Pouncy v. Palmer

• Decision Date: 11 January 2016
• Docket Number: Case No. 13-cv-14695
• Citation: Pouncy v. Palmer, 165 F.Supp.3d 615 (E.D. Mich. 2016)
• Parties: Omar Rashad Pouncy, Petitioner, v. Carmen D. Palmer, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

165 F.Supp.3d 615

Omar Rashad Pouncy, Petitioner,

v.Carmen D. Palmer, Respondent.

Case No. 13-cv-14695

United States District Court, E.D. Michigan, Southern Division.

Signed January 11, 2016

David L. Moffitt, Law Offices of David L. Moffitt & Associates, Bingham Farms, MI, for Petitioner.

Bruce H. Edwards, David H. Goodkin, John S. Pallas, Laura Moody, Michigan Attorney General's Office, Lansing, MI, for Respondent.

AMENDED OPINION AND ORDER CONDITIONALLY GRANTING WRIT OF HABEAS CORPUS^*

MATTHEW F. LEITMAN, UNITED STATES DISTRICT JUDGE

In Faretta v. California , 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the United States Supreme Court held that a criminal defendant has a constitutional right to represent himself at trial. But the Supreme Court stressed that a defendant's waiver of his right to counsel (and decision to defend himself) is valid only if it is truly voluntary—a free “choice” made with “eyes wide open.” Id. at 835, 95 S.Ct. 2525.

In this case, Petitioner Omar Rashad Pouncy (“Pouncy”) waived his right to counsel and represented himself at his criminal trial, but he did not make a free “choice” to do so. He chose to represent himself only because his attorney was admittedly and obviously unprepared for trial. Under these circumstances, Pouncy's decision to forego his right to counsel was “no choice at all.” James v. Brigano , 470 F.3d 636, 644 (6th Cir.2006). Pouncy's waiver of counsel thus clearly failed to comply with Faretta. The Michigan Court of Appeals nonetheless held that the waiver was constitutionally sufficient. That was an unreasonable application of Faretta. Pouncy is therefore entitled to habeas relief.

I.

In 2005, the Genesee County Prosecutor charged Pouncy with four counts of carjacking, four counts of armed robbery, two counts of felony firearm, and one count of felony possession of a firearm. (See 1-24-2006 Trial Tr., ECF # 8-7 at 18, Pg. ID 473.) The prosecutor alleged that Pouncy and an accomplice contacted individuals who had advertised a vehicle for sale, lured those individuals to an isolated area, and then carjacked them at gunpoint. (See id. at 203–04, Pg. ID 659-60.)

Pouncy, who was eighteen years old at the time of trial, did not have the resources to post bond and was held in custody from the time he was first charged up through (and including) his trial. Nor could Pouncy afford an attorney. The state court therefore appointed defense attorney Michael Breczinski (“Breczinski”) to represent Pouncy. Pouncy told Breczinski that his primary defense to the charges was that he had an alibi and that the prosecution had the wrong man. (See, e.g. , id. at 5, 14, Pg. ID 460, 469.)

Pouncy was arraigned in the state trial court on November 14, 2005. (See Register of Actions, ECF # 8-42 at 2, Pg. ID 3204.) That court scheduled Pouncy's trial to begin just eight weeks later, on January 10, 2006. (See id. ) Breczinski did not file a single substantive motion on Pouncy's behalf between the arraignment and the scheduled trial date. His only motion requested a modest two-week adjournment of the trial, which the court granted. (See id. at 3, Pg. ID 3205.) But Breczinski did not use the extra time to file any other motions of any kind. (See id. )

Pouncy's trial began on January 24, 2006, a mere ten weeks after his arraignment. (See id. ) As soon as the presiding judge called the case on the record that morning, Breczinski expressed concern about whether he was sufficiently prepared to begin trial. (See 1-24-2006 Trial Tr., ECF # 8-7 at 3-4, Pg. ID 458-59.) Breczinski told the judge that there was a large volume of materials to review and “a number of leads” to pursue; that he “would have been stretched too thin” to do all of the necessary work himself; and that he therefore hired a private investigator to conduct a substantial portion of the investigation into Pouncy's defenses. (Id. 12–13, Pg. ID 467-68.) Breczinski said that he put the investigator in contact with Pouncy and that he gave the investigator access to his complete file. (See id. at 11–12, Pg. ID 466-67.) Breczinski then explained that the investigator had provided an initial oral report stating, at that time, that he had found “nothing on some of the leads that we have as to possible alibi witnesses and such.” (Id. at 3–4, Pg. ID 461-62.) Breczinski stressed, however, that he had not yet received the investigator's “final written report,” and that he thus could not be certain that he was prepared for trial. (Id. )

Breczinski told the judge that “[w]ithout [the] written report,” he could only “assume,” based on the investigator's “reputation and past performance,” that the investigator had done a thorough review of the case (id. at 17, Pg. ID 472); Breczinski candidly admitted that he did not “know” whether the investigator had, in fact, conducted a complete review. (See id. ) Breczinski also acknowledged that he was unable to assess his own level of preparation “because [he did not] have that full detailed report from [the investigator] which [he] was expecting.” (Id. at 4, Pg. ID 459.) In Breczinski's words: “[s]ince I have no details[,] to say whether I'm ready for trial or not is problematic ....” (Id. ; emphasis added.)¹ Simply put, Breczinski could not assure the court, or Pouncy, that he (or his investigator) had completed the investigation into Pouncy's intended primary defenses at trial—Pouncy's claimed alibi and the mistaken identification by the prosecution's witnesses.

Despite Breczinski's insistence that he did not know if the investigator had completed his work, the trial court concluded that the investigator had completed his review of Pouncy's possible defenses and found nothing. The judge said “[w]hat it sounds like to me then is that the investigator has filed, followed up with the leads and he just hasn't been able to come up with anything.” (Id. at 11, Pg. ID 466.)

Pouncy also raised concerns about Breczinski's lack of preparation at the very beginning of the proceedings. Pouncy told the trial judge that Breczinski had failed to communicate with him (see, e.g. , id. at 5-7, Pg. ID 460-62) and that “today” (i.e., the morning of the first day of trial) was “our first time really talkin[g].” (Id. at 5, Pg. ID 460). Breczinski explained that he had visited Pouncy in jail roughly six times, but Pouncy asserted that Breczinski had not stayed longer than ten or fifteen minutes during any of these meetings. (See id. at 7–8, Pg. ID 462-63.) Pouncy insisted that during these short visits, Breczinski simply “drop[ped] off [ ] piece[s] of paper” like a transcript and did not “talk” to him. (Id. at 8, Pg. ID 463.) Pouncy further told the judge that he had not yet received any discovery materials. (See id. at 6, Pg. ID 461.) Notably, Breczinski never disputed Pouncy's description of their interactions nor did Breczinski claim to have delivered any discovery materials to Pouncy. Pouncy finally complained that he was “not getting proper representation” from Breczinski; said that he did not “feel comfortable” proceeding to trial with such unprepared counsel; and he asked the judge to appoint him a new lawyer. (Id. at 6–7, Pg. ID 461-62.)

In response, the trial judge told Pouncy that he (Pouncy) was “not in a position to judge whether Mr. Breczinski” was providing him proper representation, and the judge assured Pouncy that Breczinski was an experienced and competent attorney. (Id. at 9–11, Pg. ID 464-66.) And when Pouncy continued to express his concerns about proceeding to trial with unprepared counsel, the trial judge told Pouncy that the trial was going to begin that morning because “we got a jury downstairs that's ready to go....” (Id. at 10, Pg. ID 465.) The judge added that if Pouncy wished to remain present for his trial that he needed to “keep [his] mouth shut” (Id. at 18, Pg. ID 473), and that to prevent interruptions he would “gag [Pouncy] right there in the seat and have the jurors to [sic] sit [there] and watch [him] with a gag in [his] mouth during the entire trial.” (Id. at 16, Pg. ID 471.)

Before bringing the prospective jurors into the courtroom, the trial judge asked counsel to compare the prosecution's final plea offer to Pouncy's sentencing exposure in the event of a conviction following a trial. In the context of that discussion, the judge noted that the armed robbery charge “carrie[d] [a possible] life” sentence, and he then asked Breczinski to “tell me what [Pouncy's sentencing] guidelines” would be in the event Pouncy was convicted on all counts. (Id. at 19–20, Pg. ID 474-75.) Breczinski responded that the guidelines range was 135 to 337 months in prison—roughly eleven and one-half to twenty-eight years. (See id. at 20–21, Pg. ID 475-76.) Based upon Breczinski's calculations, the judge explained to Pouncy that “the guidelines say I should give you a sentence somewhere between eleven and-a-half to twenty-eight, eight years” if Pouncy was convicted on all the charges brought against him. (Id. at 21, Pg. ID 476.)

It turns out that Breczinski—whose experience and abilities the trial judge had touted to Pouncy—had materially miscalculated the guidelines range (which the trial court then incorrectly accepted and repeated to Pouncy). The true range was 225 months to 562 months (see Sentencing Tr., ECF # 8-16 at 34, Pg. ID 1936), but that range was not discovered until after Pouncy was convicted.

Before summoning the jury pool to the courtroom, the trial judge also heard arguments on two motions in limine made by the prosecution. In one of the motions, the prosecutor sought to admit a purported tape recording of Pouncy threatening a witness. The prosecutor explained that the allegedly-threatened witness could lay the required foundation for the recording by identifying Pouncy's voice, and the prosecutor argued that the recording was admissible “to show consciousness of guilt.” (1-24-2006 Trial Tr., ECF # 8-7 at 30-31, Pg. ID 485-86.) As support for admission of the recording, the prosecutor cited authority from...