NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0867n.06
No. 09-2258
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
ROBERT GERARD PLUMMER, Aug 08, 2012
LEONARD GREEN, Clerk
Petitioner-Appellant,
ON APPEAL FROM THE
v. UNITED STATES DISTRICT
COURT FOR THE EASTERN
ANDREW JACKSON, Warden, DISTRICT OF MICHIGAN
Respondent-Appellee.
/
Before: KENNEDY, MARTIN, and STRANCH, Circuit Judges.
BOYCE F. MARTIN, JR., Circuit Judge. Robert Gerard Plummer appeals the district court’s
denial of his petition for a writ of habeas corpus and the denial of his request for an evidentiary
hearing pursuant to the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254.
Plummer argues on appeal that the district court erred in finding that the Michigan state court
decision dismissing Plummer’s claim of ineffective assistance of counsel was not an unreasonable
application of clearly established Supreme Court law, and that the district court should have at least
granted his request for an evidentiary hearing to further develop the facts related to his ineffective
assistance claim. For the following reasons, we VACATE the judgment of the district court and
REMAND for an evidentiary hearing.
No. 09-2258
Plummer v. Jackson
Page 2
I.
The Michigan Court of Appeals offered a detailed factual account of this case in People v.
Plummer, 581 N.W.2d 753, 755-56 (Mich. Ct. App. 1998). We provide a brief summary of the
relevant facts below.
Robert Plummer1 and his brother, Mark Plummer, were at the New Image Lounge in Niles,
Michigan, during the early morning of September 18, 1995. Damon Hatcher, the decedent, and his
relative, Kevin Day, were also present.
At approximately 1:30 a.m., Day and Mark Plummer became engaged in an argument in the
New Image Lounge pool room. The petitioner and Hatcher were also in the pool room at this time.
A witness testified that Day punched Mark Plummer in the jaw, causing Mark Plummer to fall to the
ground. When Mark Plummer stood up, Day hit him again. Mark Plummer fell again, at which
point the petitioner attempted to insert himself into the fight to help his brother; a bystander
prevented him from doing so. At this time, Hatcher ran toward Day, yelling “man, break that up.”
Hatcher tripped and fell against the wall as he approached the spot where Day and Mark Plummer
were fighting. Several witnesses testified that Robert Plummer had pulled out a gun by this time and
that he fired a shot at Hatcher after Hatcher tripped. Hatcher, who had been shot in his upper back
and through his aorta, bled to death.
Another patron of the New Image Lounge, Christine Joliff, attempted to flee after seeing a
gun and hearing gunfire. She was shot in the leg while trying to exit the Lounge.
1
Petitioner is referred to as both “Robert Plummer” and “Plummer” throughout the opinion; his
brother is referred to only by his full name, “Mark Plummer,” to avoid confusion.
No. 09-2258
Plummer v. Jackson
Page 3
Robert Plummer and Mark Plummer were apprehended by police outside the New Image Lounge.
Police attempted to arrest Day but a group of patrons prevented the officers from approaching him
and he was able to leave the scene without being detained.
Plummer was charged with first-degree premeditated murder, Mich. Comp. Laws § 750.316;
assault with intent to commit murder, Mich. Comp. Laws § 750.83; and possession of a firearm
during the commission of a felony, Mich. Comp. Laws § 750.227b. His case proceeded to a jury
trial.
During voir dire, Plummer’s counsel told the jury that Plummer, and other witnesses, would
testify in support of a theory that Plummer shot Hatcher and Joliff in self-defense. Specifically,
Plummer’s counsel stated to the jury:
The judge has told you the charge here is one of murder, and Robert Plummer has
entered a plea of not guilty to that charge. He is going to testify, and you will hear
other witnesses testify in this regard, that on the date in question he believes he was
acting in lawful self-defense of both himself and his brother that was with him in the
bar.
However, at the end of the prosecution’s case in chief, Plummer’s counsel told the trial court
that “to this point [Plummer has] indicated to me that he was prepared to testify. At—just at the
lunch break he’s informed me that he doesn’t wish to testify.” The trial court then conducted a
colloquy on the issue with Plummer, inquiring whether Plummer was satisfied with his counsel’s
work, whether he understood his constitutional right to testify or not testify, and whether he
understood certain consequences of his decision to not testify. Contrary to his counsel’s earlier
promise to the jury, Plummer did not testify. Because Plummer did not testify, his character
witnesses were also not able to testify.
No. 09-2258
Plummer v. Jackson
Page 4
Plummer’s counsel presented two arguments to the jury at trial: first, that the prosecution had
not proven that Plummer was the person who shot Hatcher and Joliff, and second, that, if Plummer
was in fact the shooter, he had acted in self-defense. The jury found Plummer guilty.
Plummer was convicted in Michigan state court of first-degree murder, assault with intent
to murder, and possession of a firearm during the commission of a felony. Plummer filed a direct
appeal with the Michigan Court of Appeals, claiming ineffective assistance of counsel and
insufficient evidence to support the jury verdict of first-degree murder. The Michigan Court of
Appeals declined his motion for an evidentiary hearing on his claim of ineffective assistance, but,
finding merit to his second argument, remanded to the trial court for entry of a judgment of
conviction of second-degree murder. On remand, he was sentenced to concurrent terms of twenty
to eighty years’ imprisonment for second-degree murder, ten to eighty years’ imprisonment for
assault with intent to murder, and two years’ imprisonment for possession of a firearm during the
commission of a felony. The Michigan Court of Appeals affirmed this sentence, and Plummer filed
an application for leave to appeal in the Michigan Supreme Court. This application was denied.
In 2002, Plummer filed a petition for writ of habeas corpus in the district court. The district
court dismissed the petition for failure to exhaust state court remedies. Plummer filed a motion for
relief from judgment in the state trial court on March 10, 2003, raising claims of ineffective
assistance of counsel and newly discovered evidence. The state trial court denied his claims, as did
the Michigan Court of Appeals and the Michigan Supreme Court.
In November 2006, Plummer again filed a petition for a writ of habeas corpus in district
court, claiming, among other things, ineffective assistance of trial counsel. The district court issued
No. 09-2258
Plummer v. Jackson
Page 5
an order denying the petition and denying a certificate of appealability. Plummer filed motions for
reconsideration and for a certificate of appealability, all of which were denied by the district court.
Plummer requested a certificate of appealability from this Court. We granted his request. On
appeal, Plummer argues that his trial counsel was constitutionally ineffective because defense
counsel promised the jury in voir dire that Plummer would testify in support of a theory of self-
defense, even though Plummer ultimately chose not to testify. Plummer appeals the district court’s
decision to deny his petition for a writ of habeas corpus and its decision to deny his request for an
evidentiary hearing to develop the facts related to his ineffective assistance of counsel claim.
II.
This Court reviews the district court’s legal conclusions in a habeas proceeding de novo and
reviews its factual findings for clear error. Awkal v. Mitchell, 613 F.3d 629, 638 (6th Cir. 2010) (en
banc), cert denied, 131 S. Ct. 1002 (2011). We review the district court’s denial of Plummer’s
petition for a writ of habeas corpus pursuant to the standards set forth in the Antiterrorism and
Effective Death Penalty Act of 1996. See Murphy v. Ohio, 551 F.3d 485, 493 (6th Cir. 2009). Under
these standards, as laid out in Black v. Bell, 664 F.3d 81, 90-91 (6th Cir. 2011) (quoting Murphy, 551
F.3d at 493-94) (alterations in original):
[A] federal court may grant a writ of habeas corpus with respect to a “claim that was
adjudicated on the merits in state court proceedings” if the state court’s decision “was
contrary to, or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States.” 28 U.S.C. §
2254(d)(1). A habeas petition may also be granted if the state court’s decision “was
based on an unreasonable determination of the facts in light of the evidence presented
in the State court proceeding.” Id. § 2254(d)(2). A state-court decision is contrary
to clearly established federal law “if the state court applies a rule that contradicts the
governing law set forth in [the Supreme Court’s] cases” or “if the state court
No. 09-2258
Plummer v. Jackson
Page 6
confronts a set of facts that are materially indistinguishable from a decision of [the
Supreme] Court and nevertheless arrives at a result different from [that] precedent.”
Williams [v. Taylor, 529 U.S. 362, 405 (2000)]. A state-court decision is an
unreasonable application of clearly established federal law if it “correctly identifies
the governing legal rule but applies it unreasonably to the facts of a particular
prisoner’s case,” id. at 407–08, or if it “either unreasonably extends or unreasonably
refuses to extend a legal principle from Supreme Court precedent to a new context,”
Seymour v. Walker, 224 F.3d 542, 549 (6th Cir. 2000).
This Court’s review of a state court decision under section 2254(d)(1) is “limited to the record that
was before the state court.” Id. (quoting Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011)).
“However, if the claim was never ‘adjudicated on the merits’ in state court, the claim does not fall
under 28 U.S.C. § 2254(d) and Pinholster does not apply. In such cases, a federal habeas court may
order an evidentiary hearing . . . and decide the habeas petition under pre-[Antiterrorism and
Effective Death Penalty Act of 1996] standards of review.” Robinson v. Howes, 663 F.3d 819, 823
(6th Cir. 2011) (citing Pinholster, 131 S.Ct. at 1401).
This Court reviews the district court’s denial of Plummer’s request for an evidentiary hearing
under the abuse-of-discretion standard. See Ivory v. Jackson, 509 F.3d 284, 297 (6th Cir. 2007).
“Abuse of discretion is defined as a definite and firm conviction that the trial court committed a clear
error of judgment. A district court abuses its discretion when it relies on clearly erroneous findings
of fact, or when it improperly applies the law or uses an erroneous legal standard.” United States
v. Johnson, 569 F.3d 619, 623 (6th Cir. 2009) (internal quotation marks omitted).
III.
Plummer claims the district court erred in finding that the state court’s denial of his
ineffective assistance of counsel claim was not an “unreasonable application of Strickland [v.
No. 09-2258
Plummer v. Jackson
Page 7
Washington, 466 U.S. 668 (1984)],” and also that the district court erred by denying him an
evidentiary hearing on his ineffective assistance of counsel claim. Plummer argues that his counsel
performed deficiently, and in a manner that prejudiced Plummer, when he told the jury that Plummer
would testify even though Plummer did not intend to testify. In contending that the district court
should have held an evidentiary hearing to investigate his ineffective assistance of counsel claim,
Plummer argues that the state courts failed to give him an opportunity to discover and present the
facts necessary to develop this claim. We begin by considering Plummer’s argument that he should
have been granted an evidentiary hearing.
A. Diligence in Developing Claim
Under the Antiterrorism and Effective Death Penalty Act of 1996, a federal court shall not
hold an evidentiary hearing on a claim for which the petitioner “failed to develop the factual basis”
in state court unless the petitioner meets certain standards required by the Act. See 28 U.S.C. §
2254(e)(2). However, where a petitioner has been diligent in attempting to develop the facts of his
claim in state court and is not at fault for the failure to successfully do so, “the prisoner has not
‘failed to develop’ the facts under § 2254(e)(2)’s opening clause, and he will be excused from
showing compliance with the balance of the subsection’s requirements.” Williams v. Taylor, 529
U.S. 420, 437 (2000). Where a petitioner was diligent in developing his claim in state court, “the
decision to grant an evidentiary hearing is ‘generally left to the sound discretion of district courts.’”
Ata v. Scutt, 662 F.3d 736, 742 (6th Cir. 2011) (quoting Schriro v. Landrigan, 550 U.S. 465, 473
(2007)). “Diligence for purposes of [the Act] depends upon whether the prisoner made a reasonable
No. 09-2258
Plummer v. Jackson
Page 8
attempt, in light of the information available at the time, to investigate and pursue claims in the state
court.” Robinson, 663 F.3d at 824 (internal quotation marks omitted).
Plummer made repeated requests for an evidentiary hearing in the Michigan courts, including
making a motion on direct appeal to remand to the trial court for a hearing on ineffectiveness of
counsel. Plummer also submitted in state court a supporting merits brief and affidavits attempting
to establish his counsel’s deficient performance. Thus, we conclude that Plummer made a
reasonable attempt to investigate and pursue his claim in the Michigan courts; he has acted with
diligence and his request for an evidentiary hearing is not subject to the section 2254(e)(2)
limitations. See, e.g., Bowling v. Parker, 344 F.3d 487, 511-12 (6th Cir. 2003).
B. Entitlement to an Evidentiary Hearing
In deciding whether to grant an evidentiary hearing, a federal court considers whether a
hearing would enable the applicant “to prove the petition’s factual allegations, which, if true, would
entitle the applicant to federal habeas relief.” Ata, 662 F.3d at 742 (footnote and internal quotation
marks omitted). “[A] habeas petitioner is generally entitled to such a hearing if he alleges sufficient
grounds for release, relevant facts are in dispute, and the state courts did not hold a full and fair
evidentiary hearing.” Bowling, 344 F.3d at 512 (internal quotation marks omitted). We apply these
principles in considering whether the district court abused its discretion in finding that Plummer was
not entitled to an evidentiary hearing.
It is undisputed that the state court did not hold a “full and fair evidentiary hearing” on
Plummer’s ineffective assistance of counsel claim. See Plummer, 581 N.W.2d at 760 (noting that
the Court of Appeals of Michigan limited its review of the ineffective assistance of counsel claim
No. 09-2258
Plummer v. Jackson
Page 9
“to errors apparent on the record”). Thus, we move on to determine whether Plummer has alleged
sufficient grounds for release, and then whether relevant facts are in dispute.
Plummer alleges, as grounds for release, that his trial counsel rendered ineffective assistance
and that the state court improperly dismissed this claim. To prove a claim of ineffective assistance
of counsel, Plummer must show that (1) his counsel’s performance was deficient, meaning that it
“fell below an objective standard of reasonableness,” Strickland, 466 U.S. at 688, and (2) counsel’s
deficient performance was prejudicial to the defendant in that “there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id.
at 694. To show that the state court unreasonably applied Strickland’s deficiency prong to the facts
of Plummer’s case, Plummer must demonstrate that “there is no possibility fairminded jurists could
disagree that the state court’s decision conflicts with [the Supreme Court’s] precedents.” Harrington
v. Richter, 131 S.Ct. 770, 786 (2011). In reviewing the prejudice prong, the Supreme Court has held
that “[a] reasonable probability is a probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694.
Plummer challenges the state court’s rejection of his claim that his trial counsel acted
ineffectively by representing to the jury during voir dire that Plummer would testify even though,
Plummer contends, he did not intend to testify. The district court denied Plummer’s petition and his
request for an evidentiary hearing, finding that the state court’s rejection of this claim was not
contrary to, and did not involve “an unreasonable application of, clearly established federal law.”
22 U.S.C. § 2254(d)(1). Plummer argues that his counsel’s statements to the jury during voir dire
constituted deficient performance and prejudiced Plummer. The state argues that Plummer’s
No. 09-2258
Plummer v. Jackson
Page 10
counsel’s actions were not unreasonable, and therefore not deficient, because Plummer’s counsel
reasonably believed at the time of voir dire that Plummer intended to testify and Plummer only later
changed his mind about whether to take the stand. The transcript of the colloquy between the state
court and Plummer following his counsel’s mid-trial announcement that Plummer would not testify
does not provide evidence of whether Plummer suddenly changed his mind; the trial judge did not
ask questions regarding the timing of Plummer’s decision or Plummer’s prior expressions to counsel
about his intention to testify or not. The record is not developed enough for us to draw a conclusion
regarding Plummer’s ineffective assistance of counsel claim, but Plummer has nonetheless
sufficiently alleged ineffective assistance of counsel to be due an evidentiary hearing on the matter.
This Court found, in English v. Romanowski, 602 F.3d 714, 728 (6th Cir. 2010), that “it was
objectively unreasonable for [defendant’s] trial attorney to decide before trial to call . . . a [certain]
witness, make that promise to the jury, and then later abandon that strategy, all without having fully
investigated [the witness] and her story prior to opening statements.” While the testimony involved
in English was somewhat different than here because it was from a third-party witness rather than
from the defendant himself, we found in English that it is unreasonable for counsel to promise
testimony to the jury without first examining the availability and soundness of such testimony where
counsel could, and should, have discovered these details prior to trial. Id. The First Circuit, in
Ouber v. Guarino, 293 F.3d 19 (1st Cir. 2002), and the Seventh Circuit, in United States ex rel.
Hampton v. Leibach, 347 F.3d 219 (7th Cir. 2003), have held that a counsel’s mid-trial decision to
break an earlier “promise” to the jury that the defendant would testify is unreasonable—unless due
to an unforeseeable change of circumstances—and likely prejudices the outcome. Id. at 257
No. 09-2258
Plummer v. Jackson
Page 11
(“[W]hen the failure to present the promised testimony cannot be chalked up to unforeseeable events,
the attorney’s broken promise may be unreasonable, for little is more damaging than to fail to
produce important evidence that had been promised in an opening.”) (citation and internal quotation
marks omitted); Ouber, 293 F.3d at 28-30. The Third Circuit, McAleese v. Mazurkiewicz, 1 F.3d
159, 166-67 (3d Cir. 1993) (citations omitted), has also addressed the unreasonableness of counsel’s
broken promises to provide witness testimony:
The failure of counsel to produce evidence which [defense counsel] promised the
jury during his opening statement that he would produce is indeed a damaging failure
sufficient of itself to support a claim of ineffectiveness of counsel. The rationale for
holding such a failure to produce promised evidence ineffective is that when counsel
primes the jury to hear a different version of the events from what he ultimately
presents, one may infer that reasonable jurors would think the witnesses to which
counsel referred in his opening statement were unwilling or unable to deliver the
testimony he promised.
Plummer’s defense counsel promised the jury in voir dire that Plummer would proceed on a self-
defense argument; but, at trial, defense counsel presented the different and inconsistent argument that
Plummer had not fired the gun at all, and offered a self-defense theory only in the alternative.
Plummer’s counsel did not fulfill his promise to the jury to present Plummer’s testimony and certain
character witnesses that he had said would testify in support of a theory of self-defense. Plummer
alleges that he had consistently expressed an intention not to testify, even prior to voir dire, and his
counsel acted unreasonably by promising testimony that Plummer never intended to give and by later
breaking that promise at trial. To determine whether Plummer has alleged unreasonable performance
by his counsel, we must consider whether his counsel’s approach fell within “the wide range of
reasonable professional assistance given the circumstances.” English, 602 F.3d at 728 (quoting
No. 09-2258
Plummer v. Jackson
Page 12
Strickland, 466 U.S. at 689) (internal quotation marks omitted). If, as alleged, defense counsel knew
or could have known in advance that Plummer intended not to testify, defense counsel’s promise to
the jury of testimony he knew or could have known he probably would not be able to deliver was
unreasonable and constitutes deficient performance. See id.; see also Ouber, 293 F.3d at 28-30;
Leibach, 347 F.3d at 257; Washington v. Smith, 219 F.3d 620, 634 (7th Cir. 2000).
The Michigan Court of Appeals assumed—without sufficient support in the record—that
Plummer “unexpectedly changed his mind about testifying.” Plummer, 581 N.W.2d at 760. The
Michigan Court of Appeals did not address the factual matter of whether Plummer’s decision was
a sudden change of course or, alternatively, Plummer had consistently expressed an intention not to
testify and his attorney proceeded against Plummer’s wishes in voir dire by promising Plummer’s
testimony to the jury. When considering Plummer’s ineffective assistance of counsel claim, the
district court also relied upon the factual assumption that Plummer had unexpectedly changed his
mind, without addressing the lack of evidentiary support for this assumption in the record. Because
there is insufficient evidence in the record as to the timing of Plummer’s assertion that he intended
not to testify, and as to whether that assertion was inconsistent with Plummer’s prior statements
regarding his intent to testify, we find that the district court relied on a clearly erroneous finding of
fact in its evaluation of the first prong of Strickland. Accordingly, we find that the district court
abused its discretion in determining that Plummer’s counsel had not acted unreasonably. See
Johnson, 569 F.3d at 623 (noting that “[a] district court abuses its discretion when it relies on clearly
erroneous findings of fact”). Plummer has sufficiently alleged deficient performance by his counsel
No. 09-2258
Plummer v. Jackson
Page 13
to establish grounds for relief as to the first prong of his ineffective assistance of counsel claim so
as to entitle him to an evidentiary hearing.
The state court made no finding on the prejudice prong of Plummer’s ineffective assistance
of counsel claim. Therefore, the state court did not make an “adjudication on the merits” as to the
prejudice prong, and this prong is subject to de novo review not limited by the restrictions of the
Antiterrorism and Effective Death Penalty Act of 1996. See Wiggins v. Smith, 539 U.S. 510, 534
(2003) (finding that a federal court’s “review is not circumscribed by a state court conclusion with
respect to prejudice [where] neither of the state courts below reached this prong of the Strickland
analysis”); see also English, 602 F.3d at 729. Nor did the district court make a finding on the
prejudice prong; the district court denied Plummer’s ineffective assistance of counsel claim based
on the magistrate’s finding that Plummer failed to demonstrate the first prong of the Strickland test.
The district court adopted the magistrate’s report, which made no finding on the prejudice prong but
noted that defense counsel’s failure to fulfill a promise to present testimony “may often constitute
ineffective assistance of counsel.” (emphasis added).
Plummer argues that his counsel’s deficient performance was prejudicial because there is a
reasonable probability that the outcome of Plummer’s trial would have been different had his lawyer
not told the jury at voir dire that Plummer would later testify in support of a theory of self-defense.
We have previously found prejudice where an attorney promised the jury in his opening statement
that he would present a corroborating witness but, based upon later-learned facts about the witness
that he could have uncovered prior to his opening statement, decided not to call her to the stand.
English, 602 F.3d at 729 (“[W]e agree with the district court that but for counsel’s ineffectiveness,
No. 09-2258
Plummer v. Jackson
Page 14
there is a reasonable probability that the outcome would have been different.”). In Plummer’s case,
as in English, id. at 729, the probable prejudice is clear:
[Defense counsel’s] unfulfilled promise created a negative inference against
[Plummer] generally. As the First Circuit has noted, “little is more damaging than
to fail to produce important evidence that had been promised in an opening.”
Anderson v. Butler, 858 F.2d 16, 17 (1st Cir. 1988). The jury in this case must have
wondered what happened to [Plummer] after [his testimony] was promised . . . , and
the jury may well have counted this unfulfilled promise against [Plummer] and his
attorney. See [Leibach, 347 F.3d at 259] (finding unfulfilled promise by defense
counsel in opening caused prejudicial negative inference as to defendant and defense
counsel’s credibility).
Plummer’s counsel’s failure to fulfill a promise to provide the defendant’s own testimony may be
even more prejudicial than English’s counsel’s failure to provide a corroborating witness’s
testimony, because the defendant is present in the courtroom and, in the eyes of the jury, presumably
controlled the decisions to make the original promise of testimony and to eventually not testify at
trial.
As noted above, the First and Seventh Circuits found in Ouber and Leibach, respectively, that
counsel’s mid-trial breaking of a promise to the jury that defendant himself would testify likely
prejudices the outcome. Where, as in Ouber, 293 F.3d at 28-30:
[A] jury is promised that it will hear the defendant’s story from the defendant’s own
lips, and the defendant then reneges, common sense suggests that the course of trial
may be profoundly altered. A broken promise of this magnitude taints both the
lawyer who vouchsafed it and the client on whose behalf it was made.
....
. . . [U]nexpected developments sometimes may warrant changes in previously
announced trial strategies.
....
. . . [However, where, as in Ouber,] [t]here were no surprises . . . the lawyer’s
tergiversation could not be excused by changed circumstances.
No. 09-2258
Plummer v. Jackson
Page 15
Without further development of the facts, it is unclear whether Plummer’s counsel reneged on his
promise due to “changed circumstances,” as the state argues, or whether, as Plummer argues, there
were no surprises to excuse the prejudice caused by his counsel’s broken promise.
Plummer’s counsel’s unfulfilled promises—made to the jury pool during voir dire—likely
had a prejudicial effect on the jury’s view of Plummer, his case, and his lawyer, despite instructions
from the court not to consider it in reaching their verdict. “[L]ittle is more damaging than to fail to
produce important evidence that had been promised in an opening,” English, 602 F.3d at 729
(internal quotation marks omitted); see also Leibach, 347 F.3d at 259. The prejudicial effects of
breaking such a promise made to the jury in voir dire are the same as those arising from a broken
promise made during an opening statement. Promises to the jury of witness testimony—especially
that of the defendant—whether made during voir dire or an opening statement create expectations
that, when broken, can lead a reasonable jury to draw negative inferences about the strength and
integrity of the defendant’s case. See, e.g., Washington, 219 F.3d at 634 (“[T]he jury surely
wondered where [certain] people were [at trial], especially Ms. Richardson who had been named on
[the defendant’s] Notice of Alibi and who [defense counsel] specifically mentioned at least at voir
dire. There was a negative inference against [the defendant] based on their absence [at trial].”).
Additionally, the evidence of Plummer’s guilt was not overwhelming on its own, and several
facts—such as the absence of fingerprints on the gun recovered from the crime scene, a negative test
result for gunpowder residue on Plummer’s hands, and Plummer’s consistent statements of his
innocence—could have been reasonably interpreted in Plummer’s favor had his counsel not
No. 09-2258
Plummer v. Jackson
Page 16
promised Plummer’s testimony as the keystone of a self-defense theory, and instead argued from the
outset that Plummer had not committed the act at all.
As in English, there was a reasonable probability that the outcome of Plummer’s trial would
have been different had defense counsel not promised the jury that Plummer would testify and later
reneged on this promise. We find that Plummer has sufficiently alleged both the deficient
performance and the prejudice prongs of a Strickland claim and, therefore, has alleged grounds for
release sufficient to warrant an evidentiary hearing. Bowling, 344 F.3d at 512.
We now consider whether relevant facts are in dispute, such that Plummer is entitled to an
evidentiary hearing. Plummer alleges that his counsel acted against Plummer’s wishes when defense
counsel asserted in voir dire that Plummer would testify. The state argues that Plummer’s counsel’s
statements in voir dire were, to the best of counsel’s knowledge, in compliance with Plummer’s
intentions at that time. During the trial court’s mid-trial colloquy with Plummer, no facts were
elicited about whether Plummer, in his conversations with his counsel leading up to trial, had
expressed an intention not to testify, nor about whether Plummer’s mid-trial decision not to testify
was sudden or in any way inconsistent with his previous expressions to his lawyer. In his state court
appeal, Plummer submitted an affidavit, and affidavits from his father and his wife, attesting to his
consistent desire not to testify and his expression of this position to his counsel, both before and after
voir dire. However, the Michigan Court of Appeals did not consider these affidavits in concluding
that defense counsel’s performance was reasonable, instead limiting its ineffective assistance of
counsel review “to errors apparent on the record.” As noted above, the Michigan Court of Appeals
assumed, without sufficient evidentiary support, that Plummer unexpectedly changed his mind about
No. 09-2258
Plummer v. Jackson
Page 17
testifying. Plummer, 581 N.W.2d at 760. The district court also relied upon this unsupported factual
assumption.
We find that there are relevant facts in dispute regarding whether, at the time of voir dire,
Plummer intended to testify and whether his counsel believed Plummer intended to testify. The state
court record here lacks the evidence necessary for the district court to come to a determination about
this factual dispute and make a finding as to whether Plummer’s counsel acted deficiently by making
statements in voir dire that contradicted Plummer’s express wishes. An evidentiary hearing would
allow Plummer the opportunity to prove his factual allegations regarding the deficiency of his
counsel’s performance during voir dire. See Ata, 662 F.3d at 742.
We find that Plummer has alleged sufficient grounds for release; that relevant facts regarding
his communications with his counsel and his counsel’s awareness prior to trial of Plummer’s desire
not to testify are in dispute; and that the state courts declined to hold an evidentiary hearing on his
ineffective assistance of counsel claim despite Plummer’s diligence in seeking a hearing. See
Bowling, 344 F.3d at 512. We also find that the factual record is not sufficiently developed to
determine under Strickland whether Plummer’s counsel performed deficiently by making statements
in voir dire about Plummer’s intention to testify. See Mason v. Mitchell, 320 F.3d 604, 620-21 (6th
Cir. 2003) (remanding for an evidentiary hearing where “[t]he record before us is inadequate for a
meaningful review of [petitioner’s] claim of ineffective assistance of counsel”). Therefore, we find
that the district court abused its discretion in denying Plummer’s request for an evidentiary hearing
on his ineffective assistance of counsel claim, and we remand for an evidentiary hearing on this
issue.
No. 09-2258
Plummer v. Jackson
Page 18
V.
We VACATE the judgment of the district court and REMAND for an evidentiary hearing.