United States District Court, E.D. Michigan, Northern Division
OPINION AND ORDER DENYING DEFENDANT'S AMENDED MOTION TO VACATE SENTENCE, GRANTING PLAINTIFF'S MOTION IN LIMINE, AND DENYING A CERTIFICATE OF APPEALABILITY AND PERMISSION TO PROCEED IN FORMA PAUPERIS ON APPEAL
THOMAS L. LUDINGTON, District Judge.
Stanley Brazil is serving a 380-month sentence for distributing crack cocaine. On February 22, 2012, Brazil filed an amended motion to vacate his sentence under 28 U.S.C. § 2255. Although Brazil alleged numerous constitutional violations, see Pet'r's Am. Mot., ECF No. 292, each was rejected save two, see Oct. 1, 2013 Op. & Order 26, ECF No. 333. Brazil's remaining claims are as follows: (1) trial counsel was ineffective because he did not raise a Batson challenge during voir dire and appellate counsel was ineffective for failing to raise the issue on appeal; and (2) trial counsel was ineffective for presenting an entrapment defense at trial. Id.
The facts underlying Brazil's case have been set forth on numerous occasions. See, e.g., United States v. Brazil, 395 F.App'x 205, 208-13 (6th Cir. 2010); Jan. 29, 2013 Report & Rec. 2-4, ECF No. 322; Oct. 1, 2013 Op. & Order 1-3, ECF No. 333. So only the facts necessary to this opinion will be reproduced here.
Brazil was charged, by indictment, with conspiring to distribute "50 grams or more of cocaine base, commonly known as crack cocaine, " and two counts of knowingly distributing "50 grams or more of a substance containing cocaine base (crack cocaine)...." Indictment 2, 10, 11, ECF No. 3. A first superseding indictment added additional counts against some of Brazil's nine co-defendants, but the three counts against him remained the same. See Super. Indictment 1-2, 10, 11, ECF No. 41. On September 15, 2008, the day before trial, the government moved to "dismiss Count one of the first superseding indictment"-the conspiracy count-"to narrow the issues presented at trial and conserve judicial resources." Resp't's Mot. Dismiss 1, ECF No. 166. The motion was granted, and Brazil proceeded to trial on charges that he unlawfully distributed more than 50 grams of crack cocaine on two separate occasions.
Brazil's trial began on September 16, 2008, with the selection of the jury. Brazil was represented at trial by Carl Marlinga. After each prospective juror was seated and questioned, the Court inquired if the government had any challenges "for cause." Voir Dire Tr. 61, ECF No. 334. The government had "[n]one." Id. The Court then moved to peremptory challenges. The government first asked that "Juror No. 1, Miss LaLonde" be excused. Id. at 61-62. The Court did so without objection. With its next peremptory challenge, the government asked the Court "to thank and excuse Juror No. 5, Mr. Mattson." Id. at 69. The Court then excused Mr. Mattson. With its third peremptory challenge, the government asked that "Juror No. 12, Miss Sanders" be excused. Id. at 76.
At that point, after the government exercised its third peremptory challenge on Miss Sanders, Mr. Marlinga (Brazil's counsel) requested a sidebar. Mr. Marlinga said that there was "only one African-American" member in Brazil's jury venire-Miss Sanders-and she was "excused in a peremptory challenge." Id. at 77. Mr. Marlinga indicated he was "concerned" that the only minority member of the venire was excused in this manner, and he wanted "to note [his] objection." Id.
The Court then asked the government to explain "the exercise of [its] peremptory" challenge on Miss Sanders. Counsel for the government explained, "[s]he said she was very close to her brother and she didn't agree with drug penalties." Id. Miss Sanders's brother was "incarcerated" by the State of Michigan due to drug offenses. Id. at 26. After a short recess, the Court summarized the issue:
Just to sum up, we had a challenge based on the fact we had a single African-American party that was seated on the jury. Indeed, it was a single African-American on the panel. The government has exercised a peremptory. The challenge has been made by the defense, and I think the present showing has been at least established under the Batson procedure by the offering of the objection. The government's response has offered a racially-neutral justification for the exercise of the peremptory.... So in that respect, I believe the gentleman has offered a racially-neutral explanation for the exercise of the peremptory challenge and I would respectfully overrule the challenge.
Id. at 79-80. After the Court overruled Mr. Marlinga's objection, Miss Sanders was excused. Id. at 80.
The government asked that the next juror seated be excused for cause, and when Mr. Marlinga raised no objections, the juror was excused. Id. at 94. The government used two more peremptory challenges to excuse potential jurors "Mr. Battle" and "Mr. Piontkowski." Id. at 104, 109. At that point, the government was "satisfied with the panel." Id. at 116. Because Mr. Marlinga and Brazil were also "satisfied with this jury[, ]" voir dire concluded. Id. Brazil's Batson claim, after additional briefing, was denied on June 27, 2014. June 27, 2014 Op. & Order, ECF No. 362.
During Brazil's trial, on cross examination of the government's third witness (ATF Agent Tom Bowden), Mr. Marlinga, without admitting that Brazil had committed a crime, asserted "that Brazil would never have engaged in any criminal activity had the police not sought to entrap him." Brazil, 395 F.App'x at 211. Of course, this entrapment line of inquiry "opened the door for the government to demonstrate that Brazil was predisposed to commit the crime of drug trafficking. [Mr. Marlinga] acknowledged as much, stating: I know I've opened up the door to other information that the agent may have about Mr. Brazil and drug dealing.'" Id. (citation omitted). Accordingly, on redirect examination, Bowden testified regarding Brazil's role in a Saginaw gang known for drug trafficking (the Sunnyside Gang).
An Evidentiary Hearing was held on September 15, 2014 regarding the propriety of Mr. Marlinga's use of the entrapment defense. During the hearing Mr. Marlinga was examined by Brazil's current counsel and by the government. Brazil also called an expert witness, attorney John Minock, over the objections of the government. Mr. Minock was cross-examined by the government regarding his opinion that Mr. Marlinga's decision to employ the entrapment defense was unreasonable. Following the hearing, the parties were directed to submit one final set of supplemental briefs, both of which were timely filed. See Supp. Brs., ECF Nos. 377-78.
To prevail on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the familiar Strickland standard by demonstrating that (1) counsel's performance was deficient in that it fell below an objective standard of reasonableness, and (2) the deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 687 (1984). The Court must "indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged conduct might be considered sound... strategy." Id. at 689. In assessing deficient performance, "reviewing courts must take care to avoid second-guessing' strategic decisions that failed to bear fruit." Lundgren v. Mitchell, 440 F.3d 754, 769-70 (6th Cir. 2006) (quoting Strickland, 466 U.S. at 689). And, importantly, even if a petitioner shows counsel's performance was deficient, he must then demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result... would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.
When attacking the performance of trial counsel, a petitioner must demonstrate that "counsel made errors so serious that counsel was not functioning as the counsel' guaranteed the defendant by the Sixth Amendment." Sanders v. Curtin, No. 11-1712, 2013 WL 3214962, at *12 (6th Cir. June 26, 2013) (quoting Kinnard v. United States, 313 F.3d 933, 935 (6th Cir. 2002)). In other words, this Court "should look to whether the seriousness of counsel's errors deprived the defendant of a fair trial." Sanders, No. 11-1712, 2013 WL 3214962, at *12 (citing Kinnard, 313 F.3d at 935). "A court is free to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, ' as opposed to first determining whether counsel's performance was deficient." Sanders, No. 11-1712, 2013 WL 3214962, at *12 (quoting Strickland, 466 U.S. at 697).
Traditionally, an examination of the possible ineffectiveness of counsel is the first step in the Strickland inquiry. This first step usually involves an evidentiary hearing "to ascertain whether counsel's conduct was motivated by sound strategy." United States v. Brazil, 395 F.App'x 205, 220 (6th Cir. 2010) (citing United States v. Warman, 578 F.3d 320, 348 (6th Cir. 2009)). While a court can dispose of an ineffective assistance claim without an evidentiary hearing if there is insufficient prejudice, Sanders, No. 11-1712, 2013 WL 3214962, at *12, holding an evidentiary hearing in the present case was appropriate following the appeal. While the case was the before the Sixth Circuit Brazil argued his claim of ineffective assistance of counsel. The government, however, responded that it was premature to address the ineffective assistance claim without an evidentiary hearing on the issues underlying the claim. Br. for Appellee at 23-24, Brazil, 395 F.App'x 205. The Sixth Circuit agreed that raising the issue was premature and should wait, citing to the "general rule [that] defendant[s] may not raise ineffective-assistance-of-counsel claims for the first time on direct appeal, since there has not been an opportunity to develop and include in the record evidence bearing on the merits of the allegations." Brazil, 395 F.App'x at 220 (quoting United States v. Warman, 578 F.3d 320, 348 (6th Cir. 2009)).
An evidentiary hearing was held on September 15, 2014. Nothing presented during that hearing developed the record in a way that was inconsistent with the Court's prior understanding of facts surrounding Mr. Marlinga's representation of Brazil. As a result, nothing from the hearing prevents the disposition of Brazil's claim on the ground that he has failed to allege sufficient prejudice. The Sixth Circuit noted that there was "overwhelming evidence of Brazil's guilt[.]" Brazil, 395 F.App'x at 217. Importantly, the facts recited by the Sixth Circuit that constituted this "overwhelming evidence" did not include any reference to the propensity evidence that was introduced as a result of Mr. Marlinga employing the entrapment defense. Id.
Brazil, in his supplemental brief following the evidentiary hearing, alleges that he was prejudiced by the damaging propensity evidence that was elicited at trial. But aside from the conclusory statement that this evidence caused him prejudice, Brazil does not show that "there is a reasonable probability that, but for [Mr. Marlinga's] unprofessional errors, the result... would have been different" in his case. Strickland, 466 U.S. at 694. Brazil claims that he "need not show that the outcome... of this case was, more likely than not, affected by trial counsel's unreasonable decision to raise the entrapment defense." ECF No. 377. But, allowing for the slight difference in the linguistic formulation of the standard, that is exactly what he must show under Strickland. Because Brazil cannot plausibly allege that the outcome of his trial would have been different had Mr. Marlinga not employed the entrapment defense, his ineffective assistance claim will be denied and his petition dismissed.
Even though Brazil has failed to show how any alleged ineffectiveness on the part of Mr. Marlinga prejudiced him, the ineffectiveness prong of his claim will be analyzed for the sake of completeness.
Before proceeding to the merits of Brazil's ineffective assistance claim, the substantive law underlying his claim must be addressed. Brazil contends that his attorney, Mr. Marlinga, was ineffective for raising the entrapment defense. Brazil's argument runs, in the main, that Mr. Marlinga should have been aware that raising the entrapment defense would have resulted in the introduction of propensity evidence; that propensity evidence was sufficiently devastating to Brazil's case that a reasonably competent attorney would not have introduced the entrapment defense knowing that that evidence would also come in at trial.
But Brazil, as reflected in his briefs and in his questioning during the evidentiary hearing, conflates a number of terms and inquiries that relate to specific legal theories and defenses. Federal law recognizes a number of different defenses which can all, in some form, be styled as a type of government entrapment. See United States v. Al-Cholan, 610 F.3d 945, 949-50 (6th Cir. 2010) (outlining different forms of entrapment-style defenses). Mr. Marlinga, at trial, employed three of these tactics. During the course of the trial Mr. Marlinga elicited testimony in support of a traditional entrapment defense and then successfully submitted the Sixth Circuit pattern instruction on entrapment to the ...