Kylleen Hargrave-Thomas v. Joan Yukins

CLAY, Circuit Judge,

dissenting.

The question before this Court is whether the district court erred in ruling that there was cause and prejudice to excuse the procedural default of Petitioner’s ineffective assistance of counsel claim. In analyzing that claim, we must consider whether the trial court erred in denying Petitioner’s three requests for evidentiary hearings, which were needed to determine whether facts existed to support the failure-to-investigate element of Petitioner’s ineffective assistance of counsel claim. Because Petitioner successfully established cause and prejudice to overcome her procedurally defaulted claim, albeit through the district court’s evidentiary hearing, I would affirm the grant of Petitioner’s writ of habeas corpus.

Since a petitioner can generally demonstrate cause if she can present a substantial reason to excuse the default, Rust v. Zent, 17 F.3d 155, 161 (6th Cir.1994), a showing of such cause must ordinarily turn on whether the petitioner can establish that some objective factor external to the defensé impeded counsel’s efforts to comply with the state’s procedural rule. Murray v. Carrier, 477 U.S. 478, 486-89, 106 S.Ct. 2639 (1986). Here, Petitioner argues that she was prohibited from asserting her ineffective assistance of counsel/failure-to-investigate claim on direct appeal since factual support was lacking in the trial record. During Petitioner’s direct appeal, she moved for a Ginther hearing three times, all which were denied.1 Because those hearings were denied, the direct appeal was limited to the issues contained in the trial record, which excluded Petitioner’s failure-to-investigate claim. Id.; see also People v. Avant, 235 Mich.App. 499, 597 N.W.2d 864, 870 (1999).

During proceedings in connection with Petitioner’s habeas petition in federal district court, the court allowed time for additional discovery and an evidentiary hearing. After additional testimony and argument, the district court found that Petitioner’s counsel was “manifestly and flagrantly ineffective for failure to investigate or call witnesses or present evidence.” At trial, Petitioner’s defense counsel, Rene Cooper, and co-counsel, Nicholas Venditelli, received no compensation for Petitioner’s case. The defense did not present a theory of the case, made no opening statement and put forth no evidence. During closing arguments, attorney Cooper stated that the prosecution’s proof amounted to nothing more *392than innuendos and speculation, and thus formed an insufficient basis upon which to find petitioner guilty. However, defense counsel subsequently conceded that the prosecution had proven that “the opportunity was there,” when referring to Petitioner’s alleged involvement in the crime.

An ineffective assistance of counsel claim can supply the cause that, together with prejudice, would excuse a procedural default. Murray, 477 U.S. at 488, 106 S.Ct. 2639. It is apparent from the record that Petitioner’s trial counsel was inadequate ' and ineffective, which should have been reasonably apparent to the trial court, or any reviewing court. The state court may have had insufficient evidence of ineffective assistance of counsel to grant relief to Petitioner, but certainly had á sufficient basis to grant a Ginther hearing.

Although once a defendant asserts a claim of failure-to-investigate upon direct appeal, a Ginther hearing is warranted, the grant of an evidentiary hearing is generally otherwise discretionary. 212 N.W.2d at 925. There is a strong presumption in favor of courts engaging in a factual analysis when an ineffective assistance of counsel claim arises. See People v. Barnett, 163 Mich.App. 331, 414 N.W.2d 378, 382 (1978) (holding that the “Court will not ‘second-guess’ matters of trial strategy, nor assess the competency of counsel through the use of hindsight”); see also United States v. Brown, 276 F.3d 211, 217-18 (6th Cir.2002) (deferring a review of an ineffective assistance of counsel claim to a post conviction proceeding when looking to dismiss a federal conviction, where the record was not adequately developed). This Court has previously recognized the importance of the development of a full record when assessing an ineffective assistance of counsel claim. Smith v. Hofbauer, 312 F.3d 809, 821, n. 2 (citing Ginther for the proposition that “a defendant who wishes to advance claims that depend on matters not of the record can properly be required to seek at the trial level an evidentiary hearing for the purpose of establishing his claim ... except in the rare case where the record manifestly shows that the judge would refuse a hearing; in such a case the defendant should seek on appeal, not a reversal for his conviction, but an order directing the trial court to conduct the needed hearing”). This was precisely the district court’s logic in granting Petitioner time for discovery prior to its ruling on her habeas petition.

Had any one of Petitioner’s three Gin-ther hearing requests been granted, there is a substantial likelihood that Petitioner’s ineffective assistance of counsel claim would have revealed the ineffective assistance of counsel received by Petitioner as a result of Petitioner’s trial attorney’s complete failure to- properly investigate defense witnesses and cross-examine prosecution witnesses. The reason these facts were not uncovered until the district court’s evidentiary hearing was because of the improvident reasoning and decisions of the state court, which deemed Petitioner’s ineffective assistance of counsel claims to be without merit. The Respondent and the majority opinion inappropriately speculate as to what information would have come out of any one of Petitioner’s three requestéd Ginther hearings had Petitioner not been denied the hearings; however, Respondent, and -the majority, cannot say that these external factors were not the cause of Petitioner’s procedural default.2

*393Furthermore, when Petitioner’s procedurally defaulted claim is properly examined, Petitioner is entitled to a review of the “cause and prejudice” analysis in which the Michigan trial court engaged, with respect to Petitioner’s failure-to-investigate portion of her ineffective assistance of counsel claim. The majority opinion maintains that the district court impermissibly considered the merits of Petitioner’s claim and that we are to “review the federal court’s application of legal rules” only, and are to reach the merits of Petitioner’s claims only if we conclude that “the failure to investigate claim is not procedurally barred.”

Nevertheless, it is well settled that a prisoner seeking habeas relief in federal court must have presented the claim upon which he seeks relief to the state appellate courts. Gonzales v. Elo, 233 F.3d 348, 352 (6th Cir.2000). If such a claim is procedurally defaulted in state court, that procedural default carries over to federal court, precluding habeas review. Simpson v. Jones, 238 F.3d 399, 405-06 (6th Cir.2000). In order for-the claim to be barred in federal court, however, the last state court rendering a judgment in the case must have done so on adequate and independent state grounds, evidenced by the existence of a state procedural bar determining the judgment’s result. Id. (citing Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991)). Therefore, to decide a procedurally defaulted claim the federal court must “determine [whether] a petitioner failed to comply with a state procedural rule; and it also must analyze whether the state court based its decision on the state procedural rule.” Id. at 406.

It is undisputed that Petitioner’s first attempt to argue ineffective assistance of counsel based on a failure-to-investigate was raised in the state court collateral appeal and not the direct appeal. Petitioner argues that the district court correctly looked to the November 23, 1998, Michigan Circuit Court ruling as the last court opinion to provide a reasoned decision for the dismissal of Petitioner’s request for relief regarding counsel’s failure to investigate, basing its denial on the state prohibition in M.C.R. 6.508(D), and also addressing the merits of Petitioner’s claim as it performed a “cause and prejudice” analysis. Respondent claims, and the majority agrees, that the district court erred in looking to the November 1998 decision because the Michigan Supreme Court order, dated April 28, 2000, was the last court decision in this matter and did not address the cause or prejudice exceptions to a procedural bar, or discuss the merits of Petitioner’s habeas request.

This Court in Burroughs v. Makowski, 282 F.3d 410, 413 (6th Cir.2002), held that the reviewing federal court, when determining whether petitioner’s claim was procedurally barred, must look to the last state court decision to see if claims were denied based upon a state procedural bar, even if the ruling was brief and did not explicitly reference the particular section of the state statute on which its judgment is based. Id. There, the last court to consider the matter, the Michigan Su*394preme Court, based its denial on the state procedural bar of M.C.R. 6.508(D), but not specifically subpart (3) of (D); however, this Court found that the Michigan Supreme Court and the previous Michigan Court of Appeals’ decisions presented sufficient explanations that their rulings were based on the procedural default. Id. This case was subsequently remanded for a “cause and prejudice” analysis, to determine whether petitioner’s claim warranted habeas relief, in view of the state procedural bar. Burroughs v. Makowski, 35 Fed.Appx. 402 (6th Cir.2002) (unpublished table decision).

In the instant case, the district court’s findings are similar to those in Burroughs, except here the court looked to the previous Circuit Court’s November 1998 opinion instead of the latest opinions of the Michigan Supreme Court and the Michigan Appellate Court, since the procedural aspects of all three opinions were duplicative. The early November 1998 opinion specifically stated that Petitioner’s claims were subject to a “cause and prejudice” analysis precisely because they were not brought up on direct appeal in accordance with M.C.R. 6.508(D)(3)(a)(b). The district court’s reliance on the Michigan Court of Appeals or Michigan Supreme Court would not have differed in result, as those decisions also stated that Petitioner’s claim was denied “... because the defendant has failed to meet the burden of establishing entitlement to relief under M.C.R. 6.508(D).” This Court should then view these latter decisions of the Michigan Court of Appeals and Michigan Supreme Courts as sufficiently explaining their rulings based on the procedural bars, Burroughs, 282 F.3d at 413, found in the previous November 1998 Circuit Court decision. See Couch v. Jabe, 951 F.2d 94, 96 (6th Cir.1991) (citing Ylst, 111 S.Ct. at 2595 (“[WJhere there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same grounds”)). Moreover, since Petitioner bears the burden of showing cause and prejudice when needed, the November 1998 Circuit Court decision addressed these issues, which the district court was permitted to review. Simpson, 238 F.3d at 408.

The majority argues as though the district court’s analysis of the latter Michigan state court opinions should have deemed Petitioner’s claims procedurally barred and dismissed with prejudice her petition for habeas relief; however, this would be in contravention of this Court’s procedural default analysis and the requirement of a “cause and prejudice” determination for a petitioner attempting to establish an exception to a procedurally defaulted claim when requesting habeas relief. See Burroughs, 282 F.3d at 413. This is precisely the review in which the November 1998 court’s decision engaged, and the determination upon which the district court reversed. Therefore, even if the latter Michigan Supreme Court decision was reviewed to determine the viability of habeas relief on the merits of Petitioner’s claim, the district court would still need to review the reasoning of the November 1998 decision, to find the reasoning for such dismissal, or if no reasoning was present there, the court would then have had to remand for a “cause and prejudice analysis.” Burroughs, 35 Fed.Appx. 402.

I therefore respectfully dissent from the majority opinion insofar as I believe Petitioner has shown “cause and prejudice” to overcome the default of her claim of her counsel’s failure-to-investigate, thus warranting the district court’s grant of habeas relief.

. Under Ginther, the Michigan Supreme Court requires a defendant on direct appeal to request an evidentiary hearing in the state trial court when it intends to raise ineffective assistance of counsel and lacks the factual support in the record. People v. Ginther, 390 Mich. 436, 212 N.W.2d 922, 925 (1973).

. Petitioner brings to the Court's attention Massaro v. United States, a Supreme Court holding stating that federal courts, in determining federal habeas petitions for ineffective assistance of counsel, need not be precluded from reviewing such a claim on collateral review when not raised first on direct appeal. 538 U.S. 500, 504-05, 123 S.Ct. 1690, 155 *393L.Ed.2d 714 (2003). The Court discussed policy determinations concerning why the requirement of a direct appellate review prior to collateral review may undermine the purpose of such a claim when adequate factual support in the trial record may be lacking. Id. at 507-08, 123 S.Ct. 1690. The Court also went on to distinguish this procedural holding from that which would be followed by states, stating that a “growing majority of state courts now follow the rule we adopt today.” Id. at 508, 123 S.Ct. 1690 (citing Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726, 735-38 n. 16 (2002) (cataloging other states’ case law adopting this position)).