United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF
HABEAS CORPUS AND GRANTING A CERTIFICATE OF
F. Cox United States District Judge
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.
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.
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 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  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
People v. Smith, No. 312721, 2014 WL 1320243, at *
1-2 (Mich. Ct. App. Apr. 1, 2014).
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.
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.
seeks a writ of habeas corpus on the following ground:
THE STATE APPELLATE COURT ACTED CONTRARY TO
STRICKLAND BY ASSESSING THE REASONABLENESS OF
COUNSEL'S ALIBI INVESTIGATION AT THE MOMENT OF TRIAL,
RATHER THAN AT THE MOMENT THE ALIBI NOTICE DEADLINE EXPIRED.
IT ALSO UNREASONABLY APPLIED STRICKLAND'S
PERFORMANCE PRONG WHEN IT UPHELD AN ELEVENTH HOUR
INVESTIGATION CONDUCTED ON THE DAY OF TRIAL.
Standard of Review
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;
(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.
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.
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).
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.
“[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.
contends that trial counsel was ineffective in failing to
adequately investigate or present an alibi defense.
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).
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
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)).
of this doubly deferential standard, the Supreme Court has
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