United States District Court, Eastern District of Michigan, Southern Division
OPINION AND ORDER DENYING DENYING PETITION FOR WRIT OF HABEAS CORPUS, AND GRANTING A CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA PAUPERIS
Hon. Gerald E. Rosen Chief United States District Court Judge
This matter is on remand from the United States Court of Appeals for the Sixth Circuit. The directed this Court to reconsider Petitioner’s ineffective-assistance-of-counsel claim in light of an affidavit provided by Petitioner to the State courts that was not included in the record filed with this Court.
Petitioner was convicted in the Wayne Circuit Court of first-degree murder and lesser offenses. He filed his petition for a writ of habeas corpus on April 28, 2008, asserting that his trial attorney provided ineffective assistance of counsel by failing to call alibi witnesses at his trial.
The Court denied the petition on January 11, 2011, finding in part that Petitioner’s claim was without merit because he did not provide the state court with any offer of proof regarding his claim. Petitioner appealed this decision to the Sixth Circuit. During the appeal, counsel for Petitioner discovered that Petitioner had filed his own affidavit in support of his claim in the state courts, but Respondent had failed to include it in the portion of the state court record filed with this Court. In light of this discovery, the Sixth Circuit remanded the case back to this Court to reconsider Petitioner’s claim. Specifically, the Court found: because these documents may have a bearing on the district court’s resolution of Hawkins’s ineffective-assistance- of-counsel claim, remand is appropriate.” Hawkins v. Rivard, Order, No. 11-1147 (6th Cir. Feb. 18, 2014). The parties have filed supplemental briefs, and the matter is now ready for decision.
The facts relevant to the issue remanded for the Court’s consideration concern Petitioner’s direct appeal. During the jury selection process, defense counsel told the trial judge that he would not be calling the witnesses listed in Petitioner’s notice of alibi because they had not been cooperative. Later at trial, counsel again stated that the alibi witnesses would not be called, and Petitioner indicated that he agreed.
After Petitioner filed his claim of appeal in the Michigan Court of Appeals, he filed a pro se motion to remand the case back to the trial court for the purpose of obtaining an evidentiary hearing to develop a record in support of his ineffective-assistance-of-counsel claim. He attached his own affidavit to the motion. The affidavit alleges that he informed his attorney before trial that he had alibi witnesses he wished to call. He also alleges that telephone records would corroborate his claim that he was not at the scene of the crime. According to the affidavit, his attorney told him that he would investigate the matter, but on the eve of trial counsel told him that the witnesses had been uncooperative and would not be called. Petitioner objected, but his counsel told him that the “wheels were in motion” and that he would proceed without the witnesses. The affidavit also states that Petitioner learned that two of his alibi witnesses were unwilling to testify on his behalf because they had familial ties with the surviving victim. After the first day of trial Petitioner spoke with his fiancee -- a third alibi witness -- who indicated that defense counsel had lied to him, that she was willing to testify, and defense counsel’s private detective did not interview any of the witnesses because they could not agree on a time to collectively meet. Petitioner also alleged in his affidavit that he wanted to testify about his whereabouts during the time of the shooting, but defense counsel instead chose to put him at the scene of the crime and assert that he did not participate in the crime.
The Michigan Court of Appeals denied Petitioner’s pro se motion to remand, “pursuant to Michigan Court Rule 7.211(C)(1) . . . for failure to persuade the Court of the need for a remand at this time.” People v. Hawkins, Order, No. 262699 (Mich. Ct. App. April 19, 2006). The rule relied upon by the court of appeals, Rule 7.211(C)(1), creates the authority for the court of appeals to order a remand, and it sets forth the requirements for the motion–including the necessity for the motion to be accompanied by an affidavit or offer of proof regarding the facts that need development. Then, in what Petitioner describes as a “whipsaw, ” the Michigan Court of Appeals affirmed Petitioner’s conviction and denied relief with respect to Petitioner’s claim by finding that “there is no evidence in the lower court record to support the assertion [that there was a conflict between his counsel’s strategy and his own version of events, ” and “defense counsel stated that he had investigated the alibi witnesses and found that none of them were cooperative.” People v. Hawkins, No. 262677, *3 (Mich. Ct. App. Oct. 19, 2006).
Petitioner asserts that the state court’s failure to hold an evidentiary hearing on Petitioner’s ineffective-assistance of counsel claim itself violated due process. He further argues that given the full record, the state court’s conclusion that his claim was without merit was objectively unreasonable in light of the clearly established Supreme Court standard. Respondent contends that the state court did not err in failing to grant an evidentiary hearing, and that Petitioner has not demonstrated that his counsel was ineffective.
1. Failure to Hold Evidentiary Hearing in State Court
Petitioner asserts that the state court’s failure to hold an evidentiary hearing on his ineffective-assistance-of-counsel claim violated his rights under the Due Process Clause of the Fourteenth Amendment of the United States Constitution.
While it is true that Petitioner supported his motion for remand with his own affidavit, he did not provide an offer of proof or affidavits from the uncalled witnesses nor records from the phone company. Self-serving affidavits are regarded with extreme suspicion. Thomas v. Perry, 553 Fed.Appx. 485, 487 (6th Cir. Mich. 2014); United States v. Bass, 460 F.3d 830, 839 (6th Cir. 2006). Moreover, the affidavit does not allege that the uncalled witnesses actually would have testified at a remand hearing or that they would testify in the manner Petitioner alleges. Petitioner offered no evidence to the Michigan courts or to this Court beyond his own assertions as to whether his witnesses would have been able to testify and what the content of these witnesses’ testimony would have been. In the absence of those allegations, Petitioner failed to establish that at an evidentiary hearing he could demonstrate that his counsel was ineffective. See Clark v. Waller, 490 F.3d 551, 557 (6th Cir. 2007); Thompkins v. Pfister, 698 F.3d 976, 987 (7th Cir. 2012); Dows v. Wood, 211 F.3d 480, 486 (9th Cir. 2000); but see Clinkscale v. Carter, 375 F.3d 430, 443-444 (6th Cir. 2004) (panel unable to locate any authority requiring Petitioner to supply affidavits of uncalled alibi witnesses).
Beyond this, Petitioner’s affidavit suggests that at an evidentiary hearing he would only have sought to testify on his own behalf that the alibi witnesses would have testified, and that they would have testified favorably to his defense. Of course, such testimony by Petitioner would have constituted inadmissible hearsay. See Michigan Rule of Evidence 802. The weight of the affidavit is diminished by the fact that it is based on hearsay. Terrell v. Pfister, 443 Fed.Appx. 188, 194 (7th Cir. 2011). In any event, the Sixth Circuit has held that a state court ...