RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 12a0414p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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X
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ARTHUR BELL,
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Petitioner-Appellee,
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No. 11-1046
v.
,
>
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Respondent-Appellant. -
CAROL HOWES, Warden,
N
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 2:06-cv-15086—Arthur J. Tarnow, District Judge.
Argued: July 19, 2012
Decided and Filed: December 19, 2012
Before: SILER and MOORE, Circuit Judges; VAN TATENHOVE, District Judge.*
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COUNSEL
ARGUED: John S. Pallas, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,
Lansing, Michigan, for Appellant. Joan Ellerbusch Morgan, Sylvan Lake, Michigan, for
Appellee. ON BRIEF: John S. Pallas, OFFICE OF THE MICHIGAN ATTORNEY
GENERAL, Lansing, Michigan, for Appellant. Joan Ellerbusch Morgan, Sylvan Lake,
Michigan, for Appellee.
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OPINION
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VAN TATENHOVE, District Judge. Over two decades ago Arthur Bell was
convicted of felony murder and possession of a firearm while committing a felony in the
shooting death of William Thompson. Bell petitioned for a writ of habeas corpus with
*
The Honorable Gregory F. Van Tatenhove, United States District Judge for the Eastern District
of Kentucky, sitting by designation.
1
No. 11-1046 Bell v. Howes Page 2
the District Court for the Eastern District of Michigan. The petition was granted. For
the reasons stated below, the district court’s decision will be REVERSED and the case
will be REMANDED.
I.
On September 22, 1988, Priscilla Matthews and William Thompson (Herk1) were
in a motel room in Detroit, Michigan. That evening, Matthews called her sister who
reported that three men were looking for Thompson and Matthews. Matthews testified
that the three men were Bobby Mims (Oddie2), Mark Sylvertooth, and Chill.3
Testimony revealed that Thompson sold drugs on Mims’ behalf, and a dispute about a
missing quantity of drugs had arisen.
Sometime after 10:00 p.m., the motel room door was kicked open. What
transpired next is disputed. Matthews testified that Sylvertooth and Chill carried
Thompson out of the room, put him in a car, and drove away. Mims, Sylvertooth, Chill,
and Thompson were the only individuals in the car. After a short time, the car returned
and Mims asked Matthews about the missing drugs. While that was going on, Chill
quickly entered and left the motel room.
Sylvertooth’s recounting of this situation has a different cast and beginning, and
was relied upon by the trial court. He testified that Matthews called Mims and disclosed
that Thompson was with her at the 20 Grand Motel. In response, Sylvertooth, Mims,
Durone Jenkins,4 and Bell drove to the motel. Sylvertooth and Bell forced themselves
1
Nicknames are used throughout this case’s briefs and opinions and will be noted parenthetically
after the first mention of the named individual. After that, only the individual’s proper name will be used.
2
In addition to Oddie, Mims is also called “Oddie Doddie” and “Oddity Doddity.”
3
Matthews did not know Chill or Chilly Will by any other name.
4
Several names have been used when referring to Jenkins. Appellant cites testimony that Jenkins
was commonly called “Otto” and states that Jenkins’ first name is Jerome. Appellee states that Jenkins’
name is Durone Jenkins, but contends that his proper name is Otto Hilliard. Appellee refers to this
individual as Hilliard throughout his brief. The district court opinion utilizes Durone Jenkins, or Jenkins,
and this opinion will follow the district court’s lead. Various parts of the record refer to Jenkins by all of
those names.
No. 11-1046 Bell v. Howes Page 3
into Thompson and Matthews’s room. While Matthews fled into the room’s bathroom,
Thompson was abducted by Sylvertooth and Bell.
Thompson was driven away by Bell, Sylvertooth, Jenkins, and Mims. The car
made an undetermined number of stops while Mims severely battered Thompson. Mims
exited the vehicle after a period of time, and Jenkins, Sylvertooth, Bell, and Thompson
traveled to a nearby viaduct where Bell shot Thompson as he sat in the car. Police
responded to the gunshots, but the suspects fled, leaving the victim dead in the
automobile.
Within hours, the police arrested Mims. Matthews’s accurate recitation of the
car’s license plate linked Mims to the car in which Thompson was killed. Sylvertooth
presented himself to police on September 30 and gave a statement to police implicating
Bell that same day.
On October 3, 1988, Bell was arrested. The following day he participated in a
lineup and gave a statement. Matthews viewed that lineup but was unable to make a
positive identification. Bell’s statement revealed that he received transportation to and
from a meeting with his parole officer from Mims, Sylvertooth, and Jenkins; then he was
dropped off. Bell explained that Mims and Sylvertooth contacted him about
Thompson’s murder and problems associated with it. Bell was then released from police
custody.
On October 20, Mims, Sylvertooth, and the unidentified Chilly Will were
charged with Thompson’s murder. The identification of Chilly Will unfolded on January
23, 1989 when police arrested Willie King5 on the suspicion that he was Chilly Will.
Willie King lived near the location at which Thompson was last seen. This was
close to the place from where Matthews claimed she knew Chilly Will. Whether King’s
5
Willie King is also known as Willie Stubblefield. The district court opinion misstates that King
was described as possessing a .38 caliber weapon, which is the same type of weapon as that used in
Thompson’s murder. Rather, the witness stated that Gary Holcomb possessed that weapon. This
information was obtained through a police investigation into whether Holcomb, who went by “Chill Will”
and drove a car emblazoned with “Chil Will” or “Chilly Willie,” was the Chilly Will who killed
Thompson.
No. 11-1046 Bell v. Howes Page 4
physical characteristics match Matthews’s description is subject to debate—she
described him as a black male with a “real dark” complexion, 22 years old, 5’10”, and
weighing 160 pounds, while police records list him as a black male, 24 years old, 5’7”,
and weighing 150 pounds—but it is clear that King went by the nickname Chilly Will.
King also knew Thompson and Mims, but he was unfamiliar with Sylvertooth. King
never faced trial over this incident, and in 2002, he died.
In January 1989, Durone Jenkins was interviewed by police. Jenkins was never
prosecuted, but he inculpated himself as the driver of the car in which Thompson was
killed, and he corroborated Sylvertooth’s factual recounting, albeit with less clarity.
That is, Jenkins only described the fourth party through use of the nickname “Tone.”
Grasping on to that fact, Bell argues that Jenkins did not refer to him. Bell’s trial
counsel, however, explained that there was no question that Jenkins was referring to
Bell. Bell’s counsel pointed to Sylvertooth’s reference to Tone for support that this issue
was never seriously questioned: “[e]verybody else clarified that Tone is Bell.”
Nearly six months after Bell was arrested and released, Bell was arrested again.
He proceeded to a bench trial and on June 19, 1989 was found guilty of felony murder
and possessing a firearm while committing a felony. He was sentenced to life
imprisonment without parole for the murder, which was to be served consecutively to
a two-year sentence for possession of a firearm. Bell appealed his conviction to the
Michigan Court of Appeals. He argued, in part, that his counsel provided ineffective
assistance in failing to interview two alibi witnesses and present them at trial. The court
of appeals remanded the case for an evidentiary hearing, and the trial court found that
counsel had performed adequately. This decision was appealed and affirmed on the
merits by the Michigan Court of Appeals on September 2, 1992. Review of this decision
was denied by the Michigan Supreme Court.
Thirteen years passed before Bell petitioned on October 31, 2006 for a writ of
habeas corpus.6 Counsel was appointed to aid Bell in his petition, and in the midst of
6
Bell filed his petition for habeas after April 24, 1996, thus AEDPA provides the proper
framework for examining this case. See Harris v. Haeberlin, 526 F.3d 903, 909 (6th Cir. 2008).
No. 11-1046 Bell v. Howes Page 5
investigating Bell’s claims, found what was believed to be material, relevant evidence
that the prosecution had not disclosed, in violation of Brady v. Maryland, 373 U.S. 83
(1963). The district court granted a stay of the habeas proceeding so that Bell could
exhaust his Brady claim in state court. The trial court denied Bell’s motion on the
merits. Both the Michigan Court of Appeals and Michigan Supreme Court denied Bell’s
applications for leave to appeal. Bell’s federal petition was re-opened and an evidentiary
hearing was conducted to examine his Brady claim.
Although Bell petitioned for habeas relief on at least five grounds, the district
court granted Bell’s petition only with regard to his Brady and ineffective assistance of
counsel claims. Bell v. Howes, 757 F. Supp. 2d 720 (E.D. Mich. 2010). The remaining
claims were not addressed by the district court because it determined that habeas relief
was merited on both of those grounds.
II.
De novo review is applied to a district court’s legal conclusions and mixed
questions of fact and law in a habeas corpus proceeding. Jalowiec v. Bradshaw, 657
F.3d 293, 301 (6th Cir. 2011). Review of habeas petitions is also conducted pursuant
to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No.
104-132, 110 Stat. 1214, and is “highly deferential” to a state court’s ruling. Cullen v.
Pinholster, 131 S. Ct. 1388, 1398 (2011). AEDPA, as codified in pertinent part at 28
U.S.C. § 2254(d), prohibits a federal court from granting a habeas petition for any claim
that was adjudicated on the merits in state court unless that decision
(1) resulted in a decision that was contrary to, or involved the
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.
No. 11-1046 Bell v. Howes Page 6
The district court’s decision to grant Bell’s petition was based on a determination
that the Michigan state courts unreasonably applied federal law: in this case, the
Supreme Court’s decisions in Brady, 373 U.S. 83, and Strickland v. Washington,
466 U.S. 668, 687 (1984).
Examining whether federal law was unreasonably applied requires a reviewing
court to ascertain whether the state court’s application was “objectively unreasonable.”
Williams v. Taylor, 529 U.S. 362, 409 (2000). Importantly, “an unreasonable
application of federal law is different from an incorrect application of federal law.” Id.
at 410. Perhaps encapsulating this idea most cogently, habeas relief is unavailable “so
long as ‘fairminded jurists could disagree’ on the correctness of the state court’s
decision.” Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (quoting Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)). A final part of the equation in determining
unreasonable application is that the rule’s specificity must be considered. That is, “[t]he
more general the rule, the more leeway courts have in reaching outcomes in case-by-case
determinations.” Id. (quoting Yarborough, 541 U.S. at 664).
With regard to reviewing factual findings, state court findings are also owed
deference under AEDPA, with 28 U.S.C. § 2254(e)(1) requiring that “a determination
of a factual issue made by a State court shall be presumed to be correct.” That
presumption can be overcome only by a showing of clear and convincing evidence.
28 U.S.C. § 2254(e)(1). A district court’s factual findings, meanwhile, will not be
overturned unless they are clearly erroneous. Brooks v. Tennessee, 626 F.3d 878, 888
(6th Cir. 2010) (quoting Ivory v. Jackson, 509 F.3d 284, 291 (6th Cir. 2007)). A clearly
erroneous finding is one that, “although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and firm conviction that a mistake
has been committed.” Id. (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573
(1985)).
No. 11-1046 Bell v. Howes Page 7
III.
A.
Bell contends that his rights under Brady, 373 U.S. 83, were violated. He claims
the prosecution failed to disclose two items of evidence pertaining to Willie King: the
record of King’s arrest on January 23, 1989 on the suspicion that he was Chilly Will and
King’s statement to police subsequent to his arrest (“King documents”).
This Court summarized the elements of a Brady violation:
Brady requires the prosecution to disclose exculpatory and
impeachment evidence that is material either to guilt or to punishment.
The evidence is material only if there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the proceeding
would have been different. A Brady violation has three elements: (1) the
evidence must be favorable to the accused, either because it is
exculpatory, or because it is impeaching; (2) the evidence must have
been suppressed by the state, either willfully or inadvertently; and (3)
prejudice must have ensued.
Jalowiec, 657 F.3d at 302-03 (quoting Beuke v. Houk, 537 F.3d 618, 633 (6th Cir. 2008)
(internal quotation marks and citations omitted)). The district court found that a Brady
violation occurred, overruling the state court’s decision. Because inadequate deference
was given to the state court’s decision, the district court must be reversed.
The district court’s decision that Brady was violated is most easily analyzed by
looking first at whether the police reports related to King were withheld. Bell bears
the burden of showing the prosecution suppressed evidence. United States v. Warshak,
631 F.3d 266, 300 (6th Cir. 2010). A complicating factor that undergirds the entire
suppression inquiry is the significant amount of time that passed between Bell’s
conviction and this review. During that period, Bell’s trial counsel, King, and Mims
died; Matthews, Sylvertooth, and Jenkins refused to discuss this matter; and the
prosecutor, whose file on this case is missing, the two detectives involved, and Bell’s
attorneys who represented him on his direct appeal do not recall the details about
discovery in this case.
No. 11-1046 Bell v. Howes Page 8
The Wayne County Circuit Court found on post-judgment review that Bell failed
to establish that the reports were suppressed. Its decision identified two factors
supporting Bell’s claim, both contained in an affidavit sworn to by Bell. The first factor
was that Bell was unaware of reports about King. The second factor was that Bell did
not remember his attorney’s mentioning King. On that evidence, the state court ruled
that Bell’s argument failed to establish suppression, holding “it is just as possible that
trial counsel received the reports yet did not mention these to defendant.” Michigan’s
Court of Appeals and Supreme Court declined to review this decision.
Collateral review resulted in a different conclusion. The district court accused
the state court of neglecting to consider important information. When the ignored
evidence was considered, the district court found the state court’s decision unreasonable.
The district court rested its decision on six pieces of evidence. Bell, 757 F. Supp. 2d at
732-733.
First, “the failure of trial counsel to introduce the [King documents] into
evidence.” Id. at 732. Second, Bell’s counsel’s decision not to “cross-examine any
witnesses about the arrest of an individual whose appearance was consistent with
Matthews’ description of ‘Chilly Will.’” Id. Third, “[t]he trial court also did not
consider appellate counsel [Daniel] Rust’s letter incorrectly noting that a lineup was not
conducted in Bell’s case”—a statement indicating that Rust was not given a complete
file.7 Id. at 732-33. Fourth, “a small subset of documents were separated from the
remainder of the police file.” Id. at 733. Fifth, the police were unable to find Bell’s
homicide file in 1994 after he submitted a Freedom of Information Act request. The file
was found after the district court issued an order, but “the degree of diligence and care
befitting maintenance of a murder investigation file was not satisfied in this case.” Id.
Sixth, “the prosecutor’s file, which may have provided some insight into what was
produced, was destroyed by the prosecutor’s office.” Id.
7
Appellee and the district court both mentioned Rust’s letter but neither cited to the location of
the letter in the record. Independent review did not indicate that Rust’s letter was in the record. Even
accepting the information in Rust’s letter as true, the finding on this claim is not impacted.
No. 11-1046 Bell v. Howes Page 9
The disagreement between the state court and district court is essentially focused
on the meaning of the absence of information. Does the fact that Bell’s counsel
refrained from mentioning Chilly Will indicate he did not know about Chilly Will, as the
district court contends? Or, did Bell’s counsel neglect to mention Chilly Will because
he determined information about Chilly Will was not beneficial to Bell’s case, as the
state court implicitly concludes?
The conclusion reached by the district court stands in defiance of the Supreme
Court’s explication about reviewing habeas petitions. State court decisions are to “be
given the benefit of the doubt” and the standard for evaluating decisions is “highly
deferential.” Cullen, 131 S. Ct. at 1398 (citing Woodford v. Visciotti, 537 U.S. 19, 24
(2002)). There must be “no reasonable basis for the state court to deny relief” before a
petition is granted. Harrington, 131 S. Ct. at 784. And “even a strong case for relief
does not mean the state court’s contrary conclusion was unreasonable.” Id. at 786
(citation omitted). Because the state court finding on this element of Brady is
reasonable—it is a conclusion on which reasonable jurists could disagree—Bell has
failed to carry his burden. Consequently, Bell’s Brady challenge fails.
B.
We have recognized that a credible claim of actual innocence may equitably toll
AEDPA’s statute of limitations. Souter v. Jones, 395 F.3d 577 (6th Cir. 2005); accord
Perkins v. McQuiggin, 670 F.3d 665 (6th Cir. 2012), cert. granted, 81 U.S.L.W. 3074
(U.S. Oct. 29, 2012) (No. 12-126). “‘[A]ctual innocence’ means factual innocence, not
mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998). “[A]
credible claim of actual innocence is extremely rare,” Souter, 395 F.3d at 600, and so
“[t]he actual innocence exception should ‘remain rare’ and ‘only be applied in the
extraordinary case.’” Id. at 590 (quoting Schlup v. Delo, 513 U.S. 298, 321 (1995)).
Morever, “[t]his ‘gateway actual innocence claim’ does not require the granting of the
writ, but instead permits the petitioner to present his original habeas petition as if he had
not filed it late.” Perkins, 670 F.3d at 670.
No. 11-1046 Bell v. Howes Page 10
As to the requirements of the actual-innocence exception, “where an otherwise
time-barred habeas petitioner can demonstrate that it is more likely than not that no
reasonable juror would have found him guilty beyond a reasonable doubt, the petitioner
should be allowed to pass through the gateway and argue the merits of his underlying
constitutional claims.” Souter, 395 F.3d at 602. That is, “actual innocence ‘does not
merely require a showing that a reasonable doubt exists in the light of the new evidence,
but rather that no reasonable juror would have found the defendant guilty.’” Cleveland
v. Bradshaw, 693 F.3d 626, 633 (6th Cir. 2012) (quoting Schlup, 513 U.S. at 329). To
raise the claim, a petitioner must present “new reliable evidence—whether it be
exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical
evidence—that was not presented at trial.” Schlup, 513 U.S. at 324. After such evidence
is presented, “the habeas court must consider ‘all the evidence,’ old and new,
incriminating and exculpatory, without regard to whether it would necessarily be
admitted under ‘rules of admissibility that would govern at trial.’” House v. Bell,
547 U.S. 518, 538 (2006) (quoting Schlup, 513 U.S. at 327–28); accord Bousley,
523 U.S. at 624.
Bell contends, and the government does not dispute, that the King documents
constitute new reliable evidence not presented at trial. The district court thus held that
“new evidence of the existence of an actual person known as ‘Chilly Will’” living
nearby where Matthews claims to have met Chill—when taken “together with the
evidence presented at trial[] and the evidence of alibi witnesses not presented at
trial”—was sufficient for it to find “that it is more likely than not that no reasonable juror
would have found Bell guilty beyond a reasonable doubt.” Bell v. Howes, 757 F. Supp.
2d 720, 731 (E.D. Mich. 2010). We disagree. The King documents can be read to
establish that at least one individual named Chill Will existed in the vicinity.8 However,
this fact does not tie that individual to the underlying crimes, nor does it upset the central
8
The district court also found that “[King’s] vehicle had the words ‘Chilly Willie’ painted on the
side” and that a witness “told police that he had seen King with a .38 caliber short barrel weapon,” similar
to the murder weapon. Bell, 720 F.3d at 731. As Bell himself points out, the district court was mistaken.
The documents here referred not to King, but to a third man named Gary Holcomb. We have no evidence
that Matthews knew Holcomb.
No. 11-1046 Bell v. Howes Page 11
dispute at trial: whether Matthews—who claimed that Chill, not Bell, was one of the
kidnappers—was more credible than the State’s witness Sylvertooth, who claimed the
opposite. The district court discounted Sylvertooth’s testimony because Sylvertooth had
secured a plea agreement for his testimony. Id. But Bell’s attorney presented
information about the plea agreement at trial. Moreover, the district court overlooked
the fact, not considered at trial, that Sylvertooth was “a volunteer . . . at the time he gave
his initial testimony” to the police, meaning that when he first identified Chill, he “was
not testifying under any kind of grant or immunity or . . . sentence bargain.” [R. 24-4
at 157 (transcript of proceedings before the trial court following remand from Michigan
Court of Appeals).] The district court also neglected statements by a third witness,
Jenkins, that would have corroborated Sylvertooth’s testimony but that were not
introduced at trial.
The district court was also convinced by the potential influence of two uncalled
alibi witnesses. We note that the state trial court found in a later proceeding that one of
these witnesses would have testified “very much incredibly” in offering an alibi for Bell.
[Id. at 158.] Moreover, while failure to call alibi witnesses suggests legal insufficiency,
we cannot say that this testimony alone would have satisfied the high bar for
demonstrating factual innocence. In considering, as we must, all the evidence relating
to Bell’s innocence, it appears that there is at least as strong a case against Bell now as
was presented at trial. We thus cannot conclude that Bell has proven that his is the
extremely rare case for which it more likely than not that no reasonable juror would have
found him guilty. Accordingly, equitable tolling is not appropriate, and Bell’s
ineffective-assistance-of-counsel claim remains precluded by AEDPA’s statute of
limitations.
IV.
For the reasons stated above, we VACATE the district court’s judgment granting
Bell’s petition for writ of habeas corpus and REMAND for further proceedings
consistent with this opinion.