Jr. v. Berghuis

Decision Date03 September 2010
Docket NumberNo. 08-1376.,08-1376.
Citation620 F.3d 571
PartiesAndrew BABICK, Jr., Petitioner-Appellant, v. Mary BERGHUIS, Warden, Brooks Correctional Facility, Respondent-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit



ARGUED: Paul L. Nelson, Federal Public Defender's Office, Grand Rapids, Michigan, for Appellant. Laura Graves Moody, Office of The Attorney General, Lansing, Michigan, for Appellee. ON BRIEF: Paul L. Nelson, Federal Public Defender's Office, Grand Rapids, Michigan, for Appellant. Laura Graves Moody, Office of The Attorney General, Lansing, Michigan, for Appellee.

Before MERRITT, COOK, and KETHLEDGE, Circuit Judges.

KETHLEDGE, J., delivered the opinion of the court, in which COOK, J., joined. MERRITT, J. (pp. 580-84), delivered a separate dissenting opinion.


KETHLEDGE, Circuit Judge.

At 2 a.m. on September 9, 1995, a house burned down in Battle Creek, Michigan, within minutes after Andrew Babick, Jr. left it. Two young boys died in the blaze. A jury in Michigan state court later convicted Babick of one count of arson and two counts of first-degree felony murder. The state trial court sentenced Babick to two terms of life imprisonment without possibility of parole. Babick argues here, as he did in the district court, that his convictions were tainted by ineffective assistance of counsel and prosecutorial misconduct. But Congress has made clear that there are limits to our power to grant habeas relief; and Babick's claims, for the reasons stated below, lie beyond them. We therefore affirm the district court's denial of his petition.


Shortly before midnight on September 8, 1995, Babick left his home to buy crack cocaine. He walked to 264 Grove Street, a house where he had bought crack before. LuQuentine Caldwell was on the porch when he arrived. LuQuentine at first denied having any crack, but eventually sold Babick a small rock for $20, which was double its street value. Babick took the rock to his sister's house and smoked it. He then went back to the Grove Street house, where he pounded on the door. The pounding woke Belinda Sutton, who was sleeping in one of the upstairs bedrooms with Lyndon Caldwell. Sutton went downstairs and answered the door. She says that Babick was angry and that he accused LuQuentine of selling him bad crack; but Babick says he simply wanted to buy more crack. In any event, Sutton told Babick that LuQuentine had left the house and that she did not know when he would return. She locked the door and went back to sleep. According to Sutton's trial testimony, it was about 1:30 a.m. then. Babick says he spent the next 20 minutes on the house's front porch, dozing on a sofa and smoking a cigarette. At some point he went home.

At approximately 2 a.m., a smoke alarm woke Sutton and Lyndon. Lyndon tried to reach the other bedroom, where Jacqueline Caldwell's two- and three-year-old sons were sleeping, but was turned back by thick smoke in the hallway. He and Sutton jumped from a rear window and went to a neighbor's house to call for help. The Battle Creek Fire Department received that call at 2:05 a.m. Firefighters arrived about three minutes later to find the front of the house engulfed in flames. They doused the fire and made their way upstairs, where they found the boys' charred bodies.

At about 3 a.m. that night, Babick tried to return to the scene a third time, but was unable to get there because the street was blocked by emergency vehicles. The following afternoon, police officers went to Babick's house and asked him to come to the station for an interview. He agreed. The officers did not place Babick under arrest, but Detective Timothy Hurtt did inform him of his Miranda rights. Hurtt also told him that the interview was being videotaped. Babick answered questions for a while, but invoked his right to counsel and ended the interview after Hurtt accused him of starting the fire.

The police also interviewed the residents of the Grove Street house and several neighbors. Officers walked a canine through the house to sniff for accelerants and took numerous floor and carpet samples for laboratory analysis. They also executed a search warrant at Babick's residence and seized a pair of shoes to which the canine alerted. Meanwhile, the Fire Department brought in an investigator from the Fire Marshal division of the Michigan State Police, in addition to the Department's own investigator.

The police eventually referred the matter to the Calhoun County prosecutor's office. The prosecutor agreed that the fire was arson, but thought there was a lack of evidence that Babick was the person who set it. The Michigan attorney general's office disagreed, however, and charged Babick with arson of a dwelling house and two counts of felony murder.


The trial court appointed Alma Mason-Thurmer to represent Babick. She obtained court orders allowing her to seek reimbursement from the state for the costs of an arson expert and a private investigator. But she hired only the latter; her strategy was to concede that the fire was arson, but to argue that there was insufficient evidence that Babick was the person who set it. Babick's case went to trial before a jury, which found him guilty on all counts. The court then imposed a mandatory sentence of two terms of life imprisonment without possibility of parole.

Babick twice moved for a new trial after sentencing. The trial court denied both motions. Babick also filed a direct appeal in which he raised six issues. The Michigan Court of Appeals rejected his arguments and affirmed his conviction. See People v. Babick, No. 207638, 1999 WL 33437948 (Mich.Ct.App. Aug. 13, 1999). Over a dissent, the Michigan Supreme Court denied leave to appeal. See People v. Babick, 462 Mich. 919, 614 N.W.2d 588 (2000). The United States Supreme Court denied his petition for a writ of certiorari. See Babick v. Michigan, 531 U.S. 1090, 121 S.Ct. 810, 148 L.Ed.2d 696 (2001).

Babick next filed a motion in the trial court requesting relief from the judgment. He presented several new claims, including claims of ineffective assistance of trial counsel and prosecutorial misconduct. He also said that his appellate counsel had been ineffective for failing to assert those claims earlier. The trial court denied the motion on claim-preclusion grounds. The Michigan Court of Appeals and the Michigan Supreme Court both denied leave to appeal.

Babick then filed a petition for a writ of habeas corpus in federal district court. Four of his claims are relevant here: First, that his trial counsel was ineffective for failing to consult with an arson expert; second, that his counsel was ineffective for failing to obtain a television schedule for purposes of impeaching Belinda Sutton at trial; third, that the prosecutor committed misconduct by allegedly interfering with Mason-Thurmer's efforts to retain an arson expert; and fourth, that the prosecutor again committed misconduct by commenting, during closing arguments, on Babick's post- Miranda request for an attorney.

A magistrate judge concluded that Babick had procedurally defaulted these claims by failing to present them during his direct appeal, but that his appellate counsel's ineffectiveness established cause and prejudice to excuse those defaults. The magistrate then concluded that Babick was entitled to relief on the merits of each claim, and so recommended that the district court grant the writ. The district court rejected that recommendation and denied the petition on the merits. See Babick v. Berghuis, No. 1:03-cv-20, 2008 WL 282166 (W.D.Mich. Jan. 29, 2008). The court also denied Babick a certificate of appealability. He then sought one from this court, which we granted.

This appeal followed.


We review de novo a district court's denial of a habeas petition. See Joseph v. Coyle, 469 F.3d 441, 449 (6th Cir.2006). Babick procedurally defaulted his claims in state court. To obtain relief on them here, therefore, he must establish cause and prejudice for the defaults. See Hargrave-Thomas v. Yukins, 374 F.3d 383, 387 (6th Cir.2004). He must also show that the claims are meritorious. We cut to the merits here, since the cause-and-prejudice analysis adds nothing but complexity to the case. See generally Hudson v. Jones, 351 F.3d 212, 215-16 (6th Cir.2003). So to the merits we now turn.


To prevail on his ineffective assistance of counsel claims, Babick must first show that his trial counsel's “representation fell below an objective standard of reasonableness.” Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Babick must then establish prejudice, which requires him to show “that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” See id. at 694, 104 S.Ct. 2052.


Babick argues that his trial counsel's representation was deficient because she should have at least consulted an arson expert before abandoning a not-arson defense at trial. We evaluate decisions not to investigate “for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.” Id. at 691, 104 S.Ct. 2052.

Babick's argument has some force, particularly when considered in isolation. But a reasonably competent lawyer could have concluded that the prosecution's evidence of arson was the strongest part of its case. The state was prepared to produce several witnesses-experienced fire investigators, the commanding firefighter on the scene, and a canine handler-to show the fire was intentionally set. The state's theory, as set forth by two fire experts at trial, was that someone had poured flammable liquid on the front porch and then into the house through the front door and up the staircase. The state would further show that laboratory analysis had confirmed the...

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