McClellan v. Rapelje

• Decision Date: 21 March 2013
• Docket Number: No. 11–1841.,11–1841.
• Citation: 703 F.3d 344
• Parties: Tyrik McCLELLAN, Petitioner–Appellee, v. Lloyd RAPELJE, Respondent–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

703 F.3d 344

Tyrik McCLELLAN, Petitioner–Appellee,

v.Lloyd RAPELJE, Respondent–Appellant.

No. 11–1841.

United States Court of Appeals, Sixth Circuit.

Argued: Oct. 4, 2012.

Decided and Filed: Jan. 11, 2013.

Rehearing and Rehearing En Banc Denied March 21, 2013.^*

ARGUED:John S. Pallas, Office of the Michigan Attorney General, Lansing, Michigan, for Appellant. Craig A. Daly, Detroit, Michigan, for Appellee. ON BRIEF:John S. Pallas, Office of the Michigan Attorney General, Lansing, Michigan, for Appellant. Craig A. Daly, Detroit, Michigan, for Appellee.

Before: MERRITT, MOORE, and McKEAGUE, Circuit Judges.

MERRITT, J., delivered the opinion of the court, in which MOORE, J., joined. McKEAGUE, J. (pp. 351–59), delivered a separate dissenting opinion.

OPINION

MERRITT, Circuit Judge.

In this Michigan criminal case, the Petitioner, Tyrik McClellan, at age 19, was convicted of first degree murder of the victim, Nathan Auld, in connection with a barroom conflict between two groups. McClellan received a mandatory life sentence without parole and a consecutive two-year sentence for a firearm conviction. The district court granted a writ of habeas corpus on the ground that McClellan's defense lawyer did not provide the effective assistance of counsel required by the Sixth Amendment because the lawyer did not interview numerous eyewitnesses who would have testified that McClellan acted in self defense. On appeal, we consider three sets of issues: first, on the merits, the State asserts that the defense lawyer did not violate the ineffective assistance of counsel standard set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); second, the State asserts that the district court should not have reached the merits because McClellan defaulted his claim by not raising it in a procedurally correct way; and third, the State asserts that the Antiterrorism and Effective Death Penalty Act, “AEDPA,” and recent Supreme Court cases interpreting it, Harrington v. Richter, ––– U.S. ––––, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011), and Cullen v. Pinholster, ––– U.S. ––––, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011), so limit the federal courts' authority to decide habeas cases on the merits that McClellan's petition must be dismissed. We will take up these three sets of issues in the order followed by the district court. After considering these three sets of issues, we agree with the district court decision and affirm.

I. The Merits of the Ineffective Assistance of Counsel Claim

In a thorough opinion, the district court recited the evidence introduced at the original trial in 2002 and the countervailing evidence offered at the evidentiary hearing in federal district court on April 6, 2011. The shooting death occurred outside a bar in Detroit in the early morning hours of December 20, 2001. There was a heated altercation inside the bar between two groups, both of whom were asked to leave. Outside the bar, McClellan shot Auld. At the trial, he claimed self defense, but he neither testified nor offered any proof. Six of Auld's companions and two employees of the bar testified for the prosecution. There was confusion in the testimony as to whether Auld had rushed McClellan. The prosecution's theory, apparently accepted by the jury, was that the shooting was premeditated because the evidence showed that McClellan had gone to his car after leaving the bar and retrieved his gun. Defense counsel interviewed none of the witnesses and put on no witnesses in McClellan's defense. The jury rendered its verdict based entirely on the prosecution's case.

The evidence introduced at the federal habeas evidentiary hearing ten years later, if believed, disproved the State's theory of premeditation. McClellan and eight witnesses testified that McClellan had taken the gun into the bar and did not get it from his car after leaving the bar. This evidence disproves the State's theory of premeditation. The witnesses corroborated McClellan's story that Auld, who was 280 pounds and over six feet tall, rushed him with a chrome object in his hand that appeared to be a gun and that McClellan then pulled out his gun and fired at Auld. The defense lawyer at the original trial, Jeffrey Edison, also testified at the evidentiary hearing that he did not interview the witnesses or call McClellan because he believed he could undermine the prosecution's case through cross-examination of the prosecution witnesses.

In issuing the writ, the district court found that at the original trial no witness testified “that they saw Auld with a weapon.” However, at the federal hearing several witnesses “testified that Auld was armed” both before he was shot and afterward, and the district court found they would have made effective witnesses for McClellan if they had been interviewed and called at trial. Opinion, pp. 355–56.

Based on the evidence, the district court found that “the record demonstrates that defense counsel made a decision that he could prevail on his self-defense theory with only the prosecutor's witnesses without ever conducting any investigation.” Id. at 356. There was strong evidence presented by “the defense witnesses' testimony about how they snuck Petitioner into the bar with a handgun.” Id. at 359. The district court found that the evidence, if offered at trial, “would have undermined the prosecutor's argument that Petitioner premeditated the murder because he retrieved the handgun after he left the bar.” Id.

On the ineffective assistance of counsel issue, the district court concluded:

But when, as here, it turns out that the accused's attorney never bothered to investigate what members of his client's group would say, and it turns out that their version would have significantly supported a claim of self defense, it follows that the attorney was not acting as “counsel” as contemplated by the Sixth Amendment and that his failings undermine confidence in the outcome of the trial. Therefore, Petitioner has demonstrated entitlement to habeas relief based on his claim of ineffective assistance of trial counsel.

Id. at 359.

The State argues on appeal that McClellan has not demonstrated deficient performance because “Edison made strategic decisions on how to proceed in this case—deciding that it was wiser to hold the prosecution to its burden rather than calling witnesses to the stand, including McClellan himself.” Resp. brief, p. 59. The State also argues that “[d]eficient performance—if it occurred—did not lead to prejudice on the facts of this case,” Id. at 65. Citing the fact that defense counsel was “an experienced criminal defense attorney,with 35 years of practice, and 90% of his practice focused on criminal defense,” the State seems to suggest that this experience adds to the deference we should pay to counsel's strategy of not interviewing or calling any defense witnesses. We agree with the reasoning of the district court that trial counsel was grossly deficient in his failure to interview defense witnesses.¹See Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (“[S]trategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” (internal quotation marks omitted)); English v. Romanowski, 602 F.3d 714, 728 (6th Cir.2010) (“Yet English's attorney admitted that he failed to interview any of the witnesses outside of the courthouse or prior to trial. Counsel could not have developed a reasonable trial strategy since he based his decisionmaking on what counsel guessed the witnesses might say in the absence of a full investigation, and not on what investigation reveals witnesses will actually testify to.” (internal quotation marks and alterations omitted)).

II. Procedural Default by Appellate Counsel

In addition to its argument that trial counsel was not deficient in his representation, the State defended the trial verdict under the doctrine of “procedural default.” The State initially asserted as an independent, non-merits, state procedural ground for dismissing the habeas petition that the state courts themselves “did not reach the merits” of the Sixth Amendment ineffectiveness claim because appellate counsel for McClellan did not raise the issue on direct appeal or in an alternative Michigan proceeding sometimes referred to as a “ Ginther ” evidentiary hearing, a procedure created under Michigan Court Rule 7.211(C)(1). The district court ruled against the State on grounds that McClellan had established the technical requirements of “cause” and “prejudice” to overcome procedural default under the “cause and prejudice” doctrine established in Murray v. Carrier, 477 U.S. 478, 488–89, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986).

Again in a thorough decision, the district court explained its reasoning that “procedural default”—based on appellate counsel's failure to raise ineffective assistance of counsel—does not bar habeas review on the merits of McClellan's ineffective assistance of counsel claim. The district court explained that appellate counsel, Mr. Simon, “had no independent recollection of Petitioner's appeal. But both Petitioner and his aunt testified that they sent letters to Simon informing him of the basis for investigating a possible ineffective assistance of trial counsel claim.” Opinion, p. 353. The district court found their testimony to be credible and supported by copies of the letters they sent to Simon. The court also found “that Simon completely ignored this lead—all of the defense witnesses testified that they were never contacted by Simon.” Id.

The court found prejudice as well because “there is a reasonable probability that had the state court been presented with the evidence that was presented to this Court, Petitioner's...