GEORGE CARAM STEEH, District Judge.
Reco N. Simmons, ("Petitioner"), a Michigan prisoner, filed this action under 28 U.S.C. § 2254. Petitioner was convicted after a jury trial in the Wayne Circuit Court of second-degree murder, MICH. COMP. LAWS § 750.317, armed robbery, MICH. COMP. LAWS § 750.529, first-degree home invasion, MICH. COMP. LAWS § 750.110a(2), and possession of a firearm during the commission of a felony. MICH. COMP. LAWS § 750.227b. Petitioner was sentenced to a term of 450 months to 80 years for the murder conviction to be served consecutively to a term of 140 months to 20 years for the home invasion conviction and a 2-year term for the firearm conviction. Petitioner was sentenced to a concurrent term of 285 months to 50 years for the armed robbery conviction.
The petition raises one claim: Petitioner was denied the effective assistance of counsel when his trial attorney conceded during closing argument that Petitioner was guilty of second-degree murder. The Court will deny the petition because the Michigan Court of Appeals reasonably rejected the claim on the merits during Petitioner's direct appeal. The Court will also deny Petitioner a certificate of appealability, but it will grant permission to appeal in forma pauperis.
This Court recites verbatim the relevant facts relied upon by the Michigan Court of Appeals, which are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):
People v. Simmons, 2016 WL 1039553, at *1 (Mich. Ct. App. Mar. 14, 2016).
Following his conviction Petitioner filed a claim of appeal in the Michigan Court of Appeals. His brief on appeal raised one claim:
The Michigan Court of Appeals affirmed Petitioner's convictions in an unpublished opinion. Id. Petitioner subsequently filed an application for leave to appeal in the Michigan Supreme Court, raising the same claim that he raised in the Michigan Court of Appeals. The Michigan Supreme Court denied the application because it was not persuaded that the question presented should be reviewed. People v. Simmons, 891 N.W.2d 865 (Mich. 2017) (Table).
28 U.S.C. § 2254(d)(1) curtails a federal court's review of constitutional claims raised by a state prisoner in a habeas action if the claims were adjudicated on the merits by the state courts. Relief is barred under this section unless the state court adjudication was "contrary to" or resulted in an "unreasonable application of" clearly established Supreme Court law.
"A state court's decision is `contrary to' ... clearly established law if it `applies a rule that contradicts the governing law set forth in [Supreme Court cases]' or if it `confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [this] precedent.'" Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003), quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
"[T]he `unreasonable application' prong of the statute permits a federal habeas court to `grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court but unreasonably applies that principle to the facts' of petitioner's case." Wiggins v. Smith, 539 U.S. 510, 520 (2003) quoting Williams, 529 U.S. at 413.
"A state court's determination that a claim lacks merit precludes federal habeas relief so long as `fair-minded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86, 101 (2011), quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). "Section 2254(d) reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal.... As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair-minded disagreement." Harrington, 562 U.S. at 103 (internal quotation omitted).
Petitioner asserts that he was denied the effective assistance of counsel when his trial attorney conceded during closing argument that he was guilty of the lesser offense of second-degree murder. Respondent asserts that habeas relief is not warranted because the Michigan Court of Appeals reasonably found that counsel's argument was not deficient in light of the strong evidence of Petitioner's guilt. Respondent notes that counsel's strategy worked, and Petitioner was found guilty of the lesser offense despite compelling evidence that he was guilty of first-degree felony murder.
After reciting the controlling established Supreme Court standard, the Michigan Court of Appeals rejected this claim on the merits as follows:
Simmons, 2016 WL 1039553, at *3-4 (footnote citations inserted into body).
To establish ineffective assistance of counsel, a defendant must show both that: (1) counsel's performance was deficient, i.e., "that counsel's representation fell below an objective standard of reasonableness"; and (2) the deficient performance resulted in prejudice to the defense. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). "[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). The test for prejudice is whether "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.
The record shows that rather than seek an outright acquittal, Petitioner's trial counsel suggested that he was not guilty of first-degree murder and should only be found guilty of second-degree murder:
Dkt. 9-12, at 135-36, 138-39.
Established Supreme Court law recognizes that there are circumstances when such an argument conceding a defendant's guilt to a lesser charge does not amount to deficient performance under Strickland. Florida v. Nixon, 543 U.S. 175, 187-88 (2004) (citations omitted). By candidly acknowledging the strength of the prosecutor's case, an attorney can build credibility with the jury and possibly persuade the jury to focus on other factors important to the defendant. Yarborough v. Gentry, 540 U.S. 1, 9 (2003) (per curiam). An attorney "cannot be deemed ineffective for attempting to impress the jury with his candor and his unwillingness to engage in `a useless charade.'" Nixon, 543 U.S. at 192 (citing United States v. Cronic, 466 U.S. 648, 656 n. 19 (1984)). Therefore, "[a] defense counsel's concession that his client is guilty of a lesser included offense is a legitimate trial strategy that does not amount to the abandonment of the defendant or a failure by counsel to subject the prosecutor's case to meaningful adversarial testing so as to amount to the denial of counsel." Johnson v. Warren, 344 F.Supp.2d 1081, 1095 (E.D. Mich. 2004) (Gadola, J.) (citing Haynes v. Cain, 298 F.3d 375, 381-82 (5th Cir. 2002); Lingar v. Bowersox, 176 F.3d 453, 459 (8th Cir. 1999); Underwood v. Clark, 939 F.2d 473, 474 (7th Cir. 1991)); see also, Clozza v. Murray, 913 F.2d 1092, 1099 (4th Cir. 1990) ("[T]here is a distinction which can and must be drawn between ... a tactical retreat and ... a complete surrender.").
As the Michigan Court of Appeals reasonably found in this case, the evidence presented at trial very strongly indicated that Petitioner was guilty of first-degree felony murder. The victim's family knew Michael Montgomery, the man who arranged the robbery, and therefore identification of the group of perpetrators was not difficult for the prosecution to prove. Several of the perpetrators testified for the prosecution, and while often such testimony might be challenged as blameshifting, here the testimony describing the crime was corroborated by the surviving victim, the granddaughter of the deceased victim, and the physical evidence. Finally, Petitioner admitted his guilt to his aunt, and neither at trial nor even in this action has Petitioner suggested a basis on which her testimony could have been effectively challenged. The mutually corroborating testimony of the prosecution witnesses therefore strongly indicated that Petitioner was guilty of first-degree felony murder, as he participated in a murder that was committed during the course of a homeinvasion and armed robbery.
The fact that the jury found Petitioner guilty of the predicate felonies for the first-degree felony murder charge but then only convicted him of second-degree murder indicates that trial counsel's plea for leniency worked. It also suggests that if counsel had argued for an outright acquittal, then Petitioner very well may have been convicted of the more serious charge. Given the deference afforded to counsel's strategic decisions by the Strickland standard and the fact that clearly established law recognizes at least as a general principal that counsel may concede guilt to a lesser offense, the state adjudication of Petitioner's claim was reasonable.
Petitioner asserts that even if an attorney may in some cases concede guilt to a lesser offense, such a concession requires consent, and he was never informed of his counsel's planned strategy. Petitioner voiced an objection to the concession following closing argument. Dkt. 9-12, at 172. And on the next trial date, the court indicated that an appellate attorney would be appointed to consult with Petitioner regarding a possible claim of ineffective assistance of counsel. Dkt. 9-13, at 3-4.
In McCoy v. Louisiana, 138 S.Ct. 1500, 200 L. Ed. 2d 821 (2018), a criminal defendant's counsel conceded guilt during the guilt phase of a capital trial. When the Supreme Court reviewed the claim that counsel's argument denied him the right to the effective assistance of counsel, it concluded that Strickland did not apply because the defendant "vociferously insisted that he did not engage in the charged acts and adamantly objected to any admission of guilt." Id. at 1505. The Supreme Court explained that "a defendant has the right to insist that counsel refrain from admitting guilt, even when counsel's experienced-based view is that confessing guilt" is in the defendant's best interest.
Petitioner cannot rely on McCoy to support his claim. First, a state court decision cannot be challenged under § 2254(d) based on Supreme Court decisions not on the books at "the time the state court render[ed] its decision." Greene v. Fisher, 565 U.S. 34, 38 (2011) (quotations and emphasis omitted); see also Cullen v. Pinholster, 563 U.S. 170, 182 (2011) ("State-court decisions are measured against [the Supreme] Court's precedents as of the time the state court renders its decision." (quotations omitted)). McCoy was decided after the Michigan Court of Appeals adjudicated Petitioner's claim.
Next, and despite Petitioner's objection following closing argument, the Michigan Court of Appeals found, "the existing record ... does not disclose whether counsel did or did not discuss this strategy with [Petitioner]." Simmons, 2016 WL 1039553, at *4. This finding distinguishes Petitioner's case from McCoy. In McCoy, the defendant "opposed [his counsel's] assertion of his guilt at every opportunity, before and during trial, both in conference with his lawyer and in open court. Id., 138 S. Ct. at 1504. Petitioner might have sought an evidentiary hearing during his direct appeal to further develop the record, but he chose not to. Habeas review under 28 U.S.C. §2254(d) is "limited to the record that was before the state court that adjudicated the claim on the merits." Pinholster, 563 U.S. at 181. Cullen precludes this Court from considering any new evidence that counsel's concession was made without Petitioner's notice or despite his opposition "at every opportunity."
The state adjudication of Petitioner's ineffective assistance of counsel claim was reasonable. Petitioner has therefore failed to demonstrate entitlement to relief with respect to this claim.
Before Petitioner may appeal this decision, the Court must determine whether to issue a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(A); Fed. R.App. P. 22(b). A certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2).To satisfy § 2253(c)(2), Petitioner must show "that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citation and internal quotation marks omitted).
The Court finds that reasonable jurists would not debate the resolution of Petitioner's claims because it is devoid of merit. The Court will therefore deny a certificate of appealability.
If Petitioner chooses to appeal the Court's decision, he may proceed in forma pauperis because an appeal of this decision could be taken in good faith. 28 U.S.C. § 1915(a)(3).
Accordingly, the Court 1)
