Storey v. Vasbinder, No. 09–2301.

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtARGUED:
Citation657 F.3d 372
PartiesMark E. STOREY, Petitioner–Appellant,v.Douglas VASBINDER, Respondent–Appellee.
Decision Date02 November 2011
Docket NumberNo. 09–2301.

657 F.3d 372

Mark E. STOREY, Petitioner–Appellant,
v.
Douglas VASBINDER, Respondent–Appellee.

No. 09–2301.

United States Court of Appeals, Sixth Circuit.

Argued: Jan. 13, 2011.Decided and Filed: Sept. 16, 2011.Rehearing and Rehearing En Banc Denied Nov. 2, 2011.*


[657 F.3d 373]

ARGUED: Mary A. Owens, Grand Rapids, Michigan, for Appellant. John S. Pallas, Office of the Michigan Attorney General, Lansing, Michigan, for Appellee. ON BRIEF: Mary A. Owens, Grand Rapids, Michigan, for Appellant. Brad H. Beaver, Office of the Michigan Attorney General, Lansing, Michigan, for Appellee.Before: KENNEDY, CLAY, and KETHLEDGE, Circuit Judges.KETHLEDGE, J., delivered the opinion of the court, in which KENNEDY, J., joined. CLAY, J. (pp. 380–93), delivered a separate dissenting opinion.

[657 F.3d 374]

OPINION
KETHLEDGE, Circuit Judge.

Mark Storey's principal argument in his federal habeas petition is that he should get a new trial because his lawyer in his first trial was ineffective. It is common ground in this case that Storey's trial lawyer did a poor job. But the Supreme Court has gone out of its way to make clear that, in order to obtain a new trial on ineffective-assistance grounds, the petitioner must do more than show that he had a bad lawyer—even a really bad one. Instead, the petitioner must also show prejudice, which means he must show a reasonable likelihood that his lawyer's bad performance made a difference in the outcome of his trial. The Court's precedents make clear that the former showing by no means leads inevitably to the latter.

Whether a petitioner can show prejudice depends in large part on the evidence in the case. The evidence here included the testimony of three witnesses who testified that, on separate occasions, Storey had boasted to them about killing Nathan Wilson. There is little likelihood that even an effective defense lawyer could have overcome that testimony, if indeed the trier of fact found it credible. The trial judge who watched each of these witnesses testify specifically found their testimony to be credible on this point. Another trial judge who watched two of these witnesses change their testimony, in a hearing over a decade later, specifically found their recantations not to be credible. And so, in the end, Storey's petition asks us to set aside the credibility determinations of the two judges who watched these witnesses testify first-hand, in favor of contrary credibility determinations of our own. The record provides us with no basis to take that extraordinary step in this case. We therefore affirm the district court's denial of the writ.

I.
A.

Wilson worked at the Gold Mine, a Detroit gold and jewelry shop that also reputedly did its share of fencing. A bulletproof plexiglass partition and a sliding-steel door separated the customer counter from the employee-only area of the store. The store's inventory was displayed in a see-through case on the employee side of the partition. A loaded .357 Magnum revolver typically rested in plain view on top of the case.

Sometime between 2 and 3 p.m. on November 7, 1984, Wilson was found dead in his chair behind the plexiglass at the shop. He had been shot three times in the back of the head. One shot was made with the gun pressed directly against his head. The sliding steel door was open. About $10,000 worth of jewelry, $1,000 cash, and the .357 Magnum were missing from the store.

Mark Storey later admitted that he was in the employee-only area of the store between approximately 1 and 2 p.m. on the day of the shooting. He said that Wilson let him in, along with his friend Shawn Coats, so that Storey could sell some stolen jewelry to the store. Storey and Coats smoked marijuana while they were back there.

About three weeks later, Storey tried to sell the store a gold necklace. The store's owner, James Floyd, recognized the necklace as one that had been stolen when Wilson was murdered. The police investigated. Eventually, in connection with Wilson's killing, the State of Michigan charged Storey with first-degree murder and firearm possession during a felony.

B.

Storey was just shy of 16 years old on the date of the murder, so the Wayne

[657 F.3d 375]

County Probate Court's Juvenile Division initially held jurisdiction over his case. But that court waived jurisdiction at the State's request, thereby sending the case to the Michigan Recorder's Court for Storey to be tried as an adult. Neither Storey's counsel at the time, nor his counsel at trial, Charles Campbell, appealed the waiver.

After a four-day bench trial in the Recorder's Court, Judge James Chylinski found Storey guilty beyond a reasonable doubt on both counts. He emphasized that “the crux of the case” was whether three witnesses—Darin Henderson, David Kidd, and William Walls—were credible when they testified that Storey had told them that he killed Wilson. And Judge Chylinski found that each of these witnesses was credible when he so testified. He sentenced Storey to life in prison, plus two years for the gun charge. Storey appealed, claiming only that the evidence was insufficient to convict him. The Michigan Court of Appeals affirmed the trial court's judgment, and the Michigan Supreme Court denied leave to appeal.

Storey then pursued state collateral remedies. First he filed a petition for habeas corpus in the Recorder's Court, which Judge Chylinski denied in 1989. Five years later, Storey filed a motion for relief from judgment in the same court, claiming for the first time that his trial counsel had been ineffective, among other claims. He also moved for an evidentiary hearing with respect to his ineffective-assistance claim. See generally People v. Ginther, 390 Mich. 436, 212 N.W.2d 922 (1973). By then Judge Harvey Tennen had replaced Judge Chylinski. Judge Tennen granted the motion for a Ginther hearing, at which a criminal-defense lawyer offered expert testimony that Campbell had done a poor job before and during trial.

Judge Tennen thereafter ordered a new trial based on Campbell's failure to prepare adequately for trial and to obtain discovery regarding the State's witnesses. But the State appealed, and the Michigan Court of Appeals promptly remanded the case for a determination as to whether Storey had shown cause for failing to present his ineffective-assistance claim on direct appeal. On remand, Judge Tennen found that Storey had not shown cause for that failure, so he vacated his earlier order and denied Storey's motion for a new trial.

Storey then filed two applications for leave to appeal to the Michigan Court of Appeals. The first application included a claim that the Juvenile Division's waiver of jurisdiction had been procedurally defective. The Court of Appeals denied that application in a stock order entered under Michigan Court Rule 6.508(D). The second application included a claim that Campbell had been ineffective as a result of his failure to challenge the juvenile-waiver order. In addition, that application challenged Judge Tennen's determination that Storey had not shown cause for his failure to present a claim of ineffective assistance in his direct appeal. The Court of Appeals denied that application for lack of merit. The Michigan Supreme Court denied leave to appeal from either denial.

In 1999, Storey filed a second motion for relief from judgment before the state trial court. This motion included a new claim that two of the State's witnesses at his trial—Henderson and Kidd—had perjured themselves when they testified that Storey had told them he shot Wilson. Judge Tennen held another Ginther hearing with respect to the motion. Although both Henderson and Kidd recanted their trial testimony during the hearing, Judge Tennen found that neither recantation was credible. Judge Tennen also held that Storey's other claims were procedurally

[657 F.3d 376]

barred. He thus denied Storey's motion for a new trial. The Michigan Court of Appeals and Michigan Supreme Court each denied leave to appeal.
C.

Storey turned finally to the federal courts. In 2001, he filed a federal habeas petition comprising eight claims. In September 2003, the district court granted relief on one of them: that Storey's appellate counsel had been ineffective by failing to argue that Campbell had been ineffective at trial. (The 2001 petition did not itself include, however, a claim that Campbell had been ineffective.) As relief, the district court ordered that Storey be granted a new direct appeal. The district court thereafter closed the case without staying, dismissing, or otherwise taking any action with respect to Storey's other claims.

Per the district court's order, the Michigan Court of Appeals granted Storey a new appeal. Before proceeding with that appeal, however, Storey filed yet another motion for a new trial before the trial court, again presenting his ineffective-assistance and perjured-testimony claims. Judge Michael Hathaway—who was by then presiding—denied the motion, finding among other things that Judge Chylinski had been better positioned than anyone to judge each witness's credibility.

So Storey proceeded with his second direct appeal before the Michigan Court of Appeals, raising ten claims. The court rejected all of them and affirmed the trial court's original judgment. The Michigan Supreme Court denied leave to appeal.

Storey then returned to federal district court, filing a new habeas petition in 2006. That petition included several claims that were in his 2001 petition, but four that were not. One of the latter claims was that Campbell had been ineffective at trial. Based on Storey's inclusion of the new claims, however, the district court held in a June 2009 order that Storey's new petition was “second or successive” within the meaning of 28 U.S.C. § 2244(b). The district court gave Storey the choice of dropping the new claims or seeking permission from us to file a second or successive petition. See generally id. § 2244(b)(3). Storey did neither, and instead...

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  • Thoma v. Warden, Pickaway Corr. Inst., Case No. 1:20-cv-282
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • 28 Octubre 2020
    ...Strickland, 466 U.S. at 687. "The likelihood of a different result must be substantial, not just conceivable." Storey v. Vasbinder, 657 F.3d 372, 379 (6th Cir. 2011), quoting Harrington v. Richter, 562 U.S. 86, 111-12 (2011).Page 5 In assessing prejudice under Strickland, the question is no......
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    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • 2 Agosto 2021
    ...Strickland, 466 U.S. at 687. “The likelihood of a different result must be substantial, not just conceivable.” Storey v. Vasbinder, 657 F.3d 372, 379 (6th Cir. 2011), quoting Harrington v. Richter, 562 U.S. 86, 111-12 (2011). In assessing prejudice under Strickland, question is not whether ......
  • United States v. Watson, Case No. 1:15-cr-113
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • 7 Mayo 2020
    ...Strickland, 466 U.S. at 687. "The likelihood of a different result must be substantial, not just conceivable." Storey v. Vasbinder, 657 F.3d 372, 379 (6th Cir. 2011), quoting Harrington v. Richter, 562 U.S. 86, 111-12 (2011).In assessing prejudice under Strickland, the question is not wheth......
  • Montelongo-Rangel v. Warden, Noble Corr. Inst., Case No. 2:20-cv-5463
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • 7 Junio 2021
    ...Strickland, 466 U.S. at 687. "The likelihood of a different result must be substantial, not just conceivable." Storey v. Vasbinder, 657 F.3d 372, 379 (6th Cir. 2011), quoting Harrington v. Richter, 562 U.S. 86, 111-12 (2011).Page 12 In assessing prejudice under Strickland, the question is n......
  • Request a trial to view additional results
420 cases
  • Thoma v. Warden, Pickaway Corr. Inst., Case No. 1:20-cv-282
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • 28 Octubre 2020
    ...Strickland, 466 U.S. at 687. "The likelihood of a different result must be substantial, not just conceivable." Storey v. Vasbinder, 657 F.3d 372, 379 (6th Cir. 2011), quoting Harrington v. Richter, 562 U.S. 86, 111-12 (2011).Page 5 In assessing prejudice under Strickland, the question is no......
  • Pettus v. Warden, Franklin Med. Ctr., 1:20-cv-187
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • 2 Agosto 2021
    ...Strickland, 466 U.S. at 687. “The likelihood of a different result must be substantial, not just conceivable.” Storey v. Vasbinder, 657 F.3d 372, 379 (6th Cir. 2011), quoting Harrington v. Richter, 562 U.S. 86, 111-12 (2011). In assessing prejudice under Strickland, question is not whether ......
  • United States v. Watson, Case No. 1:15-cr-113
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • 7 Mayo 2020
    ...Strickland, 466 U.S. at 687. "The likelihood of a different result must be substantial, not just conceivable." Storey v. Vasbinder, 657 F.3d 372, 379 (6th Cir. 2011), quoting Harrington v. Richter, 562 U.S. 86, 111-12 (2011).In assessing prejudice under Strickland, the question is not wheth......
  • Montelongo-Rangel v. Warden, Noble Corr. Inst., Case No. 2:20-cv-5463
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • 7 Junio 2021
    ...Strickland, 466 U.S. at 687. "The likelihood of a different result must be substantial, not just conceivable." Storey v. Vasbinder, 657 F.3d 372, 379 (6th Cir. 2011), quoting Harrington v. Richter, 562 U.S. 86, 111-12 (2011).Page 12 In assessing prejudice under Strickland, the question is n......
  • Request a trial to view additional results

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