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Smith v. Winn

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

May 31, 2017

THOMAS WINN, Respondent,


          Sean F. Cox United States District Judge

         Ashly Drake Smith, (“Petitioner”), incarcerated at the Thumb Correctional Facility in Lapeer, Michigan, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 through his counsel Christopher M. Smith of the State Appellate Defender Office, in which he challenges his convictions for armed robbery, Mich. Comp. Laws, § 750.529; first-degree home invasion, Mich. Comp. Laws, § 750.110a(2); larceny in a building, Mich. Comp. Laws, § 750.360, felon in possession of a firearm, Mich. Comp. Laws, § 750.224f; and possession of a firearm in the commission of a felony, Mich. Comp. Laws, § 750.227b. For the reasons stated below, the petition for writ of habeas corpus is DENIED WITH PREJUDICE.

         I. Background

         Petitioner was convicted following a bench trial in the Wayne County Circuit Court before Judge David J. Allen. This Court recites verbatim the relevant facts regarding petitioner's conviction from the Michigan Court of Appeals' opinion affirming his conviction, which are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):

Defendant's convictions arise from the armed robbery of the victim. The victim was in his upstairs bedroom playing a game on his telephone when he heard the downstairs door shut. The victim lived with his brother and was anticipating his brother's return home from work. He heard footsteps and saw defendant “pop” into his room with a gun. Although he did not know defendant's name, the victim recognized defendant from a local bar. Defendant pointed a gun at the victim and demanded his wallet and marijuana. The victim had a medical marijuana card and was growing marijuana in his home for personal, medical use. However, the victim admitted to illegally selling marijuana to a man named Terry and Terry's friend. Defendant ordered the victim to the ground and a second man[1] entered the room from the hallway. The men took the victim's wallet, marijuana, and some electronic devices. The entire robbery lasted approximately two minutes. After the men left, the victim used a laptop computer to log onto Facebook and ascertain defendant's name from waitresses at the bar defendant frequented. The victim admitted that he made derogatory racial remarks about defendant and threatened to have a bullet waiting for the thief if he returned to the victim's home. Although the robbery occurred at approximately 7:30 p.m., the victim waited until his brother arrived at 9:10 p.m. to call the police. The victim testified that he was “110% sure” that defendant was the armed robber.
Defendant's theory of the case was that the victim had an issue with defendant's racially mixed heritage and the fact that defendant was dating a Caucasian female as evidenced by the victim's disparaging racial slurs against defendant. Consequently, defendant theorized that if a robbery occurred, the victim identified defendant only because of racial animosity, a claim which the victim denied. Defense counsel elicited testimony from the victim that he wrote on Facebook that he was “pretty sure” that defendant committed the crime. Additionally, defense counsel subpoenaed four witnesses to appear at defendant's trial, to raise the defense of alibi. However, defense counsel chose to limit the defense to the attack on the credibility of the victim and excused the witnesses. Defendant expressly agreed with that strategy on the record. Although the trial judge initially questioned the credibility of the victim and admonished him regarding his improper remarks, the court ultimately concluded that the victim's identification was credible, and defendant was convicted as charged.
This Court granted defendant's motion to remand for a Ginther [2] hearing. People v. Ashly Drake Smith, unpublished order of the Court of Appeals, entered June 19, 2013 (Docket No. 312721). On remand, the court heard testimony from trial counsel Susan Reed, defendant, and three alibi witnesses. Defendant argued that trial counsel failed to investigate and present witness testimony, thereby depriving defendant of a substantial defense. The court rejected the claim, concluding that defense counsel's action constituted trial strategy, defendant agreed with the trial strategy on the record, and the alibi witnesses would not have made a difference in the outcome of the trial because of inconsistencies in their testimony.
People v. Smith, No. 312721, 2014 WL 1320243, at * 1-2 (Mich. Ct. App. Apr. 1, 2014).

         A majority of the Michigan Court of Appeals affirmed petitioner's conviction on appeal. Id., *2-4. Judge Gleicher dissented and concluded that counsel was ineffective for failing to present an alibi defense. Id., * 4-10.

         Petitioner filed an application for leave to appeal, which was denied by a majority of the Michigan Supreme Court. People v. Smith, 467 Mich. 1003, 861 N.W.2d 630 (2015). Justice Kelly, joined by Justices Bernstein and McCormack, dissented from the majority opinion and indicated that she would grant petitioner a new trial because she believed that counsel had been ineffective. Id. 861 N.W.2d at 630-34.

         Petitioner seeks a writ of habeas corpus on the following ground:


         II. Standard of Review

         28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), imposes the following standard of review for habeas cases:

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.

         A decision of a state court is “contrary to” clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An “unreasonable application” occurs when “a state court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case.” Id. at 409. A federal habeas court may not “issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Id. at 410-11.

         The Supreme Court has explained that “[A] federal court's collateral review of a state-court decision must be consistent with the respect due state courts in our federal system.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The “AEDPA thus imposes a ‘highly deferential standard for evaluating state-court rulings, 'and ‘demands that state-court decisions be given the benefit of the doubt.'” Renico v. Lett, 559 U.S. 766, 773 (2010)((quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v. Viscotti, 537 U.S. 19, 24 (2002)(per curiam)). “[A] state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011)(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has emphasized “that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. at 102 (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). Furthermore, pursuant to § 2254(d), “a habeas court must determine what arguments or theories supported or...could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision” of the Supreme Court. Id. Habeas relief is not appropriate unless each ground which supported the state court's decision is examined and found to be unreasonable under the AEDPA. See Wetzel v. Lambert, 132 S.Ct. 1195, 1199 (2012).

         “[I]f this standard is difficult to meet, that is because it was meant to be.” Harrington, 562 U.S. at 102. Although 28 U.S.C. § 2254(d), as amended by the AEDPA, does not completely bar federal courts from relitigating claims that have previously been rejected in the state courts, it preserves the authority for a federal court to grant habeas relief only “in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with” the Supreme Court's precedents. Id. Indeed, “Section 2254(d) reflects the view that habeas corpus is a ‘guard against extreme malfunctions in the state criminal justice systems, ' not a substitute for ordinary error correction through appeal.” Id. at 102-03 (citing Jackson v. Virginia, 443 U.S. 307, 332, n. 5 (1979))(Stevens, J., concurring in judgment). Thus, a “readiness to attribute error [to a state court] is inconsistent with the presumption that state courts know and follow the law.” Woodford, 537 U.S. at 24. Therefore, in order to obtain habeas relief in federal court, a state prisoner is required to show that the state court's rejection of his claim “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103.

         Moreover, “[T]he fact that there was a dissenting opinion on direct review [of petitioner's claim]...does not mean the majority's analysis was unreasonable.” Ambrose v. Romanowski, 621 F. App'x. 808, 814 (6th Cir. 2015).

         III. Discussion

         Petitioner contends that trial counsel was ineffective in failing to adequately investigate or present an alibi defense.

         To show that he was denied the effective assistance of counsel under federal constitutional standards, a defendant must satisfy a two prong test. First, the defendant must demonstrate that, considering all of the circumstances, counsel's performance was so deficient that the attorney was not functioning as the “counsel” guaranteed by the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 687 (1984). In so doing, the defendant must overcome a strong presumption that counsel's behavior lies within the wide range of reasonable professional assistance. Id. In other words, petitioner must overcome the presumption that, under the circumstances, the challenged action might be sound trial strategy. Strickland, 466 U.S. at 689. Second, the defendant must show that such performance prejudiced his defense. Id. To demonstrate prejudice, the defendant must show that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. “Strickland's test for prejudice is a demanding one. ‘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, 562 U.S. at 112). The Supreme Court's holding in Strickland places the burden on the defendant who raises a claim of ineffective assistance of counsel, and not the state, to show a reasonable probability that the result of the proceeding would have been different, but for counsel's allegedly deficient performance. See Wong v. Belmontes, 558 U.S. 15, 27 (2009).

         More importantly, on habeas review, “the question ‘is not whether a federal court believes the state court's determination' under the Strickland standard ‘was incorrect but whether that determination was unreasonable-a substantially higher threshold.'” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)(quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)). “The pivotal question is whether the state court's application of the Strickland standard was unreasonable. This is different from asking whether defense counsel's performance fell below Strickland's standard.” Harrington v. Richter, 562 U.S. at 101. Indeed, “because the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard.” Knowles, 556 U.S. at 123 (citing Yarborough v. Alvarado, 541 U.S. at 664). Pursuant to the § 2254(d)(1) standard, a “doubly deferential judicial review” applies to a Strickland claim brought by a habeas petitioner. Id. This means that on habeas review of a state court conviction, “[A] state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself.”Harrington, 562 U.S. at 101. “Surmounting Strickland's high bar is never an easy task.” Id. at 105 (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)).

         Because of this doubly deferential standard, the Supreme Court has indicated that:

Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable ...

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