SIXTH CIRCUIT REVIEW

By Meggan Smith, Post-Conviction Branch
Eddleman v. McKee, 471 F.3d 576 (C.A.6 (Mich.)), discussed
in the April 2007 issue of The Advocate, was overruled by
Fry v. Pliler, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007). In Fry,
the U.S. Supreme Court held that on collateral review, “a
court must assess the prejudicial impact of constitutional
error in a state-court criminal trial under the ‘substantial and
injurious effect’ standard set forth in Brecht, whether or not
the state appellate court recognized the error and reviewed it
for harmlessness” under the Chapman standard.
Nichols v. United States,
— F.3d ——, 2007 WL 2326051, (C.A.6 (Tenn.))
Before Keith, Moore, and Cole, Circuit Judges
Even though United States v. Booker, 543 U.S. 220 (2005)
had not yet been decided when the defendant was sentenced,
defense counsel was ineffective for failing to preserve a
Sixth Amendment challenge to the defendant’s sentence
because Apprendi v. New Jersey, 530 U.S. 466(2000), had
cast the constitutionality of the Federal Sentencing
Guidelines into considerable doubt and because the
enhancements to the defendant’s sentence directly
presented circumstances that were called into question by
Apprendi.
Thomas Albert Nichols was convicted in federal court of
bank extortion involving the use of a dangerous weapon
and bank extortion involving forcing a victim to accompany
a robber. Under the then-mandatory Federal Sentencing
Guidelines, Nichols’ sentence was enhanced for taking the
property of a financial institution, the amount of the loss
involved, use of a firearm, abduction of a victim, the
vulnerability of a victim, and the use of a child in the course
of the offense. The court sentenced Nichols to 405 months
in prison.
In his federal habeas action, Nichols claimed that his attorney
had been ineffective in failing to object to the sentence
enhancements on Sixth Amendment grounds. At the time of
Nichols’ sentencing, the U.S. Supreme Court had decided
Apprendi v. New Jersey, 530 U.S. 466 (2000), holding that
“[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the subscribed
statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.” Id. at 490. However, the
Supreme Court did not hold that the mandatory Federal
Sentencing Guidelines violated the principle announced in
Apprendi until two years after Nichols had been sentenced.
See United States v. Booker, 543 U.S. 220 (2005).
Although courts rarely find an attorney ineffective “based
upon a trial attorney’s failure to make an objection that would
have been overruled under then-prevailing law,” the Sixth
Circuit recognized that this was a “rare case” where counsel
“failed[ed] to raise an issue whose resolution [was] clearly
foreshadowed by existing decisions.” The Court noted that,
after Apprendi, numerous commentators had questioned the
continued validity of the Guidelines. Most importantly, the
concurring and dissenting opinions in Apprendi suggested
that the majority’s reasoning would lead to the invalidation
of the Guidelines.
As to the deficient performance prong of the Strickland test
for ineffectiveness, the Court stated:
With the future state of the law so uncertain
post-Apprendi, we believe that any counsel
whose performance satisfied an ‘objective
standard of reasonableness’ would have at
least been cognizant of possible extensions
of Apprendi to challenge the Federal
Sentencing Guidelines and the necessity of
preserving those challenges in case the
Supreme Court struck down the Guidelines
while the defendant’s case was pending on
direct appeal.
The Court recognized that:
[U]nder our decision today, the performance
of many attorneys who represented criminal
defendants after Apprendi but before Blakely
and Booker will be deemed constitutionally
deficient. The question before us, however,
is not what some or most attorneys actually
did, but whether the performance of Nichol’s
counsel ‘fell below an objective standard of
reasonableness.’ Although we recognize that
common practices may provide evidence of
the objective standard by which we should
measure the performance of individual
attorneys, common practices can never be
determinative lest we freeze our expectations
of counsel at one moment in time, never to
improve or change in response to
developments in, for example, education,
technology, and the law itself.
Having found that Nichols’ attorney’s performance was
deficient, the Court turned to the question of prejudice.
Because Booker does not apply retroactively, to establish
that there was a reasonable probability that the result of his
sentencing would have been different, Nichols had to show
that, but for counsel’s deficient performance, he would have
had a direct appeal pending when Booker was decided. While
the Court recognized that it would be difficult for many
defendants to establish this, in Nichols’ case, his
codefendant’s Sixth Amendment challenge to his sentence
was still pending on direct review when Booker was decided,
and, therefore, his codefendant’s case was remanded for
reconsideration in light of Booker.
Although the specific issues surrounding the Federal
Sentencing Guidelines are not pertinent to Kentucky state
court proceedings, the Sixth Circuit’s analysis of Nichols’
ineffective assistance of counsel claim is particularly
instructive, especially as to the issue of deficient
performance. The Court’s recognition that Nichols’ attorney’s
performance “fell below an objective standard of
reasonableness” even though his conduct was the common
practice among many attorneys has significant implications
for courts’ future treatment of ineffectiveness claims.
Vasquez v. Jones,
— F.3d ——, 2007 WL 2176985 (C.A.6 (Mich.))
Before Rogers and Cook, Circuit Judges, and Gwin, District
Judge
The state court’s holding that the exclusion of a witness’s
prior convictions, offered as impeachment, did not violate
the Confrontation Clause was an unreasonable application
of Supreme Court precedent.
Emilio Vasquez was convicted in connection with a shootout
in which an innocent bystander was killed by a 9-millimeter
handgun. Vasquez claimed that he shot a rifle, not a handgun,
in self-defense. Demond Brown testified at the preliminary
hearing that he saw Vasquez fire a handgun. Brown could
not be located to testify at trial, but the court admitted his
preliminary hearing testimony at Vasquez’s trial. Defense
counsel objected to the admission of the prior testimony,
and attempted to admit evidence that Brown had been
offered a deal by the prosecution to testify at the preliminary
hearing and that Brown had a criminal record. Only the
issue of the exclusion of Brown’s prior convictions was
preserved for federal habeas review.
Because the state court had found that any Confrontation
Clause error was harmless but never decided whether there
was any error, the Sixth Circuit applied “modified AEDPA
deference.” “Under this standard, the court conducts a
‘careful’ and ‘independent’ review of the record and
applicable law, but cannot reverse ‘unless the state court’s
decision is contrary to or an unreasonable application of
federal law.’”
The Court held that the state court’s rejection of Vasquez’s
Confrontation Clause claim was an unreasonable application
of Supreme Court precedent, particularly Davis v. Alaska,
415 U.S. 308 (1974). Davis held that the state court violated
the defendant’s right to confrontation by preventing him
from impeaching a witness with his prior criminal record.
The Sixth Circuit rejected the state’s contention that “’[t]he
Supreme Court has never held that cross-examination with
regard to credibility, as opposed to bias, is constitutionally
protected,’” finding that the cases “draw[] no meaningful
distinction between the constitutional status of crossexamination
as to bias and that of cross-examination as to
credibility or character for truthfulness.”
The Court went on to hold that the Confrontation Clause
violation was not harmless. Recognizing that Fry had
overruled Eddleman (discussed above), the Sixth Circuit
applied the Brecht standard: whether the error had a
substantial and injurious effect on the jury’s verdict. Under
this standard, the error was not harmless because Brown’s
testimony was important to the state’s case, Brown’s
testimony was not cumulative, no physical evidence
corroborated Brown’s testimony, defense counsel could not
be expected to have questioned Brown about his prior
convictions at the preliminary hearing given the voluminous
discovery involved in the case and the different motivations
at preliminary hearings and at trial, and the state’s case was
not particularly strong without Brown’s testimony.
Girts v. Yanai,
— F.3d ——, 2007 WL 2481018, (C.A.6 (Ohio))
Before Martin, Batchelder, and Clay, Circuit Judges
The Prosecutor’s comments on defendant’s failure to testify
or speak to the police violated the defendant’s Fifth
Amendment rights and were sufficiently flagrant to warrant
the reversal of the defendant’s conviction despite defense
counsel’s failure to object.
Robert Girts was convicted by a jury of aggravated murder.
During the state’s closing argument, the prosecutor
commented on the defendant’s failure to testify in his own
defense or talk to the police, and defense counsel failed to
object to such comments. Among the comments were:
Again these are [the defendant’s] words. And
the words that you heard from these folks
supplied by him are unrefuted, and they are
uncontroverted. There has been no evidence
offered to say that these people are incorrect.
None at all.
[W]ith respect to the source [of the cyanide],
the defendant had no less than three
occasions to tell the police that he had
ordered cyanide.
Ladies and gentlemen, we don’t have to tell
you how it was introduced into her system.
We know that it was ingested. And there is
only one person that can tell you how it was
introduced, and that’s the defendant.
On federal habeas review, the district court found that the
prosecutor’s comments were improper and that defense
counsel was ineffective for failing to object, but that Girts
had failed to show prejudice.
The Sixth Circuit first addressed whether the issue was
procedurally defaulted in state court. Because the state
court had reviewed the prosecutor’s comments under a plain
error standard, the Court found that the state had not waived
its procedural default rules. However, the Court found that
Girts overcame the procedural default: “[W]e find that [Girts]
meets the cause and prejudice exception to the procedural
default because his trial counsel was ineffective in failing to
object to the prosecution’s statements during closing
argument.”
Defense counsel’s failure to object to the prosecutor’s
comments was deficient performance because “[t]here was
no conceivable benefit to be derived from failing to challenge
the prosecutor’s improper statements.” The Court found
that the resulting prejudice was “patent:”
If trial counsel had raised an objection, the
trial court would have reprimanded the
prosecutor and issued a prompt curative
instruction to the jury. In turn, the jury would
have heard from the judge that the prosecutor’s
comments called for an improper and
impermissible negative inference for
Petitioner’s exercise of his Fifth Amendment
rights. Certainly, if an objection had been raised
to the prosecutor’s first statement, the
prosecutor would not have been permitted to
continue to overstep with subsequent
comments. Trial counsel’s failure to object
exacerbated the prejudicial effect of the
prosecutor’s statements. We find that there is
a strong likelihood that at least one juror would
have changed his mind if the improper and
prejudicial statements would not have been
made, especially because the prosecutor
presented weak and limited evidence at trial.
In determining whether the prosecutor’s comments were
sufficiently flagrant to warrant a reversal of Girts’ conviction,
the Court “’first consider[ed] whether the prosecutor’s
comments were improper,’ and ‘then consider[ed] and
weigh[ed] four factors:’”
(1) whether the conduct and remarks of the
prosecutor tended to mislead the jury or
prejudice the defendant; (2) whether the
conduct or remarks were isolated or extensive;
(3) whether the remarks were deliberately or
accidentally made; and (4) whether the evidence
against the defendant was strong
As to the first factor, the Court found the comments to be
prejudicial because they went to the central issues in dispute,
namely, how Girts’ wife ingested cyanide, how Girts obtained
cyanide, and what Girts said about his wife’s death. The
general jury instruction on a defendant’s Fifth Amendment
right was not sufficient to cure the prejudice.
Next, the Court found that the comments were not isolated,
but were in fact a “central theme” in the state’s closing
argument, and that the comments were deliberately placed
before the jury. Lastly, the Court found that the strength of
the evidence against Girts was not sufficient to overcome
the prosecutor’s improper comments: “Given the facts in
this case, there is a strong likelihood that the prosecutor
strategically made the prejudicial statements at the end of
the trial to focus the jury’s attention on [Girts’] silence, and
away from the limited evidence presented at trial.”
Justice Batchelder, in dissent, disagreed with the majority’s
application of the four factors, especially the strength of the
evidence against Girts.
Ferensic v. Birkett,
— F.3d ——, 2007 WL 2471276, (C.A.6 (Mich.))
Before Clay, Gilman, and McKeague, Circuit Judges
Robert Ferensic was convicted of armed robbery, home
invasion, and possession of a firearm during the commission
of a felony. The evidence against Ferensic consisted solely
of eyewitness identifications by the two victims. At trial, the
defense was prevented from presenting two key witnesses,
Dr. Harvey Shulman and Danny St. John. Dr. Shulman was
an expert on eyewitness identification. The court excluded
his testimony because defense counsel failed to comply with
a pretrial discovery order which ordered counsel to provide
the prosecutor with a copy of Dr. Shulman’s report at least
two months before trial. Instead, the report was provided
eleven days before trial.
St. John had witnessed the robbers enter the victims’ home
and was prepared to undermine the victims’ description of
the robber offered at trial and to testify that he had never
seen the defendant before. The court excluded his testimony
because he was not present in the courtroom at the end of
the defendant’s case. The trial had proceeded faster than
defense counsel anticipated, and he had instructed St. John
to arrive later in the day. The court refused to adjourn to
allow time for St. John to arrive.
The state court had held that the exclusion of Dr. Shulman’s
testimony, a “concededly severe sanction,” did not prejudice
Ferensic because defense counsel was able to effectively
challenge inconsistencies in the victims’ identifications
through his cross-examination. As to St. John’s testimony,
the state court found no prejudice is its exclusion because
“[t]he purported testimony was not especially strong, . . .
and inconsistency inherent in the victims’ identification was
otherwise shown.”
In reviewing Ferensic’s “right to present a defense” claim,
the Court must determine whether the exclusion of evidence
was “’arbitrary’ or ‘disproportionate to the purpose[] [it is]
designed to serve.’” “[T]he exclusion of a defendant’s
evidence should be reserved for only those circumstances
where ‘a less severe penalty ‘would perpetuate rather than
limit the prejudice to the State and the harm to the adversary
process.”” The Sixth Circuit found that the state court had
acted contrary to Supreme Court precedent by failing to
apply this proportionality-based analysis. Instead, the state
court had applied a traditional prejudice-based analysis.
Under the correct standard, the Court found the trial court’s
exclusion of Dr. Shulman’s testimony to be arbitrary and
disproportionate:
Such disregard for the substantial rights of
one party in the absence of any prejudice to
the other raises an inference of arbitrariness.
(citations omitted). It is certainly proof of
disproportionality, especially in light of the
absence of harm to the prosecution [the
prosecutor did not wish to consult a rebuttal
expert and knew the identity of the defense’s
expert long before trial], the lack of willfulness
on the part of Ferensic’s counsel in violating
the discovery order (he turned over Dr.
Shulman’s report as soon as he received it 11
days before trial), and the lack of any delay
caused by counsel’s misstep.
***
The problem was exacerbated by the trial
court’s refusal to instruct the jury that the
two defense witnesses in question were not
permitted to testify. When defense counsel
failed to present either witness as promised
in his opening statement, the jury might have
concluded that the witnesses were unable or
unwilling to testify as expected and that
defense counsel could not live up to the
claims that he made in his opening statement.
As for the exclusion of St. John’s testimony, the Court found
that the state court had failed to apply the correct standard:
a broad, totality of the circumstances analysis. Instead, the
state court rested its decision on its determination that
Ferensic was not prejudiced by the exclusion.
Turning to the totality of the circumstances analysis, the
Court noted that the sole reason for the exclusion of St.
John’s testimony was that defense counsel had instructed
him to arrive at the courthouse at 11:00 a.m., but defense
counsel’s prior witness concluded his testimony at 10:35
a.m. The trial court refused to grant the half-hour
adjournment. “Granting Ferensic’s motion would likely not
have delayed the proceedings by more than half an hour.
Even a longer delay would have been justifiable in light of
the fact that, as Ferensic notes in his brief, ‘the trial judge
had scheduled three days for trial, and the case was
proceeding to closing argument in less than a day and a
half.’” Given these circumstances, the trial court’s refusal to
grant an adjournment was an abuse of discretion.
In determining that the exclusion of St. John and Dr.
Shulman’s testimony was not harmless, the Court emphasized
the cumulative effect of their testimony. Additionally, the
Court pointed to the fact that the jury had questions about
the identifications:
[T]he jury sent a note to the trial judge stating
that “[w]e would like to see the police report,”
and asked “[w]hat are our options if we don’t
totally agree on a verdict?’ The ‘police
report,” of course, contained the police sketch
as part of Ferensic’s larger file. Thus the jury’s
own words imply not only that it had doubts
about the strength of the case against
Ferensic, but also that those doubts related
at least in part to the contents of his police
file. Although the jury did not explicitly
question the “sufficiency” of the sketchbased
identification vis-à-vis Ferensic’s guilt,
its note, especially when considered in the
context of the erroneously excluded testimony
from Dr. Shulman and St. John, precludes us
from saying “with fair assurance . . . that the
judgment was not substantially swayed by
the error.” (citations omitted) We wish to
emphasize just how significant the jury’s note
is to our analysis, because it distinguishes
the present case from many others in which
the erroneous exclusion of an expert witness
on eyewitness identification might well be
harmless.
Having granted Ferensic relief based on his “right to present
a defense” claim, the Court did not address his ineffective
assistance of counsel claim, which was based on defense
counsel’s failure to provide Dr. Shulman’s report to the
prosecutor by the deadline and failure to ensure that St.
John was at the courtroom ready to testify in time.
Justice McKeague, in dissent, would hold that the state
court’s decision was not contrary to nor an unreasonable
application of federal law. McKeague would reach the
ineffectiveness claim and hold that the state court was not
unreasonable in finding that Ferensic was not prejudiced by
the exclusion of Dr. Shulman and St. John’s testimony.
McKeague also responded to the majority’s reliance on the
jury’s note in determining whether any error was harmless:
I do not agree with the majority that the note
the jury sent out during deliberations asking
to see the police report indicates that the jury
“had doubts about the strength of the case
against Ferensic.” Although, as the majority
observes, the police report contained the
artist’s sketch, it contained other information
as well, and the record contains no indication
that the jury was interested in the sketch
particularly. In any case, the trial court refused
to provide the jury with the report, as it had
not been entered into evidence, and after
further deliberations, the jury found Ferensic
guilty.
Varner v. Stovall,
— F.3d ——, 2007 WL 2593533, (C.A.6 (Mich.))
Before Gibbons and Sutton, Circuit Judges, and Beckwith,
Chief District Judge
Admission of the defendant’s prayers that she had recorded
in her journal confessing that she tried to kill her boyfriend
did not violate the Religion Clauses of the First and
Fourteenth Amendments. Court’s exclusion of evidence of
Battered Women’s Syndrome did not violate Sixth and
Fourteenth Amendment right to present a defense.
Janniss Varner was convicted of assault with intent to commit
murder after she hired someone to shoot her abusive
boyfriend. At trial, the prosecutor introduced excerpts from
Varner’s journal where she admitted trying to kill her boyfriend
and identifying the hired gunman. The journal entries were
often addressed “Dear God,” contained prayers of
supplication and thanks, and expressed her disillusionment
with organized religion and church services. The trial court
excluded expert testimony on Battered Women’s Syndrome
and refused to instruct the jury on provocation, reasoning
that self-defense and provocation defenses are not available
in cases involving a hired hit man.
In the Sixth Circuit, Varner first argued that the admission of
her journal entries violated the Religion Clauses:
[S]he makes the following four-step argument.
Step one: Michigan has created an evidentiary
privilege for religious communications. Step
two: the privilege applies only to religions that
encourage their members to communicate with
God through an intermediary. Step three: this
limitation discriminates among religions
because it disfavors belief systems in which
individuals communicate directly with God.
Step four: the solution to this First Amendment
problem is not to strike the privilege (which
would not benefit Varner) but to extend it to
all religions, including those that do not use
intermediaries, and thus to extend the privilege
to any journal entry that might be construed
as a prayer to God.
The Sixth Circuit held that the admission of Varner’s journal
entries did not violate the Religion Clauses because, “the
clergy-penitent privilege was never designed to apply to
private journal entries, and the confinement of the privilege
to its historic purposes does not offend . . . [the] requirements
of the Religion Clause of the First Amendment.” The Court
analogized the clergy-penitent privilege to the lawyer-client
privilege and the doctor-patient privilege, noting that all three
were intended to eliminate barriers to full disclosure in each
setting.
The privilege requires the communication to
be directed to a member of the clergy – just as
the other privileges require the
communication to be directed to an attorney
or doctor – because it is the clergy who may
be subpoenaed to testify against the
individual. The same possibility does not
exist with private writings to God, who may
be petitioned but never subpoenaed.
The confinement of the privilege to its traditional function
does not favor some religions over others, because the
privilege does not protect anyone’s journal entries, whether
addressed to God or not. Additionally, the admission of the
entries does not restrict Varner’s ability to practice her faith,
because her journal entries were not the only way she could
communicate directly with God.
The Court went on to hold that the state court’s exclusion of
expert testimony on Battered Women’s Syndrome did not
violate Varner’s Sixth and Fourteenth Amendment right to
present a defense. The state courts had determined that in
cases involving a hired gunman, the evidence would not
support a defendant’s belief that she was “in imminent danger
or that there is a threat of serious bodily harm.” The Sixth
Circuit stated, “Much as we sympathize with Varner’s plight,
we must conclude that the confinement of self-defense
instructions to cases of ‘imminent danger’ does not
unreasonably apply Supreme Court precedent [on the right
to present a defense], and neither does the state courts’
conclusion that a scheme to hire a contract killer does not
involve such an imminent danger.”
Likewise, Varner was not entitled to an instruction on
provocation. “Whether it is a question of self-defense or a
question of provocation, Varner fails to explain why an
individual who faces a non-imminent threat is not just as
capable of calling the authorities as of hiring a contract killer.”