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 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.
On September 22, 1988, Priscilla Matthews and William Thompson (Herk
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,
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 King
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.
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.
De novo review is applied to a district court's legal conclusions and mixed
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, 83 S.Ct. 1194, and Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Importantly, "an unreasonable application of federal law is different from an incorrect application of federal law." Id. at 410, 120 S.Ct. 1495. Perhaps encapsulating this idea most cogently, habeas relief is unavailable "so long as `fair-minded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (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, 124 S.Ct. 2140).
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, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)).
Bell contends that his rights under Brady, 373 U.S. 83, 83 S.Ct. 1194, 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
This Court summarized the elements of a Brady violation:
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.
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.
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, 123 S.Ct. 357, 154 L.Ed.2d 279 (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.
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, ___ U.S. ___, 133 S.Ct. 527, 184 L.Ed.2d 338 (2012) (No. 12-126). "`[A]ctual innocence' means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (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, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995)). Moreover, "[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.
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
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.
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
For the reasons stated above, we