Dwayne Ballinger, Jr. v. John Prelesnik

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 13a0057p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Petitioner-Appellee, -

DWAYNE BALLINGER, JR.,

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No. 12-1357

v.

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Respondent-Appellant. -

JOHN PRELESNIK,

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Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 2:09-cv-13886—Arthur J. Tarnow, District Judge.

Argued: November 27, 2012

Decided and Filed: March 4, 2013

Before: SILER, COLE, and SUTTON, Circuit Judges.

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COUNSEL

ARGUED: Mark G. Sands, OFFICE OF THE MICHIGAN ATTORNEY

GENERAL, Lansing, Michigan, for Appellant. Sanford A. Schulman, SCHULMAN &

ASSOCIATES, P.C., Detroit, Michigan, for Appellee. ON BRIEF: Mark G. Sands,

OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for

Appellant. Sanford A. Schulman, SCHULMAN & ASSOCIATES, P.C., Detroit,

Michigan, for Appellee.

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OPINION

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SILER, Circuit Judge. Following an evidentiary hearing, the district court

granted Dwayne Ballinger’s petition for a writ of habeas corpus. The government

appeals. For the following reasons, the district court’s decision will be reversed.

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I. BACKGROUND

This matter arises from an early morning shooting that took place in Detroit,

Michigan in 2006. Two men, Darius Jones and Mario Harris, stood talking to their

friend Raymon Nixon as he sat in his car, which was parked along a residential street.

Another friend, Derrick Greene, watched the conversation from across the street as he

sat in Jones’s car. Ballinger drove up and Nixon emerged from his car to stand with

Jones and Harris. Ballinger approached the three men and engaged in a heated argument

with Jones, advising him “[y]ou better not bring your bitch ass back across Kentfield

[Street] or it’s on.” After a few minutes of arguing, Ballinger walked back to his car and

retrieved an AK-47 rifle. Nixon and Greene reported seeing Ballinger and Jones argue

again briefly after which Ballinger began to shoot. After seeing Jones fall, Greene

ducked. Nixon testified that he ran away after hearing the first shot. Ballinger fled the

scene and Nixon and Greene observed Jones and Harris lying on the ground. Both Jones

and Harris died of gunshot wounds.

At trial, Ballinger was represented by attorney Kerry Jackson. While the

government did not present any physical evidence tying Ballinger to the crime scene, it

presented the eyewitness testimony of Nixon and Greene, who identified Ballinger as

the shooter. Both men testified that they knew Ballinger as a local drug dealer called

“Mellow.” Nine days prior to trial, Jackson filed a list of potential alibi witnesses, which

included Michelle Krisel. After the government objected to the notice as untimely,

Jackson withdrew it, stating that Ballinger was “not arguing alibi.” The only defense

witness was Nicole Garrett, a friend of Ballinger’s girlfriend. She testified that she had

known Ballinger for years and had never heard anyone call him Mellow. The jury

convicted Ballinger of two counts of first-degree murder and felony firearm possession.

Prior to sentencing, with the help of newly-retained counsel, Ballinger moved for

judgment notwithstanding the verdict and a new trial based on ineffective assistance of

counsel due to Jackson’s failure to interview and call an alibi witness, Michelle

Cunningham. According to Ballinger, Cunningham was Michelle Krisel’s married name

and, thus, Jackson was aware of her possible testimony prior to trial. Along with his

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motion, Ballinger filed Cunningham’s affidavit in which she stated that Ballinger was

with her at the time Jones and Harris were shot. She also stated that, although she had

been willing to testify on Ballinger’s behalf, Jackson never contacted or interviewed her.

While Cunningham did not identify herself as Michelle Krisel in the affidavit,

Ballinger’s attorney advised the court that Cunningham and Krisel were believed to be

the same person. The court denied Ballinger’s motions and sentenced him to life in

prison.

On direct appeal, Ballinger argued for a new trial on the same grounds.

Concluding that an evidentiary hearing was unnecessary, the Michigan Court of

Appeals found that Ballinger had failed to establish that he had received ineffective

assistance of counsel. People v. Ballinger, No. 275752, 2008 WL 1006917 (Mich. Ct.

App. April 10, 2008). The Michigan Supreme Court denied Ballinger’s application for

leave to appeal. People v. Ballinger, 754 N.W.2d 896 (Mich. 2008).

In 2009, Ballinger petitioned in federal court for a writ of habeas corpus. Finding

the state court’s denial of a hearing to be unreasonable, the district court granted

Ballinger an evidentiary hearing at which Jackson and Cunningham testified. Jackson

testified that Ballinger never told him about Cunningham and that he actually never

intended to argue alibi because Ballinger admitted committing the murders. Rather,

Jackson had submitted the list of alibi witnesses as a tactic to mislead the prosecution

and to cover himself in case several people came forward reporting that Ballinger had

lied about having killed Harris and Jones. Cunningham testified that she was, indeed,

previously known as Michelle Krisel and was with Ballinger at the time the crimes were

committed. She also stated that Jackson never contacted her but conceded that, despite

that fact, she had never tried to contact authorities or tell anyone of her story prior to

giving the affidavit.

The district court gave significant weight to the fact that, after representing

Ballinger, Jackson was disbarred. Jackson’s disbarment, however, was not connected

to Ballinger’s case. Rather, Jackson reported, he decided to stop practicing law and,

therefore, did not respond to bar complaints that had been filed against him. Finding that

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Jackson’s testimony lacked credibility, the district court determined that Ballinger had,

indeed, received ineffective assistance of counsel as the result of Jackson’s failure to

investigate the alibi defense. Ballinger v. Prelesnik, 844 F. Supp. 2d 857, 870-72

(E.D. Mich. 2012).

II. ANALYSIS

We review a district court’s grant of a habeas petition de novo. Souter v. Jones,

395 F.3d 577, 584 (6th Cir. 2005). The Antiterrorism and Effective Death Penalty Act

of 1996 (“AEDPA”) also applies, since Ballinger’s habeas petition was filed in 2009.

See Lindh v. Murphy, 521 U.S. 320, 326-27 (1997). We may grant habeas relief for a

person in state custody with respect to a claim that was adjudicated on the merits in state

court only if the state court’s ruling “resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly established Federal law” or “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). While a district

court’s decision to grant an evidentiary hearing generally is reviewed for an abuse of

discretion, Abdus-Samad v. Bell, 420 F.3d 614, 626 (6th Cir. 2005), the question of

whether a hearing is permitted in the first instance in a habeas case is a question of law

and must be reviewed de novo, see Cullen v. Pinholster, 131 S. Ct. 1388 (2011).

A. The district court erred in conducting an evidentiary hearing.

Based on the United States Supreme Court’s decision in Pinholster, the district

court erred in granting Ballinger an evidentiary hearing on his ineffective-assistance-of-

counsel claim. In Pinholster, the Court explained that “[i]f a claim has been adjudicated

on the merits by a state court, a federal habeas petitioner must overcome the limitation

of § 2254(d)(1) on the record that was before that state court.” Id. at 1400. Accordingly,

district courts are precluded from conducting evidentiary hearings to supplement existing

state court records when a state court has issued a decision on the merits with respect to

the claim at issue. See id; Atkins v. Clarke, 642 F.3d 47, 49 (1st Cir. 2011).

No. 12-1357 Ballinger v. Prelesnik Page 5

Based on its brief but reasoned discussion of Ballinger’s ineffective-assistance

claim, there is no doubt that the Michigan Court of Appeals resolved the claim on its

merits. See Ballinger, 2008 WL 1006917, at *1-*2. “When a federal claim has been

presented to a state court and the state court has denied relief, it may be presumed that

the state court adjudicated the claim on the merits in the absence of any indication or

state-law procedural principles to the contrary.” Harrington v. Richter, 131 S. Ct. 770,

784-85 (2011); cf. McClellan v. Rapelje, 703 F.3d 344, 350-51 (6th Cir. 2013) (finding

that the state court did not reach the merits of petitioner’s ineffective-assistance-of-

counsel claim). The court applied People v. Henry, 607 N.W.2d 767 (Mich. Ct. App.

1999), which requires that counsel’s performance be evaluated for both deficiency and

prejudice, as also mandated by Strickland v. Washington, 466 U.S. 668, 687 (1984). In

finding that Jackson’s trial performance was not deficient, the court described the broad

discretion that attorneys have in choosing witnesses as a matter of trial strategy.

Ballinger, 2008 WL 1006917, at *2. Further, there was no indication in the state court

record that Krisel and Cunningham were the same person or that Jackson had any

knowledge of Cunningham or an alibi involving her. Id. Citing the strong eyewitness

testimony against him, the court concluded that Ballinger had not established that

Cunningham’s testimony would have likely affected the outcome of the trial. Id.

In arguing that the Michigan courts did not decide his claim on the merits and,

thus, that the limitations of § 2254(d) do not apply, Ballinger relies on our pre-

Harrington decision in Brown v. Smith, 551 F.3d 424 (6th Cir. 2008). In Brown, we

concluded that the state court had not issued a decision on the merits because highly

relevant documents were absent from the trial court record. Id. at 428-29. To the extent

that Brown is inconsistent with Harrington’s definition of “on the merits,” however, it

is no longer the law. See Brown v. Bobby, 656 F.3d 325, 329 (6th Cir. 2011)

(recognizing the presumption of state-court adjudication on the merits following

Harrington); see also McCoy v. Jones, 463 F. App’x 541, 545 (6th Cir. 2012) (casting

doubt upon the continued validity of Brown following Pinholster). It is now clear that

a state-court adjudication, even when unaccompanied by an explanation, is presumed to

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be on the merits and is to be reviewed through the deferential lens of § 2254(d).

Harrington, 131 S. Ct. at 784.

Ballinger relies heavily upon the decision in Winston v. Pearson, 683 F.3d 489

(4th Cir. 2012). Upon Winston’s habeas petition, the district court conducted an

evidentiary hearing to develop the record as to Winston’s ineffective-assistance-of-

counsel claim. The Fourth Circuit concluded that the federal evidentiary hearing was

proper, as nothing in Pinholster or Harrington mandated the conclusion that the state

court had adjudicated Winston’s claim on the merits. The court noted that Harrington

dealt with the summary denial of claims in state court–not a state court’s refusal to allow

a petitioner to expand the evidentiary record. Id. at 502. While allowing a petitioner to

supplement an otherwise sparse trial court record may be appealing, especially where

he diligently sought to do so in state court, the plain language of Pinholster and

Harrington precludes it. In Atkins v. Clarke, 642 F.3d 47, 49 (1st Cir. 2011), the Court

of Appeals for the First Circuit found, in a case analogous to the one at bar, that the

petitioner was not entitled to an evidentiary hearing in federal court. Noting that

“evidence introduced in federal court has no bearing on § 2254(d)(1) review,” id.

(quoting Pinholster, 131 S. Ct. at 1400), the court rejected the petitioner’s claim that the

state court’s decision was not on the merits because he had not received a “full and fair

evidentiary hearing.” Id. This does not leave a habeas petitioner without recourse. For

example, if the state court did not adjudicate the petitioner’s claim on the merits,

Pinholster explains that a federal court can still hold an evidentiary hearing, subject of

course to the restrictions of 28 U.S.C. § 2254(e)(2). 131 S. Ct. at 1401 & n.10. Or, if

the petitioner cannot meet the conditions of (e)(2), he can always return to the state court

and attempt to expand the record there. See id. at 1412 (Breyer, J., concurring in part

and dissenting in part).

B. The state court did not violate clearly established federal law in

rejecting Ballinger’s ineffective-assistance-of-counsel claim.

We now turn to the merits of Ballinger’s habeas claim, based on the record that

was before the state court. Under Strickland, 466 U.S. at 687-88, a defendant claiming

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ineffective assistance of counsel must demonstrate that “counsel’s representation fell

below an objective standard of reasonableness” and that he was prejudiced by counsel’s

deficient representation. Further, counsel should be “strongly presumed to have

rendered adequate assistance and made all significant decisions in the exercise of

reasonable professional judgment.” Id. at 690. When combined with AEDPA deference,

our review of trial counsel’s performance is “doubly deferential.” Jackson v. Houk, 687

F.3d 723, 740-41 (6th Cir. 2012) (internal quotation marks omitted). We are required

to determine whether there is “any reasonable argument that counsel satisfied

Strickland’s deferential standard.” Id. at 741. In other words, Ballinger is required to

show that it was necessarily unreasonable for the Michigan courts to have concluded that

counsel’s performance was not constitutionally ineffective based upon the record that

was before it at that time. See Pinholster, 131 S. Ct. at 1402-03.

Ballinger failed to establish that Jackson was aware of Cunningham as an alibi

witness. While Ballinger’s replacement counsel stated that Krisel and Cunningham were

thought to be the same person, there was no evidence in the record to support that notion.

Cunningham easily could have averred to her former name in the affidavit that was

submitted to the trial court, but she did not. Further, while Krisel was included in the

tendered alibi witness list, several other individuals were as well, and Ballinger does not

contend that their testimony should have been presented. Nicole Garrett, Ballinger’s

only witness, was also on the list and, although she testified on Ballinger’s behalf, she

did not offer an alibi. Jackson’s statements at the district court’s evidentiary hearing

support the notion that he was not aware of an alibi. He reported that he simply offered

a list of names given to him by Ballinger, Ballinger’s mother, or Ballinger’s children’s

mother, “to make sure that [he and Ballinger] were covered in the event [he] needed to

call the alibi witnesses if there was going to be an alibi.” Counsel cannot be expected

to interview unknown witnesses.

Even assuming, arguendo, that Jackson’s conduct fell below acceptable

professional standards, Ballinger’s claim fails because he has not demonstrated

prejudice. To prevail upon habeas review, Ballinger must show that there was no

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reasonable basis for the Michigan courts to have concluded that he failed to demonstrate

that he was prejudiced by counsel’s performance. See Pinholster, 131 S. Ct. at 1410

(citations omitted). He has not made this showing. As the Michigan Court of Appeals

pointed out, “Two eyewitnesses, Greene and Nixon, unequivocally identified [Ballinger]

as the shooter at trial.” Ballinger, 2008 WL 1006917, at *2. Both eyewitnesses

observed the relatively lengthy altercation and, thus, had ample opportunity to identify

the shooter. Both established that they were familiar with Ballinger based on his

presence in the neighborhood, though they knew him only by his nickname Mellow.

Based on Ballinger’s conviction, it is clear that the jury found their testimony to be

credible. Further, it is undisputed that Ballinger and Cunningham had an intimate

relationship and, thus, it is within reason to assume that her credibility would be

diminished as that of an interested witness. In light of the powerful eyewitness

testimony against him, we cannot say that the state courts’ resolution of Ballinger’s

ineffective-assistance claim was unreasonable.

For the reasons stated above, we REVERSE the district court’s judgment

granting a writ of habeas corpus, VACATE the writ, and REMAND with instructions

that the case be dismissed.