Brown v. Braman

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ANTHONY TYRONE BROWN,

Petitioner,

CASE NO. 2:21-CV-12058

v. HONORABLE VICTORIA A. ROBERTS

JAMES CORRIGAN, ACTING

WARDEN,1

Respondent.

/

OPINION AND ORDER DISMISSING PETITION (ECF NO. 1); DENYING

PETITIONER’S MOTIONS TO APPOINT COUNSEL (ECF NOS. 8, 11) , FOR

RELEASE (ECF NO. 9) AND FOR DISCOVERY (ECF NO 14); AND DENYING

CERTIFICATE OF APPEALABILITY

On August 26, 2021, Petitioner Anthony Tyrone Brown, a prisoner currently

confined at the Chippewa Correctional Facility in Kincheloe, Michigan, filed a pro se

petition for habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted by a

jury in the Wayne County Circuit Court of two counts of first-degree criminal sexual

conduct (CSC-I), Mich. Comp. Laws § 750. 520b(1)(b); and one count of third-degree

criminal sexual conduct (CSC-III), Mich. Comp. Laws § 750. 520d. Petitioner was

sentenced to concurrent terms of incarceration of 18 to 40 years for the CSC-I

convictions, and to 12 and one-half years to 22 and one-half years for the CSC-III

conviction.

1 The caption is amended to reflect the proper respondent, Petitioner’s current

custodian, which in this case is the Wayne County Sheriff. See Edwards v. Johns,

450 F. Supp. 2d 755, 757 (E.D. Mich. 2006); see also Rules Governing § 2254

Case, Rule 2(a), 28 U.S.C. foll. § 2254.

Petitioner argues the trial court violated his right to the counsel of his choice

when it denied his retained attorney’s motion to withdraw. He also argues the trial court

judge should have recused himself because just prior to his appointment to the bench,

the judge worked for the Michigan Attorney General’s office, the agency that prosecuted

Petitioner’s case in the circuit court. Neither of Petitioner’s claims have merit, and the

petition will be denied. All motions will be denied as moot. An explanation follows.

I. Background

The Michigan Court of Appeals summarized the facts underlying Petitioner’s

case as follows:

Defendant was convicted of sexually abusing his stepdaughter. According

to the victim, the abuse occurred at the family home in Detroit on numerous

occasions from 2003 to 2008, when she was a teenager. The victim lived in

the home with defendant, her mother, and several siblings. The victim did

not disclose the abuse to her mother while she was living in the home. In

2013, the victim, who was then living independently of defendant and her

mother, decided to report the sexual assaults to the police.

People v. Brown, No. 337223, 2018 WL 4573233, at *1 (Mich. Ct. App. Sept. 13, 2018).

Following his jury trial conviction, Petitioner filed a direct appeal, raising through

appointed appellate counsel issues of judicial disqualification, denial of his right to

substitute counsel, and two evidentiary errors. Mich. Ct. App. Rec., ECF No. 13-16,

PageID.1340. In addition, Petitioner filed a “Standard 4” pro se brief,2 in which he

challenged the venue of his prosecution, and argued he had received ineffective

2 Standard 4 of the Michigan Assigned Counsel rules permits criminal defendants to

file a pro se brief within 84 days of the filing of their brief on appeal. See Mich. Ct.

App. IOP 7.212(F)-3 (stating that the administrative order permits “indigent

defendants represented by appointed counsel [to] raise issues in [the Michigan

appellate courts] that their attorneys decline to raise”). The rules were promulgated

by the Michigan Supreme Court in 2004. See Admin. Order 2004-6, 471 Mich. cii

(2004).

assistance of counsel and been denied his right to confront witnesses against him. Id. at

PageID.1364. The court of appeals denied relief on all issues and affirmed Petitioner’s

convictions. Brown, 2018 WL 4573233, at *9. The Michigan Supreme Court denied

leave to appeal the court of appeals’ decision, People v. Brown, 503 Mich. 1020 (2019);

as well as a motion for reconsideration, People v. Brown, 504 Mich. 950 (2019). The

United States Supreme Court denied a petition for certiorari. Brown v. Michigan, 140 S.

Ct. 840, reh’g denied, 140 S. Ct. 2558 (2020).

Petitioner also filed a motion for relief from judgment in the state trial court

pursuant to Mich. Ct. Rule 6.501, et seq. In his motion, he argued the trial judge should

have recused himself, due to personal bias and his recent employment by the Attorney

General’s office; that his trial counsel was ineffective for failing to call Petitioner’s

fourteen witnesses and failing to impeach the complaining witness; that the trial court

abused its discretion in the introduction of testimony under Mich. Comp. Law § 768.27a;

as well as prosecutorial misconduct and ineffective assistance of appellate counsel. See

Mot., ECF No. 13-13, PageID.1120-21.

The trial court denied relief. See Order, 11/20/20, ECF No. 13-15. Petitioner

subsequently filed two applications for leave to appeal along with various motions in the

Michigan Court of Appeals, all of which were denied. See People v. Brown, No. 355810;

People v. Brown, No. 356177 (Mich. Ct. App. Apr. 28, 2021). On May 14, 2021,

Petitioner filed an application for a writ of habeas corpus in this Court. See Case No. 21-

11330. That petition was denied without prejudice because state collateral review

proceedings had not yet been completed. See Brown v. Braman, No. 2:21-CV-11330,

2021 WL 2646105, at *3 (E.D. Mich. June 28, 2021), appeal dismissed, No. 21-2915,

2021 WL 6102090 (6th Cir. Sept. 28, 2021).

In July 2021, Petitioner’s applications to the Michigan Supreme Court for leave to

appeal the Michigan Court of Appeals’ decisions were rejected as late applications. See

Dkt. Nos. 24, 29, Case No. 355810; Dkt. No. 26, Case No. 356177. This timely habeas

petition followed, in which Petitioner raises the following claims:

I. Failure to allow substitution of counsel; when retained: The Sixth

Amendment of the Constitution provides: A criminal defendant the right

to counsel of choice when retained, the trial court egregiously violated

that provision by failing to inquire properly into the attorney-client

relationship conflict, where he stop[ped] the defendant from stating his

reasons for wanting a new attorney and by his imposing and displaying

his own personal views into the motion to withdraw proceeding, thus:

violating the petitioner’s Fourteenth Amendment due process rights to

a fair trial.

II. The petitioner’s due process right to a fair trial provided by the

Fourteenth Amendment was egregiously violated when the trial court

failed to avoid bias and the appearance of impropriety when he

refuse[d] to recuse himself from the petitioner’s case; due to his very

recent appointment to the bench, where he worked in the same

prosecution office that was prosecuting the petitioner’s case, and by

his imposing and displaying his own personal views into the motion to

withdraw as counsel, and stopping the petitioner from stating his

reasons for wanting a new attorney. Thus, violating the petitioner’s

Fourteenth Amendment due process right to a fair trial.

II. Legal Standard

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)

“circumscribe[s]” the standard of review that federal courts apply when considering an

application for a writ of habeas corpus raising constitutional claims. See Wiggins v.

Smith, 539 U.S. 510, 520 (2003). Under AEDPA, a federal court may not grant habeas

relief to a state prisoner with respect to any claim that has been “adjudicated on the

merits in State court proceedings” unless the state-court adjudication

(1) resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established federal law, as determined by the

Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination

of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

A state court’s decision is “contrary to” clearly established federal law “if the state

court arrives at a conclusion opposite to that reached by [the Supreme] Court on a

question of law or if the state court decides a case differently than [the Supreme] Court

has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 405–

06 (2000). An “unreasonable application” occurs when “a state-court decision

unreasonably applies the law of [the Supreme Court] to the facts of a prisoner’s case.” Id.

at 409. “[A] federal habeas court may not issue the writ simply because that court

concludes in its independent judgment that the relevant state-court decision applied

clearly established federal law erroneously or incorrectly.” Id. at 411.

“A state court’s determination that a claim lacks merit precludes federal habeas

relief 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 focus of this standard “is not whether a federal

court believes the state court’s determination was incorrect but whether that

determination was unreasonable–a substantially higher threshold.” Schriro v. Landrigan,

550 U.S. 465, 473 (2007). “AEDPA thus imposes a highly deferential standard for

evaluating state-court rulings and demands that state-court decisions be given the benefit

of the doubt.” Renico v. Lett, 559 U.S. 766, 773 (2010) (internal citations and quotation

marks omitted). In addition, factual determinations by state courts are presumed correct

absent clear and convincing evidence to the contrary. § 2254(e)(1); Miller-El v. Cockrell,

537 U.S. 322, 340 (2003). The federal habeas court’s review is “limited to the record that

was before the state court.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

III. Discussion

A. Right to retained counsel of one’s choice

Petitioner first argues his constitutional right to the counsel of his choice was

violated when the trial court denied Petitioner’s retained attorney’s motion to withdraw

less than a week before trial. The state court of appeals found that

defendant never indicated whether it was his desire to retain new counsel

or seek appointed counsel. Defendant did not identify a bona fide dispute

with his attorney. He merely stated that there had been “just a breakdown

in communication, that’s all it was.” The trial court reasonably believed that

defendant was attempting to delay trial, given that he was attempting to

replace his fourth attorney and his effort to obtain new representation within

a week before trial “ha[d] been a pattern ... in this case.” Defendant also has

not demonstrated prejudice resulting from the trial court’s denial of

counsel’s motion to withdraw. Counsel had been retained for two months,

and there is no indication that counsel was unprepared for trial. Moreover,

the court questioned defendant regarding his perception and understanding

of counsel’s competence to handle the case. Defendant agreed that counsel

was “a very experienced attorney,” with experience in criminal sexual

conduct cases, and she was “a very effective advocate” and “a good

lawyer.”

Brown, 2018 WL 4573233, at *5. It held that Petitioner’s constitutional right to counsel

was not violated by the trial court’s decision.

The Supreme Court has held that the Sixth Amendment right to counsel protects

“the right of a defendant who does not require appointed counsel to choose who will

represent him.” United States v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006) (citing

Wheat v. United States, 486 U.S. 153, 159 (1988)). The Court further held that the

erroneous deprivation of a criminal defendant’s right to the counsel of their choice is a

“structural error” not requiring demonstration of prejudice. Id. at 150. Deprivation of the

right to counsel is “‘complete’ when the defendant is erroneously prevented from being

represented by the lawyer he wants . . .” Id. at 148.

However, the right to counsel of one’s choice is not absolute; among other

limitations, it does not apply to defendants who qualify for appointed counsel. Id. at 152-

53. In addition, courts enjoy “wide latitude in balancing the right to counsel of choice . . .

against the demands of [their] calendar[s].” Id. at 152 (citing Morris v. Slappy, 461 U.S.

1, 11-12 (1983)); see also Abby v. Howe, 742 F.3d 221, 227 (6th Cir. 2014) (“Even after

Gonzalez–Lopez, the discretion that trial courts hold over their calendars remains vast.”)

The Sixth Circuit applies a four-part test to determine whether a state trial court’s

denial of a habeas petitioner’s motion to substitute counsel was an unreasonable

application of clearly established federal law. Cobb v. Warden, Chillicothe Corr. Inst.,

466 F. App’x 456, 460 (6th Cir. 2012). The factors to be considered are

(1) the timeliness of the motion, (2) the adequacy of the court’s inquiry into

the matter, (3) the extent of the conflict between the attorney and client and

whether it was so great that it resulted in a total lack of communication

preventing an adequate defense, and (4) the balancing of these factors with

the public’s interest in the prompt and efficient administration of justice.

Henness v. Bagley, 644 F.3d 308, 321 (6th Cir. 2011) (citing United States v. Vasquez,

560 F.3d 461, 466 (6th Cir. 2009)). Addressing a similar inquiry, the Supreme Court

added to the third factor, “the client’s own responsibility, if any, for” the conflict or

breakdown in communication. Martel v. Clair, 565 U.S. 648, 663 (2012) (citations

omitted). In addition, “[b]ecause a trial court’s decision on substitution is so fact-specific,

it deserves deference[.]” Id. at 663-64. Applying that deference as well as that of

AEDPA, Petitioner is not entitled to habeas relief.

In the instant case, first, the timeliness factor weighs against Petitioner. When a

petitioner’s request requires a last-minute continuance, “the trial judge’s actions are

entitled to extraordinary deference.” Vasquez, 560 F.3d at 467 (citing United States v.

Whitfield, 259 F. App’x 830, 834 (6th Cir.2008)). The court in Vasquez held the

timeliness factor against the petitioner after his requests for substitution of counsel were

made one week before the original trial date, and two weeks before the rescheduled

trial was to begin. Id. Similar to Vasquez, here the motion to withdraw was brought six

days before trial was to begin, which would have required a continuance to permit a

new attorney to prepare for trial. Counsel’s motion was brought after Petitioner informed

her two days earlier “he wishe[d] to pursue other representation . . .” Pretrial. Hrg. Tr.,

1/18/17, ECF No. 13-7, PageID.581.

The second factor weighs in Petitioner’ favor. The trial court’s inquiry was fairly

brief, and Petitioner is correct that the trial court interrupted him after it requested he

respond to his attorney’s motion to withdraw.3

Applying the third factor, as informed by Martel, the communication breakdown

between Petitioner and his attorney may have been significant, but it was largely the

result of Petitioner’s own behavior. Again, Petitioner told the attorney just a week before

trial he wanted to be represented by a different attorney; Petitioner ignored the

attorney’s advice not to make phone calls form the jail, causing her significant extra

work; and it appears Petitioner’s difficulty with counsel arose out of his attitude toward

3 The trial court has explained it interrupted Petitioner because it did not want him to

reveal any attorney-client privileged or confidential information. Order, 9/2/20, ECF

No. 13-14, PageID.1234.

female attorneys. Pretrial. Hrg. Tr., 1/18/17, ECF No. 13-7, PageID.581-82. This factor

weighs against Petitioner.

So does the interest in “the prompt and efficient administration of justice.”

Petitioner had already enjoyed the services of two appointed attorneys and two retained

attorneys. Even if he was not seeking appointment of yet another lawyer, delaying trial

so a new attorney could come up to speed disrupts the court’s calendar, judicial

efficiency, and the administration of justice.

On this record, and pursuant to the appropriate deference, the state courts were

not unreasonable to reject Petitioner’s “counsel of one’s choice” issue. Nor was the

decision contrary to clearly established law. Petitioner is not entitled to habeas relief on

this issue.

B. Trial court judge conflict and bias

Petitioner’s second claim of error is that his right to a fair trial was violated when

the trial court judge did not recuse himself. The judge was a recent appointment to the

bench, and immediately before his appointment, he was employed by the state attorney

general’s office in its criminal division, the same agency that was prosecuting

Petitioner’s criminal case.

The Michigan Court of Appeals rejected this claim. Brown, 2018 WL 4573233, at

*2. It reasoned as follows:

Judge Cusick and the prosecutor both stated on the record that Judge

Cusick had no involvement in defendant’s case during his term as a

prosecutor with the Attorney General’s office, nor did he ever discuss the

case with the prosecutor. Because Judge Cusick had no personal or

professional connection with defendant, or stake in the outcome of

defendant’s trial, defendant has failed to establish any objective or

reasonable basis for perceiving that Judge Cusick’s prior association with

the Attorney General’s office would impair his ability to carry out his

judicial responsibilities with integrity, impartiality, and competence.

Id. The state court decision was neither unreasonable nor contrary to clearly established

law.

“Due process guarantees ‘an absence of actual bias’ on the part of a judge.”

Williams v. Pennsylvania, 579 U.S. 1, 8 (2016) (citing In re Murchison, 349 U.S. 133,

136 (1955)).; see also Bracy v. Gramley, 520 U.S. 899, 904–05 (1997) (“[T]he Due

Process Clause clearly requires a ‘fair trial in a fair tribunal,’ before a judge with no

actual bias against the defendant or interest in the outcome of his particular case.”

(citations omitted). Id. “Judicial bias is a deep-seated favoritism or antagonism that

makes fair judgment impossible.” Coley v. Bagley, 706 F.3d 741, 750 (6th Cir. 2013)

(citing Mayberry v. Pennsylvania, 400 U.S. 455, 465–66 (1971)). “A biased decision-

maker is constitutionally unacceptable.” Id. (citing Withrow v. Larkin, 421 U.S. 35, 47

(1975)).

As a preliminary matter, it is important to distinguish between the requirements of

due process, on the one hand, and the requirements of the Michigan Court Rules or the

Michigan Code of Judicial Conduct, on the other. The extraordinary remedy of habeas

corpus lies only for a violation of the Constitution. 28 U.S.C. § 2254(a). Petitioner’s

motions in the state courts relied on Michigan Court Rule 2.003, which governs judicial

disqualifications. In rejecting Petitioner’s claim, the state court of appeals’ decision

relied on that rule and Michigan precedents interpreting it. See Brown, 2018 WL

4573233, at *2 (citing MCR 2.003(C)(1)(b); Kern v. Kern-Koskela, 320 Mich. App. 212,

232 (2017)).

The decision of the state courts on a state-law issue is binding on a federal court.

See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“We have repeatedly held that a state

court’s interpretation of state law, including one announced on direct appeal of the

challenged conviction, binds a federal court sitting in habeas corpus.”); Estelle v.

McGuire, 502 U.S. 62, 67 (1991) (“We have stated many times that federal habeas

corpus relief does not lie for errors of state law.”) Thus, the state appellate court’s

application of its court rule and its code of judicial conduct to the question of trial court

disqualification binds this Court, except to the extent the question implicates due

process.

But Petitioner’s due process rights were not violated by the state courts’

decisions. “To the extent defendant is claiming a denial of due process, the Supreme

Court has recognized that ‘‘most matters relating to judicial disqualification [do] not rise

to a constitutional level.’” United States v. Prince, 618 F.3d 551, 561 (6th Cir. 2010)

(quoting Caperton v. A.T. Massey Coal Co., ––– U.S. ––––, 129 S. Ct. 2252, 2259

(2009)) (internal quotation marks omitted). That is, is “matters of kinship, personal bias,

state policy, remoteness of interest, would seem generally to be matters merely of

legislative discretion.” Caperton, 556 U.S. at 876 (quoting Tumey v. Ohio, 273 U.S. 510,

523 (1927)).

Due process does require recusal when a judge has “‘a direct, personal,

substantial, pecuniary interest in a case.’” Id. (citation omitted). Recusal or

disqualification is also required when, “as an objective matter, . . . ‘the probability of

actual bias on the part of the judge or decision maker is too high to be constitutionally

tolerable.’” Id. (citing Withrow, 421 U.S. at 47). One example of the latter category is

where a judge “has been the target of personal abuse or criticism from the party before

him.” Withrow, 421 U.S. at 47 (footnote and citations omitted).

The Supreme Court recently addressed another scenario which might implicate

due process: a judge’s prior service as a prosecutor. Williams, 579 U.S. 1. The Court

found “an impermissible risk of actual bias [occurred] when a judge earlier had

significant, personal involvement as a prosecutor in a critical decision regarding the

defendant’s case.” Williams, 579 U.S. at 8. In Williams, a Pennsylvania Supreme Court

justice, in his prior role as district attorney, was “significant[ly], personal[ly]” involved in

the original decision to seek the death penalty in a defendant’s case. Id. at 11. Because

of that direct involvement, the justice’s participation in the adjudication of the

defendant’s habeas challenge to his death sentence violated due process. Id. at 14.

Petitioner argues that bias arose from the trial court judge’s recent employment

with the same agency who was responsible for prosecuting him, and that the judge’s

actions displayed a bias against him. However, the judge’s former position in the

Attorney General’s office did not violate Petitioner’s due process rights. Unlike the

circumstances in Williams, the judge had no connection to Petitioner’s prosecution, a

fact which Petitioner does not dispute, much less a “significant, personal” one.

Beyond the question of the judge’s prior employer, Petitioner also bases his

charge of judicial bias on the judge “imposing and displaying his own personal views”

and preventing Petitioner from speaking during the hearing on substitution of counsel,

overruling all but one of the defense’s objections during trial, and denying Petitioner

release on his own recognizance over the recommendation of pretrial services. ECF No.

1, PageID.41, 43, 44. But “judicial remarks during the course of a trial that are critical or

disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not

support a bias or partiality challenge.” Liteky v. United States, 510 U.S. 540, 555 (1994).

And adverse rulings themselves are not sufficient to establish bias or prejudice. See

Liteky, 510 U.S. at 555 (“[J]udicial rulings alone almost never constitute a valid basis for

a bias or partiality motion”); United States v. Hynes, 467 F.3d 951, 960 (6th Cir. 2006)

(same). A constitutional violation occurs only when a judge’s rulings or statements show

“a predisposition so extreme as to display clear inability to render fair judgment.”

Johnson v. Bagley, 544 F.3d 592, 597 (6th Cir. 2008). Courts apply a “fundamental

presumption” of judicial impartiality. Cameron v. Rewerts, 841 F. App’x 864, 866 (6th

Cir. 2021) (citations omitted). In reviewing a judicial bias claim, a federal habeas court

should presume that the trial judge properly discharged his or her official duties.

Johnson v. Warren, 344 F.Supp.2d 1081, 1093 (E.D. Mich. 2004).

“[A] habeas petitioner ‘has the burden of establishing his right to federal habeas

relief and of proving all facts necessary to show a constitutional violation.’” Torres v.

MacLaren, 798 F. App’x 916, 920 (6th Cir. 2020) (quoting Black v. Carpenter, 866 F.3d

734, 744 (6th Cir. 2017)). Petitioner has not overcome the presumptions of judicial

impartiality and the judge’s proper discharge of his duties, and has thus failed to

demonstrate he was denied a fair trial because of any conflict or bias on the trial court’s

part. Petitioner is not entitled to habeas relief on this issue.

IV. Certificate of Appealability

Under Federal Rule of Appellate Procedure 22, before Petitioner may appeal the

Court’s decision, a certificate of appealability (“COA”) must issue. See 28 U.S.C. §

2253. The requirement to obtain a COA applies to prisoners seeking pretrial relief as

well as state prisoners who are in custody following a conviction in state court. Winburn,

956 F.3d at 912.

A COA may issue only if a petitioner makes “a substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by

demonstrating that jurists of reason could disagree with the district court’s resolution of

his constitutional claims or that jurists could conclude the issues presented are

adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S.

322, 327 (2003). When a habeas corpus petition is denied on procedural grounds, the

petitioner must show “that jurists of reason would find it debatable whether the petition

states a valid claim of the denial of a constitutional right and that jurists of reason would

find it debatable whether the district court was correct in its procedural ruling.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000).

Because the Court concludes that reasonable jurists would not debate its

determination that Petitioner is not entitled to relief, a certificate of appealability will be

denied.

V. Conclusion

For the reasons stated above, the Court finds that Petitioner is not entitled to

habeas relief. Accordingly, the petition for a writ of habeas corpus is DISMISSED WITH

PREJUDICE.

Petitioner’s motions to appoint counsel (ECF Nos. 8, 11), for release (ECF No. 9)

and for discovery (ECF No 14); are DENIED as MOOT.

A certificate of appealability is DENIED.

Finally, if Petitioner chooses to appeal the Court’s decision, he may not proceed

in forma pauperis on appeal because an appeal could not be taken in good faith. See

28 U.S.C. § 1915(a)(3).

SO ORDERED.

s/ Victoria A. Roberts

VICTORIA A. ROBERTS

Date: 9/14/2022 UNITED STATES DISTRICT JUDGE