. Two other neighbors, Janet Edwards and William Carr, also came outside. Glen also testified that he recognized Petitioner and Napier from his place of employment, where they worked different shifts.

William Carr testified that he was at home on Ilene Street when he heard shooting outside his home. He looked outside and saw a woman lying on the ground. He went outside to help her and asked if she knew who shot her. She responded that it was Cedric Bernard Ivory. Mr. Carr also testified that the shooting caused damage to his home. The police investigated bullet holes in his windows, a bullet on his floor, and a bullet lodged in his wall.

Detroit Police Officer John Harvin testified that he investigated the shooting scene. When he arrived, he observed the victim lying on the ground. An anti-car theft "club" which was about 10 feet away from the victim and a woman's purse were taken into evidence.

The medical examiner's report indicated that Alanna Napier was 22 years old, was five feet five inches tall, and weighed 129 pounds at the time of her death. She died from two gunshot wounds—one to the face and one to the upper left buttock, which caused severe internal injuries. There was not evidence of close range firing. The manner of death was homicide.

The parties stipulated that Petitioner's mother, Pearl Ivory, would testify that Petitioner borrowed her burgundy Buick on the day of the shooting around noon and that he did not return home at 2:00 p.m. as expected. When she was outside her Ilene Street home around 3:00 p.m., she heard five or six gunshots from down the street. The police came to her home 20 minutes later and said they were looking for Petitioner in connection with the shooting. She knew Napier as her son's friend or girlfriend. Petitioner never returned home. The next day, she received a call from an unidentified male telling her where her car could be located.

Petitioner did not testify at trial, but his statement to police was read into the record. In that statement, Petitioner acknowledged shooting Napier, but claimed that he was provoked and/or that he acted in self-defense. Specifically, Petitioner stated that Napier had been his girlfriend for about one year before the shooting. On that day, he was driving in a burgundy Buick LaSabre with Napier, drinking and smoking marijuana, when they got into an argument and started hitting each other. Napier pulled out a gun and he took it from her. He then pulled the car over and put the gun in the trunk. He returned to the car. They began to argue again and she hit him with an anti-theft club. Petitioner pulled the car over and told Napier that he loved her. She responded that she did not love him and had given him AIDS. Petitioner then "lost it" and jumped out of the car. He did not know how many times he fired the gun at Napier or if she said anything before he shot her. Petitioner stated that he left the gun at the scene and fled in his car. Later that day, he learned that Napier had died. He left town two days later because he was confused and wanted to get money for a lawyer. He testified negative for AIDS in August or September, 1996.

At the close of trial, the court found Petitioner guilty of second-degree murder and felony firearm. In reaching this conclusion, the trial court relied upon the eyewitness testimony and rejected Petitioner's assertions of provocation and self-defense.

The trial court subsequently conducted a sentencing hearing. At that hearing, Petitioner raised no material objections to the pre-sentence report. The victim's mother (Mrs. Napier), brother (Mr. Jones), and grandmother (Mrs. Pierson) gave victim impact statements. Petitioner also made a statement. The trial court then sentenced Petitioner within the sentencing guidelines to a term of 20 to 40 years imprisonment on the murder conviction and a consecutive term of five years imprisonment on the firearm conviction.

Ivory v. Jackson, No. 04-CV-71279-DT, 2005 WL 1030325, *1-2 (E.D.Mich. April 27, 2005).

The bench trial lasted just three hours, and the state presented only three witnesses: Carr, Glen, and Officer Harvin. Joshua Gordon, Ivory's court-appointed attorney, cross-examined two of the state's witnesses, stipulated to the entry of several items of evidence (including Ivory's statement to the police), moved for a judgment of acquittal at the close of the state's case, and gave a closing argument.

In support of his present appeal, Ivory sets forth various facts concerning Gordon's preparation for trial and trial performance, as well as his counsel's personal history. The state trial-court record reflects that, on Gordon's advice, Ivory agreed to waive his right to a jury on the morning set for trial. Gordon also waived the opportunity to present an opening statement and called no witnesses on Ivory's behalf. Furthermore, Ivory complains that Gordon asked the state's witnesses only "a few questions." The transcript reveals that Gordon questioned both Carr and Glen, but neither cross-examination covers more than a few transcript pages. According to Ivory, Gordon "seemed to be under the influence of drugs or alcohol" during the trial.

Ivory also submitted an affidavit setting forth what he alleged to be Gordon's inadequate trial preparation. In his affidavit, Ivory asserted that Gordon met with him only twice in the months before trial, and that Gordon ignored Ivory's requests for updates, documents, and strategy discussions. According to Ivory, when Gordon did meet with him, Gordon appeared to be under the influence of drugs or alcohol, was dressed improperly, and asked Ivory for "something sweet to eat" or for "candy," which Ivory alleges are slang terms for drugs. Ivory also alleged that Gordon "told me that he was not going to call me to testify," but "did not discuss this with me." Similarly, Ivory claimed that Gordon "told me that I was going to waive my right to a jury. I did as he told me, but I wish I hadn't."

2. Gordon's disciplinary proceedings

Unhappy with Gordon's allegedly ineffective assistance at trial, Ivory filed a grievance against Gordon with the Michigan Attorney Grievance Commission in September of 1998. Commission records, as it turns out, confirm that four other of Gordon's former clients had also filed grievances against him in the same time period. Counsel for Gordon conceded during the grievance proceedings that, due to heavy substance abuse, Gordon "simply gave up and stopped responding not only to the [Grievance] Commission, but also, pretty much, all the duties in his life." Furthermore, counsel commented that, during the relevant time period, Gordon "gave up his office and he had difficult personal living circumstances and became a bit of a vagabond for a while."

Gordon's addiction problems became sufficiently obvious to the Michigan Third Circuit trial judges before whom he practiced that 10 of them arranged an "intervention" for him in February of 2000. The judges at that time demanded that Gordon immediately enter an in-patient treatment program or face revocation of his Third Circuit criminal-practitioner certification. Ultimately, Gordon pled no contest to the disciplinary charges brought against him in connection with the grievances and received a 180-day suspension of his law license that began in March of 2001.

B. Procedural background

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