Jr. v. Warren

• Decision Date: 29 September 2010
• Docket Number: No. 09-1488.,09-1488.
• Citation: 622 F.3d 591
• Parties: Richard Paul HODGSON, Jr., Petitioner-Appellee, v. Millicent WARREN, Respondent-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

622 F.3d 591

Richard Paul HODGSON, Jr., Petitioner-Appellee,

v.Millicent WARREN, Respondent-Appellant.

No. 09-1488.

United States Court of Appeals,Sixth Circuit.

Argued: April 28, 2010.

Decided and Filed: Sept. 29, 2010.

ARGUED: Brad H. Beaver, Office of the Michigan Attorney General, Lansing, Michigan, for Appellant. Phillip D. Comorski, Detroit, Michigan, for Appellee. ON BRIEF: Brad H. Beaver, Office of the Michigan Attorney General, Lansing, Michigan, for Appellant. Phillip D. Comorski, Detroit, Michigan, for Appellee.

Before: GIBBONS, ROGERS, and KETHLEDGE, Circuit Judges.

OPINION

KETHLEDGE, Circuit Judge.

The jury that convicted Richard Hodgson of attempted murder never heard the testimony of an eyewitness, Virginia Smith, who would have stated that, as she stood a few feet away from Hodgson during the shooting for which he was charged, she could see his hands and could confirm that he did not draw a gun. The State has conceded in this court, moreover, that Hodgson's trial counsel knew that Smith would testify to that effect if called. We therefore agree with the district court that Hodgson received ineffective assistance of counsel, and that the state court's contrary conclusion “involved an unreasonable application of ... clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1).

I.

A.

Late at night on April 12, 1998, Alicia Hernandez and Scott Anderson were shot as they stood outside a home in southwest Detroit. Hernandez was hit once in the leg, and Anderson was hit three times, with one bullet grazing his temple.

Within a month, the State of Michigan charged Hodgson with the attempted murders and one count of using a firearm in the commission of a felony. At Hodgson's trial, in November 1998, both Hernandez and Anderson implicated him as the shooter. Hernandez, who was 15 years old at the time of the shooting, testified that she had been standing outside with several other people when Hodgson and several of his friends walked down the street. Hodgson asked her where he could find her brother, Lorenzo Hernandez, with whom he had fought previously. When she refused to tell him, the two began to argue. At that point, she heard someone yell, “shoot the bitch,” and saw Hodgson pull a gun from his waistband. She turned to run, but after a few steps she was shot in the leg and fell to the ground. All told, she heard roughly ten shots. Hernandez testified that, although she did not actually see Hodgson fire the shots because her back was turned, the shots had come from the direction where Hodgson was standing.

Anderson's account was similar. He testified that Hodgson arrived with three or four other men and began arguing with Hernandez. Hodgson said, “shoot the bitch,” and then pulled a pistol from his waistband. Anderson turned and ran, but was quickly hit with three bullets. He estimated that he heard 10 or 11 shots in all. Like Hernandez, Anderson testified that he did not actually see Hodgson fire the shots. He added that he could not say whether the bullets had come from the direction where Hodgson was standing, because his back was turned when the shots were fired.

Thomas Anderson, Scott Anderson's brother, corroborated the two victims' accounts. He testified that he was standing near his brother when he observed Hernandez and Hodgson arguing, and then saw Hodgson pull a gun from his waistband. He further testified that, although he was running away from Hodgson when the shots rang out, he could tell that the shots came from the direction where Hodgson was standing.

Ubaldo Mendoza, Hernandez's father, testified that he later overheard Hodgson talking about the shooting as he waited in a family-court office. Mendoza testified that Hodgson, who was unaware that Mendoza was Hernandez's father, said that he had been looking for Hernandez's brother and became angry when Hernandez refused to divulge her brother's location. Mendoza recounted that Hodgson said that someone in the crowd had yelled, “just shoot the bitch,” and that he then shot Hernandez in the leg in order to scare her. Hodgson added that he had shot someone else as well.

Veronica Adamson, who was a friend of Hernandez at the time of the shooting but had fallen out with her by the time of the trial, testified that she had observed the shooting from across the street. She testified that she heard the gunshots but could not see whether anyone had a gun. She also testified that she had heard someone say, “shoot the bitch,” but could not identify who said it. Adamson conceded that she had told the police that she heard Hodgson say, “shoot the bitch,” and had seen him shoot a pistol. She testified, however, that she had lied to the police in order to help Hernandez. She also testified that she lied to the police by telling them that she had heard Hodgson's group bragging to one another after the shooting; by the time of the trial, she was not sure what she had heard. Adamson acknowledged that she was acquainted with Hodgson and was friends with a few of his friends, and that her friendship with Hernandez had soured after the shooting.

One prosecution witness, Robert Singleton, offered the defense some support. Singleton testified that on the night of the shooting he was sitting in a car parked two or three houses down the street from the one that Hernandez was standing in front of. He saw Hodgson and five or six of his friends walk by, and saw Hodgson begin to argue with Hernandez. He testified that he heard someone say “shoot this bitch.” At that point, someone came out from the side of the house Singleton was parked in front of. Singleton heard two or three gunshots, and when he looked to the side he saw someone dressed in black shooting a firearm. Singleton then ducked down, but he estimated that he heard four or five shots total. Singleton said that he did not see Hodgson shoot anyone. Singleton testified that all of the shots sounded the same, but he conceded that he had previously told the police that it sounded like more than one gun was being fired. He also testified that he did not hear who had said, “shoot the bitch,” but acknowledged that he had told the police that Hodgson had said it. He attributed the inconsistency to having overheard other witnesses saying that Hodgson had said, “shoot the bitch.” Finally, Singleton testified that he did not see Hodgson shoot anyone.

After presenting these witnesses, the prosecution asked the defense to waive the presentation of the remaining witnesses from the prosecution's pre-trial witness list. The defense agreed, with the exception of Virginia Smith, a witness who had appeared for the first day of trial but was absent on the second. The judge issued a bench warrant for Smith, but she was not located. Hodgson's counsel did not seek an adjournment, and the defense did not offer any witnesses.

Defense counsel's closing argument focused on the physical evidence, which offered some support for Singleton's account of the shooting. Police officers found five shell casings from a 9mm handgun four houses down the street from where Hernandez and Anderson were shot-that is, roughly where Singleton had testified he saw a shooter. No shell casings were found in the area where Hodgson stood during the shooting.

The prosecution's closing argument urged the jury to find that Hodgson had fired the shots at Hernandez and Anderson. The prosecutor acknowledged that the jury could find that shots had been fired from down the street, but he stressed that several witnesses had remembered hearing ten shots, and that only five casings were recovered from down the street. He also urged the jury to convict on an aiding-and-abetting theory, arguing that Hodgson had encouraged the other shooter, either by yelling, “shoot the bitch,” or by drawing his own pistol.

The jury convicted Hodgson on all charges. The trial court sentenced him to a total term of 18 to 42 years' imprisonment.

B.

During his direct appeal to the Michigan Court of Appeals, Hodgson raised a claim of ineffective assistance of counsel, arguing that counsel had erred by failing to locate and present several exculpatory witnesses. As a result, the Court of Appeals remanded the case to the trial court for evidentiary hearings pursuant to People v. Ginther, 390 Mich. 436, 212 N.W.2d 922 (1973).

1.

Accordingly, between January and May 2001, the trial court held five hearings at which Hodgson presented evidence from several new witnesses. As a general matter, much of the new evidence presented at the hearings tended to implicate another man, Robert Wyatt, as the shooter. Wyatt apparently ran in the same circles as Hodgson. He died in February 1999-after Hodgson's trial but before the evidentiary hearings.

Several of the witnesses at the hearing-namely, Henry Fields, Edwardo Hinton, and his brother Michael Hinton-were friends of Hodgson who had congregated on the night of the shooting at a nearby house, as part of a group that included Hodgson and Wyatt. Fields testified that Hodgson left the group to serve legal papers on Hernandez's aunt, who was the mother of his child, and to confront Hernandez's brother. Fields testified that he followed Hodgson around the corner with Wyatt, whom he had seen shooting a pistol earlier in the evening. They stopped several houses away from where Hernandez and Hodgson were arguing. Wyatt then pulled out his pistol and fired between four and six shots in the direction of Hernandez and Hodgson. Fields testified that he went to jail two days after the shooting and was not contacted by Hodgson's trial counsel. He also stated that he would have testified at Hodgson's trial had he been asked.

Edwardo Hinton testified that he was part of a group of friends who accompanied Hodgson to the site of the shooting. He testified that he could see that Hodgson was not armed when the shots were fired. As Hinton ran away, he encountered Wyatt holding a gun in his hand. Hinton also...