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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