Conditionally granted writ of habeas corpus; remanded for appointment of counsel.

Petitioner exhausted his state court remedies with respect to his Halbert [Halbert v Michigan, 545 US 605 (2005)] claim by presenting the issue, in pro per, to both the Michigan Court of Appeals and Supreme Court, and neither court denied relief based upon a state procedural bar. Petitioner was entitled to the right to counsel for his first-tier review because his case was not yet final on direct review when Halbert was decided. Petitioner must be appointed counsel to file an application for leave to appeal in the Michigan Court of Appeals.

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Granted conditional writ of habeas corpus.

Petitioner's first attorney denied petitioner his right to effective assistance of counsel by failing to convey a favorable plea offer to petitioner, and his second attorney was ineffective when he gave petitioner bad advice concerning the remedy. [The Michigan courts failed to address the merits of this properly raised issue, so the federal court conducted an independent review. The trial court's conclusion that the error was waived was incorrect.] Petitioner was prejudiced. He stated that he would have accepted the first plea offer of a one-year cap had he been aware of it. Petitioner's second attorney believed that petitioner had no right to insist that the original plea deal be reinstated and advised him to accept a plea with an 11-year minimum sentence. The only remedy was to compel the state to reinstate the prior offer.

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Granted petition for writ of habeas corpus.

The decision of the Michigan Court of Appeals denying Petitioner's claim of ineffective assistance of counsel for failure to investigate alibi witnesses was an unreasonable application of clearly established United States Supreme Court authority. After the attorney's investigator contacted a potential witness who provided the names of additional potential witnesses, counsel's duty to make a reasonable investigation was not complete; it was just beginning. It was not enough that the investigator left his card; it was unreasonable for counsel to “leave it up to teenagers to get back in touch with him about important alibi evidence in a murder trial.”

Petitioner was prejudiced by trial counsel's ineffectiveness. Had counsel interviewed the alibi witnesses and had they testified at trial, it is sufficiently probable that the result would not have been the same. The prosecution's case was weak; the eyewitness's testimony was highly suspect.

Allowing Petitioner's jury to hear testimony that the trial court had excluded did not deny him a fair trial. Petitioner's counsel should have objected to the hearsay statement (that the codefendant threatened to kill the victim), but the error was harmless. No mention was made of Petitioner in the testimony and he was in no way implicated.

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Granted petition for writ of habeas corpus. Case below: unpublished opinion (#228731, 5-14-02); lv den 468 Mich 659 (2003).

The Michigan Court of Appeals’ ruling that the police scrupulously honored petitioner’s assertion of his right to remain silent was an unreasonable application of Michigan v Mosley, 423 US 96 (1975). The questioning by the police following petitioner’s invocation of his right to remain silent was in complete disregard of his right to cut off questioning, and any statements obtained thereafter were inadmissible. The police searched petitioner’s house, found the murder weapon, celebrated in front of petitioner, and then resumed questioning him without re-advising him of the Miranda rights until after he confessed. The error was not harmless; petitioner’s confession was the strongest evidence of his guilt.

Defendant was denied his right to present a defense by the trial court’s exclusion of evidence that the victim had robbed someone else a week before he was shot by petitioner. This testimony would have corroborated petitioner’s defense of self-defense. The Michigan Court of Appeals failed to recognize the constitutional aspect of this error, and its decision was an unreasonable application of federal law. The exclusion of this testimony was not harmless. It allowed the prosecutor to argue that petitioner’s fear of the victim was not corroborated.

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Granted plaintiff's motion for summary judgment; denied defendant's motion for summary judgment.

The 1992 and 1999 amendments to the parole law and policies violate the Ex Post Facto Clause of the United States Constitution. The class of plaintiffs is defined as all parolable lifers (with the exception of “drug lifers”) in the custody of the Michigan Department of Corrections who committed crimes for which they received a parolable life sentence before October 1, 1992, and whose parole the new parole board has denied, passed over, expressed no interest in pursuing, or otherwise rejected or deferred.

The changes in the parole law caused by the amendments have been given retrospective effect. The parties agreed on the retroactivity of three of the amendments: the change in the composition of the parole board, the change in the interview schedule, and the file review. For the purpose of this lawsuit, the prohibition against prisoner appeals is also retrospective. Defendant argued that appeals were prohibited prior to 1982 and the procedure had therefore not changed for the plaintiffs. However, not all members of the plaintiff class were sentenced before 1982, and the general prohibition against appeals prior to 1982 was not a flat-out ban.

The elimination of the necessity of written reasons when parole is denied is a retroactive amendment. Before 1992, the Board's decision of “no interest” in going forward to a public hearing was treated in the same manner as any other denial of parole, but after 1992, a no interest decision no longer is deemed a formal decision, and a decision not to interview a lifer no longer is characterized as a denial of parole; consequently, a written reason no longer accompanies any preliminary decision by the parole board.

The practical implementation of the 1992 and 1999 amendments has significantly increased the risk of prolonged incarceration for members of the nonmandatory lifer class. The mere fact that the parole board's decision is discretionary “does not displace the protections of the Ex Post Facto Clause.” Although internal memoranda and policy directives are not “laws,” when a policy statement is a formal and published statement as to how the parole board intends to enforce the rule, it should be reviewed. The philosophy of the post-1992 parole board is that “life means life,” that something exceptional must occur to parole a lifer, and that good behavior is expected and is not itself grounds for parole. The board now uses the seriousness of the crime as a flat ban on release. Before 1992, the same standards were applied to persons serving long indeterminate sentences and lifers. After the amendments, the goal is categorical denial of parole to nonmandatory lifers, absent a medical reason. The post-amendment lengthening of the timing and intervals of the review process and the elimination of an in-person interview also disadvantage the nonmandatory lifer by significantly impacting the length of time of actual imprisonment.

Using statistics that eliminate certain anomalies, the average number of years served has increased as the average rate of parole for eligible lifers decreased. For example, in the last five years, even including medical paroles, the new Board has paroled nonmandatory lifers at a rate of .2 percent (compared to the parole rates from 1942 to 1984 when nonmandatory lifers were paroled at a “steady 5-15 percent rate.”)

The remedy is to be determined.

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Granted petition for writ of habeas corpus. Case below: People v Smith, unpublished opinion (#238005, 10-7-03); lv den 471 Mich 870 (2004).

The prosecutor's misconduct denied petitioner a fair trial. The prosecutor's closing and rebuttal arguments were inappropriate and inflammatory: she appealed to the fears of the individual jurors, improperly used similar acts evidence to show petitioner's propensity toward the conduct charged, vouched for and improperly bolstered the credibility of the complainant, appealed to the civic duty of the jury (telling them they would be accomplices to the crime unless they convicted petitioner), expressed her personal opinion, argued evidence not of record, misrepresented the evidence, and personally attacked defense counsel. The prosecutor's misconduct was so flagrant as to warrant habeas relief: the remarks prejudiced petitioner, the misconduct was not isolated, it was plainly deliberate, and it “injected such vitriol into the proceedings as to question the fairness of the trial.”

Defense counsel's failure to object to the prosecutor's misconduct violated petitioner's right to effective assistance of counsel. The Michigan Court of Appeals' application of Strickland v Washington, 466 US 668 (1984), was objectively unreasonable. The state appellate court failed to understand the concept of strategy in concluding that counsel's actions were “simply his trial strategies;” the label “strategy” is not a blanket justification for conduct that otherwise amounts to ineffective assistance of counsel.

Counsel's failure to object to the prosecutor impeaching petitioner on why he did not give his side of the story to the police was also ineffective. The impeachment was a violation of petitioner's Fifth Amendment rights. Where petitioner, a police officer, was compelled by his own department to give a statement, that statement cannot be used against him. Counsel was also ineffective in failing to object to the admission of prior consistent statements of the complainant, and the failure to object was based on simple neglect or incompetence, not trial strategy. The failures to object prejudiced petitioner's case and most likely affected the outcome of the trial.

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