Upshaw v. Stephenson

97 F.4th 365

Lafayette Deshawn UPSHAW, Petitioner-Appellee, v. George STEPHENSON, Warden, Respondent-Appellant.

No. 22-1705

United States Court of Appeals, Sixth Circuit

Argued: October 25, 2023

Decided and Filed: March 28, 2024

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:20-cv-12560—Linda V. Parker, District Judge.

ARGUED: Jared D. Schultz, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellant. Daniel S. Harawa, NEW YORK UNIVERSITY, New York, New York, for Appellee. ON BRIEF: Jared D. Schultz, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellant. Daniel S. Harawa, Zach Hollstrom, Faith Katz, Jacob Seeley, Malak Shahin, WASHINGTON UNIVERSITY, St. Louis, Missouri, for Appellee.

Before: MOORE, GIBBONS, and STRANCH, Circuit Judges.

OPINION

JANE B. STRANCH, Circuit Judge.

This appeal centers on the habeas petition of Lafayette Deshawn Upshaw, a state inmate in the custody of the Michigan Department of Corrections. In 2014, the State charged Upshaw with crimes associated with two separate incidents that occurred on the same day: a gas station robbery and a home invasion. Upshaw entered a plea deal in the home invasion case but went to trial and was convicted on counts stemming from the robbery. Michigan's state courts affirmed his robbery conviction on direct appeal. After exhausting his state court remedies, Upshaw filed a petition for habeas relief in federal court. The district court granted relief on two of Upshaw's claims: an ineffective assistance of counsel claim based on trial counsel's failure to investigate alibi witnesses and a Batson claim deriving from the State's use of peremptory challenges to strike six Black jurors. The Warden now appeals. We AFFIRM.

I. BACKGROUND

A. Factual Background

After concluding work around 3:00 a.m. on May 28, 2014, Upshaw got a ride home from his boss, during which the pair discussed the tan Timberland boots that Upshaw was wearing. He arrived home around 3:15 or 3:20 a.m., where, according to evidence from Upshaw, his aunt, Crystal Holloway, and his grandmother, JoAnn Green, Upshaw knocked on the door to his home, which woke up his grandmother. Holloway, who suffers from insomnia, was awake when Upshaw knocked, and let him into the house. Green proceeded to "cuss[ ] [Upshaw] out" for waking her up, after which Upshaw went upstairs and played with his daughter until approximately 4:00 a.m.

Just after 3:35 a.m. that morning, a man robbed a gas station a little over three and a half miles away. Standing by the cash register in a bullet-proof glass "cage," Tina Williams, the only gas station employee working that night, heard a man say to a female customer, "give me your money." Williams heard this, looked up, and saw a man who was wearing a gray hoodie, blue shoes,¹ and a t-shirt pulled over his nose and mouth. The gunman then pointed his weapon at her, demanding she turn over money; when Williams instead locked the cage door, the man fired a shot at her. The man attacked the store display under the cage, continuing to shoot at least half a dozen times until he ran out of bullets, and then fled. Another man at the scene, later identified as Darrell Walker, remained at the coffee machine during the shooting, did not run when the shooter pointed the gun in his direction, and yelled at the cashier to open the door to the cash to stop the shooting.² A few hours later, police apprehended Walker and Upshaw invading a police officer's home. Five days later, on June 3, Williams identified Upshaw in a police photo array as the robber. The State indicted Upshaw for the store robbery.

B. Trial Proceedings

Upshaw and Wright were arraigned for the gas station robbery on July 25, 2014. During their initial appearance before the trial judge on August 5, the attorney retained by Upshaw's family, Anthony Paige, failed to appear. Upshaw later informed Paige of three potential alibi witnesses: Holloway; Green; and his girlfriend, Diamond Woods. Paige never provided Upshaw with any indication that he investigated any of these witnesses. On November 30, Upshaw's mother, Toya Green, submitted a notarized letter to Michigan's Attorney Grievance Commission, explaining that Paige failed to appear at "four required court hearings on four different days" and did not "notify the court or [Green] of his inability to keep the scheduled court hearings." Roughly two weeks before trial, Upshaw fired Paige over Paige's failure to investigate, appear in court, and keep Upshaw informed of developments in his case.

Upshaw then retained Wright Blake to represent him. During their first meeting, Upshaw informed Blake of his three known alibi witnesses—Holloway, Green, and Woods. (Blake did not follow up, then or later, with Upshaw's alibi witnesses, spent his first meeting with Upshaw reviewing his case file, and did not support Upshaw's request to the trial judge for an adjournment, instead assuring Upshaw and the judge that he would "bring [himself] up to speed by" the trial date.)

The trial took place over three days in October 2014. During jury selection, the State used six of its first eight peremptory strikes to remove African Americans from the jury, prompting Blake to raise a Batson challenge. Without determining whether Blake presented a prima facie case of discrimination, the court directed the State to provide its reasons for striking each of the jurors. The State offered facially race-neutral reasons for three of the challenged jurors, the court provided a facially race-neutral reason for another juror, and Blake argued that the proffered race-neutral explanation for one of the jurors was pretextual. The court denied the entire Batson challenge.

Trial proceeded. The State called Tina Williams, the gas station cashier, who identified Upshaw as the shooter. Blake called one witness: Jeffrey Haugabook, Upshaw's boss, who stated that on the night of the robbery, he drove Upshaw home; that they talked about the "wheat colored" Timberland boots Upshaw was wearing; that Haugabook never observed Upshaw wear purple gym shoes; and that Haugabook dropped Upshaw off at home around 3:15 or 3:20 a.m. The jury returned a guilty verdict, convicting Upshaw of armed robbery.

C. Post-Trial State Court Proceedings

Upshaw, represented by new counsel, appealed his robbery conviction to the Court of Appeals of Michigan (COA) in December 2014. There, he raised an ineffective assistance of counsel (IAC) claim stemming from Blake's failure "to investigate potential alibi witnesses" and failure "to file the required notice of intent to present an alibi defense" under Michigan Compiled Laws § 768.20. People v. Walker, No. 324672, 2016 WL 2942215, at *6 (Mich. Ct. App. May 19, 2016). Upshaw also argued that the State's use of peremptory challenges to strike African American jurors violated Batson. Id. The COA rejected these claims and affirmed Upshaw's conviction. Id. at *10. Upshaw filed an application for leave to appeal to the Supreme Court of Michigan, which was denied. People v. Upshaw, 500 Mich. 959, 891 N.W.2d 487 (2017). The court also denied Upshaw's request for reconsideration and remand. See People v. Upshaw, 500 Mich. 1004, 895 N.W.2d 515 (2017). The United States Supreme Court denied certiorari on November 6, 2017. Upshaw v. Michigan, 583 U.S. 965, 138 S.Ct. 422, 199 L.Ed.2d 314 (2017).

Upshaw filed a pro se motion for relief from judgment in state trial court on July 10, 2018, raising several arguments for relief, including that the Michigan COA unreasonably applied Batson. The trial court denied the motion on November 27.³ The COA denied Upshaw's application for leave to appeal, and his motions for remand for a Crosby hearing⁴ and a Ginther hearing,⁵ on July 22, 2019. On May 26, 2020, the Michigan Supreme Court also denied Upshaw leave to appeal.

D. Habeas proceedings

Upshaw, now represented by counsel, filed a petition for a writ of habeas corpus in federal district court on September 18, 2020, raising seven claims for relief. These included claims of ineffective assistance of trial counsel due to counsel's failure to "interview or otherwise investigate" the two alibi witnesses identified by Upshaw—"his grandmother, JoAnn Green, and his aunt, Crystal Holloway"—and a Batson violation due to the State's use of "6 of 8 peremptory challenges against African-American potential jurors."

At a status conference on April 12, 2022, the district court expressed that it was inclined to grant an evidentiary hearing regarding the ineffective assistance of counsel claim. The Warden filed a motion to vacate the evidentiary hearing on April 27, arguing that Cullen v. Pinholster, 563 U.S. 170, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011), precluded such a hearing. The court denied the motion, and held a hearing on May 17. On July 14, 2022, the district court granted Upshaw's habeas petition, determining that he qualified for relief on his IAC and Batson claims. The Warden timely appealed.

II. JURISDICTION AND STANDARD OF REVIEW

Jurisdiction over this appeal is proper pursuant to 28 U.S.C. § 1291, because the district court's grant of habeas constituted a final decision. 28 U.S.C. § 2253(a). "This Court reviews a district court's decision to grant habeas corpus relief de novo." Lancaster v. Adams, 324 F.3d 423, 428 (6th Cir. 2003). And "[w]e review the district court's findings of fact for clear error." Id.

As to the state courts' findings of fact, "AEDPA requires federal courts to accord a high degree of deference to such factual determinations," such that "a presumption of correctness" applies "unless clear and convincing evidence is offered to rebut this presumption." Ferensic v. Birkett, 501 F.3d 469, 472-73 (6th Cir. 2007) (quotations omitted); see 28 U.S.C. § 2254(e)(1). To overcome this presumption, the petitioner bears "the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). "When...