Rush v. Winn

DARIUS RUSH, Petitioner, v. O'BELL T. WINN, Respondent.

Case Number 2:20-CV-11540

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

May 12, 2021

HONORABLE DENISE PAGE HOOD

OPINION AND ORDER GRANTING THE MOTION FOR AN EVIDENTIARY HEARING (ECF No. 24), APPOINTING COUNSEL FOR PETITIONER, GRANTING THE MOTION TO STRIKE THE REPLY BRIEF (ECF No. 20), GRANTING THE MOTIONS TO AMEND OR SUPPLEMENT THE REPLY (ECF No. 22, 23), DENYING THE EMERGENCY MOTION FOR BOND (ECF No. 21), AND SETTING DEADLINE FOR THE PARTIES TO FILE SUPPLEMENTAL BRIEFS

Petitioner, Darius Rush, filed a pro se application for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. Petitioner challenges his conviction for first-degree home invasion and conspiracy to commit first-degree home invasion. Petitioner alleges he was constructively denied the assistance of trial counsel because his attorney failed to challenge the voluntariness of petitioner's confession, failed to cross-examine a single witness, and failed to allow petitioner to testify. For the reasons that follow, the Court orders an evidentiary hearing on petitioner's claim. The Court also grants an evidentiary hearing on petitioner's related claim that appellate counsel was ineffective for failing to raise this claim on his appeal of right.

The Court will appoint counsel to represent petitioner at the hearing. Petitioner's appointed counsel shall have one hundred and twenty days following this order to file a supplemental brief on petitioner's behalf. Respondent shall have sixty days following receipt of the supplemental brief to file a supplemental answer. The Court grants petitioner's motion to strike his reply brief and his related motions for leave to file an amended reply brief. The Court denies the motion for bond.

I. FACTUAL AND PROCEDURAL BACKGROUND

Petitioner was convicted following a jury trial in the Wayne County Circuit Court. Petitioner's conviction was affirmed on appeal, although his case was remanded for re-sentencing. People v. Rush, No. 312055, 2014 WL 1515270 (Mich. Ct. App. Apr. 17, 2014).

Petitioner filed a post-conviction motion for relief from judgment with the trial court. In his motion, petitioner raised for the first time his claim that he was constructively denied the assistance of trial counsel because of his trial counsel's failure to challenge the prosecutor's case in any meaningful way. Petitioner also argued that appellate counsel was ineffective for failing to raise this claim on his appeal of right. Petitioner requested an evidentiary hearing on his claims. The trial court judge denied the motion, in part because petitioner failed to show cause and prejudice under M.C.R.6.508(D)(3) for not raising these claims on his appeal of right, and in part because petitioner failed to show that counsel's inactions were ineffective assistance of counsel within the meaning of Strickland v. Washington, 466 U.S. 688 (1984). Significantly, the judge never addressed petitioner's constructive denial of counsel claim. People v. Rush, No. 12-001081-FC (Wayne County Circuit Court Feb. 4, 2019)(ECF No. 18-16, PageID.2252-60). The Michigan Court of Appeals denied petitioner leave to appeal on the ground that petitioner failed to establish that the trial court erred in denying the motion for relief from judgment. People v. Rush, No. 349890 (Mich. Ct. App. Sept. 23, 2019)(ECF No. 18-16, PageID.2212). The Michigan Supreme Court denied petitioner leave to appeal pursuant to M.C.R. 6.508(D). People v. Rush, 505 Mich. 1040, 941 N.W.2d 663 (2020).

Petitioner now seeks habeas relief on the following grounds: (1) petitioner was constructively denied the assistance of trial counsel, and (2) appellate counsel was ineffective for failing to raise this claim on petitioner's appeal of right.

II. DISCUSSION

A. The motion for an evidentiary hearing is GRANTED.

The Court grants petitioner an evidentiary hearing on his constructive denial of trial counsel claim because the claim, if proven, could entitle himto habeas relief. To the extent petitioner argues that appellate counsel was ineffective for failing to raise the claim on his appeal of right, so as to excuse any possible procedural default, petitioner is entitled to an evidentiary hearing on this claim as well.

To show that he was denied the effective assistance of counsel under federal constitutional standards, a defendant normally 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. 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.

Petitioner argues that he was constructively denied the assistance of trial counsel because his counsel: (1) failed to challenge the voluntarinessof petitioner's confession, (2) failed to cross-examine a single prosecution witness, and (3) failed to allow petitioner to testify on his own behalf.

The Supreme Court has recognized that in certain Sixth Amendment contexts, prejudice is presumed. Strickland, 466 U.S. at 692. The "actual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice. So are various kinds of state interference with counsel's assistance." Id.

Where defense counsel entirely fails to subject the prosecution's case to "meaningful adversarial testing," there has been a constructive denial of counsel, and a defendant need not make a showing of prejudice to establish ineffective assistance of counsel. Moss v. Hofbauer, 286 F.3d 851, 860 (6th Cir. 2002)(quoting United States v. Cronic, 466 U.S. 648, 659 (1984)). However, in order for a presumption of prejudice to arise based on an attorney's failure to test the prosecutor's case, so that reversal based on ineffective assistance of counsel is warranted without any inquiry into prejudice, the attorney's failure to test the prosecutor's case "must be complete." Bell v. Cone, 535 U.S. 685, 697 (2002).

The Antiterrorism and Effective Death Penalty Act (AEDPA) provides a standard of review for habeas petitions brought under 28 U.S.C. § 2254:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall notbe 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).

However, when a state court fails to adjudicate a habeas petitioner's claim on the merits, a federal court is required to review that claim de novo. See Cone v. Bell, 556 U.S. 449, 472 (2009); see also McKenzie v. Smith, 326 F.3d 721, 726 (6th Cir. 2003). Petitioner raised his constructive denial of counsel claim and his related ineffective assistance of appellate counsel claim in his motion for relief from judgment. The Michigan appellate courts rejected petitioner's post-conviction appeal with form orders. In reviewing a claim under the AEDPA's deferential standard of review, this Court must review "the last state court to issue a reasoned opinion on the issue." Hoffner v. Bradshaw, 622 F.3d 487, 505 (6th Cir. 2010)(quoting Payne v. Bell, 418 F.3d 644, 660 (6th Cir. 2005). This Court must therefore look tothe Wayne County Circuit Court judge's opinion denying post-conviction relief.

In rejecting the motion, the trial court judge failed to address petitioner's claim that he was constructively denied the assistance of trial counsel, choosing instead to adjudicate petitioner's claims under the Strickland standard.

When the evidence suggests that a federal claim is rejected by a state court "as a result of sheer inadvertence," the claim has not been adjudicated "on the merits," for purposes of applying the AEDPA's deferential standard of review contained in 28 U.S.C. § 2254(d). See Johnson v. Williams, 568 U.S. 289, 302-03 (2013). The trial judge, either "simply misconstrued or overlooked the actual claim that was raised." Ray v. Bauman, 326 F. Supp. 3d 445, 459 (E.D. Mich. 2018)(AEDPA deference did not apply to petitioner's constructive denial of counsel claim where the post-conviction judge overlooked or misconstrued petitioner's Cronic argument). In this case, "there are simply no results, let alone reasoning, to which this court can defer. Without such results or reasoning, any attempt to determine whether the state court decision 'was contrary to, or involved an unreasonable application of clearly established Federal law,'28 U.S.C. § 2254(d)(1), would be futile." McKenzie, 326 F. 3d at 727. Accordingly, petitioner's claim would be subject to de novo review.

The Court further believes that petitioner is entitled to an evidentiary hearing on his claims.

A federal court must grant an evidentiary hearing to a habeas corpus applicant if:

(1) the merits of the factual dispute were not resolved in a state hearing;

(2) the state factual determination is not fairly supported by the record as a whole;

(3) the fact finding procedure in state court was not adequate to afford a full and fair hearing;

(4) there is a substantial allegation of newly discovered evidence;

(5) material facts were not adequately

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