Petition for Writ of Certiorari — Rolando Q. Alvarado, Petitioner v. Connie Horton, Warden

Supreme Court briefMay 26, 2020

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NO.

IN THE SUPREME COURT OF THE UNITED STATES

ROLANDO Q. ALVARADO,

Petitioner,

STATE OF MICHIGAN,

Respondent.

PETITION FOR WRIT OF CERTIORARI

BY:

Rolando Q. Alvarado #220885

Alger Correctional Facility

N6141 Industrial Park Drive

Munising, Mich. 49862

RECEIVED

JUN 1 0 2020

©FFICE OF THE CLERK

SUPREME COURT, U-S.

QUESTION PRESENTED FOR REVIEW

IS THE DECISION OF THE SIXTH CIRCUIT COURT OF APPEALS BASED

ON AN UNREASONABLE DETERMINATION OF THE FACTS INASMUCH

AS IT IS BASED ON AN INCOMPLETE RECORD, THROUGH NO FAULT

OF THE PETITIONER AND IS SUCH OPINION CONTRARY TO THIS

COURT’S PRECEDENT ON 28 U.S.C.S. §2254(d)(2).

TABLE OF CONTENTS

TABLE OF AUTHORITIES

QUESTION PRESENTED FOR REVIEW

PARTIES TO THE PROCEEDINGS

Vll

OPINIONS BELOW

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STATEMENT OF JURISDICTION

CONSTITUTIONAL, STATUTORY PROVISIONS, COURT RULES INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT:

CERTIORARI IS APPROPRIATE BECAUSE THE DECISION OF THE SIXTH

CIRCUIT COURT OF APPEALS IS BASED ON AN UNREASONABLE

DETERMINATION OF THE FACTS INASMUCH AS IT IS BASED ON AN

INCOMPLETE RECORD, THROUGH NO FAULT OF THE PETITIONER

AND IS CONTRARY TO THIS COURT’S PRECEDENT ON 28 U.S.C.S.

§2254(d)(2)

The State Court’s Denial of Petitioner’s Ineffective Assistance of Counsel

Claim Without Providing Him an Opportunity to Present Evidence In

Support Of His Claim At An Evidentiary Hearing Involved An

Unreasonable Application Of Clearly Established Supreme Court Law

And Was Based On An Unreasonable Determination Of The Facts In Light

Of The Evidence Presented.

28 U.S.C. §2254(d)(l)

28 U.S.C. §2254(d)(2)_

Trial counsel performs unreasonably by failing to present sources of

evidence that could mitigate the crime or punishment or prove

innocence

I'v

CONCLUSION

APPENDIX A:

People v Alvarado. COANo. 325121; 2016 Mich App Lexis 451

APPENDIX B:

People v Alvarado. 500 Mich 857 (Sept. 6, 2016)

APPENDIX C:

Alvarado v Bauman, 2019 US Dist LEXIS 171865

.21

APPENDIX D:

Alvarado v Horton, 2020 US App LEXIS 4484

,25

TABLE OF AUTHORITIES

CASES

Angel v. Bullington, 330 U.S. 183, 67 S. Ct. 657, 91 L. Ed. 832 (1947)

11,12

Bennett v. Stirling, 170 F. Supp. 3d 851, 861 (DCSC, 2016)

Cash v. Culver, 358 U.S. 633, 79 S. Ct. 432, 3 L. Ed. 2d 557 (1959)

Davis v. Wechsler, 263 U.S. 22, 44 S. Ct. 13, 68 L. Ed. 143 (1923)

10,11

Fordv. Wainwright, 477 U.S. 399, 106 S. Ct. 2595, 91 L.Ed.2d 335 (1986)

Hurles v. Ryan, 650 F.3d 1301, 1311-14 (9th Cir. 2011), opinion substituted, aff’d in

part and rev’d in part at 752 F.3d 768 (9th Cir. 2014)

Issa v. Bradshaw, 904 F. 3d 446, 461-62 (6th Cir. 2018),

12, 14

Lor v. Felker, 2012 U.S. Dist. LEXIS 64058, 2012 WL 1604519 (E.D. Cal., May 7,

2012)

McNeal v. Culver, 365 U.S. 109, 81 S. Ct. 413, 5 L.Ed.2d 445 (1961)

Palazzolo v. Burt, 778 F.Supp.2d 805, 811 (E.D. Mich. 2011)

10,11

Panetti v. Quarterman, 551 U.S. 930, 127 S. Ct. 2842, 168 L.Ed.2d 662 (2007).... 8,9

Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 76 S. Ct. 223, 100 L.Ed. 126

(1956)

People v Ginther, 390 Mich. 436, 212 N.W.2d 922 (1973)

People v. Bouden, 393 Mich. 253, 227 N.W.2d 213 (1974)

Plummer v. Jackson, 491 F. App’x. 671, 680-81 (6th Cir. 2012)

Ramonez v. Berguis, 490 F. 3d 482 (CA6, 2007),

8,15

Taylor v. Maddox, 366 F.3d 992 (9th Cir. 2004)....

Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527, 156 L.Ed.2d 471 (2003)

9,11,15

Williams v. Woodford, 859 F.Supp.2d 1154, 1156-59 (E.D.Cal. 2012)

13, 14

CONSTITUTIONS, STATUTES, COURT RULES

7,8,11

28 U.S.C. §2254

Mich. Comp. Laws. § 750.83

1,2

Mich. Comp. Laws. § 750.227

Mich. Comp. Laws 769.12

7,8

Mich. Comp. Laws. § 769.34(2)

PARTIES TO THE PROCEEDING

All parties appear in the caption of the case on the cover page.

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OPINIONS BELOW

The unpublished March 8, 2016, per curiam opinion and order of the Michigan Court of

Appeals, the September 6, 2016, summary order of the Michigan Supreme Court published at

500 Mich 857 (2016), the unpublished January 18, 2019, order of the United States District

Court denying habeas relief and the February 12, 2020, order of the United States Court of

Appeals for the Sixth Circuit declining to issue a certificate of appealability are reproduced in

the appendix to this petition. See Appendix pgs. 17-25.

•-S

STATEMENT OF JURISDICTION

Petitioner seeks review of the February 12, 2020, opinion of the United States Court of

Appeals for the Sixth Circuit. This Court has jurisdiction pursuant to 28 U.S.C. § 1257.

CONSTITUTIONAL. STATUTORY PROVISIONS AND COURT RULES INVOLVED

Constitutional Provisions

U.S. Const., Amend. VI: “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 against him; to have

compulsory process for obtaining witnesses in his favor, and to have the

Assistance of Counsel for his defense.”

U.S. Const., Amend. XIV: “All persons bom or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens of the United States and

of the State wherein they reside. No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty, or property, without due

process of law; nor deny to any person within its jurisdiction the equal protection

of the laws.”

State Statutory Provisions

Mich. Comp. Laws § 750.83-

Sec. 83.

“Assault with intent to commit murder-Any person who shall assault another with

intent to commit the crime of murder, shall be guilty of a felony, punishable by

imprisonment in the state prison for life or any number of years.”

Mich. Comp. Laws § 750.227

Sec. 227.

“(1) A person shall not carry a dagger, dirk, stiletto, a double-edged nonfolding

stabbing instrument of any length, or any other dangerous weapon, except a

hunting knife adapted and carried as such, concealed on or about his or her person,

or whether concealed or otherwise in any vehicle operated or occupied by the

person, except in his or her dwelling house, place of business or on other land

possessed by the person.

(2) A person shall not carry a pistol concealed on or about his or her person, or,

whether concealed or otherwise, in a vehicle operated or occupied by the person,

except in his or her dwelling house, place of business, or on other land possessed

by the person, without a license to carry the pistol as provided by law and if

licensed, shall not carry the pistol in a place or manner inconsistent with any

restrictions upon such license.

(3) A person who violates this section is guilty of a felony, punishable by

imprisonment for not more than 5 years, or by a fine of not more than $2,500.00.”

Mich. Comp. Laws §769.12

Sec. 12.

“(1) If a person has been convicted of any combination of 3 or more felonies or

attempts to commit felonies, whether the convictions occurred in this state or

would have been for felonies or attempts to commit felonies in this state if

obtained in this state, and that person commits a subsequent felony within this

state, the person shall be punished upon conviction of the subsequent felony and

sentencing under section 13 of this chapter as follows:

(a) If the subsequent felony is a serious crime or a conspiracy to commit a serious

crime, and 1 or more of the prior felony convictions are listed prior felonies, the

court shall sentence the person to imprisonment for not less than 25 years. Not

more than 1 conviction arising out of the same transaction shall be considered a

prior felony conviction for the purposes of this subsection only.

(b) If the subsequent felony is punishable upon a first conviction by imprisonment

for a maximum term of 5 years or more or for life, the court, except as otherwise

provided in this section or section 1 of chapter XI, may sentence the person to

imprisonment for life or for a lesser term.

for a maximum term that is less than 5 years, the court, except as otherwise

provided in this section or section 1 of chapter XI, may sentence the person to

imprisonment for a maximum term of not more than 15 years.

(d) If the subsequent felony is a major controlled substance offense, the person

shall be punished as provided by part 74 of the public health code, 1978 PA 368,

MCL 333.7401 to 333.7461.

(2) If the court imposes a sentence of imprisonment for any term of years under

this section, the court shall fix the length of both the minimum and maximum

sentence within any specified limits in terms of years or a fraction of a year, and

the sentence so imposed shall be considered an indeterminate sentence. The court

shall not fix a maximum sentence that is less than the maximum term for a first

conviction.

(3) A conviction shall not be used to enhance a sentence under this section if that

conviction is used to enhance a sentence under a statute that prohibits use of the

conviction for further enhancement under this section.

(4) An offender sentenced under this section or section 10 or 11 of this chapter for

an offense other than a major controlled substance offense is not eligible for

parole until expiration of the following:

(a) For a prisoner other than a prisoner subject to disciplinary time, the minimum

term fixed by the sentencing judge at the time of sentence unless the sentencing

judge or a successor gives written approval for parole at an earlier date authorized

by law.

(b) For a prisoner subject to disciplinary time, the minimum term fixed by the

sentencing judge.

(5) This section and sections 10 and 11 of this chapter are not in derogation of

other provisions of law that permit or direct the imposition of a consecutive

sentence for a subsequent felony.

(6) As used in this section:

(a) “Listed prior felony” means a violation or attempted violation of any of the

following:

(i) Section 602a(4) or (5) or 625(4) of the Michigan vehicle code, 1949 PA 300,

MCL 257.602a and 257.625.

(w) Article 7 of the public health code, 1978 PA 368, MCL 333.7101 to 333.7545,

that is punishable by imprisonment for more than 4 years.

(iii) Section 72, 82, 83, 84, 85, 86, 87, 88, 89, 91, 110a(2) or (3), 136b(2) or (3),

145n(l) or (2), 157b, 197c, 226, 227, 234a, 234b, 234c, 317, 321, 329, 349, 349a,

350, 397, 41 lh(2)(b), 41 li, 479a(4) or (5), 520b, 520c, 520d, 520g, 529, 529a, or

530 of the Michigan penal code, 1931 PA 328, MCL 750.72, 750.82, 750.83,

750.84, 750.85, 750.86, 750.87, 750.88, 750.89, 750.91, 750.110a, 750.136b,

750.145n, 750.157b, 750.197c, 750.226, 750.227, 750.234a, 750.234b, 750.234c,

750.317, 750.321, 750.329, 750.349, 750.349a, 750.350, 750.397, 750.411h,

750.41 li, 750.479a, 750.520b, 750.520c, 750.520d, 750.520g, 750.529, 750.529a,

and 750.530.

(iv) A second or subsequent violation or attempted violation of section 227b of the

Michigan penal code, 1931 PA 328, MCL 750.227b.

(v) Section 2a of 1968 PA 302, MCL 752.542a.

(b) “Prisoner subject to disciplinary time” means that term as defined in section

34 of 1893 PA 118, MCL 800.34.

84, 86, 88, 89, 317, 321, 349, 349a, 350, 397, 520b, 520c, 520d, 520g(l), 529, or

529a of the Michigan penal code, 1931 PA 328, MCL 750.83, 750.84, 750.86,

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750.88, 750.89, 750.317, 750.321, 750.349, 750.349a, 750.350, 750.397,

750.520b, 750.520c, 750.520d, 750.520g, 750.529, and 750.529a.”

STATEMENT OF THE CASE

Petitioner Rolondo Q. Alvarado was charged with assault with intent to murder Mich.

Comp. Laws (MCL) 750.83, and carrying a concealed weapon (CCW), MCL 750. 227.

Petitioner was sentenced by the trial court as a fourth-offense habitual offender under MCL

769.12 to 35-70 years’ imprisonment for the assault with intent to murder and CCW convictions.

The facts surrounding the incident that led to Petitioner’s convictions were recited by the

Michigan Court of Appeals. See People v Alvarado, 2016 Mich App LEXIS 451 at *1-3.

Petitioner’s convictions derive from a disagreement between Petitioner and his roommate who

told Petitioner to either move out, or control his drinking. Petitioner told his roommate that he

would move out but demanded his half of the money that he invested into their sliding

installation business. Id. pgs. 1-2.

Price told Petitioner to leave and followed Petitioner as he walked to the door of the

home. As they reached the door of the home, Price testified that Petitioner turned around and

stabbed him in the stomach. The two men fought and Price picked up a bat and swung the bat at

the Petitioner and Petitioner started to leave, then according to Price, as he turned and walked up

the steps to call 911, Petitioner stabbed Price in the back. Price testified that he turned around

and swung the bat at Petitioner hitting him in the knees and then and fell to the ground and

Petitioner got on top of him and started stabbing him. People v Alvarado, supra, at *2

The Court of Appeals affirmed Petitioner’s convictions in an unpublished per curiam

opinion. The Court also denied Petitioner’s request to remand for an evidentiary hearing to create

a record to support Petitioner’s ineffective assistance of counsel claim. People v Alvarado, supra,

at *3. Petitioner’s application for leave to appeal to the Michigan Supreme Court was denied.

People v Alvarado, 500 Mich 857 (2016).

The United States District Court denied Petitioner’s pro per petition for a writ of habeas

corpus and declined to issue a certificated of appealability.

On February 12, 2020, the United States Court of Appeals for the Sixth Circuit rejected

Petitioner’s request for a certificate of appealability based on his lone Sixth-Amendment

ineffective assistance of counsel claim. The opinion stated in pertinent part:

“In February 2014, Alvarado stabbed his housemate, Michael Price, several times

with a knife following a disagreement about money. Price, who survived the

stabbings, testified at trial that Alvarado first stabbed him in the stomach as he

tried to usher Alvarado out of the house. Price testified that he and Alvarado

proceeded to fight outside, with Alvarado swinging the knife at him while he

swung a baseball bat at Alvarado. Eventually, Alvarado turned and exited a gate in

front of the home, at which time Price turned to walk up the front porch steps so

that he could reenter the house and call 9-1-1. Price testified that as he stepped on

the first step, Alvarado stabbed him in the back. Price then swung the bat at

Alvarado and fell [*2] to the ground, whereupon Alvarado got on top of him and

repeatedly stabbed him before leaving the scene. People v. Alvarado, No. 325121,

2016 Mich. App. LEXIS 451, 2016 WL 902225, at *1 (Mich. Ct. App. Mar. 8,

2016) (per curiam), perm. app. denied, 500 Mich. 857, 883 N.W.2d 759 (Mich.

2016).

A Michigan jury convicted Alvarado of assault with intent to murder, in violation

of Michigan Compiled Laws § 750.83, and carrying a concealed weapon, in

violation of Michigan Compiled Laws § 750.227. The trial court sentenced

Alvarado as a fourth-offense habitual offender, see Mich. Comp. Laws § 769.12,

to concurrent terms of 35 to 70 years' imprisonment. On direct appeal, Alvarado

argued that trial counsel rendered ineffective assistance by not impeaching Price

with information contained in the police report and hospital records. Specifically,

Price's statement to the police omitted any mention of Alvarado stabbing him at

the bottom of the porch steps, and the hospital records allegedly showed that

Price's injuries were less significant than he claimed in his trial testimony.

Alvarado contended that, had counsel impeached Price with this information, the

jury might have convicted him of the lesser charge of assault with intent to

commit great bodily harm. The Michigan Court of Appeals affirmed. Alvarado,

2016 Mich. App. LEXIS 451, 2016 WL 902225, at *4.

In June 2017, Alvarado filed a § 2254 petition, in which he reasserted the claim

that he advanced on direct appeal. Over Alvarado's objections, [*3] the district

court adopted the magistrate judge's recommendation to deny the habeas petition

on the merits and not issue a COA. Alvarado now seeks a COA on his sole habeas

claim. A COA may be issued "only if the applicant has made a substantial

showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); Miller-El

v. Cockrell, 537 U.S. 322, 336, 123 S. Ct. 1029, 154 L. Ed. 2d 931 (2003). In

order to be entitled to a COA, the movant must demonstrate "that jurists of reason

could disagree with the district court's resolution of his constitutional claims or

that jurists could conclude that the issues presented are adequate to deserve

encouragement to proceed further." Miller-El, 537 U.S. at 327.

The Michigan Court of Appeals, relying on state case [*4] law that incorporates

the Strickland standard, Early v. Packer, 537 U.S. 3, 8, 123 S. Ct. 362, 154 L. Ed.

2d 263 (2002), rejected Alvarado's claim because Alvarado failed to establish that

trial counsel had performed deficiently. Alvarado, 2016 Mich. App. LEXIS 451,

2016 WL 902225, at *2-3 (citing People v. Trakhtenberg, 493 Mich. 38, 826

N.W.2d 136, 143 (Mich. 2012)). This was because counsel adequately

"questioned Price about the stabbing that Price claimed to have occurred at the

bottom of the porch" and subsequently cross-examined an eyewitness "regarding

discrepancies with Price's account, in an attempt to impeach Price." 2016 Mich.

App. LEXIS 451, [WL] at *3. The state appellate court noted that, although the

police report might have "contained additional information that defense counsel

could have used to further impeach Price," counsel was "not ineffective in failing

to exhaustively impeach a witness on every conceivable point; rather, defense

counsel was required to develop [Alvarado's] defense by adequately impeaching

the witnesses against him." Id. It further determined that it was sound trial

strategy for counsel to not question Price about his police statement lest the jury

perceive counsel "as bullying Price about a statement he had made in the hospital

after receiving surgery to repair the life-threatening injuries he had sustained." Id.

With respect to counsel's failure to impeach Price with the hospital [*5] records,

the state appellate court determined, in part, that those records "contained]

numerous statements regarding the seriousness of Price's injuries and the fact that

he had sustained several serious wounds to his back," and thus it was sound trial

strategy for counsel not to provide the jury with that evidence. Id.

The district court adopted the magistrate judge's conclusion that the state appellate

court's resolution of Alvarado's claim did not involve an unreasonable application

of Strickland. It also adopted the magistrate judge's conclusion that the record

strongly supported the state appellate court's analysis. In reaching the latter

conclusion, the magistrate judge noted that Alvarado understated the effectiveness

of counsel's impeachment effort, as evidenced by the prosecutor's efforts during

closing argument "to diminish the significance" of the eyewitness's and Price's

divergent testimony. The magistrate judge also determined that Alvarado

overstated the benefit of further impeaching Price with either the police report or

the hospital records. This was because the police report suggested that Alvarado

stabbed Price as he lay helplessly on the ground, whereas Price's trial [*6]

testimony—which "suggested an uninterrupted physical battle, with both parties

landing blows, from the first swing of the bat to [Alvarado] inexplicably walking

away"—strengthened Alvarado's claim that Price provoked the stabbings. And

although the hospital records did not describe the depth of Price's stab wounds,

there was ample evidence in the record concerning the life-threatening nature of

those wounds. Thus, the magistrate judge concurred with the state appellate court

that counsel's decision to forego additional impeachment of Price with the police

report or hospital records was strategic. Considering the foregoing, reasonable

jurists could not debate the district court's resolution of this claim.

The Michigan Court of Appeals opinion that the Sixth Circuit relied on in reaching its decision

was based on an unreasonable determination of the facts. Specifically, the Court of appeals

prohibited Petitioner from fully developing his claim by denying Petitioner’s timely and properly

filed motion to remand for an evidentiary hearing pursuant to People v Ginther, 390 Mich 436,

444.445; 212 NW2d 922 (1973).

The Michigan Court of Appeal stated in pertinent part:

“Defendant was convicted as described above. Defendant moved this Court to remand the

case to the trial court for a Ginther hearing on the issue of the effectiveness of his trial counsel,

arguing that his counsel was ineffective in failing to introduce portions ofForner's police report,

and portions of Price's medical records, to impeach Price regarding his version of the events.

This Court denied his motion. This appeal followed, limited to the issue of defense counsel's

effectiveness. (Emphasis added), footnotes omitted.

III. ANALYSIS

Defendant contends that he was denied the effective assistance of counsel when defense

counsel did not impeach Price with information contained in excerpts of the police report and

hospital records. We disagree.

To establish ineffective assistance of counsel, defendant must show: (1) counsel's

performance fell below an objective standard of reasonableness and (2) but for counsel's

deficient performance, there is a reasonable probability that the outcome would have been

different. [.People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012), citing People v

Armstrong, 490 Mich 281, 290; 806 NW2d 676 (2011).]

"Effective assistance of counsel is presumed, and the defendant bears a heavy burden of

proving otherwise." People v Lockett, 295 Mich App 165, 187; 814 NW2d 295 (2012). In ruling

on claims of ineffective assistance of counsel, we affirmatively consider the range of possible

reasons that defense counsel may have proceeded as he did. People v Gioglio (On Remand), 296

Mich App 12, 22; 815 NW2d 589 (2012), vacated in part on other grounds 493 Mich 864 (2012).

This Court "will not substitute our judgment for that of defendant's counsel, nor will we [*5] use

the benefit of hindsight to assess counsel's performance." People v Unger (On Remand), 278

Mich App 210, 258; 749 NW2d 272 (2008). "A particular strategy does not constitute ineffective

assistance of counsel simply because it does not work." People v Matuszak, 263 Mich App 42, 61;

687 NW2d 342 (2004). However, "[cjounsel may provide ineffective assistance if counsel

unreasonably fails to develop the defendant's defenses by adequately impeaching the witnesses

against the defendant." People v Lane, 308 Mich App 38, 68; 862 NW2d 446, 465 (2014).

The excerpts of the police report and hospital records that defendant attached to his brief

on appeal are not contained in the lower court record. Additionally, because this Court denied his

motion to remand, these documents were not made a part of the post-trial record. However,

because defendant argues that his counsel's failure to make these documents a part of the lower

court record was the basis for his claim of ineffective assistance, we will nonetheless consider

them in reviewing his claim. See People v Payne, 285 Mich App 181, 190; 774 NW2d 714 (2009)

(failure to introduce evidence may be ineffective assistance of counsel if it deprives defendant of

a substantial defense).

Our review of the record reveals that defense counsel's cross-examination of Price was

adequate to develop defendant's defense that Price was not credible and that defendant did not

have the intent to murder the victim. [*6] Lane, 308 Mich App at 68. Defense counsel questioned

Price about the stabbing that Price claimed to have occurred at the bottom of the porch. Toward

the end of defense counsel's cross-examination, defense counsel asked Price whether he knew

there was an eyewitness to the attack; Price responded that he did not. Defense counsel's trial

strategy was clearly to show that Price was not credible. Questioning Price on his recollection to

firmly establish his version of the events, and cross-examining the eyewitness regarding

discrepancies with Price's account, in an attempt to impeach Price, was sound trial strategy for

defense counsel even though it did not work. Matuszak, 263 Mich App at 61. Defense counsel's

conduct in attempting to impeach Price was not objectively unreasonable. Lane, 308 Mich App at

68. Although defendant argues that the police report contained additional information that

defense counsel could have used to further impeach Price, counsel is not ineffective in failing to

exhaustively impeach a witness on every conceivable point; rather, defense counsel was required

to develop defendant's defense by adequately impeaching the witnesses against him. Lane, 308

Mich App at 68. Moreover, by not questioning Price about his statements to Fomer, defense

counsel did not risk [*7] being seen as bullying Price about a statement he had made in the

hospital after receiving surgery to repair the life-threatening injuries he had sustained. This

strategy was within the range of possible reasons that defense counsel may have acted as he did.

Gioglio (On Remand), 296 Mich App at 22. Therefore, defendant cannot demonstrate that failing

to explicitly impeach Price using statements contained in the police report, rather than relying on

his impeachment through the eyewitness's testimony, was not sound trial strategy. Trakhtenberg,

493 Mich at 51.

Defendant's argument that defense counsel was ineffective in failing to impeach Price

about the length of his hospitalization, or about Price's statement that he saw the tip of the knife

protruding from his chest, as reflected in the medical records, is also without merit. First,

defendant makes no showing that those portions of the hospital records were admissible at trial,

as the length of Price's hospitalization and whether he could see the knife's tip protrude from his

chest, arguably were not "evidence having any tendency to make the existence of any fact that is

of consequence to the determination of the action more probable or less probable than it would

be without the evidence." MRE 401. Second, [*8] even assuming the hospital records could have

been admitted at least for impeachment purposes, MRE 613(b), nothing in the records attached to

defendant's motion to remand or brief on appeal supports defendant's contention that Price was

hospitalized for less than one month (as defendant suggests), or that Price could not have seen

the tip of the knife protruding from his chest. Additionally, because the hospital records contain

numerous statements regarding the seriousness of Price's injuries and the fact that he had

sustained several serious wounds to his back, it was sound trial strategy for defense counsel not

to provide the jury with additional evidence of Price's injuries. Gioglio (On Remand), 296 Mich

App at 22. Therefore, defendant has failed to establish that defense counsel was deficient in this

regard so as to overcome the presumption of effective assistance of counsel. Lockett, 295 Mich

App at 187.”

Petitioner Alvarado now seeks certiorari from this Court.

REASONS FOR GRANTING THE WRIT

CERTIORARI IS APPROPRIATE BECAUSE THE DECISION OF THE

SIXTH CIRCUIT COURT OF APPEALS IS BASED ON AN

UNREASONABLE DETERMINATION OF THE FACTS INASMUCH AS

IT IS BASED ON AN INCOMPLETE RECORD, THROUGH NO FAULT

OF THE PETITIONER AND IS CONTRARY TO THIS COURT’S

PRECEDENT ON 28 U.S.C.S. §2254(d).

Introduction, this case presents the opportunity for this Court to determine whether it is

inconsistent with 28 U.S.C. §2254(d)(2) for a state court to deny relief on a federal constitutional

claim after denying a party’s timely request to create a testimonial record to support such a claim

when the record is incomplete. Petitioner respectfully submits that the state court unreasonably

determined the facts under section 2254(d)(2) when it denied his ineffective assistance of counsel

claim without granting an evidentiary hearing or other opportunity for him to fully develop his

claim. As a result, Petitioner was unfairly prejudiced.

A. The State Court’s Denial of Petitioner’s Ineffective Assistance of Counsel Claim

Without Providing Him an Opportunity to Present Evidence In Support Of His

Claim At An Evidentiary Hearing Involved An Unreasonable Application Of Clearly

Established Supreme Court Law And Was Based On An Unreasonable Determina

tion Of The Facts In Light Of The Evidence Presented.

First, Petitioner points out that he does not have a GED and relies on the state funded

Michigan Department of Corrections Legal Writer Program to convey his claims to this court.

Second, Petitioner respectfully submits that the state court record is devoid of any evidence as to

whether trial counsel made a strategic decision not to impeach the complaining witness with

hospital records. It is also unclear whether trial counsel even investigated the reports that

Petitioner used to supplement the record with on appeal.

Finally, it is equally unclear whether there were additional records not used by counsel

that could have undermined the Complainant’s credibility. As the court of appeals noted, the

hospital records were not a part of the trial court record and it is likely that appointed appellate

counsel did not investigate the entire hospital file in search of appealable issues. Appellate

counsel used the reports that Petitioner believed would help him. However, Petitioner being

unskilled in the law was ill prepared to search the investigative file for irregularities.

Petitioner should not be punished because he was unable to display legal acumen and

communicate all of trial counsel’s errors to appellate counsel. To hold Petitioner to such a high

standard would make enforcement of the Sixth Amendment right to counsel contingent upon a

criminal defendant’s ability to identify mistakes or legal errors made by incompetent counsel.

Thus, it was fundamentally unfair for the court of appeals to deny Petitioner’s ineffective

assistance of counsel claim without granting the requested remand for an evidentiary hearing.

See e.g., People v. Bouden, 393 Mich. 253, 227 N.W.2d 213 (1974) (Court of Appeals’ refusal to

grant remand for evidentiary hearing on ineffective assistance of counsel claim was error). It is

impossible to ascertain whether trial counsel investigated the entirety of the hospital records, or

whether counsel made a strategic decision not to employ the documents submitted by Petitioner

in support of his defense.

Although the court of appeals found a reason to justify counsel’s inaction, this reason

would be unreasonable if counsel never even investigated the documents and made a strategic

decision not to use them at trial. See e.g., Ramonez v. Berguis, 490 F. 3d 482 (CA6, 2007),

B. 28 U.S.C. S2254(dm)

In Panetti v. Quarterman, 551 U.S. 930, 948, 127 S. Ct. 2842, 168 L. Ed. 2d 662 (2007),

the Court held that deficiencies in the state court fact-finding process constitute an unreasonable

application of federal law. Id., 551 U.S. at 954 (section 2254(d)(1) is satisfied when the “fact

finding procedures upon which the court relied were ‘not adequate for reaching reasonably cor

rect results’ or, at a minimum, resulted in a process that appeared to be ‘seriously inadequate for

the ascertainment of the truth.’”) (quoting Ford v. Wainwright, All U.S. at 423-24 (Powell, J.

concurring)); cf. Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527, 156 L.Ed.2d 471 (2003) (state

court decision was an unreasonable application of Strickland for resolving claim without con

ducting assessment of the facts to determine whether counsel’s investigation was adequate).

In a case applying Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335

(2002), the Fifth Circuit held that “[t]he lesson we draw from Panetti is that, where a petitioner

has made a prima facie showing of retardation as Rivera did, the state court’s failure to provide

him with the opportunity to develop his claim deprives the state court’s decision of the deference

normally due.” Rivera v. Quarterman, 505 F.3d 349, 358 (5th Cir. 2007) (ruling that section

2254(d)(1) was satisfied); see also Nunes v. Mueller, supra, 1054-55 (section 2254(d)(1) satisfied;

where petitioner made prima facie showing of ineffective assistance of counsel but state court

denied hearing, state court appears unreasonably to require more than the prima facie showing

required by Strickland).

Recent case law confirms that application of section 2254(d) under Panetti has not

changed following the Supreme Court’s decisions in Cullen v. Pinholster, supra, and Harrington

v. Richter, supra. For example, prior to Pinholster and Richter, the Fourth Circuit held that when

the state court refused petitioner discovery and an evidentiary hearing, the state court adjudica

tion “was materially incomplete” and its decision was not an “adjudication on the merits” subject

to 2254(d) limitations.

Winston v. Pearson (Winston I), 592 F.3d 535, 555-58 (4th Cir. 2010). l

1 Cf. Wilson v. Workman, 577 F.3d 1284, 1292 (10th Cir. 2009) (en banc) ("When the state

court relies solely upon the record evidence, and denies both the claim itself and an evidentiary

hearing on the proffered non-record evidence without any alternative holding based upon the

Following the Supreme Court’s decisions in Pinholster and Richter, the Fourth Circuit reex

amined Winston I. Winston v. Pearson (Winston II), 683 F.3d 489 (4th Cir. 2012).

In Winston II, the court declined to overrule Winston I, because neither Richter nor

Pinholster were contrary controlling authority: neither case resolved the contours of a state

court’s “adjudication on the merits.” Winston II, supra, at 498-500. In Pinholster, the parties did

not dispute the existence of a state court “adjudication.” Id. at 501-02. In Richter, the Court only

decided that a decision’s summary nature did not preclude its characterization as a merits

adjudication. The Fourth Circuit held that Richter did not address other possible defects in state

court decisions and therefore did not govern a case in which the petitioner contests the state

court’s unreasonable denial of his request for an evidentiary hearing. Id. at 502.

Other courts have reached similar conclusions. See, e.g., Mosley v. Atchison, 689 F.3d

838, 849 (7th Cir. 2012) (summary denial of ineffectiveness claim unreasonable without a fully

developed factual record); Fanaro v. Pineda, 2012 U.S. Dist. LEXIS 70146, 2012 WL 1854313

(S.D. Ohio May 21, 2012) (state court decision unreasonable for rejecting prima facie showing

of ineffectiveness without hearing).

As discussed above, Petitioner has demonstrated that the allegations raised in his

application for leave to appeal in the Michigan Court of Appeals, and subsequently in the

Michigan Supreme Court, established a prima facie case for relief with respect to his ineffective

assistance of counsel claim. As such, he was entitled to have the state court hear and resolve his

claims following an evidentiary hearing. The state court’s failure to do so was contrary to clearly

established federal law. See Angel v. Bullington, infra; McNeal v. Culver, infra; Davis v. Wechsler,

infra. This on its own satisfies section 2254(d)(1).

proffered evidence, there is no adjudication on the merits that would warrant deferential

review.").

C. 28 U.S.C. §2254(dX2)

Petitioner respectfully submits that the state courts’ determination of the facts as to his

ineffective assistance of counsel claim was unreasonable. The “unreasonable determination”

clause of § 2254(d)(2) relates to the state court’s factual findings. See O’Neal v Balcarcel, 933

F. 3d 618, 624 (6th Cir. 2019). Satisfaction of (d)(2) can be premised on numerous theories, in

cluding that: (1) the state’s factual finding is not supported by sufficient evidence; (2) no factual

finding was made by the state court at all; or (3) the state-court process is defective. Wiggins v.

Smith, 539 U.S. 510, 528-30, 123 S. Ct. 2527, 156 L.Ed.2d 471 (2003).

“[T]he simplest [means of satisfying (d)(2)] is the situation where the state court should

have made a finding of fact but neglected to do so.” In such a case, “the state-court factual de

termination is perforce unreasonable . . . .” Id. Wiggins, supra, 539 U.S. at 528-30. Under Mich

igan’s criminal procedure, defendant’s seeking to raise claims of ineffective assistance of trial

counsel must move the court to make a testimonial record as a prerequisite to appellate review.

Historically, this Honorable Court has held that when federal constitutional claims are

“plainly and reasonably made” a state court must engage in meaningful fact-finding to resolve

them. See e.g., Angel v. Bullington, 330 U.S. 183, 188, 67 S. Ct. 657, 91 L. Ed. 832 (1947); see

also McNeal v. Culver, 365 U.S. 109, 110, 81 S. Ct. 413, 5 L.Ed.2d 445 (1961) (state court must

hold hearing to determine facts when petition alleged constitutional violation “with reasonable

clarity”); Davis v. Wechsler, 263 U.S. 22, 24-25, 44 S. Ct. 13, 68 L. Ed. 143 (1923) (states may

not create “unreasonable obstacles” to resolution of federal constitutional claims that are “plainly

and reasonably made”).

As the Court explained, “[t]he powers of a state to determine the limits of the jurisdiction

of its courts and the character of the controversies which shall be heard in them is, of course,

subject to the restrictions imposed by the Federal Constitution.” Angel, 330 U.S. at 188.

This Honorable Court, therefore, has invalidated state decisions made without adequate

fact-finding where constitutional claims were supported by “factual allegations not patently friv

olous or false.” See Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 118-19, 76 S. Ct. 223,

100 L.Ed. 126 (1956); see also Cash v. Culver, 358 U.S. 633, 638, 79 S. Ct. 432, 3 L. Ed. 2d 557

(1959) (allegations of the habeas petition “made it incumbent upon the Florida courts to deter

mine what the true facts were”).

The Supreme Court also has reversed state court decisions that purport to resolve federal

constitutional claims but fail to provide adequate procedures for doing so. In Ford v. Wainwright,

477 U.S. 399, 106 S. Ct. 2595, 91 L.Ed.2d 335 (1986), for example, the Court held that the

state’s failure to permit adversarial proceedings for a competency determination and related con

stitutional claims created “a much greater likelihood of an erroneous decision.” Id. All U.S. at

414-415 (a decision based on inadequate proceedings “will be distorted”). The Court therefore

rejected the state’s resolution of the constitutional issue, concluding that state proceedings were

“inadequate to . . . protect the federal interests.” Id., All U.S. at 416.

The Courts have consistently held that if a state court makes evidentiary findings without

holding an evidentiary hearing and giving the petitioner an opportunity to present evidence, such

findings clearly result in an “unreasonable determination of the facts.” Taylor v. Maddox, 366

F.3d 992, 1001 (9th Cir. 2004); see also Hurles v. Ryan, 650 F.3d 1301, 1311-14 (9th Cir. 2011),

opinion substituted, aff’d in part and rev’d in part at 752 F.3d 768 (9th Cir. 2014) (“[T]he state

court fact-finding process was fundamentally flawed” because the state court “granted no

evidentiary hearing or other opportunity for [petitioner] to develop his claim” resulting in a

decision that was based on an “unreasonable determination of the facts” and “not entitled to a

presumption of correctness under AEDPA”), accord, Plummer v. Jackson, 491 F. App’x. 671,

680-81 (6th Cir. 2012) (holding that the state court unreasonably denied petitioner’s claim

without an evidentiary hearing despite the parties’ factual disputes); Miller-El v. Cockrell, 537

U.S. 322, 347, 123 S. Ct. 1029, 154 L. Ed. 2d 931 (2003).

In Williams v. Woodford, 859 F.Supp.2d 1154, 1156-59 (E.D.Cal. 2012). In Williams,

supra, the petitioner raised an ineffective assistance of counsel claim to which he had made

diligent attempts to obtain an evidentiary hearing in the state courts. The petitioner’s claim was

rejected by the state courts on direct review because the record was inadequate to demonstrate

the constitutional violation; yet Williams’ attempt to demonstrate the constitutional violation via

a state habeas petition was rejected by the state courts on the basis that the appeal was adequate.

Id. The federal district court found:

Williams overcomes the § 2254(d)(2) bar based on the record that

was before the state court when it adjudicated his case. That is the

statutory requirement, as section 2254(d)(2) permits “federal post

conviction relief . . . only if the state . . . court’s adjudication

‘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.’” (citations omitted) (emphasis in

original). . . . Here “the state court fact-finding process was

fundamentally flawed” because it “granted no evidentiary hearing

or other opportunity for [Williams] to develop his claim.” (citation

omitted). The Court of Appeals’ IAC ruling was based on the facts

available in the record on appeal, which did not include the

extensive evidence Williams tried in vain to present to the state

courts.

Because the state court’s decision “was based on an unreasonable

determination of the facts,” section 2254(d) does not preclude

Williams’ claim. . . .

“[W]ith the state court having refused [Williams] an evidentiary

hearing, we need not of course defer to the state court’s factual

findings—if that is indeed how those stated findings should be

characterized—when they were made without such an evidentiary

hearing.” (citation omitted). Moreover, this Court may permit

Williams, at long last, to expand the record to develop his IAC

claim. [Williams v. Woodford, supra, at 1160-61].

The Williams Court was careful to point out the differences between the case before it and

the Pinholster case when it reasoned that Pinholster was irrelevant for purposes of their review

under § 2254(d)(2):

Pinholster held that “review under § 2254(d)(1) is limited to the

record that was before the state court that adjudicated the claim on

the merits.” Id- at 1398. But Williams makes his challenge under

2254(d)(2), not 2245(d)(1). Pinholster isn’t relevant where, as

here, petitioner surmounts section 2254(d) because he was not

allowed to develop the record in state court. Pinholster had a full

opportunity to develop the record in state court and may have been

free to return yet again. Id. at 1412 (Breyer, J., concurring in part

and dissenting in part). Here, by contrast, “it would [be] futile for

petitioner to return to the [state] courts,” Williams v. Taylor, 529

U.S. 420, 444, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000), because

the state courts have made it perfectly clear they will not grant

Williams an opportunity to develop his IAC claim. [Williams v.

Woodford, at 1161].

Without a reasoned opinion from the state court in relation to his ineffective assistance of

counsel claim, it is not possible to establish definitively whether counsel’s actions and omissions

were objectively unreasonable, whether counsel had reasonable strategic motives for his actions

and omissions, and whether the result of the trial would have been different had it not been for

counsel’s actions and omissions.

In Hurles v. Ryan, supra, the court stated “We have repeatedly held that where a state

court makes factual findings without an evidentiary hearing or other opportunity for the

petitioner to present evidence, the fact-finding process itself is deficient and not entitled to

deference.” Id. at 1312, See also, Lor v. Felker, 2012 U.S. Dist. LEXIS 64058, 2012 WL

1604519 (E.D. Cal., May 7, 2012) (section 2254(d)(2) satisfied where the state court’s “failure to

conduct an evidentiary hearing violated petitioner’s right to a fair process for developing the

record supporting his claim”); Palazzolo v. Burt, 778 F.Supp.2d 805, 811 (E.D. Mich. 2011)

(same).

D. Trial counsel performs unreasonably by failing to present sources of evidence

that could mitigate the crime or punishment or prove innocence.

Generally, it is unreasonable for counsel not to introduce sources of evidence that are

helpful to the defense. See e.g., Wiggins v Smith, supra, 539 U.S. at 528-530 (2003), (It was

objectively unreasonable and inconsistent with professional norms for trial counsel not to

investigate and present evidence that was favorable to the defense at sentencing).

In Ramonez v. Berguis, supra, the court held that the Michigan Court of Appeals' decision

that counsel exercised reasonable trial strategy was itself an unreasonable application of clearly

established federal law. Having recognized the possibility that the three witnesses could provide

testimony beneficial to defendant, it was objectively unreasonable for counsel not to interview

them. See also, Issa v. Bradshaw, 904 F. 3d 446, 461-62 (6th Cir. 2018), accord, Bennett v.

Stirling, 170 F. Supp. 3d 851, 861 (DCSC, 2016).

Thus, the state court’s decision lacks a foundation in evidence that trial counsel

investigated or made a reasonable decision not to investigate all the Price’s medical records.

Likewise, the record is devoid of evidence that trial counsel made a strategic decision not to

further impeach Price with medical records and create doubt, or lessen the culpability in the eyes

of the jury.

It is the Petitioner’s position that had counsel further impeached Price, there is a

reasonable likelihood that he would have been found guilty of the lesser included offense of

assault with intent to do great bodily harm less than murder, which carries with it a 10-year

maximum penalty, as opposed to the more serious assault with intent to murder.

CONCLUSION

Petitioner Rolando Q. Alvarado respectfully requests that this Court grant this petition for

a writ of certiorari.

Respectfully submitted,

By:

Dated: MayoltX , 2020

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.