Woods v. Etherton

Cite as: 578 U. S. ____ (2016) 1

Per Curiam

SUPREME COURT OF THE UNITED STATES

JEFFREY WOODS, WARDEN v. TIMOTHY ETHERTON

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

No. 15–723. Decided April 4, 2016

PER CURIAM.

In the fall of 2006, Michigan law enforcement received

an anonymous tip that two white males were traveling on

I–96 between Detroit and Grand Rapids in a white Audi,

possibly carrying cocaine. Officers spotted a vehicle

matching that description and pulled it over for speeding.

Respondent Timothy Etherton was driving; Ryan Pollie

was in the passenger seat. A search of the car uncovered

125.2 grams of cocaine in a compartment at the bottom of

the driver side door. Both Etherton and Pollie were

arrested.

Etherton was tried in state court on a single count of

possession with intent to deliver cocaine. At trial the facts

reflected in the tip were not contested. The central point

of contention was instead whether the cocaine belonged to

Etherton or Pollie. Pollie testified for the prosecution

pursuant to a plea agreement. He claimed that he had

accompanied Etherton from Grand Rapids to Detroit, not

knowing that Etherton intended to obtain cocaine there.

According to Pollie, once the pair arrived in Detroit,

Etherton left him alone at a restaurant and drove off,

returning some 45 minutes later. It was only after they

were headed back to Grand Rapids that Etherton revealed

he had obtained the drugs.

The prosecution also called several police officers to

testify. Three of the officers described the content of the

anonymous tip leading to Etherton’s arrest. On the third

recounting of the tip, Etherton’s counsel objected on hear-

say grounds, but the objection was not resolved when the

2 WOODS v. ETHERTON

Per Curiam

prosecutor agreed to move on. At closing, the prosecutor

also described the tip. The court instructed the jury that

“the tip was not evidence,” but was admitted “only to show

why the police did what they did.” App. to Pet. for Cert.

88a. The jury convicted Etherton, and his conviction was

affirmed on direct appeal. The Michigan Supreme Court

denied leave to appeal. People v. Etherton, 483 Mich. 896,

760 N. W. 2d 472 (2009).

Etherton sought postconviction relief in state court on

six grounds. Three are relevant here: First, he claimed

that the admission of the anonymous tip violated his

rights under the Confrontation Clause of the Sixth

Amendment. Second, that his trial counsel was ineffective

for failing to object to the tip on that ground. And third,

that his counsel on direct appeal was ineffective for failing

to raise the Confrontation Clause and the ineffective

assistance of trial counsel claims.

The state habeas court rejected the first two claims on

procedural grounds and the third on the merits. To pre-

vail on a claim for ineffective assistance of appellate coun-

sel, the state court explained, Etherton had to demon-

strate that “appellate counsel’s decision not to pursue an

issue on appeal fell below an objective standard of reason-

ableness and that the representation so prejudiced [him]

as to deprive him of a fair trial.” App. to Pet. for Cert.

87a–88a. The state court concluded that Etherton failed

on both counts.

First, the court reasoned, appellate counsel may have

reasonably forgone any Confrontation Clause claim after

concluding that trial counsel’s failure to object was the

product not of ineffectiveness but of strategy. While

Etherton’s current counsel argues that trial counsel

should have objected because the tip’s reference to “two

men” suggested involvement by Etherton from the outset,

Brief in Opposition 20–21, the reference also suggested

Pollie’s prior involvement, contrary to his testimony that

Cite as: 578 U. S. ____ (2016) 3

Per Curiam

he was not with Etherton when he picked up the cocaine

and had nothing to do with it. As the state court ex-

plained, not objecting would have been consistent with

trial counsel’s “strategy to show defendant’s non-

involvement and possible responsibility of the passenger

(who was also charged).” App. to Pet. for Cert. 88a.

Second, the court determined, Etherton had not been

prejudiced by counsel’s choice: there was “ample evidence”

of his guilt and “the complained of errors, even if true,

would not have changed the outcome” of the case. Id., at

89a. Etherton’s allegations, the court concluded, ultimately

failed to overcome the presumption that his appellate

counsel functioned reasonably in not pursuing the Con-

frontation Clause or ineffectiveness claims. Ibid. Both

the Michigan Court of Appeals and the Michigan Supreme

Court denied leave to appeal.

Etherton next sought federal habeas relief. Under the

Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), federal habeas relief was available to him only

if 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). “A state court’s determi-

nation 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 state court

decision must be “so lacking in justification that there was

an error well understood and comprehended in existing

law beyond any possibility for fairminded disagreement.”

White v. Woodall, 572 U. S. ___, ___ (2014) (slip op., at 4)

(internal quotation marks omitted).

When the claim at issue is one for ineffective assistance

of counsel, moreover, AEDPA review is “doubly deferen-

tial,” Cullen v. Pinholster, 563 U. S. 170, 190 (2011), be-

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Per Curiam

cause counsel is “strongly presumed to have rendered

adequate assistance and made all significant decisions in

the exercise of reasonable professional judgment,” Burt v.

Titlow, 571 U. S. ___, ___ (2013) (slip op., at 9) (quoting

Strickland v. Washington, 466 U. S. 668, 690 (1984); in-

ternal quotation marks omitted). In such circumstances,

federal courts are to afford “both the state court and the

defense attorney the benefit of the doubt.” Burt, supra, at

___ (slip op., at 1).

The District Court denied relief, but the Court of Ap-

peals for the Sixth Circuit reversed in relevant part, over

the dissent of Judge Kethledge. The majority concluded

that Etherton’s appellate counsel had been constitution-

ally ineffective, and that no fairminded jurist could con-

clude otherwise. Etherton v. Rivard, 800 F. 3d 737 (2015).

Without ruling on the merits of the court’s holding that

counsel had been ineffective, we disagree with the deter-

mination that no fairminded jurist could reach a contrary

conclusion, and accordingly reverse.

In finding counsel ineffective, the majority first con-

cluded that Etherton’s right to confrontation had been vio-

lated. The Confrontation Clause prohibits an out-of-court

statement only if it is admitted for its truth. Crawford v.

Washington, 541 U. S. 36, 60, n. 9 (2004). The Sixth Cir-

cuit determined that the contents of the tip were admitted

for their truth because the tip was referenced by three

different witnesses and mentioned in closing argument.

These “repeated references both to the existence and the

details of the content of the tip went far beyond what was

necessary for background,” the majority below concluded,

“indicating the content of the tip was admitted for its

truth.” 800 F. 3d, at 751.

The majority next found that Etherton had been preju-

diced by the violation, a showing Etherton’s state court

counsel would have had to make on appeal to obtain relief

either on the forfeited Confrontation Clause objection, see

Cite as: 578 U. S. ____ (2016) 5

Per Curiam

People v. Carines, 460 Mich. 750, 763–764, 597 N. W. 2d

130, 138–139 (1999) (showing of prejudice required to

overcome forfeiture), or the ineffectiveness claim, Strick-

land, supra, at 687 (showing of prejudice required to

demonstrate ineffective assistance of counsel). In finding

prejudice, the majority acknowledged the evidence of

Etherton’s guilt: the cocaine was found in a driver side

compartment inches from Etherton; he owned the car; and

he was driving at the time of arrest. But, according to the

majority, that evidence was not enough to convict Ether-

ton absent Pollie’s testimony. And that is where the tip

came in. “Because much of Pollie’s testimony was reflect-

ed in the content of the tip that was put before the jury,”

the Sixth Circuit stated, “the jury could have improperly

concluded that Pollie was thereby testifying truthfully—

that it was unlikely for it to be a coincidence for his testi-

mony to line up so well with the anonymous accusation.”

800 F. 3d, at 753.

In reaching these conclusions, the Sixth Circuit did not

apply the appropriate standard of review under AEDPA.

A “fairminded jurist” could conclude that repetition of the

tip did not establish that the uncontested facts it conveyed

were submitted for their truth. Such a jurist might reach

that conclusion by placing weight on the fact that the

truth of the facts was not disputed. No precedent of this

Court clearly forecloses that view. It is also not beyond

the realm of possibility that a fairminded jurist could

conclude that Etherton was not prejudiced when the tip

and Pollie’s testimony corresponded on uncontested facts.

After all, Pollie himself was privy to all the information

contained in the tip. A reasonable judge might accord-

ingly regard the fact that the tip and Pollie’s testimony corre-

sponded to be unremarkable and not pertinent to Pollie’s

credibility. (In fact, the only point of Pollie’s testimony

actually reflected in the tip was that he and Etherton were

traveling between Detroit and Grand Rapids.)

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Per Curiam

Etherton’s underlying complaint is that his appellate

lawyer’s ineffectiveness meant he had “no prior opportu-

nity to cross-examine the anonymous tipster.” Brief in

Opposition 11. But it would not be objectively unreason-

able for a fairminded judge to conclude—especially in light

of the deference afforded trial counsel under Strickland—

that the failure to raise such a claim was not due to in-

competence but because the facts in the tip were uncon-

tested and in any event consistent with Etherton’s de-

fense. See Harrington, 562 U. S., at 105 (“Even under

de novo review, the standard for judging counsel’s repre-

sentation is a most deferential one.”). A fairminded jurist

could similarly conclude, again deferring under Strick-

land, that appellate counsel was not incompetent in draw-

ing the same conclusion. And to reach the final point at

issue before the Sixth Circuit, a fairminded jurist—

applying the deference due the state court under AEDPA—

could certainly conclude that the court was not objectively

unreasonable in deciding that appellate counsel was not

incompetent under Strickland, when she determined that

trial counsel was not incompetent under Strickland.

Given AEDPA, both Etherton’s appellate counsel and

the state habeas court were to be afforded the benefit of

the doubt. Burt, supra, at ___. Because the Sixth Circuit

failed on both counts, we grant the petition for certiorari

and reverse the judgment of the Court of Appeals.

It is so ordered.