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Hardy v. Napel

United States District Court, E.D. Michigan, Northern Division

January 29, 2015

ROBERT NAPEL, Defendant.


THOMAS L. LUDINGTON, District Judge.

On November 5, 2009, a jury in the Tuscola County Circuit Court convicted Phillip Hardy of two counts of second degree child abuse. On January 19, 2010, Hardy was sentenced to concurrent terms of 18-48 months' imprisonment-one term for each count of conviction.

After he was sentenced, Hardy filed a motion for a new trial alleging that his counsel provided constitutionally ineffective assistance in several respects. The trial court agreed and granted the motion. Both Hardy and the State of Michigan filed appeals, and the Michigan Court of Appeals reversed the trial court's grant of a new trial, rejected Hardy's claims, and remanded the case for reinstatement of his convictions and sentences. See People v. Hardy, No. 296509, 2011 WL 4810772 (Mich. Ct. App. Oct. 11, 2011) (per curiam).

After the Michigan Supreme Court denied Hardy's application for leave to appeal, he filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Hardy also filed a motion for bond on October 18, 2013. All pretrial matters in this case were referred to United States Magistrate Judge Paul J. Komives under 28 U.S.C. § 636(b), and on January 29, 2014, Judge Komives issued a report recommending that Hardy's motion and his petition be denied. As contemplated by § 636(b)(1), Hardy filed objections to Judge Komives' report and recommendations.

Upon review, Hardy's objections are without merit and will be overruled; Judge Komives' report and recommendations will be adopted, Hardy's motion for bond will be denied, and his petition for habeas relief will be denied.


Hardy's convictions arose from the abuse of his adopted minor children, Phillip and Elizabeth. Hardy was tried jointly with his wife, who was convicted of the same charges and received the same sentence. The Michigan Court of Appeals briefly summarized the facts underlying the child abuse as follows:

Phillip and Sheila Hardy are husband and wife. They were originally the foster parents and later the adoptive parents of the two minor children that were the victims in the underlying criminal action for second-degree child abuse. The most pertinent allegations of abuse included assertions that the children had been locked in a bedroom in the Hardy home, without adult supervision while the Hardys were at work, and that the children had been deprived of food as a means of punishment by the Hardys for unacceptable behavior. Additional allegations existed regarding the sanitary conditions of the home due, in part, to the children urinating and defecating in the locked bedroom, as they were unable to access a bathroom. The incident that brought the children to the attention of the Department of Human Services ("DHS") and which led to the current charges involved the children having broken out of the locked room and approaching neighbors asking for food.

Hardy, 2011 WL 4810772, at *1. A more thorough explanation of the factual background underlying Hardy's convictions is provided in Judge Komives' report. See Report & Rec. 3-15, ECF No. 18.


Hardy's petition, covering 130 pages, asserts four grounds for habeas relief. First, he claims ineffective assistance of trial counsel, who Hardy argues did not: "present an adequate defense, " "conduct [a] full and complete investigation, " seek "expert witnesses, " "make necessary objections, " "suppress inadmissible evidence, " "object to prosecutorial misconduct, " "prepare[] for trial, " and "communicate with petitioner." Pet'r's Petition 6, ECF No. 1. Second, Hardy claims the trial court erred by allowing joint representation because counsel "never explained to [Hardy] and his [wife] about the possibly [sic] of a serious conflict of interest by joint representation by the same attorney." Id. at 7. Third, Hardy argues the trial court should have severed his trial from his wife's trial. Id. at 9. With his fourth and final claim, Hardy contends that the Michigan Court of Appeals unreasonably applied the law "when it erroneously retried the facts... when it reversed the trial court decision... granting petitioner a new trial...." Id. at 10.

On October 18, 2013, Hardy filed a motion for bond. See Pet'r's Mot., ECF No. 15. According to Hardy, his "case is meritorious, " he "will have completed his minimum sentence on October 25, 2013, " and bond should be granted because "[h]e has a high probability of parole guideline score, no misconducts, good job reviews while incarcerated, standing job offers upon release, ... no prior criminal history.... a wife and family, strong family and community support, is not a flight risk, and is not a threat to public safety." Id. at 1.

Judge Komives addressed each of the claims contained in Hardy's petition and found them to be without merit. Judge Komives also addressed Hardy's motion for bond, which he found to be similarly meritless. So Judge Komives filed a report recommending that Hardy's petition for habeas corpus and motion for bond be denied.


Title 28 U.S.C. § 636(b)(1) provides that a party may "serve and file written objections" to a United States Magistrate Judges' report and recommendations. "A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id.

As contemplated by § 636, Hardy listed thirty-eight objections to Judge Komives' report and recommendations. See Pet'r's Objs., ECF No. 21. Many of those objections relate directly to factual findings in Judge Komives' report. For example, Judge Komives concluded that the failure to call as a witness Hardy's son, Richard Hardy, did not prejudice Hardy's defense because-in part-Richard's proposed testimony (taken during an evidentiary hearing during post-trial proceedings) "was contradicted not only by the victims, but also by the testimony of other observers and, importantly, photographs taken of the home." Report & Rec. 28. Judge Komives indicated that, during the evidentiary hearing "Richard testified that [Hardy] never struck Phillip with a belt, but petitioner admitted to doing so at trial." Id. at 29 (citation omitted). Hardy objects, however, and argues that Richard's testimony (that he never saw Hardy strike Phillip with a belt) was "not a contradiction" because "spankings with a belt only occurred, at most, three times in a six year time period. Extremely rare." Pet'r's Objs. ¶ 11.

Of course, under § 2254, "a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see also Nichols v. Perini, 818 F.3d 554, 557 (6th Cir. 1987). So for each of his factual objections, Hardy must present "clear and convincing evidence" to demonstrate that any factual determinations made by the state court was wrong.

Hardy also listed objections that do not pertain specifically to the facts. With his sixteenth objection, Hardy claims that "[t]here were not witnesses other than co-defendants call [sic] to testify for the defense.... That no other witnesses were called for the defense caused multiple issues." Pet'r's Objs. ¶ 16. He argues "[t]here were available corroborating witnesses and evidences. They were simply ignored by counsel." Id. Although it is not entirely clear what portion of Judge Komives' report and recommendations this objection pertains to, any portion of Judge Komives' report to which a proper objection is made will be subjected to de novo review. See § 636(b)(1)(C).


The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), governs all habeas applications filed after April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 326-27 (1997). In this case, Hardy's habeas application was filed in December 2012; therefore, his petition is governed by AEDPA.

AEDPA created new standards for review of state court decisions under 28 U.S.C. §2254(d). Paragraph (d), as amended, reads as follows:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. §2254(d).

Under §2254(d)(1), a federal court may grant a writ of habeas corpus under two different clauses, both of which provide the basis for relief: (1) the "contrary to" clause or (2) the "unreasonable application" clause. Williams v. Taylor, 529 U.S. 362, 405-06 (2000).

Under the "contrary to" clause, a federal court may grant habeas relief in two different ways. First, if the state court arrives at a conclusion that contradicts the governing law set forth in Supreme Court cases. Id. Second, if the state court decides a case differently than the Supreme Court has decided on a set of materially indistinguishable facts. Id. As the Supreme Court explains, the words "contrary to" should be construed to mean "diametrically different, opposite in character, or mutually opposed." Id. at 405. Accordingly, "the state court's decision must be substantially different from... [relevant Supreme Court precedent]." Id.

A federal court may grant habeas relief under the "unreasonable application" clause in two different ways as well. First, "if the state court identifies the correct governing legal principle from [the Supreme] Court but unreasonably applies that principle to the facts of petitioner's case." Id. at 413. Second, if the state court decision either unreasonably extends or unreasonably refuses to extend a legal principle from Supreme Court precedent to a new context where it should apply. Williams, 529 U.S. at 407; Arnett v. Jackson, 393 F.3d 681, 686 (6th Cir. 2005). The proper inquiry for the "unreasonable application" analysis is whether the state court's decision was "objectively unreasonable" and not simply erroneous or incorrect. Williams, 529 U.S. at 409-11. The Supreme Court explains that the writ of habeas corpus "is a guard against extreme malfunctions in the state criminal justice system, ' not a substitute for ordinary error correction through appeal." Harrington v. Richter, 131 S.Ct. 770, 786 (2011) (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979) (Stevens, J., concurring in the judgment)). Thus, "[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair-minded disagreement." Harrington, 131 S.Ct. at 786-87.

When analyzing whether a state court's decision is "contrary to" or an "unreasonable application" of clearly established federal law, a federal court may only look to the holdings, as opposed to dicta, of the Supreme Court's decisions as of the time of the relevant state-court decision. Lockyer v. Andrade, 538 U.S. 63, 71 (2003); Williams, 529 U.S. at 412. However, the standard set forth in § 2254(d) "does not require citation of [Supreme Court] cases-indeed, it does not even require awareness of [Supreme Court] cases, so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8 (2002); see also Mitchell v. Esparza, 540 U.S. 12, 16 (2003). In addition, a court may not look to lower federal court decisions to formulate the relevant rule of law; but, it may look to lower federal courts decisions to assess the reasonableness of the state court's resolution of an issue. Smith v. Stegall, 385 F.3d 993, 998 (6th Cir. 2004). Accordingly, "[u]nder AEDPA, if there is no clearly established Federal law, as determined by the Supreme Court, ' that supports a habeas petitioner's legal argument, the argument must fail." Miskel v. Karnes, 397 F.3d 446, 453 (6th Cir. 2005) (quoting 28 U.S.C. § 2254(d)(2)) (emphasis in original).


As indicated above, Hardy has filed thirty-eight distinct objections to Judge Komives' report and recommendations. Each will be addressed in turn.


In his first objection, Hardy claims that Judge Komives did not grasp the full range of his ineffective assistance of counsel claim. He indicates that Judge Komives found "counsel was ineffective for failing to investigate and present various witnesses, " but Hardy asserts "[t]hat is only a very small part of the trial court's findings." Pet'r's Objs. ¶ 1. According to Hardy, "[t]his is not a case of counsel failing to call one or two witnesses but a case where... counsel completely abdicated his duty to conduct a pretrial investigation and left it entirely up to [petitioner] himself to conduct pretrial investigation.'" Id. (brackets in original) (quoting United States v. Gray, 878 F.2d 702, 709 (3d Cir. 1989)).

In the first claim of his petition-concerning ineffective assistance of counsel-Hardy listed the different reasons counsel was deficient:

The lawyer failed to present an adequate defense, never conducted a full and complete investigation, never interviewed or called any of the known available witnesses before and during trial, never sought expert witnesses to aid the court and jury to scientific evidence... where the kids originally came from backgrounds of suicidal, abusive, neglectful conditions... failed to make necessary objections, failed to suppress inadmissible evidence, failed to object to prosecutorial misconduct to personal beliefs and making statements not into evidence, counsel never was prepared for trial and failed to communicate with petitioner.

Pet'r's Pet. 6.

In addressing Hardy's ineffective assistance claim, however, Judge Komives indicated that "[Hardy] first contends that his trial counsel was ineffective for failing to investigate and call witnesses, and for failing to seek severance of his trial from that of his wife." Report & Rec. 24. So it appears that Judge Komives did not address each and every instance that Hardy claims constitutes ineffective assistance.

Nevertheless, Judge Komives' recommendation will be followed on this issue and Hardy's claim for ineffective assistance related to trial counsel will be dismissed because the additional issues Hardy raises are all procedurally defaulted and Hardy cannot demonstrate cause and prejudice to excuse the defaults.

A federal habeas petitioner like Hardy can procedurally default a claim by "failing to obtain consideration of a claim by a state court, either due to the petitioner's failure to raise that claim before the state courts while state-court remedies are still available or due to a state procedural rule that prevents the state courts from reaching the merits of the petitioner's claim." Lundgren v. Mitchell, 440 F.3d 754, 763 (6th Cir. 2006) (quoting Seymour v. Walker, 224 F.3d 542, 549-50 (6th Cir. 2000)). The Supreme Court has indicated that when state prisoners default federal claims in state court, " habeas corpus review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law; or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Lundgren, 440 F.3d at 763 (emphasis in original) (quoting Coleman v. Thompson, 501 U.S. 722, 749 (1991)).

Here, there is no question that the Michigan state courts stood ready to address Hardy's ineffective assistance of trial counsel claims; he presented such claims during his direct appeal. See Hardy, 2011 WL 4810772, at *3 ("Specifically, the Hardys contend that counsel was ineffective for failing to interview or investigate and call as a witness their elder son, who was not residing in the home at the time of the event leading to the removal of the children from the home by DHS."). Indeed, Hardy claimed that trial counsel was ineffective for failing to interview or investigate and call as a witness Richard Hardy, that counsel was ineffective for jointly representing both Hardy and his wife (his co-defendant), and that counsel was ineffective "for the failure to seek severance of their trials." Id. at *3, *4. Thus, Judge Komives addressed the same ineffective assistance of counsel claims that Hardy exhausted in state court during his direct appeal (by presenting those claims to the Michigan state courts). And so Judge Komives addressed only those claims procedurally ripe for habeas review by a federal court.

The other issues Hardy raises in his petition-that trial counsel failed to make necessary objections, failed to communicate adequately, and failed to present an adequate defense, for example-were not presented to the Michigan courts, although they could have been. So these claims have been procedurally defaulted because Hardy "fail[ed] to raise th[e] claim[s] before the state courts while state-court remedies [were] still available." Lundgren, 440 F.3d at 763; see also Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998) (concluding ineffective assistance of counsel claims were procedurally defaulted when habeas petitioner argued defense counsel failed to investigate and present expert testimony but "focused solely on defense counsel's failure to present an insanity defense" on direct appeal in the state courts).

Hardy may overcome his procedural defaults "only by showing that there was cause for the default and prejudice resulting from the default, or that a miscarriage of justice will result from enforcing the procedural default in [his] case." Lundgren, 440 F.3d at 763 (citing Wainwright v. Sykes, 433 U.S. 72, 80, 84-87 (1977)). Notably, "[h]abeas petitioners cannot rely on conclusory assertions of cause and prejudice to overcome procedural default; they must present ...

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