Petition for Writ of Certiorari — Devi Smith, Petitioner v. Patrick Warren, Warden

IN THE

SUPREME COURT OF THE UNITED STATES

January Term 2019

No

-

DEVI LOREN SMITH,

Petitioner,

V.

NOAH NAGY, et al,

Respondents

PETITION FOR .A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Submitted by

Devi Loran Smith#392953

In Propri a- Persona

Lakeland Correctional Facility

11 First Street

Coldwater, MI 49036

QUESTION PRESENTED

WAS THE PETITIONER DEPRIVED OF HIS SIXTH AMENDMENT RIGHT TO THE

EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL WHERE DEFENSE COUNSEL

FAILED TO CALL CRITICAL DEFENSE WITNESSES AND APPELLATE COUNSEL

FAILED TO RAISE THIS CLAIM ON DIRECT REVIEW?

PARTIES

The Petitioner is Devi Loran Smith, a prisoner at Lakeland

Correctional Facility located at 111 First Street, Goldwater

Michigan, 49036. The Respondents are the State Of Michigan and

Noah Nagy, the warden at the Lakeland Correctional Facility.

TABLE OF CONTENTS

Q uestions Presented ........................................1

Parties .

..

..............................................

Table of Authorities ............

iii

DecisionsBelow ............................................,iv

Jurisdiction................................................v

Constitutional and Statutory Provisions Involved.. .......... vi

Statement of the Case .....................................

.1

Reasons for granting the writ ...............................9

Importance of the questions presented ........

21

Conclusion, ........................... ..................... 23

1

APPENDIX..

A) Decision of the United States Court of Appeals

A) Order of the United States District Court

Direct review state court

C) Order of the Michigan Supreme Court

0) Order of the Michigan Court of Appeals

Post-conviction

Order of the Michigan Supreme Court

Order of the Michigan Court of Appeals

Order of the Trial Court

i-i

TABLE ,. OF AUTHORITIES

Federal District. Court

English v Romanowski

589 F Supp 2d 893 (ED Mich 2008)

Freeman v Trambley. 744 F Supp 2d 697 (ED Mich 2010)

.9

....

9

.

<owalak v Scutt, 712 F Supp 2d 657 (ED Mich 2010) ..........9

Marion v Woods, 128 F Supp 3d 987 (ED Mich 2015) ......

Court of Appeals

Beasley v United States, 491 F2d 687 (6th Cir 1974) ... ..... 18

Bigelow v Haviland, 576 F3d 284 (2009) ...................20

Bigelow v Williams, 367 F3d 52 (6th C i r 2004) ..............9

Blackburn v Foltz, 828 F2d 1117 (6th Cir 1987)....,

...

Caldwell v Lewis, 414 Fed Appx 809 (6th Cir 1987) ..........19

Campbell v Coyle, 260 F3d 531 (6th Cir 2001)

. . . ..

19

..........

Clinkscale v Carter, 375 F3d 531 (6th Cir 2001 ) .............9

Depetria v Kuykendall, 239 F3d 1057 (9th Cir 2001)

.....

Foster v tdolfenbarger, 687 F3d 1057 (6th Cir 2012).. ........19

G riffin v Warden, 970 F2d 1355 (6th Cir 1992).........

Mapes v Tate, 388 F3d 187 (6th Cir 2004)

,.

14

. .................

Matthews v Abramajtys, 319 F3d 780 (6th Cir 2003) ..........8

Ramonez v 8erghu1s, 490 F3d 482 (6th Cir 2007)

............20

Stewart v Wolfenbarger, 468 F3d 338 (6th Cir 2008) ..........8, 13

McQueen v Scroggy, 99 F3d 1362 (6th Cir 1996).

..............0

United States v Hilisman, 480 F3d 333 (2007) .................22

Van v Jones, 475 F3d 292 (6th Cir 2007) ...................,22

Vega v Ryan, 735 F3d 1093 (9th Cir 2013) ...................14

Woods v Booker, 450 Fed Appx 480 (6th Cir

iii

Supreme Court

Bell v Cone, 535 US 685 (2002)

B etts

.20

v BraDy, 31.6 US 455 (1942)

.

.21

.

....................

Brooks v Tennessee, 406 US 605 (1972).__ ......... ....... 22

Coleman v Alabama, 399 US 1 (1970) .........................22

Coy v Iowa, 687 US 102 (1988)

.........................7

Douglas v Alabama, 380 US 415 (1965)

.

.

.

7

..................

Edwards v Carpenter, 529 US 666 (2000)— ............. —....24

Evitts v Lucey, 469 US 387 (1985) ...........................16

Gedera v United States, 425 US 80 (1976)

..................22

Gideon v Wainwright, 372 US 335 (1963) .......................21

Hamilton v Alabama, 368 US 52 (1961) .........

........

.

Kyles v Whitley, 514 US 419 (1995) ...........

.

22

13

..... .........

McMann v Richardson, 397 US 759 (1970) .....................21

Martinez v Ryan. 132 Sot 1309 (2012) .........................21

Pointer v Texas, 380 Us 400 (1965) .........................7

Powell v Alabama, 287 US 145 (1932) .........................24

United States v Bagley, 473 US 667 (1985)

Strickland v Washington, 466 US 690 (1986)

................. 12

..............6. 14

Washington v Texas, 388 US 14 ................................21

United States v Crariic, 466 US 659 (1984) ...................22

White v Maryland

373 US 59 (1963) ..........................22

MIsc/Rules/Laws

11CR6.500 ...................................................4

11CR7.208 ..................................................20

28 USC § 2254— ............. ...... ....... ............... .4

iv

Decisions Below:

The decision of the United States Court of Appeals for the

Sixth Circuit case no# 17-1835 (2018), a copy is attached as

Appendix:Pto this petition. The order of the United States

District Court for the Eastern District of Michigan case not 1ov-10969 (2017), a copy is attached as Appendix:B to this

petition. The order of the Michigan Supreme Court is case no#

146554, a copy is attached as ppendix:C to this petition. The

order of the Michigan Court of Appeals is case not 306574, a copy

is attached as AppndIx:D to this petition.

Post-conviction

the order of the Michigan Supreme Court is case not 152090, a

copy is attached as Appendix:E to this petition. The order of the

Michigan Court of Appeals is case not 325534, a copy is attached

as ARpendix:F to this petition. The trial court order is case not

10-010956--01-FC, a copy is attached as AppendixG to this

petition.

Jurisdiction

The judgment of the United States Court of Appeals for the

Sixth Circuit was entered an October 12, 2018, and a copy of that

order is attached as 4ppendix:A. .Jurisdiction is conferred by 28

USC § 2254(A).

V

CONSTITUTIONAL AND. STATUTORY. PROVISIONS INVOLVED

This case involves Amendment 6th to the United States

Constitution which provides:

In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of the

state and district wherein the crime shall have been committed,

which district shall have been previously ascertained by law, and

to be informed of the nature and cause of the accusation; to be

confronted with the witnesses in his favor, and to have the

assistance of counsel for his defense.

This case also involves the application of 28 USC § 2253(C)

which states:

unless a circuit Justice or Judge issues a certificate of

appealability, an appeal may not be taken to the court of appeals

from:

A) the final order in a habeas corpus proceeding in which the

detention complained of arises out of process issued by a state

court.

A certificate of appealability may issue under paragraph

(1) only if the applicant has made a substantial showing of the

denial of a constitutional right.

vi

STATEMEPITOF THE CASE

Introduction

This case involves a conviction for two counts of first degree

murder under Michigan law, MCL 750.316, two counts of torture

under MCL 750.85, and two counts of felony firearm while

committing the felonies, MCL 750.227b. Petitioner Devi Smith was

tried and convicted in the circuit court for the county of Wayne,

in Detroit, Michigan on August 24, 2011

He was sentenced to life

in prison without the possibility for parole as mandated by MCL

750.316, and 23-to-50 yrs for the torture, and the consecutive

term of two years for the firearm convictions.

The facts of the case is that on March 1 , 2010, two people

were murdered. Monica 9ote110 and Percil Carson were murdered in

their home in Detroit. Petitioner Smith was tried twice for these

murders, The first trial ended in a hung jury as to Petitioner,

the jury convicted the co-defendant Derrick Smith (unrelated to

Petitioner Smith), on two counts of first degree murder, torture

and felony firearm. The jury was unable to unanimiously agree on

a verdict as to Petitioner Smith, which resulted in a hung jury.

The case was retried.

During the second trial, evidence was submitted that Devi and

Derrick went to the victims home for an alleged drug transaction,

as the money for the drugs were being counted, Derrick and Devi

drew handguns. Devi Smith., allegedly ordered Botallo and her two

1

young daughters into a bathroom at gunpoint. Botello was later

taken out of the bathroom, and the men bound her and Carson's

wrists with duct tape.

Carson begged for his life, pleading with the two men that he

had family. Derrick and Devi directed Botello and Carson into the

basement, where they were laid across a couch and their mouths

taped. Carson was shot once in the front of his head, and Sotello

was shot once in the back of the head. Meanwhile, one of Botello's

daughters in the bathroom, eight year old Tayanna heard Carson's

pleas, her parents forced into the basement, and gunshots. She

called 911 after Derrick and Petitioner left the house. Tayenna

described the two perpetrators to the operator and said a man,

who she later identified as Petitioner, forced her into the

bathroom at gunpoint. The day after the murders, Tayonna again

described the perpetrators, and later picked Petitioner at a

photographic identification procedure. Petitioner refused to

participate in alive line-up, Another witness, Shantell Crankfield

also picked Petitioner out of a photographic array as the man who

was with Derrick and Carson at the house on the evening of the

murders, Crankfield left shortly before the incident occurred.

Petitioner was apprehended about six months after the crime.

In his statement to police, he admitted to being in the victims

house, but he claimed that he did nothing to aid Derrick, who he

claims was solely responsible for binding, robbing, and killing

the two victims. Petitioners defense was that Derrick celled him

2

and asked him to come to Carsons house to facilitate a drug deal.

When Petitioner saw that Derrick planned to rob Carson, he

escorted the children to the bathroom for their own protection

and then left the premises. The prosecutor relied on Tayonna's

statements and testimony that Petitioner was armed with a gun and

forced them into the bathroom to discredit Petitioner ' s version of

events

Direct. Appeal/State Court a

Following Petitioner's conviction and sentence, Petitioner

filed a claim in the Michigan Court of Appeals. His appellate

brief raised the following claims:

Petitioner did not voluntarily, knowingly and intelligently

waive his constitutional rights when he did not read the

waiver of rights form correctly and the interrogator failed

to correct him;

The trial court admitted irrelevant and prejudicial evidence

in violation of Michigan Rules of Evidence 401 and 403 when

it admitted Tayonna Batello's 911 call,

The Michigan Court of Appeals affirmed Petitioner's conviction

in an unpublished opinion. People v Smith, No 3067

(November 27,

2012). Petitioner subsequently filed an application for leave to

appeal in the Michigan Supreme Court, raising the same claims as

in the Michigan Court of Appeals. The Supreme Court denied the

application because it was not persuaded by the questions

presented. People

V

Smith, 829 .NW2d (Mich 2013).

Habeas-Pe tit ion

Petitioner submitted his title 28 USC § 2254 habeas petition

along with a motion to stay the petition so he could return beck

to the state trial court to exhaust a claim of ineffective

assistance of counsel. The district court granted the motion and

Petitioner returned to the state trial court and submitted a

motion for relief from judgment pursuant to MCR 6500 raising the

claims of ineffective assistance of both trial and appellate

counsel.

Post-conviction motion appeal

On September 16, 2014, the trial court denied the motion for

relief on the merits finding that Petitioner's counsel did not

perform deficiently, and that Petitioner

was

not prejudiced by his

counsel's performance in light of the strength of the evidence

indicating his guilt. See Trial Court opinion at Appendix:G. The

court also found that Petitioner failed to demonstrate actual

prejudice as required under Michigan Court Rule 65080)(3)(b).

Petitioner filed an application for leave to appeal the trial

court a denial to the Michigan Court of Appeals. That court denied

relief for failure to establish an entitlement to relief under

MCR 6508(0) and failed to establish a waiver for good cause. See

Peoplev5mjth COA No*326534 (2015). Petitioner then filed an

application for leave to appeal to the Michigan Supreme Court

that was denied under People vith 878 NtJ2d 870 (2016).

4

Petitioner returned beck to the federal district court for

review on his amended petition for habeas relief and the district

court denied the petition but issued a certificate of

appealability for Issue (3), habeas issue three encompanced claims

on both trial and appellate attorneys.

A ppeal to the Sixth

Circuit

Petitioner appealed to the Sixth Circuit which was denied on

October 12, 2018, Case no# 17-1835, first the sixth circuit in

their denial is flawed in several aspects of their opinion and

order, where on page 3 of the order, the appeals court states that

the:

"Petitioner could not used their testimony to establish

that he was never at the house where the crimes took

place because he conceded to the police and at trial

that he was there, although he asserted that he left

before the murders occurred Smith contends, however,

that their testimony could have supported a theory that

he was merely present during the course of events

leading up to the murderous events. Presumably because,

if he was not with Derrick before or after the crimes,

the jury would conclude that he did not participate in

the murders". Smith claims are without merit. First,

although Funchess did not testify in person at his

second trial, her testimony from the first trial was

read into the record. "Smith has not explained how he

would have benefitted had counsel procured live or

additional testimony from Funchessr.

Here, this goes to the heart of the Petitioner's claim of

ineffective assistance of trial counsel, and any good defense

attorney would have first objected to a prosecution witness

testimony being read into the record, where this violates the

Petitioner's confrontation rights and the Petitioner was granted

5

a COP by the district court solely on trial counsel's performance,

the sixth Circuit was

to judge only the reasonableness of

counsel'sconduct at the time of the conduct. Strickland.v

W a shington, 466 US at 690. Because this was a critical stage in

the proceedings where exculpatory evidence was being suppressed

by the prosecution, because a jury cannot weigh the credibility

of a transcript or judge a witness demeanor, trial counsel, by

not objecting prejudiced the petitioner because where a

defendant's guilt hinges largely on the testimony of a

prosecution witness, the erroneous exclusion of the evidence

critical to assessing the credibility of that witness violates

the constitution. Depatris.v.Kuvkendall, 239 F3d 1057 (9th Cir

2001) therefore, the focus of the prejudice inquiry in determining

whether the confrontation right has been violated must be on the

particular witness, not the outcome of the entire trial, and also

trial counsel did not even have the Haugabook testify who also

supported the defense theory and both of these people were

prosecution witnesses who was given immunity for their testimony.

The court of appeals has not offered how not calling these two

witnesses to testify who support the theory of defense did not

prejudice the Petitioner, when their testimony is the heart of

his defense, and this cannot be deemed trial strategy, and when

trial counsel did not object to the prosecution reading this

testimony into the record was not protecting his clients rights

because a defendant's right to present his theory is a fundamental

right and all of his pertinent evidence should be considered by

the trier of fact, especially in a capital offense. Trial counsel's

silence at this stage of the trial proceedings violated the

Petitioner's sixth amendment right to confront his accuser.

The Confrontation Clause of the Sixth Amendment provides that

in all criminal prosecutions, the accused shall enjoy the right to

be confronted with the witnesses against him, this is impossible

with a transcript, this was a new trial and a new jury. This

right that trial counsel neglected to protect is incorporated by

the fourteenth amendment and thus must be honored by the states.

Pointer.vTexas, 380 US 400, 403 (1965). The right includes not

only the guarantee of a face to face meeting with witnesses

appearing before the trier of fact. Coy vIowa, 487 US 102, 1016

(1986), but also the right to cross examine those witnesses, Texas

supra, 380 US at 406-407, in accord Douglas.v Alabama, 380 US 415

(1965). A criminal defendant states a violation of the

confrontation clause by showing that he was prohibited from

engaging in otherwise appropriate cross-examination designed to

expose to the jury the facts from which juries could properly

draw inferences relating to the reliability of the witness.

So for the Sixth Circuit to say Petitioner claims has no

merit is erroneous on it's face. Also, in reviewing the Sixth

Circuit opinion on page 4, they assert that trial counsel's

decision not to call Haugabook appears to have been strategic

because trial counsel in his opening and closing arguments

asserted Haugabook was involved in the robberies and murders and

7

that Smith was there only to facilitate a drug deal. This would

have been supported with evidence by both prosecution witnesses

testifying to this theory put forth by the defense attorney. There

is no trial strategy that would support a failure to call two

exculpatory witnesses endorsed by the prosecution to present to

the trier of fact, also here in the Sixth Circuit opinion, they

speculate on what they believe a jury would think if they heard

the testimony of Haugabook, also this evidence was not cumulative

because a jury is instructed that opening and closing arguments is

not evidence, only a theory of facts that may be presented in the

course of the trial.

The Sixth Circuit indulged in the natural tendency to

speculate what was trial strategy instead of assessing trial

counsel's performance and in this case there is no justifiable

excuse for not calling these witnesses because even if the

testimony could not corroborate the Petitioner's defense, it would

have been quite useful as it was in the Petitioner's first trial

where he had a hung jury, when their testimony helped established

his theory of defense, counsel's failure to call these witnesses

to testify and not objecting to the reading of prior testimony in

a new trial when the witness is available is ineffective. See

Matthews v Abremajtys, 319 F3d 780 (6th Cir 2003)

The Sixth Circuit in previous rulings rejected that a

Petitioner is not prejudiced by counsel's failure to call

witnesses to corroborate his or her defense. See e.g. Stewart ..v

Wolfenberger, 468 F3d 338 (6th Dir 2008), Blgalow.vWilliams, 367

F3d 562 (6th Dir 2001+), Clinkscalev Carter, 375 F3d at 43. Even

in the Eastern District of Michigan where this case originated

from, see Marvin v Woods, 128 F Supp 3d 987 (ED Mich 2015),

Freeman .v Trombley, 714 F Supp 697 (ED Mich 2010), also see

Engjishv Romanowski, 589 F Supp 2d 893 (ED Mich 2008), Kowalak.v

Scutt, 712 F Supp 2d 657 (ED Mich 2010).

Thus, where the detrimental impact of not calling the witness

was exacerbated by counsel's inaction cannot be deemed reasonable

and the Sixth Circuit in this case did not focus on the errors of

counsel, but on the proofs of the state, this ruling should be

reversed by this Honorable Court, Where the Petitioner's

Constitutional rights were not protected by trial counsel's

deficient performance.

REASONS .FORGRANTING. THE WRIT

Here, Petitioner had two trials, the first trial was a hung

jury, where the trier of fact could not agree on his guilt or

innocence, and upon retrial the same trial attorney showed

deficient performance, when he allowed the prosecution to exclude

crucial witnesses from testifying that had exculpatory evidence

to support the defense theory of what part, if any, Petitioner

played in the crime.

A) Trial counsel's ineffectiveness

In the first trial there were two witnesses that were called

Ii

by the prosecution that had been granted immunity for their

testimony against Derrick Smith, one was Jeffrey Haugabook who

assisted Derrick Smith on getting out of town following the murder

of Carson and 9otello, Transcript of first trial, - 3/22/1 1 at6263. On direct examination, Haugabook was presented with several

still photographs taken from video footage on the day of the

murders. In one of these stills, he identified himself, as well

as Derrick Smith and anothor individual who met with Smith at a

subway restaurant situated inside of a Walmart. Id at 67-69.

Haugabook was queried as follows:

THE PROSECUTOR: Okay. Do you recall what the person (Derrick

Smith) met with looked like?

MR. HAUGABOOK: Light-skinned, kind of tall.

Q.

I'm going to show you people's Exhibit Wo#2, Tell me if,

that appears to you like the person that he met with?

A.

Yes,

0

That's him.

A.

It looks like him.

0. Okay. Was there a conversation between Derrick Smith and the

person?

A. I kind of overheard the conversation between Derrick and the

person.

t. Tell us what you overheard Derrick saying to the person?

A.

Just that he was going to bust a script.

Q.

What's "Bust a script" mean, sir?

A. Cash in a prescription

Q. Did you see anything else occur between the man in the Walmart

and Derrick Smith, or hear anything else that you can remember

now?

A. No.

10

Q.

After did Derrick Smith and the man split up than?

P Yes

Q.. What did he tell you?

A. He said he was punching in (It means that he was going to rob

the guy or cash in prescriptions)

Q, Did he ask you if you wanted in on a robbery, sir?

P.

Yes

Do you remember who Derrick Smith was with at the Walmart?

A. He was with Mark.

That's his brother?

A.

Correct.

I

Q,. Do you remember if he was with anyone else?

P.

.

I'm not sure, I can't remember.

All right, when you saw him was he alone, or was he with

someone else?

He was with a young'uri

Was he with this young un (Petitioner) or a different young 1 un?

P.

If I'm not mistaken, it was a different young'un. I don't

remember this young'un being there.

Id at 69-75

Haugabook's testimony as noted above provided a boon for the

defense in that it proved that (1) Petitioner was not the man that

met Derrick Smith at the Walmart where the conspiracy to rob and

kill Percil Carson and Monica Botello was spawned and (2) that

Petitioner was not the dark skinned person in Derrick Smith's

presence in the aftermath of the murders (Id at 75). Nina Funchess

was also called by the prosecution, and was Heugabook, she was

also granted immunity for her testimony (Id at 91 , 93)

11

She testified that on the date in question, she and her boy-

friend "took Derrick Smith to Walmart", where he met with

Haugabook. Petitioner was not present at this meeting, Id at 9697. Derrick Smith asked her to dispose of a bag for him and she

complied by placing it in a dumpster located in the parking lot

of a K-Mart store, Id at 98. Funchess and her infant son, along

with her boyfriend, Derrick Smith and Haugabook, left the state of

Michigan together as a group and traveled to Chicago, Illinois,

where they remained for less than a day. Id at 99-102, 134.

Funchess testimony was useful defense evidence to the extent that,

while she was in the presence of Derrick Smith before and after

the murders, Petitioner was not with him.

Second Trial

At

the second trial, the prosecution did not call Haugabook

or Funchess as witnesses even though they were on the prosecution

witness list. Here, defense counsel failed to call these witnesses

in it's case-in-chief and allowed the prosecution to exclude the

very crucial witnesses from testifying that had exculpatory

evidence to support the defense theory that he was not part of

the plan to rob and kill the victims in this ease.

Trial counsel first allowed one witness testimony to be read

into the record and the other to be excluded all together, trial

counsel's ineffectiveness and prosecutorial suppression of

exculpatory evidence violated the Petitioner's rights to a fair

trial. United States v Bagley, 473 US 667, 682 (1985)., Prejudice

12

is established if there is a reasonable likelihood that, but for

the constitutional violation s the jury would have reached a

different outcome and a reasonable likelihood does not require

that a different outcome be more probable than not. Sea Kyles,v

Whitley, 514 US 419, 434 (1995).

The exculpatory evidence was so compelling that a court can

not have confidence in the outcome of the trial unless the court

is also satisfied that the trial was free of non-harmless

constitutional error. Because, inherent in the right of an

accused to a fair trial, is the right to have effective counsel.

A nd

when a Petitioner asserts ineffective assistance of counsel

based on counsel's failure to present to the trier of facts the

very exculpatory evidence that demonstrates his actual innocence,

canot be viewed as harmless. If the Court look at Michigan Rules

of Professional Conduct Rule 1.3:

"fr lawyer should pursue a matter on behalf of a client

despite opposition, obstruction or personal inconvience

to the lawyer, and make whatever lawful and ethical

measures are required to vindicate a client's cause or

endeavor".

In this case, trial counsel's failure to present available

exculpatory evidence is ordinarily deficient, unless some cogent

tactical or other consideration justified it. Caldwell vLei&is,

414 Fed Appx 809, 815-816 (Cir 2011), quoting Griffin

Warden,

970 F2d 1355, 1358 (6th Cir 1992), Here the difference between

the case that was and the case that should have been is

undeniable. Stewart vWolfenbarger, supra. The prosecution's

13

case-in-chief at the second trial was identical to that presented

at the first trial, with the notable exeception of witnesses

Haugabook and Funchess. The fact that the jury at Petitioner's

first trial, having heard the testimonies of Haugabook and

Funchess, was so significantly divided and thus unable to reach a

unanimous verdict underscores the fact that counsel's failure to

present these witnesses in the defense case-in-chief was far

outside the wide range of professionally competent assistance.

Blackburn

Foltz, 828 F2d 1117, 1183 (6th Cir 1987), Vega ..v Ryan,

735 F3d 1093 (9th Cir 2013).

B) Appellate Counsel Ineffectiveness

If this Honorable Court will review Mapes v.Tate, 388 F3d 187

(6th Cir 2004) where it found that: "[A] defendant is entitled to

the effective assistance of counsel on his first appeal of right,

appellate counsel's performance is judged under the same standard

for evaluating trial counsel's performance found in Strickland v

bJashingtan. In the Sixth Circuit, they consider the following

factors in determining whether an attorney on direct appeal

performed reasonably competently:

were the omitted issues significant and obvious;

was there arguably contrary authority on the omitted issue;

were the omitted issue clearly stronger than those

presented;

were the omitted issues objected to at trial;

were the trial court's ruling subject to deference on

appeal;

14

G) Did appellate counsel testify in a collateral proceeding

as to his appeal strategy and if so, were the justification

reasonable;

7) What was appellate counsel's level of experience and

expertise;

B) Did the Petitioner and appellate counsel meet, and go over

possible issues;

Is the evidence that counsel reviewed all the facts;

Were the omitted issues dealt with in other assignments of

error;

Was the decision to omit an issue an unreasonable one

which only an incompetent attorney would adopt.

Here, the Sixth Circuit has set the requirement and in this

case you must first look at what procedural steps appellate

counsel took and how it affected Petitioner's rights. In the

original brief filed by appellate counsel, they filed a motion to

remand for ineffective assistance of trial counsel but not on the

fact that counsel failed to object to witness testimony being read

into the record and counsel's fai1ure to cell both exculpatory

witnesses to the stand, the obvious omition of these issues and

the approach affected Petitioner's substantial appellate rights.

Appellate counsel could have resolved all these issues in the

trial court before proceeding to the appellate courts by filing a

motion for new trial based upon ineffective assistance of trial

counsel pursuant to Michigan Court Rules 7.208(8) that states:

(1) no later than 66 days after the commencement of the time

for filing the defendant-appellant brief as provided by

MCR 7.212(A)(1)(a)(iii), the defendant may file in the

trial court a motion for a new trial, for judgment of

acquittal, to withdraw a plea, or for resentencing.

15

By appellate counsel following this procedure would have

preserved the issues on the record and gave the trial court time

to address the claim properly, instead, appellate counsel filed

two pleadings in the Michigan Court of Appeals with respect to

Petitioner's appeal of right. The first was the Standard brief on

appeal which presented two grounds for appeal. The second was a

two page pleading nomenclatured "motion to remand for ineffective

assistance of counsel" with an appended one half page pleading

styled as an "offer of proof in support of Defendant-Appellant's

motion to remand for ineffective assistance of counsel".

The pleadings filed by appellate counsel were completely

defective briefs filed in the Michigan Court of Appeals must

contain a clear, concise, and separately number list of the

questions to be considered on appeal. MCR 7.212(C)(5) issues not

placed in the statement of questions presented are waived. See

Woods

Booker, 450 Fed Appx 480, 490 (6th Cir 2011). Because the

instant issue was not included in the statement of questions

presented in the brief on appeal, the Michigan Court of Appeals

did not did not address this claim in it's per curiam order

affirming Petitioner's conviction. See Appendix:D, People .v..Devi

Loren Smith, No#306574, 11/27/2012.

Appellate counsel's performance in the instant case was pro

forma at best. The Supreme Court has observed that this sort of

"nominal representation on an appeal as of right does not suffice

to render the proceedings constitutionally adequate". Evitts.v

16

Lucey, 469 US 396. Under the Sixth Amendment, counsel's

representation was so deficient that it resulted in Petitioner's

claim of ineffective assistance of counsel claim being buried on

his appeal of right.

The treatment of this claimby the Michigan Courts

Because of the failure of appellate counsel as delineated

herein, it became incumbent upon Petitioner to present his

ineffective assistance of counsel claim be way of a motion for

relief fromjudgment filed pursuant to MCR 6.500. The trial court,

the only Michigan Court to render a reasoned opinion with respect

to this issue, held in relevant part that:

"Given the evidence at trial placing defendant at the

scene of the crime defendant has filed to establish

that the testimony of Haugabook and Funchess would

have made a difference in the outcome of the trial.

The victims' daughter was the key prosecution

witness and testified that she observed defendant

and another man in the house where she, her sister,

her mother, and the other victim, her mother's boyfriend, were located.

At some point, defendant and the other man came into

the room where the victims' daughter and her sister

were watching T.V. and directed them to get into the

bathroom. The victims' daughter saw defendant with a

gun. Further, in defendant's statement to police, he

admitted to being in the house right before the murder

occurred, although he claimed he left after witnessing

his co-defendant bind the male victim's hands with

duct tape".

Opinicn, Third Judicial Circuit Court, Case Wo# 10-010956-01--FC,

9/16/2014 at 3-4. The trial court overstated the exactitude of

Monica Botellos ten year old daughter, Tayonna Botella

identification, as demonstrated in the following:

17

THE PROSECUTOR: When the other guy (Derrick Smith) did that with

the duct tape, did you see Devi Smith there, this

guy there?

TPVONNA..BOSTELLO:

I dont remember.

Q. During the part when you were in the bathroom do you remember

seeing this man (Devi Smith) at all?

A. I dent remember.

Transcript, 7/27/2011 at 136.

When asked on crass-examination if she could remember the

style of hair worn by the perpetrator she stated that he didn ' t

have heir. Id at 173. Shantell Crankfield was called in the

prosecution's case-in-chief. Transcript? 7/2e/2011 at 11

.

She had

been friends with Monica Botello for like ten years and she saw

Petitioner at the residence in question on the day of the murder.

She was asked about his appearance on the date in question:

THE-PROSECUTOR: Can you remember as you sit there now, if there

was anything different today about the appearnce

of Petitioner?

MS CRANK-FIELD: I just remember him having on dark clothes and

had his head down.

0. Do you remember anything about his hair?

A. I think if I remember, it looked like he had braids at the

time.

Transcript, 7/2B/2011 at 19.

While ten year old Tayonna described an assailant who did not

have any heir, an adult witness specifically recalled that

Petitioner ware his hair in a braided fashion. when asked on

direct examination if Petitioner wore a hat on date in question,

16

Tayonna stated that she could not remember. Transcript, 7/27/2011

at 156. however, when interviewed by the police, she told them

that the dark complected assailant was wearing a brown baseball

hat, Transcript 7/28/2011, at 143. Crankfield, however, indicated

that she did not recall Petitioner wearing a hat. Transcript,

7/2B/2011 , at 20, 40.

Contrary to the trial court's claim, Botello's description of

the perpetrator was not so beyond reproach as to nullify the

effect of defense counsel's failure to call Haugabook and Funchess

as witnesses.

-

PREJUDICE

The performance of Petitioner's attorneys as described supra,

were constitutionally deficient and prejudiced Petitioner at trial

and on appeal. When evaluating prejudice to a habeas petitioner,

a reviewing court must take into account the totality of the

circumstances, as well as the relative strength of the case

proffered by the prosecution. Campbel1v.Coyle, 250 F3d 531, 551

(5th Cir 2001).

As previously noted, the case against Petitioner hinged upon

Tayonna Botello's identification, which in reality left much to

be desired. The jurors in the second trial did not hear from

Haugabbok and Funchess, and as a result their verdict rested on

the narrow ground of Botello's testimony. Foster v Wolfenbarger,

687 F3d 702, 710 (5th Cir 2012). had the jury been presented with

19

this additional exculpatory evidence, there was a strong

likelihood of tipping the scales in the other direction, also sea

Mandi vBagley, 522 F3d 631 (6th Cir 2008), cart denied 129 Sot

1986 (2009) indicates that: "on the first appeal of right, a

defendant is entitled to effective assistance of appellate

counsel".

The court of appeals for the Sixth Circuit has concluded that

a reviewing court should focus or whether counsel's alleged errors

have undermined the reliability of and confidence in the result.

McQueen.vScroggy, 99 F3d 1302, 1311 (6th Cir 1996). On balance,

the benchmark for judging any claim of ineffectiveness must be

whether counsel's conduct so undermined the proper functioning of

the adversarial process that the proceeding cannot be relied on

as having produced a just result. Id at 1311-12 (quoting

Strickland, 466 US 686),

The instant issue was clear on the face of the record and

when appellate counsel failed to preserve this issue in the trial

court pursuant to MCR 7.208(8), it severly prejudiced

Petitioner's appellate rights, the Sixth Circuit is clear on this

aspect as stated in Beasley

V

US, 491 F2d 687, 696 (6th Cir 1971+)

"holding that it is a violation of the Sixth Amendment for defense

counsel to deprive a criminal d.fendant of a substantial defense

by his own ineffectiveness or incompetence". See Bigelow .v

Haviland, 576 F3d 284, where trial counsel failed to take minimal

steps, was objectively unreasonable. Ramonez v Berghuis, 490 F3d

20

482 (6th Cir 2007), Martinez v.Ryan, 132 5ct 1309 (2012).

Importance..of the question presented

It has long been recognized that the right to counsel is the

right to the effective assistance of counsel. McMann v.Richardson,

397 US 759, 771 N. 114. (1970). Indeed, over fifty years ago, the

Supreme Court held that the Sixth Amendment right to the effective

assistance of counsel is so fundamental and essential to a fair

trial, and due process of law., that it is made obligatory upon the

states by the fourteenth amendment. tideonvWainwright, 372 US

335 (1963), Betts

Brady, 316 US 455. 465 (1942).

In this case, Petitioner who had a second trial., and during a

critical stage in these proceedings defense counsel silence shows

deficient performance by not objecting to the reading of an

exculpatory witness previous testimony in a new trial that had

violated the right to compulsory process because a defendant in a

state criminal trial is denied his constitutional right to have

compulsory process for obtaining witnesses in his favor. When a

trial lawyer has arbitrarily denied the defendant an opportunity

to out on the stand a witness who was physically and mentally

capable of testifying to events that he or she had personally

observed, and whose testimony would have been relevant and

material to the defense. Washington v Texas, 388 US 14.

Here was truly a critical stage of the proceedings to

introduce exculpatory evidence by the way of the prosecution own

21

witnesses and whether a proceeding is a critical stage depends on

whether there was a reasonable probability that the defendant's

case would suffer significant consequences from his total denial

of counsel at the stage, the overarching legal question of

whether a particular proceeding is a critical stage of the case

should focus not only on the specific case but the general

question of whether such a stage is critical. Van v3ones, 475

F3d 292, 313-14 (6th CIr 2007), see also US

Hillsman, 40 E3d

333 (2007), and Colemanv Alabama, 399 US 1, 90 Sct 1999 (1970).

The Sixth Amendment guarantees that in all criminal

prosecutions, the accused shall enjoy the right to have assistance

of counsel for his defense. it is also well established that the

accused is entitled to the assistance of counsel not only at the

trial itself, but at all critical stages of his prosecution. If

counsel for the accused is totally abs;pt during a critical stage,

then there is

8

presumption of prejudice under Cronic, 466 US at

659, and reversal is automatice,

This Court has uniformly found constitutional error without

any showing of prejudice when counsel was either totally absent

or prevented from assisting the accused during a critical stage

of the proceeding. Gedars vUnited Sates, 425 US 80, 96 Sct 1330,

47 Led 2d 592 (1976), Herring v.New,Vork, 422 US 853 (1975),

Brooks .vTennessee, 406 US 605 (9172). Hamilton v Alabama, 358 US

52 (1961), W!itMarylend, 373 US 59 (1963).

22

In order to asses if a given portion of a criminal procee

ding

is a critical stage, you must ask how likely it is that

significant consequences might have resulted from the absenc

e of

counsel at that stage of the criminal proceeding. See Cronic

,

1+66 US 659, look at (1) a critical stage presents a moment

available defenses maybe irretrievably lost, if not then

when

and there

asserted. Hamilton, 368 US at 53; (2) a critical stage

is one

where rights are presented or lost, White, 373 US at 60;

(3)

counsel's assistance is guaranteed whenever necessary to

mount a

meaningful defense, Wade, 388 US at 225; (4) determinatio

n as to

whether a hearing is a critical stage requiring provision

of

counsel depends upon an analysis whether potential substa

ntial

prejudice defendant's rights inhere's in the confrontatio

n and the

ability of counsel to help avoid prejudice, Coleman, 399

US at 9;

and (5) a critical stage holds significant consequences for

the

accused. Bell, 535 US at 696.

If you look at Patterson v Illinois, 487 US 285 (1988), where

a preceedirig is adversarial, counsel is needed to render

assistance in counter balancing any overreaching by the

prosecution. Id at 314.

CONCLUSION

A prisoner's inability to present a claim of trial error

is

of particular concern when the claim is one of ineffective

assistance of counsel. The right to the effective assistance

of

counsel at trial is a bedrock principle in our justice system

. It

23

is deemed as an "obvious truth's the idea that any person haled

into court, has a right to effective counsel that is the core

foundation for our adversary system. Defense counsel tests the

prosecution's case to ensure that the proceedings serve the

function of adjudicating guilt or innocence, while protecting the

rights of the person charged. Powell vAlabema, 287 US 45 (1932).

[The defendant] requires the guiding hand of counsel at every step

In the proceedings against him, without it, though he be not

guilty, he faces the danger of conviction because he does not

know how to establish his innocence, Effective counsel preseves

claim4 to be considered on appeal. See e.g. Fed Rule Crirn. Proc.

52(b)

and in federal habeas proceedings, Edwards v.Cerpenter, 529

US 446 (2000).

WHEREFORE, for the foregoing reasons, certiorari should be

granted in this case.

Respectfully submi ted,

iiIated

5

)

/

vi Loran Smith

24