Petition for Writ of Certiorari — Anthony J. Springer, Petitioner v. Bryan Morrison, Warden

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No

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FILED

APR 1 \ 2022

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IN THE

OFFICE OF THE CLERK

ftftl flBfiMjjCiiJM. Ujg

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SUPREME COURT OF THE UNITED STAT

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Pro Se,

ANTHONY J. SPRINGER

:

— PETITIONER

(Your Name)

vs.

:

BftYAN MORRISON/ Warden

— RESPONDENT(S):

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ON PETITION FOR A WRIT OF CERTIORARI TO

:

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United States Court of Appeals for the Sixth Circuit

(NAME OF COURT THAT LAST RULED ON MERITS OF YOURi CASE)

I

PETITION FOR WRIT OF CERTIORARI

Anthony J. Springer/ 760969

(Your Name)

. i

Lakeland (MSP)

s

. Lakeland Correctional Facility 141 First St.

(Address)

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Coldwater, MI. 49036

(City, State, Zip Code)

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(Phone Number)

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QUESTION(S) PRESENTED

Question #1:

TRAIL

AND

APPELLATE

COUNSEL

PROVIDED INEFFECTIVE

ASSISTANCE FOR FAILING TO INVESTIGATE AND PRESENT THE

PRE-TRIAL DEFENSE OF ENTRAPMENT BY ESTOPPEL.

Question #2:

APPELLATE

COURT

APPEALABILITY

SHOULD

OF

HAVE

HABEAS

ISSUED

ISSUE

CERTIFICATE

#1)

OF

INEFFECTIVE

ASSISTANCE OF COUNSEL FOR FAILURE TO PURSUE A DEFENSE

OF ENTRAPMENT BY ESTOPPEL. REASONABLE JURIST COULD

DEBATE WHETHER ISSUE #1 SHOULD HAVE BEEN RESOLVED

DIFFERENTLY, BECAUSE MICHIGAN SUPREME COURT JUSTICE

BERNSTEIN WOULD HAVE GRANTED LEAVE TO APPEAL.

su.

LIST OF PARTIES

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

[ ] All parties do not appear in the caption of the case on the cover page. A list of

all parties to the proceeding in the court whose judgment is the subject of this

petition is as follows:

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TABLE OF CONTENTS

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OPINIONS BELOW

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. JURISDICTION.

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CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

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STATEMENT OF THE CASE

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REASONS FOR GRANTING THE WRIT

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CONCLUSION

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INDEX TO APPENDICES

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; APPENDIX A Springer

: (March 10, 2022).

v.

Morrison,

2022

U.S.App.

tiEXIS

6302

1

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APPENDIX B Springer v. Berghuis,

(W.D. Mich. May 27, 2021).

2021 U.S. Dist r

LEXIS

100169

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APPENDIX C People v. Springer, 2017 Mich. LEXIS 2jll9

APPENDIX D

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APPENDIX E

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APPENDIX F

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TABLE OF AUTHORITIES CITED

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CASES

;

Strickland v. Washington/ 466 U.S. 668, 104 S.Ct

80 L. Ed . 2d| 674..................................................................

PAGE NUMBER

252,

11, 12, 14

Wiggins vJ Smith, 539 U.S. 522, 156 L.Ed.2d 471,

123 S.Ct. 12527 (2003)...............................................................

12

:

13

Couch v. Broker, 632 F.3d 241, 246 (6th Cir. 2011)

1

13

Poindexter! v. -Booker,

301 Fed.Appx. 522 (6th Cir. 2008)

;

Raley v. Ojhio, 360 U.S. 423 (1959)........................

16, 18

Cox v. Louisiana, 379 U.S. 559 (1965)..................

16, 18

People v. jwoods, 241 Mich.App. 545, 555 (2000).

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■

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17

i

17

People v. jBennett, 2013 Mich.App. LEXIS (2005).

McGuire v.! Ludwick,

2009 U.S. Dist. LEXIS 69983

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STATUTESlAND: RULES

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[

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OTHER

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IN THE

SUPREME COURT OF THE UNITED STATES j

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

[X] For cases from federal courts:

; .

The opinion of the United States court of appeals appears ai Appendix (A?'

the petition and is

j !

[ ]; reported at

; Or,

[ ]; has been designated for publication but is not yet reported; or,

p ] i is unpublished.

Springer v. Morrison/ 2022 U.S.App. LEXIS 6302

The opinion of the United States district court appears at Appendix

the petition and is

- j

—: to

[ ]; reported at

; or,

[ ]; has been designated for publication but is not yet reported; or,

[ >3 i is unpublished.

i

Spring!er v. Berghuis, 2021 U.S. Dist. LEXIS 100169

[x] For cases from state courts:

The opinion of the highest state court to review the merits appears at

Appendix (C) to the petition and is

:

[ ] |reported at_____________________________________ j—j.; or,

[ ]; ha,s been designated for publication but is not yet reported; dr,

[ X| i is unpublished.

!

j

People! v. Springer/ 2017 Mich. LEXIS 2119 !

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The opinion of the_

appears at Appendix

1

!

court :

to the petition and is

[ ] reported at

1—; or’

[ ] has been designated for publication but is not yet reported; oi",

[ ] :is unpublished.

1.

to

JURISDICTION

P ] For cases from federal courts:

The date on which the United States Court of Appeals decided my case

was March 10, 2022

fx] No petition for rehearing was timely filed in my case.

[ ] A timely petition for rehearing was denied by the United States Court of

, and a copy of the

Appeals on the following date: ------------------order denying rehearing appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted

(date)

(date) on

to and including______

in Application No. __ A

The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).

[ ] For cases from state courts:

The date on which the highest state court decided my case was

A copy of that decision appears at Appendix----------[ ] A timely petition for rehearing was thereafter denied on the following date:

______________________ , and a copy of the order denying rehearing

appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted

(date) in

(date) on

to and including____

Application No. __ A

The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).

-2-

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Sixth Amendment of the Federal Constitution

(Right to Effective Assistance of'Counsel)

28 U.S.C. § 2253(c)(2)(Certificate of Appealability)

-3-

STATEMENT OF THE CASE

Petitioner Anthony Springer was tried with his codefendant

wife,

Marsha Springer. After a jury trial Anthony was convicted

of torture, and first-degree child abuse, in connection with the

death of their 16-year old daughter, Calista that was restrained

to her bed at the time of an accidental house fire.

In

Petitioner's

28 U.S.C.

§

2254

habeas

corpus petition,

Petitioner raised Ground One) Ineffective Assistance of Trial and

Appellate Counsel for Failure to Raise the Pre-Trial Defense of

Entrapment

by

Estoppel.

(ECF

No.

1

filed

on

08/07/2015).

Petitioner alleged that he restrained his daughter with a home­

made device, with complete knowledge and approval from Community

Mental Health (CMH), and Child Protective Service (DHS/CPS).

On

10/29/2015

the

Michigan

Supreme

Court

vacated

it's

initial denial and, in lieu of granting leave, vacated the trial

court's

denial

of

Petitioner's

motion

with

respect

to

habeas

Ground One, Ineffective Assistance, Entrapment by Estoppel. (ECF

No.

23-39

Michigan

Supreme

Court

150645).

The

trial

court

appointed counsel for Petitioner, conducted a hearing on Ground

One, and invited post-hearing briefs regarding Ground One.

(ECF

No. 23-33; 05-12-2016 Evidentiary Hearing Transcript).

Facts Developed at Evidentiary Hearing:

Attorney

John

Bush

represented

Petitioner

at

preliminary

examination and jury trial. The issues to be developed concerned

ineffective assistance of trial and appellate counsel for failure

to investigate and present the. pre-trial defense of entrapment by

estoppel.

(1)

Because Petitioner and Marsha Springer were tried jointly,

the strategy developed was a "joint defense," and both defendants

and their separate counsel would meet for collaboration, (ECF No.

23-33;

05-12-2016 Evidentiary Hearing Page ID.

3837).

Mr.

Bush

admitted that the defense "team" had discussed the issue of tacit

condonation by DHS/CPS.

(Ev. Hr'g. Tr. Page ID. 3853-3854). Mr.

Bush tried to show that the DHS/CPS’ knowledge of the restraints

indicated that the Springers were

was disciplining

"acting reasonably in how he

and controlling his daughter."

(Ev.

Page ID. 3837-3838). He believed that the DHS/CPS

Hr’g.

Tr.

awareness

was

"very relevant to the trial." (Ev. Hr'g. Tr. Page ID. 3838). Mr.

Bush did not believe the DHS/CPS "condoned" the restraints even

though DHS/CPS knew about them. (Ev. Hr'g Tr. Page ID. 3838).

With

regard

acknowledged

DHS/CPS'

that

to

the

prior

issue

to

of

trial,

entrapment,

the

court

had

attorney

Bush

commented on

awareness of the restraints, and whether this awareness

constituted "condonation." (Ev. Hr'g. Tr. Page ID. 3841-3842).

Question by Petitioner's attorney MS. OWENS:

"And,

at that

hearing, Mr. Bush, the judge specifically says:

This was

That's another interesting factor that's

brought to the State's attention back in 2004. The

State investigated it and did not do anything to stop

it. So they were clearly aware of the claim in 2004.

One of the questions I had was whether or not

H |

there's an argument to be raised in that regard that

the State's involvement condoning the use of the chain

by not taking any action would raise any argument for

the defense in terms of due process rights, but that's

not been raised here.'" (08-31-2009 Motions Transcript

ECF No. 23-7 Page ID. 985-986).

(2)

Although

he

was

aware

of

the

doctrine

of

entrapment

by

estoppel, and acknowledged the trial court's comments about it,

attorney Bush did nothing

to investigate the

issue,

either by

research (Ev. Hr'g. Tr. Page ID. 3843) or by filing a motion in

limine

(Ev.

Hr'g. Tr.

Page ID.

3844). We know he did not know

whether he had all of the DHS/CPS records. The potential outcome

from a motion in limine as to the issue of entrapment by estoppel

would

have

been

outright

dismissal

of

the

charges,

a

highly

favorable outcome. (Ev. Hr'g. Tr. Page ID. 3844-3847).

When

asked

whether

DHS/CPS

had

implicitly

condoned

the

restraints by failing to take action, Mr. Bush denied the DHS/CPS

had "done nothing" to prevent Calista from being restrained; "I

also believe that they intervened,

talked to the family, became

/•

involved,

tried to tell them the dangers of fires. I think they

did a lot." (Ev. Hr'g. Tr. Page ID. 3845).

At trial,

DHS/CPS investigator Patricia Skelding explained

to Mr. Bush, that the chain restraint had been authorized by the

State.

"And that coworker told me Calista is being chained to

her bed with permission from Community Mental Health.

And she already knew that before I even got the

I believed at the

assignment. So that told me that

time that everybody knew that; that Community Mental

Health knew that; that my supervisor knew that; that

the coworker knew that. That was before I even started

the (hair-pulling) investigation."

pg. 998 at 19).

(Trial Tr. Vol.flV;

****★★★★*★*★★★★★**★★★★*

(3)

Q.

"If I understand your testimony, then, you

believe that the restraining or chaining to the bed had

been authorized; is that correct?"

A. "I believe that, yes."

Q. "All right. And, in fact, you believe it to be

necessary yourself; is that correct?"

A.

"According

to

what

believed, yes - "

Q. "All right."

A.

I believed

they

it

told

me

and

was necessary."

what

(Trial

I

Tr.

Vol.#IV; pg. 1000 at 13).

DHS/CPS Ms. Skelding testified that she trusted the people

in

her office and Community Mental

Health when they diagnosed

Calista, and "the overall end to that was that she needed to be

protected, she needed to be safe, and she needed to be restrained

at

night

and

that

the

parents

couldn't

be up

24 hours

a day

supervising her." (Trial Tr. Vol.tIV; pg. 997 at 14).

Specifically,

with

regard

to

the

preliminary

examination

testimony of Patricia Skelding and her DHS/CPS supervisor Cindy

Bare;

attorney Bush acknowledged that they testified that they

had known of "restraints" (not necessarily chains, but some sort

of tethering) for 4-5 years before the fire (Ev. Hr'g. Tr. Page

ID.

3847-3848)

and

even

closed

noted that Calista was being

3848).

Yet,

long-standing

condonation.

he

did

not

knowledge

(Ev.

aware that DHS/CPS

Hr'g.

is

out

"chained"

believe

by

Tr.

the

case having

(Ev. Hr'g. Tr. Page ID.

that

DHS/CPS

Page ID.

Springers

this

raised

3848).

explicit

and

an

of

issue

Attorney Bush was

"required" to take action if there is a

credible allegation of child abuse or neglect, up to removal

(4)

of the child from the home and/or termination of parental rights/

that

DHS/CPS

Calista/

did

nothing

to

file

a

petition with

regard

to

and closed the case even with no resolution to the

"chaining" issue. (Ev. Hr'g. Tr. Page ID.. 3848).

Notwithstanding# attorney Bush did not believe that DHS/CPS

knowledge and actions raised a defense for Petitioner:

Q. "...The issue right now is did you not recognize

that that could be a defense for Mr. Springer?"

A. "If the facts were there/ I would have raised it/

yes." (Ev. Hr'g. Tr. Page ID. 3850).

But/

attorney Bush was

looking

for

"the document

the

record that says we recommend that...Calista be restrained in her

bed. I never saw that." (Ev. Hr'g. Tr. Page ID. 3850). He did not

believe that "condonation by inaction" qualified as establishing

a defense/ or was sufficient to file a motion.

(Ev. Hr'g. Tr.

Page ID. 3851-3856). He acknowledged that Cindy Bare's "signing

off" on the DHS/CPS report discussing Calista being chained to

the bed could be a "plausible argument." (Ev. Hr'g. Tr. Page ID.

3853).

On cross-examination/ attorney Bush testified that he never

found any report/ document or statement from DHS/CPS indicating

that "it was okay to restrain Calista in any way." (Ev. Hr'g. Tr.

Page ID. 3859). "I was looking for that/ but I never found that."

(Ev. Hr'g. Tr. Page ID.

3859). He further testified on cross-

examination that he did not believe the Springers could meet the

elements

government

of

estoppel/

worker

"told

specifically

the

defendant

the

that

element

certain

that

the

criminal

conduct was legal" (Ev. Hr'g. Tr. Page ID. 386^)/ even though Mr.

(5)

Bush argued that the Springers acted reasonably and in good faith

(Ev.

Hr'g.

limine

Tr.

Page

predicated

frivolous.

ID.

on

3863-3864).

an

estoppel

He

believed

theory

a

motion

would

have

in

been

(Ev. Hr'g. Tr. Page ID. 3865-3866). He did agree that

the issue of "condonation" was "percolating" through the entire

trial,

including

via

jury

questions,

but

he

thought

it

was

next.

He

was

but

did

not

frivolous. (Ev. Hr'g. Tr. Page ID. 3869).

Facts Developed at Evidentiary Hearing:

Appellate

appointed

to

counsel

John

Roach

represent

Mr.

Springer

testified

on

appeal,

represent him in the Michigan Supreme Court.

ID.

3878).

obtained

After

the

receiving

circuit

the

appointment,

attorney

probative

file

court

(Ev. Hr'g. Tr. Page

report

Roach

and

transcripts. He then visited Petitioner in prison. (Ev. Hr'g. Tr.

Page ID. 3878-3879).

At

his

attorney

introductory

Roach

explained

potential issues.

the

following

(and

only)

meeting

the

appellate

with

process

Petitioner,

and

discussed

(Ev. Hr'g. Tr. Page ID. 3881-3882). He raised

issues:

1)

an

autopsy

photo

issue

2)

an

issue

regarding severance of the trials between Mr. and Mrs. Springer

3) an unavailable witness whose preliminary examination testimony

was read into the record 4) a sentencing issue and a fifth issue

that Mr.

Roach could not recall.

(Ev. Hr'g. Tr. Page ID. 3883-

3884). He did not recall whether he and Petitioner discussed the

issue of entrapment at the prison visit. (Ev. Hr'g. Tr. Page ID.

3884).

He did recall

that DHS/CPS witnesses had been aware of

Calista being restrained to her bed at night, and was aware of

entrapment,

although he had "not actually delved into it until

this case." (Ev. Hr'g. Tr. Page ID. 3884-3885).

(6)

Mr. Roach conceded that as an appellate attorney, he had an

obligation

to be

aware of

issues

that

arise

regularly

in

the

practice of appellate law, including entrapment, and that such an

issue would be one that a reasonable practitioner of appellate

law

would be

expected

to know about.

(Ev.

Hr'g.

Tr.

Page ID.

3885). He agreed that Petitioner was claiming DHS/CPS knew about

Calista's

restraints

(Ev.

Tr.

Hr'g.

concern

about

"reminded.. .of

"all

along...[T]hat

Page ID.

3886).

a

process

"due

that

fact

that

was

his

claim,

yes."

When the trial court expressed

issue,"

there

attorney

were

Roach

individuals

knowledge of their daughter being chained up,

yes."

was

who

(Ev.

had

Hr'g.

Tr. Page ID. 3886). He did not raise this issue on appeal, or in

post-conviction

proceedings,

because

"many

of

the

knew about it also tried to do something about it."

Tr.

Page ID.

tacit

3886).

condonation

people

(Ev. Hr'g.

He did not believe there was an

in

this

case

or

that

that

issue of

Petitioner's

trial

attorney should have "focused" on that issue. (Ev. Hr'g. Tr. Page

ID.

3887-3888).

He

agreed

that

the

issue

of

condonation

"percolated" throughout the trial, but he took no action to raise

the issue of ineffective assistance of trial counsel (via motion

for a new trial or motion to remand) because "based on the facts

that

different

departments...had

actually...tried to do something about it."

(Ev. Hr'g. Tr. Page

ID.

were

3889-3892).

presented...the

He did not believe the issue of entrapment by

estoppel was there. (Ev. Hr'g. Tr. Page ID. 3892).

(7)

I

Facts Developed at Evidentiary Hearing:

Petitioner Anthony Springer was the final witness for the

defense. (Ev. Hr'g. Tr. Page ID. 3894). At the very first meeting

with

attorney Bush#

the Springers had brought up the DHS/CPS'

knowledge of Calista being restrained# and that the DHS/CPS had

approved restraints. (Ev. Hr'g. Tr. Page ID. 3897-3899):

Q. "When did you first discuss that with him?"

A. "On the first meeting."

Q. "What was the nature of that discussion?"

A. "The discussion was that all along everybody in

DHS knew that Calista was being, restrained# they knew

why# they knew how# and they okayed it."

Q. "And what did Mr. Bush say to that?"

A. "He said that there—apparently there's

a

law

against it [against "restraining my child"] and that

ignorance of the law did not make any kind of defense."

(Ev. Hr'g. Tr. Page ID. 3899-3900).

Petitioner

testified

that

Patricia

Skelding

restraining Calista but did nothing to stop him.

Page

ID.

workers

the

3900).

Later on#

the

Springers were

"didn't

like"

(Ev. Hr'g. Tr.

told by DHS/CPS

"to lock her door# through the first DHS worker# during

evenings.

And

it

later on#

became

to

take whatever means

necessary to protect her from herself and to protect others from

herself." (Ev. Hr'g. Tr. Page ID. 3900).

His testimony clearly raised a fact question of whether the

Springers

were

affirmatively

told

to

restrain

Calista#

and

according to Mr. Springer# they were so told. The Springers were

told to "take any means necessary." (Ev. Hr'g. Tr. Page ID. 39013902).

Petitioner

believed

he

had

(8)

specific

approval

from

the

DHS/CPS

to

restrain

Calista,

although

there

was

no

specific

document giving approval. (Ev. Hr'g. Tr. Page ID. 3902). In fact/

Petitioner Anthony Springer offered to show Patricia Skelding the

home-made restraint/ but Ms. Skelding declined/ saying she didn’t

need to see it since it had already been approved:

Q. "Ms. Skelding said she didn't need to since it

had previously been okayed - "

A. "Yes."

nor was she there for that."

Q.

A. "Correct."

Q. "Was that Ms. Skelding's exact words to you - "

A. "Yes."

- that it had been okayed?"

Q.

A. Uhm-hmm." (Ev. Hr'g. Tr. Page ID. 3908).

Additionally/ he was told by Sharon Gerger (apparently the

first

DHS/CPS

necessary"

worker

to restrain

with

the

Calista.

Springers)

to

use

"any

means

(Ev.

Tr.

Page ID.

3912-

Hr'g.

3914).

Facts Developed at Evidentiary Hearing:

During codefendant Marsha Springer's portion of the hearing

her counsel/ Victor Bland/ testified that he never filed any sort

of motion regarding estoppel because

"I never

felt we had the

goods. I never felt we had one person who said/ I told them to do

this." (Ev. Hr'g. Page ID. 3926). Randy Davidson/ Mrs. Springer's

appellate counsel/ felt that the Springers could not meet two of

the

elements

representation/

of

entrapment

or objectively

by

estoppel/

reasonable

Tr. Page ID. 3942).

(9)

i.e.

reliance.

a

specific

(Ev.

Hr'g.

Marsha Springer testified that Patricia Skelding was aware

of the home-made chain restraint and declined to see it herself.

% (Ev.

Hr'g.

Tr.

Page

ID.

additional#

and

highly

3955).

Mrs.

probative/

Springer

item

of

did

add

one

testimony—she

testified that she asked DHS/CPS to pay for restraints that were

common in psychiatric hospitals.

(Ev. Hr'g. Tr. Page ID. 3954).

Mrs. Springer showed a picture of one such restraint to Sharon

Gerger/ but because it cost $1/500 DHS/CPS declined to pay for

it/ and Sharon Gerger said that the Springers were doing a' fine

job, "keep up the good work." (Ev. Hr'g. Tr. Page ID. 3953-3954,

3972-3973). She testified that it was told to her that it was

okay to restrain Calista with the home-made chain restraint. (Ev.

Hr'g.

Tr.

Page

ID.

3953,

3972-3973).

testified, the evidentiary hearing closed.

(10)

After

Mrs.

Springer

REASONS FOR GRANTING THE PETITION

Reason For Granting Question II:

TRIAL

AND APPELLATE

COUNSEL

PROVIDED

INEFFECTIVE

ASSISTANCE FOR FAILING TO INVESTIGATE AND PRESENT THE

PRE-TRIAL DEFENSE OF ENTRAPMENT BY ESTOPPEL.

Mr. Springer has a constitutional Sixth Amendment right to

the effective assistance of counsel. The above claim calls for

the two-pronged deficiency and prejudice analysis of ineffective

assistance

of

counsel

precedents

announced

in

Strickland

v.,

. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Deficiency:

Without

doctrine

of

any

investigation

entrapment

by

of

DHS/CPS

estoppel,

employees

attorney

Bush

or

the

was

ill

equipped to assess the plausibility of filing a pretrial motion.

Mr.

Springer

told

attorney Bush

right

that DHS/CPS knew of the chain restraint.

from the beginning

(ECF No. 23-33; 05-12-

2016; Ev. Hr'g. Tr. Page ID. 3899-3900). Mr. Bush testified that

he thought that;

"I've always felt that DHS understood what the

Springer familiy was doing."

(Ev. Hr'g. Tr. Page ID. 3832). Mr.

Bush

of

never

investigated

any

the DHS/CPS workers

involved with the Springer family.

Specifically Mr.

that

were

Bush never

made any attempt to contact "Pat Skelding and Cindy Bare" before

trial.

ID.

"I don't recall speaking with them." (Ev. Hr'g. Tr. Page

3833).

Neither did he ever see or investigate the reports

(11)

that

DHS/CPS discussed

Hr'g.

Tr.

Page

ID.

restraining

3833).

Mr.

Calista with

Bush

admitted

a

chain.

that

(Ev.

Patricia

Skelding testified at trial and the preliminary examination that

she noted in the file that Calista was being chained, however she

did not

recommend the case into the court system,

but

instead

recommended the case be closed. "That's correct." (Ev. Hr'g. Tr.

Page

ID.

3848);

see

also

DHS/CPS

supervisor

Cynthia

Bare

admitting

she signed off on Skelding's recommendation to close

the

(Trial

case.

Tr.

Vol.flV;

that he received records

the Springers

pg.

1025-2028).

Mr.

Bush stated

from civil attorneys that represented

in a different matter. But, admitted that he did

not know if he had all of the records.

3831).

Mr.

Bush

agreed

that

the

(Ev. Hr'g. Tr. Page ID.

issue

of

whether

DHS/CPS

"condoned restraining" Calista was a big issue. "It was something

I think was very relevant to the trial, yes." (Ev. Hr'g. Tr. Page

ID. 3838).

Patricia

Skelding

submitted

a

report

that

stated

the

Springers were using a chain restraint, and recommended closing

the

case.

DHS/CPS

supervisor

Cynthia

Bare

signed

off

on

the

report and closed the case. Attorney Bush agreed that with these

facts the State was agreeing with the method of restraint,

"You

could make that argument...I guess that's a plausible argument."

(Ev. Hr'g. Tr. Page ID. 3853).

Competent counsel can be expected to undertake a "thorough

investigation of law and facts relevant to plausible options" for

the

defense.

Strickland,

466

U.S.

at

690.

After

this Court's

holding in Wiggins v. Smith, 539 U.S. 522, 156 L.Ed.2d 471, 123

S.Ct. 2527 (2003), the Sixth Circuit in a long line of cases has

(12)

held to the principle that;

"To make a reasoned judgment about

whether

evidence

is

presenting#

says."

Couch

Booker#

Poindexter

v.

v.

worth

632

Booker,

F.3d

301

one

241#

must

246

Fed.Appx.

know

what

it

(6th

Cir.

2011);

522

(6th

Cir.

2008)("Consistent with Wiggins and Williams# we have also granted

habeas

relief when counsel

failed to investigate#

particularly

when counsel declined to interview key defense witnesses"). These

cases

demonstrate

defense

that

witnesses

Mr.

Bush*s

[Patricia

failure

Skelding

and

to

interview

Cynthia

Bare]

key

is

objectively unreasonable in light of Strickland.

Given the record fact# that both Ms. Skelding and Ms. Bare

would have offered beneficial entrapment by estoppel testimony at

a

pretrial

witnesses

hearing#

before

Mr.

trial

is

failure

neither

to

"strategic"

investigate

said

nor reasonable.

367 F. 3d 562, 574 (6th Cir. 2004)("Wiggins

Bigelow v. Williams#

demonstrates that

Bush's

it does not

invariably suffice that a lawyer

make some efforts to investigate a case; the proper inquiry is

»»» whether

the known evidence would lead a reasonable attorney to

investigate further. it n 123 S.Ct. at 2538").

According

prior

to

to attorney Bush's

trial

was;

Mr.

testimony the known evidence

Springer

told

him

right

from

the

beginning that DHS/CPS knew of the chain restraint, and he always

felt

that

DHS

understood what the Springer's were doing.

Hr'g.

Tr.

Page ID.

(Ev.

3832); He thought that the issue of DHS/CPS

condoning the restraint was

"very relevant to the trial."

(Ev.

Hr'g. Tr. Page ID. 3838); Even after the Court stated that one of

the questions it had "was whether or not there's an argument to

be raised in that regard that the State's involvement condoning

(13)

the use of the chain by not taking any action would raise any

argument for the defense in terms of due process rights...." (Ev.

Hr'g. Tr. Page ID. 3841). Bush still did not research the law or

investigate DHS/CPS witnesses. "I didn't think there was anything

to investigate at that time." (Ev. Hr'g. Tr. Page ID. 3843).

This Honorable Court should find attorney Bush's failure to

investigate known witnesses and applicable law inexcusable# and

thus constitutionally deficient under Strickland. Strickland# 446

U.S. at 688.

Prejudice:

Both,

were

Mr.

assured

DHS/CPS.

In

and Mrs.

that

Springer testified adamantly that they

Calista's

portions

of

their

restraints

were

acceptable

to

testimony#

the

Springers

each

testified that they were affirmatively told by DHS/CPS workers it

was

acceptable

to

restrain

Calista.

(Anthony

Skelding said...it had previously been okayed

Tr.

Page ID.

Springer):

"Ms.

Yes" (Ev. Hr'g.

3908); DHS/CPS Sharon Gerger told the Springers to

restrain Calista to her bed: "By any means necessary." (Ev. Hr'g.

Tr. Page ID. 3913);

(Marsha

Skelding

Patricia

Springer)

"knew

about

chaining...She was offered to go upstairs and take a look at the

improvised

restraint."

Prosecutor asked#

restrain

Hr’g.

her?"

Tr.

Springer's

(Ev.

Hr'g.

Tr.

Page

ID.

3955);

The

"Did they tell you to use a choker chain to

MSR.

Page ID.

SPRINGER:

3958).

testimony about

"...I'm going to say yes."

Mrs.

(Ev.

Springer explained why Anthony

the type of restraint used and the

specific time of use seemed conflicting:

(14)

THE COURT: "...On the date that Ms. Skelding in

2004/ are you saying that you were using the chain and

the other items on that date?"

MRS.

SPRINGER:

"We

could

have

time...And

improvised

I

know we may have

been

at

that

a chaining

restraint then." (Ev. Hr'g. Tr. Page ID. 3960).

Mrs. Springer testified further that the description Calista

gave to Ms.

Skelding

in 2004 of the improvised chain restraint

was correct. "I would say yes." (Ev. Hr'g. Tr. Page ID. 3975).

The

the

Springer's

testimony

acknowledged

testimony on this point

of

Pat

Skelding

that

they

knew

and

Calista

is corroborated by

Cindy

was

Bare/

not

who

both

simply

being

"restrained" but actually was being chained. In her preliminary

exam testimony# Pat Skelding at one point says that she discussed

"chaining" with the Springers

later#

many

(PE.

Tr.

183)

but then one page

says the concept of "chaining" was not mentioned "in so

words."

(PE.

Tr.

184).

But#

Skelding

had

been

Calista herself that she was being chained to her bed.

told

by

(PE. Tr.

174-175). She closed her case file because "everybody knew * « • that

Calista

was

nonetheless

being

chained

recommended

that

to

the

the

bed."

(PE.

Tr.

case be closed.

Ms.

181).

She

Skelding

also testified at trial that "Calista is being chained to her bed

with permission from Community Mental Health...I believed at the

time that everybody knew that."

(Trial Tr. Vol.#IV; pg.

19).

(15)

998 at

The

United States Supreme Court spoke on the due process

defense later known as entrapment by estoppel in Raley v. Ohio#

360 U.S. 423 (1959) and Cox v. Louisiana, 379 U.S. 559 (1965). In

each case the Court held that when a party reasonably relies on

advice

or

legality

opinion

of

from

conduct,

a

the

government

official

fundamental

fairness

regarding

of

due

the

process

relieves that party of responsibility for the legal consequences

of those actions.

In the State of Michigan the pre-trial defense of entrapment

by estoppel applies when defendant establishes by a preponderance

of

the

evidence

defendant

that

that

1)

certain

a

government

criminal

official

conduct

was

2)

told

the

legal?

3)

the

defendant actually relied on the government official's statement?

4)

the defendant's reliance was in good faith and reasonable in

light of the identity of the government official's point of law

represented,

5)

given

and the substance of the official's statement and?

the

defendant's

reliance,

the

prosecution

State

analysis,

would

be

unfair.

Under

worker

the

above

Federal

and

Patricia Skelding testified:

Calista

Community

is

being

Mental

chained

Health."

to

her

(Trial Tr.

government

"And that coworker told me

bed

with

Vol.#IV?

permission

from

pg.

19)?

998 at

"...you believe that the restraining or chaining to the bed had

been

authorized...!

necessary."

believe

that,

yes...I

believed

it

was

(Trial Tr. Vol.lIV? pg. 1000 at 13)? Even the trial

Court believed DHS/CPS condoned the use of chain restraint, thus

questionable under the Due Process Clause to seek prosecution.

(16)

"...the State's involvement condoning the use of the chain by not

taking

any action would raise any argument

terms of due process rights...."

for the defense in

(08-31-2009 Motions Transcript

EOF No. 23-7 Page ID. 985-986). Petitioner testified that DHS/CPS

worker told him "to take whatever means necessary" (Ev. Hr'g. Tr.

Page ID. 3900); Marsha Springer testified that it was told to her

that

it was okay to restrain Calista with the home-made chain

restraint. (Ev. Hr'g. Tr. Page ID. 3953, 3972-3973); Pat Skelding

testified at the prelim that she discussed

Springers

(PE.

Tr.

183)

and

she

closed

"chaining" with the

her case

file because

"everybody knew...that Calista...was being chained to the bed."

(PE. Tr. 181).

Under Michigan law, when a government agent has "improperly

instigated

excused.

first

or

encouraged

People

v.

Woods,

the

conduct,"

then

the

conduct

241

Mich.App.

545,

555

(2000)("The

prong of ordinary entrapment

entrapment

by

estoppel.

Both

is

is substantially similar to

defenses

excuse

criminal

conduct

where a government agent has improperly instigated or encouraged

the conduct."); see also People v. Bennett, 2013 Mich.App. LEXIS

2005

at

[*8]

(quoting

Woods)("The

defense

of

entrapment

by

estoppel ’excuse[s] criminal conduct where a government agent has

improperly instigated or encouraged the conduct'").

(17)

Michigan's

legal

principle

encouraged the conduct"

of

"improperly

instigated

or

is consistent with the Supreme Court's

condition in Raley v. Ohio* 360 U.S. 438 (1959)("There was active

misleading");

and

Cox

v.

Louisiana*

379

U.S.

559*

571-572

(1965)("...they relied upon assurances of the commission* either

expressed or implied....").

Federal Circuit Courts have also adopted the Supreme Court's

principle of "active misleading"..."either expressed or implied*"

and Michigan's "improperly instigated or encouraged." Please see

United

States

2004)("...an

v.

Batterjee*

official

361

F.3d

1210*

who mistakenly misleads

1216

a

(9th

person

Cir.

into a

violation of the law."); United States v. Nichols* 21 F.3d 1016*

1018 n.2

(10th Cir.

1994)("...where an agent of the government

affirmatively misleads a party as to the state of the law....").

The

trial

Court's

pre-trial

assessment

that

the

State

condoned "the use of the chain by not taking any action" (EFC No.

23-7 Page ID. 985-986) compounded with the above record evidence

that

"everybody knew...that Calista...was being chained to the

bed"

(PE.

Tr.

181) and "...Calista is being chained to her bed

with permission from Community Mental Health" (Trial Tr. Vol.#IV;

pg. 998 at 19); is overwhelming evidence that the government at

the very least, "improperly instigated or encouraged the conduct"

People v. Woods, 241 Mich.App. 545* 555 (2000).

Trial attorney Bush's failure to investigate and raise the

issue

of

entrapment

is even more deficient and prejudicial

in

light of the lessened burden of proof that he faced. As the Woods

Court noted, a defense of entrapment by estoppel is a question of

law for the Court to rule on, not a jury issue of fact. As such,

(18)

a

finding

of

entrapment

by

estoppel

preponderance

of

the

evidence."

Attorney

did

not

have

Bush

to

need

241

show

only

be

Mich.App.

entrapment

shown

545/

"by

"by

supra.

clear

and

convincing evidence" much less "beyond a reasonable doubt." All

he

had

to

show

was

a

51

-to-

49%

that

the

State

workers

"improperly instigated or encouraged the conduct" woods# supra.

The above record facts demonstrate that counsel's deficient

performance prejudiced the defendant resulting in an unreliable

or

fundamentally unfair outcome.

Strickland/

466 U.S.

668/

at

687.

Appellate

counsel

John

Roach's

performance

was

equally

deficient and prejudicial. The issue was open and apparent from

the

transcripts

the

trial

Court

invited

the

parties

to

investigate the Due Process issue of entrapment/ whether it was

formulated as "acquiescence/" "condonation/" "tacit approval/" or

entrapment

seen,

by

estoppel/"

whatever.

The

issue was

there

to be

and the trial Court had in fact seen it. Only appellate

counsel failed to pursue it. For these reasons appellate counsel

Roach was ineffective.

(19)

REASONS FOR GRANTING THE PETITION

Reason For Granting Question #2:

APPELLATE

COURT

SHOULD

HAVE

ISSUED

CERTIFICATE

OF

APPEALABILITY

OF

HABEAS

ISSUE

#1)

INEFFECTIVE

ASSISTANCE OF COUNSEL FOR FAILURE TO PURSUE A DEFENSE

OF ENTRAPMENT BY ESTOPPEL. REASONABLE JURIST COULD

DEBATE WHETHER ISSUE #1 SHOULD HAVE BEEN RESOLVED

DIFFERENTLY, BECAUSE MICHIGAN SUPREME COURT JUSTICE

BERNSTEIN WOULD HAVE GRANTED LEAVE TO APPEAL.

Specifically, with regard to Habeas Issue #1, on October 24,

2017 Justice Bernstein of the Michigan Supreme Court dissented

from the decision to deny leave to appeal and would have granted

leave.

this

(Mich. Order, ECF No. 23-40, Page ID. 4674). In light of

fact,

decide

this

"Petitioner has

issue

shown that

differently

or

jurists of reason could

that

the

issue

deserves

encouragement to proceed further." McGuire v. Ludwick, 2009 U.S.

Dist.

LEXIS 69983 at 29 (E.D. Mich. 2009);

Tribley,

2013 U.S.

Dist.

LEXIS 50128 at 41

see also Buckner v.

(E.D.

Mich.

2013);

Robinson v. Stegall, 157 F.Supp.2d 802, 820 n.7 & 824 (E.D. Mich.

2001).

Respectfully, the Sixth Circuit Court of Appeals has simply

applied a higher bar than necessary for issuing a COA. Instead,

the

certificate

of

appealability

analysis

is

limited

"to

a

threshold inquiry into the underlying merit of the claims" and

whether

"the District Court's decision was debatable." Buck v.

Davis,

137 S.Ct. 759, 774 (2017)(quoting Miller-El v. Cockrell,

537 U.S. 322, 327 (2003)).

For the above reasons this Honorable Court should grant the

petition, remanding to the Circuit Court for a full merits review

with a COA.

(20)

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

m.

Date:

I ^ ;U>ZZ

(21)