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Byrd v. Bauman

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

September 15, 2017

CURTIS JEROME BYRD, Petitioner,
v.
CATHERINE S. BAUMAN, Respondent.

          OPINION AND ORDER GRANTING AN EVIDENTIARY HEARING ON HABEAS PETITIONER'S CLAIM OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

          LAURIE J. MICHELSON, U.S. DISTRICT JUDGE

         In 2010, Curtis Byrd was charged with helping his then-girlfriend rob someone at an ATM. Byrd maintains that when the pair approached the victim, Byrd changed his mind about robbing him. But, according to Byrd, his girlfriend took the gun from him and proceeded with the crime which ended in the victim's death. While she accepted a plea deal, a jury convicted Byrd of first-degree felony murder and he received the statutorily mandated life sentence without possibility of parole.

         Byrd petitions this Court for a writ of habeas corpus. He contends that his sentence is a result of his trial counsel's misunderstanding of accomplice liability. In particular, Byrd says that his counsel advised him not to engage in plea negotiations because his girlfriend's testimony would establish that he abandoned the crime-even though she was going to tell the jury that Byrd gave her the gun. For the reasons set forth below, Byrd has demonstrated that this claim warrants further exploration. Accordingly, the Court will hold an evidentiary hearing regarding Byrd's claim that his trial counsel was ineffective in advising Byrd to forego plea negotiations.

         I.

         A.

         To obtain money to buy drugs, Byrd and his girlfriend, Charletta Atkinson, developed a plan to rob someone at an ATM. Byrd supplied a handgun and drove the couple to a bank. (R. 8-11, PID 772-73.) But once in the ATM drive-through lane-behind the eventual victim's car- Byrd got cold feet. (R. 8-11, PID 773.) Byrd, then a fifty-one-year-old retired autoworker with no criminal history outside of a municipal ordinance violation (R. 17, PID 1837), allegedly told Atkinson “[t]his ain't me . . . I can't do this babe” and returned the gun to his waistband. (R. 8-12, PID 851; R. 8-11, PID 773-74, 783-85.) Byrd claims Atkinson then scuffled with him, took the gun, and said, “I'll do it.” (R. 8-11, PID 732-33.)

         Byrd's account squares, at least in part, with a witness at the scene. The witness first saw Atkinson leave Byrd's car and turn toward the victim's car, then watched Atkinson return to Byrd's car. (R. 8-11, PID 634-38.) The witness saw Atkinson argue and exchange jabs with Byrd, and then saw Atkinson again approach the victim's car armed with a handgun. (R. 8-11, PID 634-38.)

         But Atkinson testified to a different version of events at Byrd's trial. She told the jury that Byrd gave her the gun, and then waited in the car while she robbed and accidentally shot the victim. Byrd alleges his lawyer knew-before trial-that Atkinson would testify this way. (R. 17-1, 1896- 97.) Indeed, Atkinson provided a similar account to police after her arrest and at her sentencing prior to Byrd's trial. (R. 8-12, PID 808-09, 879-80; see also R. 17-1, PID 1904 (Atkinson indicating during her plea colloquy that she got the gun from Byrd).)

         B.

         Relying on an accomplice theory, the state charged Byrd and Atkinson with first-degree murder, first-degree felony murder, assault with intent to commit armed robbery, and felony firearm charges.[1] (R. 17, PID 1823.) Atkinson pled to a lesser charge in exchange for her testimony against Byrd. (R. 8-12, PID 807-08.) Upon learning of Atkinson's deal, and facing a felony murder charge carrying a mandatory sentence of life without parole, Byrd says he asked his lawyer whether they should pursue a plea deal. (R. 17-1, PID 1896.)

         But, according to Byrd, his lawyer advised that he should not consider a plea because he would not be convicted at trial. (R. 17-1, PID 1896.) Byrd claims his lawyer

explained that Ms. Atkinson would be testifying that when we [got] to the bank, I told her I didn't want to [go] through with the robbery and therefore I abandoned the crime and was not guilty. He also said even if the jury believed that I handed her the gun, I was still not guilty based on my statement that I did not want to go through with it.

(R. 17-1, PID 1896.) In other words, Byrd's trial counsel allegedly led him to believe that even if the jury credited Atkinson claim that he gave her the gun, Byrd would still not be guilty because he did not intend to follow through with the robbery. (R. 17-1, PID 1896-97.) Based on his lawyer's advice, therefore, Byrd claims he “chose to proceed to trial without looking into the possibility of obtaining a plea bargain.” (R. 17-1, PID 1896.)

         Byrd also contends his lawyer advised him against testifying at trial. (R. 17-1, PID 1897.) Byrd says his lawyer thought Atkinson's testimony about Byrd abandoning any criminal intent would make irrelevant how Atkinson ended up with Byrd's gun. (R. 17-1, PID 1897.) Thus, Byrd opted not to testify in his own defense. (R. 17-1, PID 1897.)

         A Wayne County jury found Byrd guilty on three counts, including felony murder, and, in November 2010, Byrd received the statutorily mandated life sentence. (R. 8-15.)

         Byrd appealed his convictions to the Michigan Court of Appeals. His new appellate counsel advanced four claims: 1) ineffective assistance of counsel based on trial counsel's failure to seek an accident-theory instruction, 2) insufficient evidence, 3) a due process violation stemming from the admission of hearsay statements, and 4) prosecutorial misconduct. (R. 17, PID 1824.) The Michigan Court of Appeals affirmed Byrd's convictions and the Michigan Supreme Court denied a petition for review. (R. 8-20; R. 8-21.)

         Just under one year later, Byrd filed a motion for relief from judgment in the state trial court. (R. 8-16, PID 1116.) Importantly, this post-conviction motion included-for the first time- the ineffective-assistance-of-trial-counsel claims he raises here, i.e., that trial counsel advised against plea negotiations due to his misunderstanding of the law. (R. 8-16, PID 1118.) Byrd requested an evidentiary hearing on his claims (R. 8-16, PID 1118), but the state trial court denied Byrd's post-conviction motion without holding a hearing. (R. 1-6; R. 8-17.)

         Unfortunately, it is difficult to discern the basis of the state trial court's denial of Byrd's post-conviction motion. In one paragraph, the court seems to have denied the motion on preclusion grounds, under Michigan Court Rule 6.508(D)(2)-believing that Byrd had already raised the ineffective-assistance claims on direct appeal. (R. 1-6, PID 37.) But in the next paragraph of the opinion, the court appears to deny the motion for the opposite reason: that pursuant to Michigan Court Rule 6.508(D)(3), Byrd had failed to raise his ineffective-assistance-of-trial-counsel claims on direct appeal and also failed to show cause and prejudice to excuse this procedural default. (R. 1-6, PID 37-38.) There is no further clarification as both the Michigan Court of Appeals and Michigan Supreme Court denied Byrd leave to appeal. (R. 17-1, PID 1894, 1895; R. 1-7, PID 39.)

         Byrd filed his petition for writ of habeas corpus on October 7, 2015. (R. 1.) Respondent initially moved to dismiss because Byrd filed his habeas application one day late. (R. 7.) But the Court granted Byrd's request for equitable tolling and thus denied the motion to dismiss. (See R. 16.) The petition is now fully briefed. (R. 19, 21.)

         II.

         Under the Antiterrorism and Effective Death Penalty Act (AEDPA), habeas corpus relief may be granted on claims that were adjudicated “on the merits” in state court only if the state-court adjudication of the claim resulted in a decision that (1) “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United ...


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