Shimel v. Warren

• Decision Date: 22 September 2016
• Docket Number: No. 15-2419,15-2419
• Citation: 838 F.3d 685
• Parties: Rebecca Jean Shimel, Petitioner-Appellant, v. Millicent Warren, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

838 F.3d 685

Rebecca Jean Shimel, Petitioner-Appellant,

v.Millicent Warren, Warden, Respondent-Appellee.

No. 15-2419

United States Court of Appeals, Sixth Circuit.

Argued: July 26, 2016

Decided and Filed: September 22, 2016

ARGUED: James S. Brady, Dykema Gossett PLLC, Grand Rapids, Michigan, for Appellant. Laura Graves Moody, Office of the Michigan Attorney General, Lansing, Michigan, for Appellee. ON BRIEF: James S. Brady, Alison L. Carruthers, Dykema Gossett PLLC, Grand Rapids, Michigan, for Appellant. Andrea M. Christensen-Brown, Office of the Michigan Attorney General, Lansing, Michigan, for Appellee.

Before: SILER, GIBBONS, KETHLEDGE, Circuit Judges.

OPINION

JULIA SMITH GIBBONS

, Circuit Judge.

Rebecca Shimel was convicted of second-degree murder and possession of a firearm in the commission of a felony pursuant to a plea deal in the shooting death of her husband. After sentencing, the Michigan trial court conducted an evidentiary hearing under People v. Ginther , 390 Mich. 436, 212 N.W.2d 922 (1973)

. The court concluded that Shimel's trial counsel was ineffective for failing to investigate a battered spouse self-defense theory and granted her motion to withdraw her guilty plea. The Michigan Court of Appeals, however, reversed. It concluded that the trial court clearly erred in impermissibly substituting its judgment for that of trial counsel on a matter of strategy. On collateral review, the district court denied Shimel's claims that trial counsel was ineffective for failing to spend sufficient time consulting with her and for advising her to plead guilty rather than taking the case to trial and presenting a battered spouse self-defense theory. Shimel is unable to establish prejudice. Therefore, we affirm.

I.

The facts as recited by the Michigan Court of Appeals are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1)

.¹

Wagner v. Smith , 581 F.3d 410, 413 (6th Cir.2009). According to the Michigan Court of Appeals:

Defendant was charged with open murder, MCL 750.316

, and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b, in the shooting death of her husband, Rodney Shimel. Defendant fired seven shots, reloaded the gun, and continued to fire. Shimel sustained nine gunshot wounds, seven of which entered his body through his back. Defendant was arrested on the same day that the shooting occurred.

Defendant was represented by four different attorneys, two court-appointed and two retained, before she entered her guilty plea. The court-appointed attorneys represented defendant only briefly. Before defendant's preliminary examination, while she was represented by her first retained attorney, the assistant prosecutor, J. Dee Brooks, offered to allow defendant to plead guilty to second-degree murder and felony-firearm with no sentence recommendation in exchange for the dismissal of the open murder charge. The offer remained open until the day before the preliminary examination. Although defendant decided to accept the plea offer, Brooks withdrew it because defendant's attorney did not inform him that defendant wanted to accept it until the morning of the preliminary examination. Thus, because the plea offer was not accepted before Brooks's deadline, the offer was withdrawn. Following the preliminary examination, defendant was bound over for trial.

Thereafter, the trial court granted defense counsel's motion to withdraw, and defendant retained attorney E. Brady Denton to represent her. On October 5, 2010, the trial court entered a stipulation to adjourn trial that indicated that Denton was investigating a “battered spouse” defense and intended to hire an expert to interview defendant. Denton spoke several times with attorney Dale Grayson at the National Clearinghouse for the Defense of Battered Women. Grayson sent Denton a packet of materials regarding the defense, including articles, appellate decisions in cases involving the defense, and information regarding courts' positions on the defense.

According to Denton, he discussed the possibility of a battered spouse defense with defendant and her family and friends as well as the prosecutor. Ultimately, he decided not to pursue a battered spouse defense and did not hire an expert.

Over the next few months, Denton and Brooks had several discussions regarding a possible guilty plea. Brooks refused to consider a plea to manslaughter and refused Denton's request for a second-degree murder plea with a sentence cap. In January 2011, Brooks offered defendant the same plea that he had previously offered, i.e., second-degree murder and felony-firearm with no sentence recommendation in exchange for dropping the open murder charge. Defendant accepted the plea and pleaded guilty on February 3, 2011. The trial court sentenced defendant to 18 to 36 years in prison for the murder conviction, to be served consecutive to 2 years' imprisonment for the felony-firearm conviction.

On September 21, 2011, defendant filed a motion to withdraw her plea, to correct her invalid sentence, and to amend the presentence investigation report. In her motion to withdraw her plea, defendant argued that Denton had rendered ineffective assistance of counsel for failing to investigate a battered spouse syndrome defense and/or hire an expert to examine defendant. Defendant asserted that her plea was therefore involuntary. She requested the appointment of a battered spouse syndrome expert at public expense as well as a Ginther²

hearing.

At the Ginther hearing, Denton admitted that he signed the stipulation to adjourn trial in part to investigate a battered spouse syndrome defense. He obtained the packet of materials from Grayson regarding the defense, talked to defendant, and reviewed the police reports. He asserted that he originally intended to hire an expert witness regarding the defense, but ultimately determined after reviewing the case materials that the defense was not worth pursuing. One of Denton's biggest concerns was the fact that defendant reloaded her gun and continued shooting. Also, there was not much evidentiary support to show a history of physical abuse against defendant. There was only one documented incident of domestic violence. When asked whether he thought that self-defense or a battered spouse defense was a viable defense, Denton responded, “I don't think it could be sold to a jury.”

Denton testified that he met with defendant while she was incarcerated at least two or three times and probably wrote letters to her during the seven months that he represented her. Denton scored defendant's sentencing guidelines before the plea hearing but he did not tell defendant the sentence that she was likely to receive. Denton admitted that he told Grayson in a letter dated March 10, 2011, that defendant could receive “as little as 8 years, although [he] would expect 10 to 11 years” based on his calculation of the sentencing guidelines. Denton told defendant that her sentence would be controlled by the sentencing guidelines. Denton testified that one of his concerns was defendant's desire to be with her children. Defendant had told Denton that she wanted an opportunity to get out of prison and be with her children someday. Denton testified that considering defendant's desire to be with her children and his belief that a battered spouse defense would not be successful,

he thought the second-degree murder plea was a good option because it would give defendant a chance to be released from prison one day.

Dr. Karla Fischer testified as an expert witness on domestic violence and battered spouse syndrome. She maintained that battered spouse syndrome is “not a defense per se, but the expert testimony helps to support a theory of self-defense.” She opined that a battered spouse defense presented to a jury typically results in a reduction of charges, most commonly from first-degree murder to second-degree murder.

Fischer conducted a domestic violence evaluation of defendant in prison in October 2011 after defendant moved to withdraw her plea. Defendant told Fischer that Shimel [her husband] had abused her physically and emotionally throughout their 30-year marriage and had threatened to kill her. Defendant claimed that Shimel had punched her, strangled her, kicked her, restrained her, and committed acts of sexual violence against her. Defendant admitt[ed] stabbing Shimel with a knife while he was choking her early in their relationship. Fischer opined that, based solely on the information that defendant provided, defendant had acted in self-defense. Fischer admitted that she did not have a “full grasp” of the forensic evidence and that a battered spouse assessment is based on a defendant's perception of events, which might not match up with other facts. Defendant told Fischer that she was having financial difficulties at the time of the shooting, but Fischer did not believe that that information was important. When asked whether it would have had any significance if defendant had a gambling problem and defendant and Shimel had conflict about it, Fischer responded:

A . Well, my job in understanding the history of domestic violence doesn't necessarily in—that wouldn't necessarily be psychologically significant in the evaluation of domestic violence and its effects. So, I guess the answer would be no, it wouldn't necessarily be important.

Q . So you wouldn't consider other motivation for the shooting?

A . I'm not really sure how to answer that question. I mean, my job is not to understand the motivation underlying the shooting. My job is to understand the history of ... domestic violence, how it affected her and whether or not it led her to act in self-defense.

Defendant testified that she never received any phone calls or correspondence from Denton while she was in jail. She claimed that Denton visited her twice, the first time for “under an hour and the second time lasted for about 10, 15 minutes.” According to defendant, Denton told her at the second meeting that he

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