Spencer v. Scutt
| Decision Date | 25 September 2013 |
| Docket Number | Case No. 09-13362 |
| Parties | FREDERICK TED SPENCER, Petitioner, v. DEBRA SCUTT, Respondent. |
| Court | U.S. District Court — Eastern District of Michigan |
Petitioner Frederick Spencer ("Petitioner") is serving a life sentence for felony murder and a two to ten year sentence for arson of a dwelling house and preparation to burn property over $20,000 in connection with a fire at his home in Shepherd, Michigan on January 30, 2000. On March 3, 2006, a jury convicted Petitioner of starting this fire, which caused the death of Petitioner's then-girlfriend, Kathy Sytek.
In 2009, after exhausting state remedies, Petitioner sought a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his petition, Petitioner raised a single claim of ineffective assistance of trial counsel based on his trial counsel's failure to move to exclude statements Petitioner made to state arson investigator while in thehospital recovering from severe injuries sustained in the January fire.1 On February 6, 2013, this Court granted Petitioner a conditional writ of habeas corpus, ordering that the State retry Petitioner within 120 days or release him from prison. Feb. 6, 2013 Op. & Order (ECF No. 17).2 In granting this relief, the Court determined that the hospital bed statements should have been excluded as involuntary, that Petitioner's trial counsel failed to file a suppression motion because he misunderstood the applicable law,3 that a motion to suppress wouldhave succeeded, and that Petitioner suffered prejudice as a result of his counsel's inaction. Id.
On March 5, 2013, Respondent filed a motion for immediate consideration and motion to stay the Court's February 6, 2013 judgment pending appeal. (ECF No. 23.) Petitioner responded on March 12, 2013. (ECF No. 24.) On March 22, 2013, the Court issued an Order granting Respondent's motion in part. (ECF No. 25.) Specifically, the Court granted a stay with respect to its order that Petitioner be released from custody unless the State brings him to trial within 180 days. Although Respondent made arguments pertaining to Petitioner's entitlement to release pending appeal, the Court deemed it prudent to abstain from addressing any arguments regarding release unless and until Petitioner filed a motion seeking release.
On April 22, 2013, Petitioner filed a motion to set bail which is presently before the Court. (ECF No. 26.) Respondent did not respond to this motion. For the reasons set forth more fully below, the Court grants Petitioner's Motion to Set Bail.
Federal Rule of Appellate Procedure 23(c)4 provides that when a decision ordering the release of a prisoner is on appeal, the prisoner must be released unlessa court orders otherwise. While this rule undoubtedly creates "a presumption of release pending appeal where a petitioner has been granted habeas relief," the presumption can be overcome if the traditional stay factors tip the balance against it. O'Brien v. O'Laughlin, 130 S. Ct. 5, 6 (2009). In deciding whether to stay an order granting habeas corpus relief pending appeal,5 courts should consider the following factors:
Hilton v. Braunskill, 481 U.S. 770, 776, 107 S. Ct. 2113, 2119 (1987) (citations omitted).
"Since the traditional stay factors contemplate individualized judgments in each case, the formula cannot be reduced to a set of rigid rules." Id. at 777, 107 S. Ct. at 2119. The balance of factors relevant to determining whether a successful habeas petitioner should be released pending appeal may depend to a large extent upon a determination of the state's prospects of success on appeal. Id. at 778, 107 S. Ct. at 2120. Where the state fails to show either that it has a strong likelihood of success on appeal or can demonstrate a substantial case on the merits, the preference for release of the petitioner should control. Id.
Respondent argues that the State is likely to succeed on appeal or, at the very least, has demonstrated that the State's prospects of success on appeal are substantial. (Resp't's Br. 6, ECF No. 23.) As support for this contention, Respondent makes the following arguments: (1) Petitioner's trial counsel - the former prosecuting attorney for Isabella County - made a strategic decision to allow Petitioner's statements to come into evidence, (id. at 9-11); (2) this decision was within the wide range of professionally competent assistance of counsel, (id. at 12-14); (3) the Court erred in reviewing the Strickland prejudice prong de novo because even though the state courts disposed of Petitioner's ineffective assistance claim on the performance prong, both prongs are to receive AEDPA deference, (id. at 14-15); (4) the Court erred in analyzing the two interview sessions together to determine whether they were voluntary and instead should have analyzed them separately, (id. at 15-17); and (5) the evidence against Petitioner was strong even without the hospital statements and the admission of those statements was not likely to affect the outcome of the trial (id. at 17-18). Each argument is analyzed briefly below.
Respondent's first argument seems to suggest that Petitioner's counsel's experience militates against a finding of deficient performance. The Court disagrees as deficient performance is analyzed under an objective standard. Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2053, 2064 (1984)( that deficient performance requires a showing "that counsel's representation fell below an objective standard of reasonableness[]"). Because the standard is an objective one, counsel's experience does not preclude an ineffective assistance of counsel claim. Respondent's remaining contentions were otherwise addressed and rejected by this Court in its decision granting a conditional writ. Feb. 6, 2013 Op. & Order 14-16.
Respondent's second Strickland argument suggests that the Court examined counsel's conduct retrospectively by examining the impact of the statements on the outcome of Petitioner's trial. An analysis of the Court's Opinion and Order, however, shows that the Court focused primarily on what a reasonable attorney would have done with respect to seeking suppression before trial as opposed to assessing the damage that was done at trial. Even without assessing State's reliance on the statements, no reasonably competent attorney would have failed to seek suppression. In sum, the Court properly assessed counsel's conduct and measured this conduct in light of prevailing professional norms as set forth in the ABA standards for defense counsel. (Id. at 17-19.)
In the third argument, Respondent contends that although the Court was bound by Rayner v. Mills, 685 F.3d 631, 638 (6th Cir. 2012), it improperly reviewed the prejudice prong de novo. Noting that "[t]he proper standard of review may well make a difference in the outcome of the State's appeal[,]"Respondent points out that the State of Michigan filed a petition for writ of certiorari with the Supreme Court asking the Court to decide whether the unadjudicated Strickland prong is entitled to AEDPA deference. (Resp't's Br. 15 () While it is true that "[i]f the State does not prevail on the deficient-performance prong, then the success of the appeal will hang on the prejudice prong[,]" (id.), the Court notes that the Supreme Court denied the aforementioned writ of certiorari on March 18, 2013, 133 S. Ct. 1580. Thus, the authority cited by the Court providing that the prejudice prong should be reviewed de novo remains good law and Respondent has not raised a substantial question on the merits.
Respondent's fourth argument is that the Court did not analyze the two hospital interviews separately7 and it should have because the state court would have considered the interviews separately in reaching a decision as to exclusion. While the Court does not believe this was in error, even if the Court should have analyzed the interviews separately, part of the reason the statements were so damaging is because inconsistencies in Petitioner's version of events aligned with the prosecution's theme that Petitioner was lying and implicated Petitioner in thecommission of the crimes. Feb. 6, 2013 Op. & Order 38. Thus, even if the State had been deprived of only the second (and far more accusatory) interview session at trial, counsel's failure to seek exclusion of this interview was deficient and prejudiced Petitioner.
Lastly, Respondent contends that the evidence against Petitioner was strong even without the statements.8 Respondent takes the position that the evidence that the fires were deliberately set was strong; however, the defense presented an equally plausible theory of how the fires started and effectively rebutted many of the State's arguments at trial. Id. at 37 ().
In this Court's opinion, Respondent has demonstrated neither a "strong likelihood of success on appeal" nor a "substantial case on the merits." Hilton, 481 U.S. at 778, 107 S. Ct. at 2120. "Where the State's showing on the merits falls below this level, the preference for release should control." Id.
The Court considers the traditional bail considerations of (1) likelihood of flight and (2) dangerousness are considered here. Hilton, 481 U.S. at 777, 107 S. Ct. at...
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