Thursday, June 2, 2016

SCOTUS: Sixth Circuit Did Not Apply Appropriate "Fairminded Jurist" Standard Under Antiterrorism and Effective Death Penalty Act of 1996

By Richard Harris
Law Clerk to Hon. Susan F. Hutchinson, Illinois Appellate Court, Second District

The Supreme Court of the United States recently concluded in a per curiam decision that the Sixth Circuit Court of Appeals did not apply the appropriate "fairminded jurist" standard under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) after Timothy Etherton sought federal habeas relief pursuant to AEDPA. In turn, the High Court found it was not objectively unreasonable for Etherton's direct appellate counsel to refrain from raising Confrontation Clause and ineffective assistance of trial counsel claims where trial counsel failed to object to the admission of an anonymous tip.
Woods v. Etherton, 578 U.S. ___, 136 S. Ct. 1149 (2016), involved an anonymous tip that led Michigan law enforcement officers to discover 125.2 grams of cocaine in car being driven by Etherton. The lone passenger in the car was Ryan Pollie. Etherton was tried in state court for possession with intent to deliver cocaine. The central issue in the trial was whether the cocaine belonged to Etherton or Pollie; the facts reflected in the tip were not contested. Woods, 578 U.S. at ___, 136 S. Ct. at 1150. Pollie testified against Etherton pursuant to a plea agreement, claiming that Etherton left him at a restaurant at one point during their trip and returned around 45 minutes later. Pollie further claimed he had no knowledge of Etherton's intent to obtain cocaine, and he learned of the cocaine only after the pair left the restaurant and Etherton revealed its presence. Three officers testified to the content of the tip, which included a claim that two white males would be carrying cocaine while traveling in a white Audi. Etherton's trial counsel raised only one hearsay objection during the third officer's testimony, but the prosecutor agreed to move on and no ruling was made on the objection. A jury convicted Etherton, his conviction was affirmed on direct appeal, and the Michigan Supreme Court denied him leave to appeal. Id.
Etherton next sought post-conviction relief in state court, claiming, inter alia, that appellate counsel was ineffective for failing to raise the Confrontation Clause and related ineffective assistance of trial counsel issues. Id. The state court rejected this claim, noting that trial counsel may have made a strategic decision to forgo any objections because the reference to "two men" suggested Pollie's prior involvement in the crime, which arguably contradicted Pollie's claims that he had no knowledge of the cocaine and Etherton was alone when he picked up the cocaine. Woods, 578 U.S. at ___, 136 S. Ct. at 1151.

The next step for Etherton was to seek federal habeas relief under AEDPA, which allows for such relief where the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). Where a state court determines that a claim lacks merit, federal habeas relief will not be available so long as " 'fairminded 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)).
The District Court denied relief, but a divided Court of Appeals for the Sixth Circuit reversed, with the majority concluding that Etherton's appellate counsel had been constitutionally ineffective, and that no fairminded jurist could conclude otherwise. Woods, 578 U.S. at ___, 136 S. Ct. at 1152. In concluding that Etherton's right to confrontation had been violated, the majority first noted that the contents of the tip were discussed by three witnesses and mentioned by the prosecution during closing argument. Thus, the majority held, the state's use of the evidence went beyond the details that were necessary merely for background, and the contents of the tip were therefore admitted for the truth. See Crawford v. Washington, 541 U.S. 36, 60, n. 9 (2004) (observing that the Confrontation Clause of the Sixth Amendment prohibits an out-of-court statement only if it is admitted for its truth).
Regarding the issue of whether Etherton had been prejudiced by the violation (see Strickland v. Washington, 466 U.S. 668, 687 (1984) (showing of prejudice required to demonstrate ineffective assistance of counsel)), the majority acknowledged the evidence of Etherton's guilt: Etherton owned the car; he was driving at the time of the arrest; and the cocaine was found inches away from him in a driver side compartment. The majority held, however, that the evidence was insufficient to convict Etherton without the tip, and because Pollie's testimony was reflected in the tip, the jury may have improperly concluded that Pollie was testifying truthfully. Accordingly, the majority found that Etherton had been prejudiced by appellate counsel's failure to challenge the forfeited Confrontation Clause objection or the ineffectiveness claim. Woods, 578 U.S. at ___, 136 S. Ct. at 1152.
The Supreme Court disagreed with the Sixth Circuit, holding that the majority did not apply the appropriate "fairminded jurist" standard of review under AEDPA. The High Court concluded that, because the veracity of facts pertaining to the tip was not in dispute, a fairminded jurist might find that the repeated testimony of the tip was not introduced to establish the truth. Furthermore, a fairminded jurist might find that Etherton was not prejudiced when Pollie testified consistently with the uncontested facts of the tip, as Pollie himself was aware of the information contained in the tip. This may have rendered Pollie's testimony unremarkable and not pertinent to his credibility. Id. Thus, given the deference afforded trial counsel (see Strickland, 466 U.S. at 690), it would not be objectively unreasonable for a fairminded jurist to conclude that no objection was raised in the trial court because the facts in the tip were uncontested and consistent with Etherton's defense. Woods, 578 U.S. at ___, 136 S. Ct. at 1152-53. Therefore, a fairminded jurist could similarly conclude that it was objectively reasonable for appellate counsel to reach the same conclusion.
For these reasons, the Supreme Court granted petition for certiorari and reversed the judgment of the Court of Appeals for the Sixth Circuit. Woods, 578 U.S. at ___, 136 S. Ct. at 1153.
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