Titlow v. Burt, 10-2488

• Court: U.S. Court of Appeals — Sixth Circuit
• Writing for the Court: RONALD LEE GILMAN
• Decision Date: 22 May 2012
• Docket Number: No. 10-2488,10-2488
• Citation: Titlow v. Burt, No. 10-2488 (6th Cir. May 22, 2012)
• Parties: Vonlee Nicole Titlow, Petitioner-Appellant, v. Sherry L. Burt, Warden, Respondent-Appellee.

Vonlee Nicole Titlow, Petitioner-Appellant,

v.Sherry L. Burt, Warden, Respondent-Appellee.

No. 10-2488

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: January 17, 2012

Decided and Filed: May 22, 2012

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 12a0147p.06

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 07-13614—Marianne O. Battani, District Judge.

Before: BATCHELDER, Chief Judge; CLAY and GILMAN, Circuit Judges.

COUNSEL

ARGUED: Laura Kathleen Sutton, Manchester, Michigan, for Appellant. Laura Graves Moody, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee. ON BRIEF: Laura Kathleen Sutton, Manchester, Michigan, for Appellant. John S. Pallas, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee.

GILMAN, J., delivered the opinion of the court, in which CLAY, J., joined. BATCHELDER, C. J. (pp. 20-24), delivered a separate dissenting opinion.

OPINION

RONALD LEE GILMAN, Circuit Judge. Vonlee Nicole Titlow, a transgender prisoner presently incarcerated at the Richard A. Handlon Correctional Facility in Ionia, Michigan, appeals from the district court's denial of her petition for a writ of habeas corpus following her conviction in state court for the second-degree murder of her uncle.Titlow raises several ineffective-assistance-of-counsel claims, as well as a prosecutorial-misconduct claim and a challenge to the trial court's response to a question from the jury.

Although the district court correctly determined that most of Titlow's claims lack merit or are procedurally defaulted, the court erred in concluding that Titlow failed to establish an ineffective-assistance-of-counsel claim arising out of her plea-bargaining experience. The Michigan Court of Appeals' conclusion that her second attorney was not deficient when he advised Titlow to withdraw the plea agreement negotiated by her first attorney was unreasonable because the record reflects that the second attorney totally failed to investigate her case prior to recommending that she withdraw the guilty plea. In contrast to the 7-to-15-year sentence that Titlow would have received under the plea agreement, she was convicted by a jury and sentenced to 20-to-40 years in prison. For the reasons set forth below, we REVERSE the judgment of the district court and conditionally GRANT the petition for a writ of habeas corpus, giving the State 90 days to reoffer Titlow the original plea agreement or, failing that, to release her.

I. BACKGROUND

A Michigan jury convicted Titlow of the second-degree murder of her uncle, Donald Rogers, an offense that took place in August 2000. At the time of the offense, Titlow was living with her uncle and his wife, Billie Rogers. Donald was an alcoholic and allegedly wealthy. In the early morning hours of August 12, 2000, police officers were dispatched to the Rogers' residence in Troy, Michigan, where they found Donald dead on the kitchen floor with a drinking glass in his hand. Titlow and Billie told the officers that they had found Donald dead on the floor when they returned from gambling at a casino—a regular pastime of Billie's—during the middle of the night. But the officers noted that several aspects of the crime scene and of the women's behavior appeared inconsistent with what Titlow and Billie were telling them.

Although Donald's body was taken to the medical examiner's office, no autopsy was ever performed. The medical examiner initially determined that the cause ofDonald's death was a heart attack, with arterial sclerotic cardiovascular disease (related to his alcoholism) as a contributing factor. His body was cremated before any further examination was conducted. Some time later, however, Donald's death certificate was amended to list asphyxia by smothering as the cause of death, with acute alcohol intoxication as a contributing factor. The amendment was based on photographs of the corpse that showed small scrapes around Donald's nose consistent with impressions made by a decorative woven pillow.

Several days after Donald's death, the officers interviewed Danny Chahine, Titlow's paramour. Titlow had treated Chahine to dinner shortly before the police interview and had filled him in on some of the events that led to Donald's death. Chahine informed the police that Titlow had previously told him that Billie wanted to get rid of her husband and was willing to pay Titlow $25,000 to do so. At the dinner, Titlow told Chahine that she and Billie had found Donald passed out on the kitchen floor when they returned from the casino. Billie then suggested that they pour vodka down Donald's throat while holding his nose shut, and she began doing so herself. Titlow initially balked, but at Billie's encouragement began pouring a small amount of vodka down Donald's throat and held his mouth shut. Titlow soon relented, however, stopped Billie from pouring more vodka down Donald's throat, and walked away. (The evidence suggests that Billie later smothered Donald with a pillow when Titlow left the room.) After his interview with the police, Chahine agreed to wear an audio recording device during a subsequent dinner with Titlow, at which time Titlow again recounted the details surrounding Donald's death and asked Chahine to serve as an alibi for her and Billie.

Billie was the sole beneficiary of Donald's estate. Shortly after his death, she purchased new cars for herself and Titlow with money transferred from one of Donald's bank accounts. She also wrote Titlow a check for $70,260, which Titlow used to open a certificate-of-deposit account, and gave Titlow gambling money that Billie deducted from a ledger with $100,000 written on it. Billie also sent large sums of money to her own daughter and mother.

Titlow and Billie were arrested on first-degree murder charges in January 2001. The State decided to try them separately for their involvement in the crime. Attorney Richard Lustig represented Titlow and negotiated a plea agreement on her behalf. Under the agreement, the State offered to reduce Titlow's charges to manslaughter, with a 7-to-15-year sentence, on the conditions that Titlow plead guilty, submit to a lie-detector test, testify against Billie at trial, and not challenge the prosecutor's recommended sentencing range on appeal.

The state trial court held a plea hearing in October 2001. Titlow confirmed that she had reviewed all the evidence with her attorney, understood the facts that could support a conviction of first-degree murder, and was aware that the proposed sentencing range exceeded the standard guidelines range for a manslaughter conviction in Michigan. She also admitted to pouring vodka down Donald's throat shortly before Billie smothered Donald to death and to receiving $100,000 to remain silent about Billie's actions. The court accepted the plea agreement and scheduled the matter for sentencing in December 2001.

During her confinement in a local jail between these hearings, Titlow spoke with Eric Ott, a sheriff's deputy assigned to the jail, who advised her not to plead guilty if she believed that she was innocent. Ott referred Titlow to attorney Frederick Toca, who agreed to represent her in exchange for some jewelry and the media rights to her case. The record contains no details about Toca's conversations with Titlow before November 29, 2001, the date set by the court to hear the motion filed by Toca to withdraw Titlow's guilty plea.

On the record, the State represented that it previously had conversations with Toca in which Toca represented that Titlow would not testify against Billie unless Titlow's recommended sentencing range was reduced to 3-to-15 years. Toca asserted at the sentencing hearing that he "felt that the offer [of 7-to-15 years] was out of line, that seven years is outside of Ms. Von Lee [sic] Titlow's guidelines. Her guidelines are actually two to five. . . . Based upon [the State's refusal to accept a lower sentencing range], your Honor, we are withdrawing."

Toca also noted that he had been "retained last week" and that "[t]here's a lot of material here" that he still needed to review prior to trial. Titlow acknowledged her understanding that the first-degree murder charge would be reinstated if she withdrew her guilty plea. At no point during the November 2011 hearing did either Titlow or Toca mention Titlow's alleged assertions of innocence to Deputy Ott. The court ultimately allowed Titlow to withdraw her plea because she was declining to testify at Billie's trial.

Toca did not obtain Titlow's file, inspect the government's discovery materials, or speak with Lustig (Titlow's former counsel) about the case until January 10, 2002, approximately a month and a half after the plea-withdrawal hearing. This despite the fact that Lustig had made the file available to Toca around the time of the November 29, 2001 hearing, which was when Toca officially substituted himself as Titlow's counsel. All of this information was presented to the Michigan Court of Appeals on Titlow's direct appeal.

Soon after obtaining the file, Toca moved to withdraw as counsel, citing a breakdown in communications and a lack of funds to proceed with the defense. At a hearing in February 2002, the court questioned Toca's budgetary constraints (which was his stated reason for failing to order the transcripts from Billie's recently concluded trial) and learned about his questionable financial agreement with Titlow. The court then appointed William Cataldo as Titlow's trial counsel.

Titlow's case proceeded to trial in March 2002. The State's theory of the case was that Titlow helped Billie kill Donald in order to obtain money for a sex-change operation, since Titlow, although born a man, had been living as a woman for many years. Titlow offered several theories in her defense: that she was merely present and did not participate in the murder; that she had abandoned any intent to aid in the murder and was...