Respondents Brief — Demetrius William Edwards, et al., Petitioners v. Sherry Burt, Warden, et al.

Supreme Court briefJun 2, 2021

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No. 20-1218

In the Supreme Court of the United States

DEMETRIUS WILLIAM EDWARDS AND BRYANT ROYSTER,

PETITIONERS

SHERRY BURT, WARDEN AND KEVIN LINDSEY, WARDEN

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF IN OPPOSITION

Dana Nessel

Michigan Attorney General

Fadwa A. Hammoud

Solicitor General

Counsel of Record

P.O. Box 30212

Lansing, Michigan 48909

HammoudF1@michigan.gov

(517) 335-7628

Jared D. Schultz

Assistant Attorney General

Criminal Trials and Appeals

Division

Attorneys for Respondents

QUESTION PRESENTED

In United States v. Cronic, this Court held that

courts may presume that a criminal defendant was

prejudiced if counsel was completely denied at a “critical stage” of trial. 466 U.S. 648 (1984). On habeas review, 28 U.S.C § 2254(d)(1) precludes relief for claims

that a state court has rejected on the merits unless

that merits adjudication was “contrary to, or involved

an unreasonable application of, clearly established

Federal law, as determined by” decisions from this

Court. For Cronic-based claims, that means that habeas relief cannot be granted unless this Court has

“held that Cronic applies to the circumstances presented in” the case at bar. Woods v. Donald, 575 U.S.

312, 319 (2015).

Here, the petitioners’ counsel was not present

when the trial court judge visited the crime scene to

evaluate the lighting at the time of day that the eyewitness said she saw the petitioners commit a murder.

The last reasoned state court decision found that

Cronic’s presumption of prejudice was inapplicable in

this circumstance and determined that any error was

harmless. The question presented is:

Was the state court’s decision contrary to, or an

unreasonable application of, clearly established

federal law when this Court has never held that

Cronic applies to a crime scene viewing by a trial

court judge?

PARTIES TO THE PROCEEDING

Petitioners Demetrius Edwards and Bryant

Royster are prisoners being held in custody in the

Michigan Department of Corrections. Respondents

Sherry Burt and Kevin Lindsey are wardens of facilities within the Michigan Department of Corrections.

iii

TABLE OF CONTENTS

Question Presented...................................................... i

Parties to the Proceeding ........................................... ii

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

Opinions Below ........................................................... 1

Jurisdiction ................................................................. 1

Constitutional and Statutory Provisions Involved .... 1

Introduction ................................................................ 2

Statement of the Case ................................................ 4

The shooting and investigation .................................. 5

The trial....................................................................... 6

Direct appeal ............................................................... 7

Federal habeas proceedings ....................................... 9

Reasons for Denying the Petition............................. 13

This Court has never held that a crime-scene

viewing is a critical stage where prejudice is

presumed. ........................................................... 13

A. The state court’s decision was not

contrary to Cronic. ....................................... 14

B. The state court’s decision was not an

unreasonable application of Cronic. ............ 16

C. The state court’s decision was not

contrary to or an unreasonable

application of Geders v. United States. ....... 17

D. The state court’s “critical stage” language

did not foreclose a harmless-error

analysis......................................................... 19

II. The petitioners do not identify any decision

that conflicts with the one below; there is no

circuit split. ......................................................... 23

III. This case presents a poor vehicle for review

because the petitioners’ claims are

procedurally defaulted. ...................................... 25

Conclusion ................................................................. 28

TABLE OF AUTHORITIES

Cases

Bell v. Cone,

535 U.S. 685 (2002) ............................................ 16

Bradshaw v. Richey,

546 U.S. 74 (2005) .............................................. 19

Burdine v. Johnson,

262 F.3d 336 (5th Cir. 2001) .............................. 24

Chapman v. California,

386 U.S. 18 (1967) .............................................. 21

Coleman v. Alabama,

399 U.S. 1 (1970) ................................................ 20

Geders v. United States,

425 U.S. 80 (1976) ........................................ 17, 18

Hamilton v. Alabama,

368 U.S. 52 (1961) ........................................ 12, 17

Harrington v. Richter,

562 U.S. 86 (2011) .............................................. 14

Lopez v. Smith,

574 U.S. 1 (2014) ................................................ 14

Murray v. Carrier,

477 U.S. 478 (1986) ............................................ 26

Musladin v. Lamarque,

555 F.3d 830 (9th Cir. 2009) ........................ 23, 24

People v. Carines,

597 N.W.2d 130 (Mich. 1999) ............................. 26

People v. Murphy,

750 NW2d 582 (2008) ..................................... 8, 21

Satterwhite v. Texas,

486 U.S. 249 (1988) .................................. 4, 21, 22

Sawyer v. Whitley,

505 U.S. 333 (1992) ............................................ 26

United States v. Cronic,

466 U.S. 648 (1984) .................................... passim

United States v. Owen,

407 F.3d 222 (4th Cir. 2005) .............................. 21

United States v. Wade,

388 U.S. 218 (1967) ............................................ 20

Van v. Jones,

475 F.3d 292 (6th Cir. 2007) .............................. 25

Wainwright v. Sykes,

433 U.S. 72 (1977) .............................................. 26

White v. Maryland,

373 U.S. 59 (1963) ........................................ 12, 16

White v. Woodall,

572 U.S. 415 (2014) ................................ 13, 14, 24

Williams v. Taylor,

529 U.S. 362 (2000) ............................................ 13

Woods v. Donald,

575 U.S. 312 (2015) .................................... passim

Statutes

28 U.S.C § 2254(d)(1) ................................................... i

28 U.S.C. § 2254 .......................................................... 1

28 U.S.C. § 2254(d)(1) ............................................... 13

vii

Constitutional Provisions

U.S. Const. amend. VI ................................................ 1

OPINIONS BELOW

The Sixth Circuit’s opinion affirming the district

court’s order denying habeas relief to both petitioners,

App. at 1a–28a, is not reported but available at 823 F.

App’x 326. The district court’s opinion and order denying habeas relief to petitioner Edwards, App. at 29a–

71a, is not reported but available at 2018 WL

3436727. The district court’s opinion and order denying habeas relief to petitioner Royster, App. at 73a–

116a, is not reported but available at 2018 WL

3436966. The Michigan Supreme Court’s order denying Edwards’s application for leave to appeal, App. at

117a, is reported at 870 N.W.2d 68. The Michigan Supreme Court’s order denying Royster’s application for

leave to appeal, App. at 119a, is reported at 870

N.W.2d 67. The Michigan Court of Appeals’ opinion

affirming both petitioners’ convictions, App. at 121a–

147a, is not reported but available at 2015 WL

1069275.

JURISDICTION

The State agrees that this Court has jurisdiction

to consider the petition.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Sixth Amendment to the United States Constitution provides, “In all criminal prosecutions, the

accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.”

And 28 U.S.C. § 2254 provides:

(d) An application for a writ of

habeas corpus on behalf of a person in

custody pursuant to the judgment of a

State court shall not be granted with

respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of

the claim-(1) resulted in a decision that was contrary

to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of the United

States[.]

INTRODUCTION

In 2013, in a Michigan state court, the petitioners

sat trial together for murdering Cedell Leverett in the

parking lot of a mall. During trial, the judge (sitting

as the finder of fact) visited the crime scene to confirm

that the lighting was as the eyewitness had described

it. Neither petitioners’ counsel was present at the

visit. Was this a “critical stage” of trial at which the

deprivation of counsel requires automatic reversal under United States v. Cronic, 466 U.S. 648, 658 (1984)?

Maybe. Was it unreasonable for a state court to conclude that it was not a critical stage and review for

harmlessness? No.

In Cronic, this Court stated that the complete denial of counsel at a “critical stage” of trial is “so likely

to prejudice the accused” that prejudice is presumed

and reversal is automatic. 466 U.S. 648, 658 (1984).

But since Cronic was decided, this Court has not

explained in detail what constitutes a critical stage requiring automatic reversal.

The petitioners here suggest that this Court

should answer that question now. Or, at least, they

want this Court to declare that the specific circumstances of their case warrant Cronic’s presumption of

prejudice. But that is something this Court cannot

do—at least not on collateral review. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

forbids it.

On collateral review, AEDPA limits the body of

law that a federal habeas court may look to before

granting a habeas petition. That body of law includes

only the holdings of this Court. For Cronic-based

claims, unless this Court has held that the absence of

counsel at the specific stage at issue requires automatic reversal, a state court decision denying relief

cannot be contrary to any decision of this Court.

Woods v. Donald, 575 U.S. 312, 317–18 (2015). And

because the “precise contours” of Cronic remain unclear, the state court decision cannot be an unreasonable application of any decision of this Court.

This Court has never held—either before or after

Cronic—that a judge’s solo crime-scene visit without

counsel’s presence amounts to a critical stage requiring automatic reversal. The Sixth Circuit therefore

correctly denied habeas relief.

The petitioners complicate an uncomplicated case

by suggesting that courts all over the country are confused about how to apply Cronic. They contend that

because some courts (including the Sixth Circuit below) are improperly limiting Cronic’s holding by

looking to this Court’s decision in Satterwhite v.

Texas, 486 U.S. 249 (1988)—a post-Cronic case on direct review holding that some deprivations of counsel

are subject to harmless-error analysis. But the petitioners do not point to a single case that addressed a

Cronic-based claim under AEDPA’s deferential standard of review. There is no circuit split involving the

ultimate issue here.

But even if there was, this would not be the ideal

case to consider the issue. The state court determined

that the petitioners’ claims were defaulted. Finding

that the petitioners did not contemporaneously object

to the claim, the Michigan Court of Appeals invoked

an adequate and independent state rule to reject their

claim that they were denied the right to counsel. This

default precludes habeas relief. Although the Sixth

Circuit rejected this default argument, the State

would assert it again in this Court. This added wrinkle renders this case a poor vehicle to review the question presented.

In sum, the Sixth Circuit correctly decided this

case below, there is no circuit split, and the case presents a poor vehicle for review. This Court should

therefore deny the petition for a writ of certiorari.

STATEMENT OF THE CASE

On September 24, 2010, Cedell Leverett was shot

and killed in the parking lot of a mall in Harper

Woods, Michigan. App. at 122a–123a. Petitioners Demetrius Edwards and Bryant Royster were charged

and tried together for the murder.

The shooting and investigation

On the night of the murder, Edwards, Royster,

Devante Smith, and Jaisaun Holt went together to the

Eastland Mall. App. at 122a–123a. Leverett was also

at the mall, sitting in the driver’s seat of a Mercedes

that was parked in the valet area. App. at 123a. Deborah Gaca, an employee at the mall, happened to be

near the entrance at the time of the shooting. App. at

4a. Gaca testified that shortly before 9:00 p.m. she

saw a man get out of a car and run towards the valet

area, holding a gun. App. at 123a. Another man stood

outside the driver’s side of that car and yelled, “Pop

him and pop that m-----f----- good.” Id. The first man

shot into the Mercedes four times, killing Leverett. Id.

The shooter ran back toward the other car, which was

already backing out, and fled. Id. At trial, Gaca identified Edwards as the shooter and Royster as the encouraging driver. Id.

In addition to Gaca’s testimony, other evidence established petitioners as the perpetrators. About a

week after the shooting, Edwards was running from a

fight at a different mall. App. at 124a. While doing so,

he threw a gun under a car in the parking lot. Id. A

security officer saw this and arrested Edwards. Id. Forensic tests showed that the gun that Edwards tossed

had fired the shell casings and bullet fragments left at

the earlier shooting scene—as well as those left inside

Leverett. Id. Surveillance video from the Eastland

Mall captured Edwards and Royster at the mall

around the time of the shooting. App. at 123a. And

Edwards—who had been sentenced for an unrelated

armed-robbery conviction just the day before—was

equipped with a GPS tether, which placed him at the

scene. App. at 122a–123a.

Deonte Smith, the brother of Devante, one of the

petitioners’ companions that night, was interviewed

by police. App. at 123a. He stated that he saw all four

companions after the shooting and that “they” told

him that they saw a man at the Eastland Mall walking around with a diamond watch and $12,000 to

$15,000 cash. App. at 123a–124a. Edwards told Deonte that he tried to rob the man; Edwards admitted

that he shot the man because he had reached for

something. App. at 124a. Other people present during

this conversation told Edwards that he was stupid for

coming away empty-handed. Id.

Holt, the fourth companion, was also interviewed

by police. App. at 123a. He stated that Edwards

wanted Leverett’s glasses, so “he hit him” before

Royster drove them away. Id. Holt claimed that Edwards shot Leverett after Leverett brandished a firearm. Id. But the police did not find a weapon at the

scene. Id. They did find over $3,000 in Leverett’s

pocket. Id. They also recovered a diamond watch and

sunglasses from a person who had been with Leverett

earlier that day and was at the mall after the shooting. App. at 124a. Leverett’s daughter saw Leverett

wearing a diamond watch and sunglasses earlier that

day. Id.

The trial

Petitioners waived their right to a trial by jury.

App. at 129a. At the ensuing bench trial, the judge at

one point stated that he would visit the crime scene

with petitioners’ attorneys. App. at 4a. The attorneys

indicated that their clients wished to be present at the

scene, so the judge canceled the visit. Id. But two days

later, the judge described for the record that he, the

petitioners’ attorneys, the prosecutor, and Gaca had

gone to the Eastland Mall to view the scene. App. at

5a. The parties agreed to ask Gaca two questions

about her location at the time of the shooting, and her

answers were placed on the record. Id.

Immediately after placing that visit on the record,

the judge then stated: “And I will say that the night

before I, myself, went out just to look at the lighting

around the place. I went at approximately 10:00 P.M.

to see what it looked like, the lighting was like at the

mall from the area where we were standing yesterday.” Id. The judge asked whether there was “[a]nything else to put on the record regarding” his unaccompanied visit, to which both defense attorneys replied, “No.” Id.

Along with finding Edwards guilty of two firearms

offenses, the judge found both Edwards and Royster

guilty of first-degree felony murder and sentenced

them to life in prison without eligibility for parole.

App. at 6a.

Direct appeal

Edwards and Royster separately appealed, each

raising several different claims related to both crimescene visits. App. at 121a, 135a–139a, 145a–147a. The

Michigan Court of Appeals consolidated the appeals

and issued a single opinion affirming their convictions. App. at 121a.

Addressing Edwards’s claims first, the court noted

that he had waived his challenges to the crime-scene

visit with counsel present. App. at 135a–136a. The

court then stated that “even if the issue were not

waived, our review would be for outcome determinative error since Edwards failed to object to either visit

or the alleged testimony below.” App. at 136a (emphasis added). After this statement, the court determined

that no Michigan caselaw addressed whether a factfinder’s view of a crime scene during a bench trial

amounted to a “critical stage of a criminal proceeding”

where a defendant has the right to attend with counsel. App. at 136a–137a (emphasis added). Instead, the

court “[a]ssum[ed],” without deciding, that the right

extended to bench trials. App. at 137a. “[E]ven if the

court’s [solo crime-scene] viewing were improper, it

did not violate Edwards’s substantial rights.” App. at

138a. The court noted that the judge’s solo visit was

merely to confirm the lighting at the scene—a fact “of

little consequence in light of the other incriminating

evidence, especially the surveillance video, tether, and

forensic evidence.” Id.

At the end of its analysis, the Michigan Court of

Appeals also noted that Edwards had cited Cronic and

that he argued that any error in the independent

crime-scene visit was structural. App. at 138a–139a.

Pointing to Michigan and federal authorities, the

court found that “ ‘an absence of counsel at a critical

stage may, under some circumstances, be reviewed for

harmless error.’ ” App. at 138a (quoting People v. Murphy, 750 NW2d 582, 586 (2008) (Markman, J., concurring)).

Later in its opinion, the Michigan Court of Appeals discussed Royster’s challenges to the judge’s solo

crime-scene visit. App. at 145a–146a. Addressing a

claim that the judge essentially became a witness

during the visit and that he should have been subject

to cross-examination, the Michigan Court of Appeals

noted that “Royster lodged no objection on this novel

theory (or on any other ground) below.” App. at 145a

(emphasis added). The court therefore indicated that

it was reviewing “for outcome determinative error

that adversely affected the proceedings or resulted in

the conviction of an innocent defendant.” Id. It determined that Royster could not meet that standard because “even assuming error,” there was a “mountain

of incriminating evidence against him” that was not

undermined by the judge’s solo visit to view the lighting at the scene. App. at 145a–146a.

Both petitioners applied for leave to appeal that

decision, but the Michigan Supreme Court denied

their applications. App. at 117a, 119a.

Federal habeas proceedings

Petitioners then sought federal habeas relief. In

separate opinions, the district court denied all of their

claims. App. at 70a, 115a. With respect to their claim

that they were denied counsel at a critical stage when

the judge conducted his solo visit, the district court

first noted that “neither defendant objected” to the

visit and that, accordingly, the Michigan Court of Appeals had reviewed the claims under the “plain error

standard.” App. at 61a, 107a. Therefore, the court

found, the claims were procedurally defaulted. App. at

61a, 107a. The court also pointed out the importance

of the default rule here: if counsel had objected, “the

trial court could have simply disregarded any observations made during the second visit, thereby curing

any error.” App. at 65a, 111a. In other words,

reversing the convictions would “create a windfall for

counsel’s failure to voice an objection when [s]he was

invited to do so.” App. at 65a, 111a.

Although it found the claim procedurally barred,

the district court also discussed the merits. App. at

63a–65a, 108a–111a. The court cited Cronic’s rule

that the complete denial of counsel at a critical stage

requires automatic reversal, but it also quoted Satterwhite’s decree that harmless-error analysis applies,

even if counsel is absent during a critical stage,

“ ‘where the evil caused by a Sixth Amendment violation is limited to the erroneous admission of particular

evidence at trial.’ ” App. at 63a–64a, 108a–110a. The

court then determined that the judge’s solo visit was

“inconsequential” and that it was “reasonable to conclude that the . . . visit was not a critical stage of the

proceedings requiring automatic reversal had an objection been made.” App. at 64a–65a, 110a–111a.

The district court granted a certificate of appealability to the petitioners on their claims that they were

denied their right to counsel during the judge’s solo

crime-scene visit. App. at 70a, 115a. In a consolidated

appeal, the Sixth Circuit affirmed. App. at 2a, 28a.

Before addressing the merits, the Sixth Circuit rejected the State’s argument that the claim was procedurally defaulted. App. at 10a–12a. To bar federal habeas review, the Sixth Circuit stated, a state court

that enforces a procedural rule must “clearly and expressly” do so. App. at 11a (quotations and citations

omitted). The Sixth Circuit found that it was unclear

whether the state court enforced a procedural rule

here because, even though it stated that it was reviewing for “outcome determinative error,” the Michigan

Court of Appeals nevertheless went on to discuss

Cronic’s automatic reversal rule. App. at 12a. Because

the discussion of the rule from Cronic was “not framed

as a prong of Michigan’s plain error review,” and was

not “cast as an alternative holding,” the Sixth Circuit

concluded that it was “unable to say on which ground

or grounds the state court relied in rejecting the claim

of a per se violation of the Sixth Amendment.” Id.

Turning to the merits, the Sixth Circuit observed

that “[t]here is no dispute that the Supreme Court has

never held that the absence of counsel during a crime

scene view by the fact-finder—whether a judge or

jury—constitutes a complete denial of counsel at a

critical stage of the criminal proceeding for which

prejudice must be presumed.” App. at 17a. Thus, the

court concluded, the Michigan Court of Appeals’ decision rejecting the Cronic claim could not be contrary

to any holding of this Court. Id.

The Sixth Circuit also concluded that the state

court’s decision was not an unreasonable application

of this Court’s precedents. App. at 18a. Noting that

the state court found that the crime-scene viewings

were a “critical stage,” the Sixth Circuit said that such

a finding does not necessarily demand automatic reversal under Cronic. App. at 21a. This Court sometimes uses “critical stage” to refer more broadly to a

stage where the right to counsel attaches but where

harmless-error analysis is permissible. App. at 22a.

So prejudice must be presumed only if the state court

used “critical stage” “as a short-hand for Cronic error.”

App. at 22a–23a. Looking at the state court’s opinion,

the Sixth Circuit said that it could only determine

that the state court found a right to counsel, not

necessarily a Cronic error. App. at 23a. The Sixth Circuit noted that this approach is consistent with this

Court’s decision in Satterwhite and that this Court

“has not addressed how Cronic’s rule of presumed

prejudice fits with Satterwhite’s description of Sixth

Amendment violations that constitute structural error.” App. at 24a–25a.

The Sixth Circuit then determined that it would

not have been objectively unreasonable for the Michigan Court of Appeals to conclude that the solo crimescene visit was not a “critical stage” under Cronic.

App. at 26a. Because the visit was limited to observing

the lighting of the scene, it was not a proceeding

“where ‘defenses may be [ ] irretrievably lost’. . . or one

where ‘rights are preserved or lost.’ ” App. at 26a

(quoting Hamilton v. Alabama, 368 U.S. 52, 54 (1961),

and White v. Maryland, 373 U.S. 59, 60 (1963)). Therefore, it would have been reasonable to conclude that

the denial of counsel at the solo crime scene visit “was

not a ‘complete’ denial of counsel.” App. at 27a. All

told, and noting that this Court’s decisions did not

clearly answer the question, the Sixth Circuit determined that “a fairminded jurist could conclude that a

presumption of prejudice was not warranted” in this

circumstance. App. at 27a–28a.

Petitioners sought rehearing en banc, which the

Sixth Circuit denied. They then filed the instant petition for a writ of certiorari in this Court.

REASONS FOR DENYING THE PETITION

This Court has never held that a crime-scene

viewing is a critical stage where prejudice is

presumed.

Essential to reviewing a claim on federal habeas

review is discussing the highly deferential limitations

imposed by AEDPA. Those limitations were not overcome in this case.

When a state court adjudicates a claim on the

merits, habeas relief is prohibited unless the decision

was “contrary to, or an unreasonable application of,

clearly established Federal law, as determined by the

Supreme Court of the United States.” 28 U.S.C.

§ 2254(d)(1). A state court decision is contrary to

clearly established federal law if “the state court arrives at a conclusion opposite to that reached by this

Court on a question of law or if the state court decides

a case differently than this Court has on a set of materially indistinguishable facts.” Williams v. Taylor,

529 U.S. 362, 412–13 (2000). And a state court decision unreasonably applies clearly established federal

law if “the state court identifies the correct governing

legal principle from this Court’s decisions but unreasonably applies that principle to the facts of the prisoners’ case.” Id. at 413.

Important to this case is the common clause—

“clearly established Federal law, as determined by the

Supreme Court of the United States.” 28 U.S.C.

§ 2254(d)(1). “Clearly established federal law for purposes of §2254(d)(1) includes only the holdings, as opposed to the dicta, of this Court’s decisions.” White v.

Woodall, 572 U.S. 415, 419 (2014) (internal quotations

and citations omitted). Where no cases from this

Court address “ ‘the specific question presented’ ” by

the case at hand, the state court’s decision cannot be

contrary to clearly established federal law. Woods v.

Donald, 575 U.S. 312, 317 (2015) (quoting Lopez v.

Smith, 574 U.S. 1, 6 (2014)). And “where the precise

contours of the right remain unclear, state courts enjoy broad discretion in their adjudication of a prisoner’s claims.” Woodall, 572 U.S. at 424 (internal quotation marks and citations omitted).

“If this standard is difficult to meet, that is because it was meant to be.” Harrington v. Richter, 562

U.S. 86, 102 (2011). The state court’s decision “must

be objectively unreasonable, not merely wrong; even

‘clear error’ will not suffice.” Woodall, 572 U.S. at 419

(internal quotation marks and citation omitted). To

obtain relief under AEDPA, the state court’s decision

must be “so lacking in justification that there was an

error well understood and comprehended in existing

law beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at 103.

A. The state court’s decision

contrary to Cronic.

was

not

Here, petitioners argue that the Michigan Court

of Appeals unreasonably applied this Court’s holding

in Cronic. In Cronic, this Court recognized that there

are some circumstances where the accused is denied

the right to counsel “that are so likely to prejudice the

accused that the cost of litigating their effect in a particular case is unjustified.” 466 U.S. at 658. In those

cases, no prejudice showing is required and reversal

is automatic. Id. at 659–60. The Cronic Court listed

three scenarios where a presumption of prejudice is

appropriate, including “the complete denial of counsel

. . . at a critical stage of . . . trial.” Id. at 659. Notably,

Cronic did not involve a claimed deprivation of counsel at a critical stage, and the Court ultimately declined to find that the specific claim before it warranted a presumption of prejudice. Id. at 662, 663–66.

Although the petitioners claim that the trial

judge’s unaccompanied crime-scene visit was a Cronic

violation that requires automatic reversal, they do not

cite a single Supreme Court case holding that a view

of the crime scene is a critical stage of trial. And, like

the habeas petitioner in Donald, that dooms their

claim.

In Donald, this Court reversed the Sixth Circuit’s

decision granting habeas relief on a Cronic-based

claim. 575 U.S. at 313. During the state-court trial in

that case, the defendant’s attorney was absent for

about 10 minutes while the government sought to introduce evidence regarding phone calls among the defendant’s several accomplices who were being tried

jointly. Id. at 314. The state court rejected a claim that

the defendant was denied the right to counsel during

his attorney’s brief absence. Id. But the Sixth Circuit

granted habeas relief, ruling that the state court’s decision was contrary to and an unreasonable application of Cronic because introducing the phone call evidence was a “critical stage” that required automatic

reversal. Id. at 315.

Not so fast, this Court said. Noting that “AEDPA’s

standard is intentionally difficult to meet,” id. at 316

(internal quotations and citations omitted), the Donald Court held that habeas relief was not appropriate

because none of this Court’s prior cases confronted

“the specific question presented by this case,” id. at

317 (internal quotes and citations omitted). Because

this Court had never held that prosecution testimony

about other defendants was a critical stage, and because the “precise contours” of Cronic “remain unclear,” the state court’s refusal to apply Cronic to the

circumstances did not require federal habeas relief.

Id. at 318–19 (internal quotation marks and citations

omitted).

The specific question presented here is similar:

Has this Court ever held that a trial-court judge’s unaccompanied crime scene visit to gather minimal information amounts to a critical stage of trial requiring

a presumption of prejudice? It has not. Thus, the

Michigan Court of Appeals’ decision to apply harmless-error analysis to deny the claim was not contrary

to clearly established federal law.

B. The state court’s decision was not an

unreasonable application of Cronic.

Moreover, the “precise contours” of Cronic still

“remain unclear,” Donald, 575 U.S. at 318, so the

state court’s decision was not an unreasonable application of clearly established federal law. Indeed,

Cronic did not elaborate on what constitutes a critical

stage. In Bell v. Cone, the Supreme Court simply

noted that a critical stage is “a step of a criminal proceeding, such as arraignment, that held significant

consequences for the accused.” 535 U.S. 685, 695–96

(2002). In addition, the Court has stated that a critical

stage is one “where rights are preserved or lost,” White

v. Maryland, 373 U.S. 59, 60 (1963), and where

“[a]vailable defenses may be irretrievably lost, if not

then and there asserted,” Hamilton v. Alabama, 368

U.S. 52, 54 (1961).

None of those definitions apply here. The crimescene visit did not hold significant consequences for

the petitioners. The only factor observed during the

visit was the lighting, which did not affect the significantly strong remaining evidence against them. The

crime-scene visit did not hold significant consequences for them. Nor was it a stage where any rights

or defenses were lost. Indeed, had the petitioners

wished to assert any defenses or raise any objections

regarding the judge’s solo crime-scene visit, they could

have done when the judge described the visit for the

record and gave counsel the opportunity to comment.

None of the petitioner’s rights were precluded simply

because counsel was not present at the visit. Like in

Donald, a fairminded jurist could conclude that the

presumption of prejudice was not warranted in this

situation.

C. The state court’s decision was not

contrary

unreasonable

application of Geders v. United States.

Petitioners try to circumvent this clear-cut application of Donald by arguing that this Court has held

that denial of the right at issue here is entitled to automatic reversal. But the decision they point to—

Geders v. United States, 425 U.S. 80 (1976)—undisputedly had nothing to do with crime-scene visits.

In Geders, the federal trial court recessed trial for

the night in the middle of the defendant’s testimony.

Id. at 82. Over an objection, the court instructed the

defendant not to discuss the case with anyone overnight—including his own attorney. Id. This Court

held that “an order preventing [the defendant] from

consulting his counsel ‘about anything’ during a 17hour overnight recess between his direct- and crossexamination impinged upon his right to the assistance

of counsel guaranteed by the Sixth Amendment.” Id.

at 91. It reversed, without discussing whether the defendant could show prejudice. 1 Id. The Geders Court

limited its holding, specifically stating, “We need not

reach, and we do not deal with limitations imposed in

other circumstances.” Id.

Arguing that the state court’s decision on the

question of counsel’s absence during the judge’s solo

visit was an unreasonable application of Geders, the

petitioners completely reframe the deprivation that

occurred here. They argue: “If prejudice is presumed

when counsel is denied over an overnight recess during which nothing happens, as in Geders, then prejudice must be presumed when counsel is denied over an

overnight recess during which the factfinder evaluates key inculpatory evidence.” Pet. at 20–21. Contrary to petitioners’ assertions, they were not denied

counsel during an overnight recess. Unlike the defendant in Geders, the petitioners here were free to

consult their attorneys as they wished.

1 In Cronic, this Court cited Geders as an example of a case where

it had “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.”

466 U.S. at 659 n.25.

Instead, counsel was not given the opportunity to

attend the judge’s solo crime-scene visit. Nor was the

prosecution. To say that the presumption of prejudice

is warranted where a defendant is denied his right to

consult counsel during an overnight recess says nothing about whether that presumption is due during a

crime-scene visit. Simply put, they are different questions. And because Geders did not confront “the specific question presented by this case,” Donald, at 317

(internal quotes and citations omitted), the Michigan

Court of Appeals’ decision was not contrary to, or an

unreasonable application of, that precedent.

D. The state court’s “critical stage”

language did not foreclose a harmlesserror analysis.

The petitioners also attempt to circumvent this

straightforward application of Donald by pointing out

that the Michigan Court of Appeals found that the

judge’s solo crime-scene visit was a “critical stage” and

that, therefore, reversal should have been automatic.

Pet. at 19. Petitioners are incorrect.

First, although “a state court’s interpretation of

state law. . . binds a federal court sitting in habeas

corpus,” Bradshaw v. Richey, 546 U.S. 74, 76 (2005)

(per curiam), a state court’s interpretation of federal

law imposes no such constraint. Whether a judge’s

solo crime-scene visit amounts to the deprivation of

counsel at a critical stage and requires automatic reversal under the Sixth Amendment is a question of

federal law. It is the role of the federal court to determine whether structural constitutional error occurred; more specifically, it is the role of a federal

habeas court to determine whether it was unreasonable for the state court to find that no structural constitutional error occurred.

Second, the Michigan Court of Appeals did not

find that the solo visit was a critical stage; rather, it

“assum[ed]”—without deciding—that the right to attend a crime-scene viewing during a bench trial is a

critical stage just as it is during a jury trial. App. at

137a. Indeed, when the court went on to analyze the

specific claim at issue here, it started its analysis by

stating, “[E]ven if the court’s [solo visit] were improper. . ..” App. at 138a. This qualifying language

suggests that the court was not definitively finding

that the solo visit was a critical stage.

Third, even ignoring the qualifying language in

the state court’s opinion, reversal need not be automatic because the phrase “critical stage” does not necessarily mean a critical stage under Cronic. As the

Sixth Circuit discussed in detail, App. at 21a–25a, this

Court has used the phrase to refer more broadly to

proceedings where the right to counsel attaches but

the denial of counsel is still subject to harmless-error

analysis.

For example, in Coleman v. Alabama, this Court

held that a defendant was denied his right to counsel

at a “critical stage,” yet it held that harmless-error

analysis applied. 399 U.S. 1, 11 (1970). And in United

States v. Wade, this Court analyzed whether a pretrial

lineup was a “critical stage[ ] at which the accused has

the right to the presence of his counsel,” but it remanded the case to the district court to determine

whether harmless error occurred. 388 U.S. 218, 227,

242 (1967).

This multi-layered understanding of the phrase

“critical stage” is consistent with this Court’s postCronic decision in Satterwhite. In that case, this Court

considered whether reversible constitutional error occurred when a criminal defendant was subjected to a

psychiatric evaluation without any notice provided to

his attorney. 486 U.S. at 252. The Court held that the

defendant was denied the right to counsel but then

stated that “not all constitutional violations amount

to reversible error.” Id. at 256–57. Without citing

Cronic, the Satterwhite Court found that automatic

relief was only appropriate in “cases in which the deprivation of the right to counsel affected—and contaminated—the entire criminal proceeding.” Id. at 257.

But “where the evil caused by a Sixth Amendment violation is limited to the erroneous admission of particular evidence at trial,” harmless-error analysis applies. Id. at 257–58. Conducting a harmless-error

analysis under Chapman v. California, 386 U.S. 18

(1967), the Satterwhite Court found that the evidence

related to the psychiatric evaluation was “critical” to

the prosecution’s case when it was admitted at sentencing; therefore, it was not harmless beyond a reasonable doubt. 486 U.S. at 260. 2

2 Although the interplay between Cronic and Satterwhite has not

been addressed by this Court, other courts have sought to harmonize the two decisions. See, e.g., United States v. Owen, 407

F.3d 222, 227–28 (4th Cir. 2005) (citing Satterwhite and other

decisions from this Court and finding that harmless-error analysis is appropriate where the error complained of “did not cast systematic doubt on the subsequent proceedings and did not affect

and contaminate the entire trial”) (internal quotation marks

omitted); People v. Murphy, 750 N.W.2d 582, 586 (Mich. 2008)

(Markman, J., concurring) (stating that Satterwhite is best understood as “carving out an exception to the general rule of

Here, even if the state court definitively found

that the judge’s solo visit was a critical stage, and even

if that determination somehow binds this Court, the

erroneous deprivation of counsel did not contaminate

the entire criminal proceeding. The solo visit was limited to the judge’s observation of the crime-scene’s

lighting at night. As the Sixth Circuit highlighted,

“the judge’s observation was not directly inculpatory.”

App. at 27a. And as the Michigan Court of Appeals

found, “[t]hat fact was of little consequence.” App. at

138a. Indeed, the judge’s minor observation that the

area was well-lit at night was so insignificant that

none of the three attorneys present voiced their

thoughts about it on the record despite explicitly being

given the opportunity to do so. App. at 5a. More to the

point, Gaca had already testified about the shooting,

detailing the lighting conditions at the time. App. at

4a. In other words, the Sixth Amendment violation

here was “limited to the erroneous admission of particular evidence at trial.” Satterwhite, 486 U.S. at

257–58. Automatic reversal was not required.

Because the Sixth Circuit correctly applied this

Court’s precedents to its decision denying habeas relief, this Court should deny the petition for a writ of

certiorari.

Cronic.” Where “the effect of the absence of counsel can be sufficiently separated from the entire proceeding,” Justice Markman

reasoned, “then it may be reviewed for harmless error under Satterwhite.”)

II. The petitioners do not identify any decision

that conflicts with the one below; there is no

circuit split.

Although the petitioners point out that other

courts have struggled with interpreting the interplay

between Cronic and Satterwhite, that is not the ultimate issue here. The petitioners do not point to any

case holding that automatic reversal is required on

habeas review when a deprivation of counsel occurs

during a stage that this Court has never specifically

identified as a “critical” under Cronic. And that is because Donald precludes any such holding.

In fact, the cases that the petitioners identify as

the source of a circuit split show just how undisputedly correct the Sixth Circuit’s opinion was here. The

petitioners first cite Musladin v. Lamarque, a case in

which the habeas petitioner argued that the trial

court’s failure to consult with defense counsel before

responding to a jury note violated his right to counsel.

555 F.3d 830, 835 (9th Cir. 2009). After discussing the

interplay between Cronic and Satterwhite, the court

found that Cronic was directly on point when analyzing a claim that counsel was absent at a critical stage.

Id. at 836–38. Because Cronic has not been overruled

by this Court, the Ninth Circuit determined that

Cronic’s automatic-reversal rule is binding on a federal habeas court. Id. at 838. The Ninth Circuit then

determined that it would have found that the petitioner was denied counsel at a critical stage and entitled to automatic reversal—if it were reviewing the

claim de novo. Id. at 842. The court went on:

. . . AEDPA permits us to grant [the petitioner]’s request for relief only if the state

court’s decision was “contrary to, or an unreasonable application of,” the Cronic standard.

28 U.S.C. §2254(d)(1). Specifically, we must

find that a state court would be objectively unreasonable in holding that a mid-deliberations

communication to the jury does no more than

refer the jury back to the original jury instructions is not a “critical stage” under Cronic.

This we cannot do. . . . Accordingly, we are

not free to hold that the state court’s decision

to require a demonstration of prejudice resulting from the denial of counsel here was objectively unreasonable.

Id. at 842–43. Just as the Sixth Circuit found that it

was not objectively unreasonable for the state court to

find that a judge’s solo crime-scene visit does not require automatic reversal, the Ninth Circuit found that

a judge’s response to a jury note without first consulting defense counsel does not require automatic reversal. There is no conflict.

Next, the petitioners identify Burdine v. Johnson,

262 F.3d 336 (5th Cir. 2001) (en banc), as further support for its purported circuit split. Pet. App. at 25a,

26a. But Burdine was a pre-AEDPA case, and the

Fifth Circuit expressly stated that it was applying

“pre-AEDPA standards.” 262 F.3d at 374. It was

therefore not limited to looking at only the holdings of

this Court before granting relief, Woodall, 572 U.S. at

419, as the Sixth Circuit below was. That other federal

courts may have a different take on the contours of

Cronic under a different standard says nothing of

whether it would have decided the instant case differently.

Sensing that this may not demonstrate a circuit

split, the petitioners then suggest that the Sixth Circuit’s own precedent establishes a circuit split. Pet. at

25a, 26a. But they ignore the applicable standard yet

again. In Van v. Jones, the Sixth Circuit expressly

noted that “[n]o state court ever addressed the claim

that [a defendant’s consolidation] hearing was a critical stage of the criminal proceeding.” 475 F.3d 292,

297 (6th Cir. 2007). AEDPA’s deferential limitations

were thus not applicable. Indeed, the Van court never

cited AEDPA, making its lengthy discussion about

what constitutes a critical stage under Cronic largely

irrelevant to the Sixth Circuit’s decision in this case.

It certainly does not evidence a circuit split.

At bottom, this Court in Donald made clear that

habeas relief is not available on a Cronic-based claim

unless this Court has already determined that the

specific stage at issue is a critical stage warranting

automatic reversal. The Sixth Circuit followed that

precedent, and the petitioners do not identify any

other court of appeals that would have decided this

case differently. There is no circuit split.

III. This case presents a poor vehicle for review

because

the

petitioners’

claims

are

procedurally defaulted.

The Sixth Circuit addressed the merits of the petitioners’ claims after rejecting the State’s argument

that the claims were procedurally defaulted. The

State would raise the argument again in this Court,

creating an obstacle to navigate before even reaching

the merits.

A federal habeas court may not address the merits

of a claim if the petitioner “failed to follow applicable

state procedural rules in raising the claims.” Sawyer

v. Whitley, 505 U.S. 333, 338 (1992). In other words, if

a state court relies on an “adequate and independent

state law ground,” habeas relief is barred absent a

showing of cause and prejudice. Wainwright v. Sykes,

433 U.S. 72, 86–87 (1977). See also Murray v. Carrier,

477 U.S. 478 (1986) (“Wainwright v. Sykes plainly implied that default of a constitutional claim by counsel

pursuant to a trial strategy or tactical decision would,

absent extraordinary circumstances, bind the habeas

petitioner even if he had not personally waived that

claim.”).

The petitioners here failed to comply with a state

procedural rule that requires defendants to contemporaneously object to a constitutional error in the trial

court. See People v. Carines, 597 N.W.2d 130, 138–39

(Mich. 1999) (adopting the plain-error standard for reviewing unpreserved constitutional errors). The Michigan Court of Appeals relied on that adequate and independent state procedural rule, citing Carines and

stating that it was reviewing the claim “for outcome

determinative error” because the petitioners did not

object to the judge’s solo visit. App. at 136a, 145a.

Even the Sixth Circuit found that the state court’s

analysis “seem[ed]” to procedurally bar the claims.

App. at 11a–12a. 3

The Sixth Circuit determined, though, that the

state court’s discussion of Cronic muddied up the

3 Petitioners have not suggested that counsel’s constitutional in-

effectiveness, nor any other reason, serves as cause to excuse the

default.

waters. App. at 12a. Because it was not clear whether

the Cronic discussion was part of the plain-error analysis, the Sixth Circuit found that the Michigan Court

of Appeals had not “clearly and expressly” relied on a

state procedural rule. Id. But it was certainly clear

that the state court was reviewing the unpreserved

claim for plain error—the court said so. App. at 136a,

145a. And it was clear that the state court denied the

claim without repudiating the plain error review

standard. App. at 138a, 145a–146a. Had the court

stopped at this point, there would be no question that

the claim was procedurally defaulted. The court’s subsequent one-paragraph discussion of Cronic addressing the merits of the petitioners’ constitutional claim,

App. at 138a–139a, does not somehow render the prior

analysis less clear.

Because the Michigan Court of Appeals relied on

a state procedural rule to reject the petitioners’ claims

that they were denied the right to counsel, this Court

cannot grant habeas relief. This case therefore presents a poor vehicle to review the question presented

in this petition.

CONCLUSION

This Court should deny the petition for a writ of

certiorari.

Respectfully submitted,