Petition for Writ of Certiorari — George Stephenson, Warden, Petitioner v. Lafayette Deshawn Upshaw
Supreme Court briefJun 26, 2024
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PETITION APPENDIX TABLE OF CONTENTS
United States Court of Appeals
for the Sixth Circuit
Opinion in 22-1705
Issued March 28, 2024 ...................................... 1a–26a
United States Court of Appeals
for the Sixth Circuit
Judgment in 22-1705
Issued March 28, 2024 ............................................ 27a
United States District Court
Eastern District of Michigan
Case No. 20-cv-12560
Order Lifting Stay
Issued May 6, 2024 ......................................... 28a–29a
United States Court of Appeals
for the Sixth Circuit
Mandate in 22-1705
Issued May 1, 2024 ................................................. 30a
United States Court of Appeals
for the Sixth Circuit
Order in 22-1705
Issued April 23, 2024 ...................................... 31a–33a
United States District Court
Eastern District of Michigan
Case No. 20-cv-12560
Opinion and Order Granting Respondent’s
Motion for a Stay Pending Appeal
Issued November 10, 2022.............................. 34a–36a
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United States District Court
Eastern District of Michigan
Case No. 20-cv-12560
Opinion and Order Granting Petition for a
Writ of Habeas Corpus
Issued July 14, 2022 ....................................... 37a–93a
United States District Court
Eastern District of Michigan
Case No. 20-cv-12560
Judgment
Issued July 14, 2022 ....................................... 94a–95a
United States District Court
Eastern District of Michigan
Case No. 20-cv-12560
Opinion and Order Granting an
Evidentiary Hearing and Petitioner’s
Motion for Summary Judgment
Issued May 2, 2022 ....................................... 96a–131a
Michigan Supreme Court
Case No. 154101
Order
Issued April 4, 2017 .................................... 132a–133a
Court of Appeals
Case No. 325195
Opinion
Issued May 19, 2016 ................................... 134a–156a
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RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 24a0067p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
LAFAYETTE DESHAWN UPSHAW, │
Petitioner-Appellee,
v.
GEORGE STEPHENSON, Warden, │
Respondent-Appellant.
┐
│
> No. 22-1705
│
│
│
┘
Appeal from the United States District Court for the
Eastern District of Michigan at Detroit.
No. 2:20-cv-12560—Linda V. Parker, District Judge.
Argued: October 25, 2023
Decided and Filed: March 28, 2024
Before: MOORE, GIBBONS, and
STRANCH, Circuit Judges.
_________________
COUNSEL
ARGUED: Jared D. Schultz, OFFICE OF THE
MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellant. Daniel S. Harawa, NEW YORK
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UNIVERSITY, New York, New York, for Appellee.
ON BRIEF: Jared D. Schultz, OFFICE OF THE
MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellant. Daniel S. Harawa, Zach
Hollstrom, Faith Katz, Jacob Seeley, Malak Shahin,
WASHINGTON UNIVERSITY, St. Louis, Missouri,
for Appellee.
_________________
OPINION
_________________
JANE B. STRANCH, Circuit Judge. This appeal
centers on the habeas petition of Lafayette Deshawn
Upshaw, a state inmate in the custody of the Michigan
Department of Corrections. In 2014, the State charged
Upshaw with crimes associated with two separate incidents that occurred on the same day: a gas station
robbery and a home invasion. Upshaw entered a plea
deal in the home invasion case but went to trial and
was convicted on counts stemming from the robbery.
Michigan’s state courts affirmed his robbery conviction on direct appeal. After exhausting his state court
remedies, Upshaw filed a petition for habeas relief in
federal court. The district court granted relief on two
of Upshaw’s claims: an ineffective assistance of counsel claim based on trial counsel’s failure to investigate
alibi witnesses and a Batson claim deriving from the
State’s use of peremptory challenges to strike six
Black jurors. The Warden now appeals. We AFFIRM.
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I. BACKGROUND
A. Factual Background
After concluding work around 3:00 a.m. on May
28, 2014, Upshaw got a ride home from his boss, during which the pair discussed the tan Timberland boots
that Upshaw was wearing. He arrived home around
3:15 or 3:20 a.m., where, according to evidence from
Upshaw, his aunt, Crystal Holloway, and his grandmother, JoAnn Green, Upshaw knocked on the door to
his home, which woke up his grandmother. Holloway,
who suffers from insomnia, was awake when Upshaw
knocked, and let him into the house. Green proceeded
to “cuss[] [Upshaw] out” for waking her up, after
which Upshaw went upstairs and played with his
daughter until approximately 4:00 a.m.
Just after 3:35 a.m. that morning, a man robbed a
gas station a little over three and a half miles away.
Standing by the cash register in a bullet-proof glass
“cage,” Tina Williams, the only gas station employee
working that night, heard a man say to a female customer, “give me your money.” Williams heard this,
looked up, and saw a man who was wearing a gray
hoodie, blue shoes, 1 and a t-shirt pulled over his nose
and mouth. The gunman then pointed his weapon at
her, demanding she turn over money; when Williams
instead locked the cage door, the man fired a shot at
her. The man attacked the store display under the
cage, continuing to shoot at least half a dozen times
1 The parties and witnesses alternatively describe the shoes
of the person who committed the robbery as “purple” and “blue.”
This distinction is immaterial. What matters is that the robber
wore blue or purple sneakers.
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until he ran out of bullets, and then fled. Another man
at the scene, later identified as Darrell Walker, remained at the coffee machine during the shooting, did
not run when the shooter pointed the gun in his direction, and yelled at the cashier to open the door to the
cash to stop the shooting. 2 A few hours later, police
apprehended Walker and Upshaw invading a police
officer’s home. Five days later, on June 3, Williams
identified Upshaw in a police photo array as the robber. The State indicted Upshaw for the store robbery.
B. Trial Proceedings
Upshaw and Wright were arraigned for the gas
station robbery on July 25, 2014. During their initial
appearance before the trial judge on August 5, the attorney retained by Upshaw’s family, Anthony Paige,
failed to appear. Upshaw later informed Paige of three
potential alibi witnesses: Holloway; Green; and his
girlfriend, Diamond Woods. Paige never provided
Upshaw with any indication that he investigated any
of these witnesses. On November 30, Upshaw’s
mother, Toya Green, submitted a notarized letter to
Michigan’s Attorney Grievance Commission, explaining that Paige failed to appear at “four required court
hearings on four different days” and did not “notify the
court or [Green] of his inability to keep the scheduled
court hearings.” Roughly two weeks before trial,
Upshaw fired Paige over Paige’s failure to investigate,
2 Williams identified Upshaw’s co-defendant, Walker, as the
man who walked down the coffee aisle shortly before the robbery
commenced. Williams also testified that Walker told her to call
the police and left the store shortly after the man who committed
the robbery, and that Walker “went in the same direction” as the
robber.
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appear in court, and keep Upshaw informed of developments in his case.
Upshaw then retained Wright Blake to represent
him. During their first meeting, Upshaw informed
Blake of his three known alibi witnesses—Holloway,
Green, and Woods. (Blake did not follow up, then or
later, with Upshaw’s alibi witnesses, spent his first
meeting with Upshaw reviewing his case file, and did
not support Upshaw’s request to the trial judge for an
adjournment, instead assuring Upshaw and the judge
that he would “bring [himself] up to speed by” the trial
date.)
The trial took place over three days in October
2014. During jury selection, the State used six of its
first eight peremptory strikes to remove African
Americans from the jury, prompting Blake to raise a
Batson challenge. Without determining whether
Blake presented a prima facie case of discrimination,
the court directed the State to provide its reasons for
striking each of the jurors. The State offered facially
race-neutral reasons for three of the challenged jurors, the court provided a facially race-neutral reason
for another juror, and Blake argued that the proffered
race-neutral explanation for one of the jurors was pretextual. The court denied the entire Batson challenge.
Trial proceeded. The State called Tina Williams,
the gas station cashier, who identified Upshaw as the
shooter. Blake called one witness: Jeffrey Haugabook,
Upshaw’s boss, who stated that on the night of the
robbery, he drove Upshaw home; that they talked
about the “wheat colored” Timberland boots Upshaw
was wearing; that Haugabook never observed Upshaw
wear purple gym shoes; and that Haugabook dropped
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Upshaw off at home around 3:15 or 3:20 a.m. The jury
returned a guilty verdict, convicting Upshaw of armed
robbery.
C. Post-Trial State Court Proceedings
Upshaw, represented by new counsel, appealed
his robbery conviction to the Court of Appeals of Michigan (COA) in December 2014. There, he raised an ineffective assistance of counsel (IAC) claim stemming
from Blake’s failure “to investigate potential alibi witnesses” and failure “to file the required notice of intent
to present an alibi defense” under Michigan Compiled
Laws § 768.20. People v. Walker, No. 324672, 2016 WL
2942215, at *6 (Mich. Ct. App. May 19, 2016). Upshaw
also argued that the State’s use of peremptory challenges to strike African American jurors violated Batson. Id. The COA rejected these claims and affirmed
Upshaw’s conviction. Id. at 10. Upshaw filed an application for leave to appeal to the Supreme Court of
Michigan, which was denied. People v. Upshaw, 891
N.W.2d 487 (Mich. 2017). The court also denied
Upshaw’s request for reconsideration and remand.
See People v. Upshaw, 895 N.W.2d 515 (Mich. 2017).
The United States Supreme Court denied certiorari on
November 6, 2017. Upshaw v. Michigan, 583 U.S. 965
(2017).
Upshaw filed a pro se motion for relief from judgment in state trial court on July 10, 2018, raising several arguments for relief, including that the Michigan
COA unreasonably applied Batson. The trial court
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denied the motion on November 27. 3 The COA denied
Upshaw’s application for leave to appeal, and his motions for remand for a Crosby hearing 4 and a Ginther
hearing, 5 on July 22, 2019. On May 26, 2020, the
Michigan Supreme Court also denied Upshaw leave to
appeal.
D. Habeas proceedings
Upshaw, now represented by counsel, filed a petition for a writ of habeas corpus in federal district court
on September 18, 2020, raising seven claims for relief.
These included claims of ineffective assistance of trial
counsel due to counsel’s failure to “interview or otherwise investigate” the two alibi witnesses identified by
Upshaw—”his grandmother, JoAnn Green, and his
aunt, Crystal Holloway”—and a Batson violation due
3
The Honorable Wanda A. Evans issued this order;
Upshaw’s case was transferred to her upon the retirement of the
judge who presided over his trial.
4 A Crosby hearing refers to a “limited remedy . . . where the
trial court determines whether it would have issued a materially
different sentence had the Michigan guidelines been advisory rather than mandatory at the time of the original sentencing.” Morrell v. Wardens, 12 F.4th 626, 628 (6th Cir. 2021). The name
comes from United States v. Crosby, 397 F.3d 103 (2d Cir. 2005).
5 A Ginther hearing is an evidentiary hearing that Michigan
courts conduct when a defendant raises ineffective assistance of
counsel claims. See People v. Ginther, 212 N.W.2d 922, 441-42
(Mich. 1973) (“When a defendant asserts that his assigned lawyer is not adequate or diligent or asserts, as here, that his lawyer
is disinterested, the judge should hear his claim and, if there is
a factual dispute, take testimony and state his findings and conclusion.”).
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to the State’s use of “6 of 8 peremptory challenges
against African-American potential jurors.”
At a status conference on April 12, 2022, the district court expressed that it was inclined to grant an
evidentiary hearing regarding the ineffective assistance of counsel claim. The Warden filed a motion to
vacate the evidentiary hearing on April 27, arguing
that Cullen v. Pinholster, 563 U.S. 170 (2011), precluded such a hearing. The court denied the motion,
and held a hearing on May 17. On July 14, 2022, the
district court granted Upshaw’s habeas petition, determining that he qualified for relief on his IAC and
Batson claims. The Warden timely appealed.
II. JURISDICTION AND STANDARD
OF REVIEW
Jurisdiction over this appeal is proper pursuant to
28 U.S.C. § 1291, because the district court’s grant of
habeas constituted a final decision. 28 U.S.C. §
2253(a). “This Court reviews a district court’s decision
to grant habeas corpus relief de novo.” Lancaster v.
Adams, 324 F.3d 423, 428 (6th Cir. 2003). And “[w]e
review the district court’s findings of fact for clear error.” Id.
As to the state courts’ findings of fact, “AEDPA requires federal courts to accord a high degree of deference to such factual determinations,” such that “a presumption of correctness” applies “unless clear and
convincing evidence is offered to rebut this presumption.” Ferensic v. Birkett, 501 F.3d 469, 472-73 (6th
Cir. 2007) (quotations omitted); see 28 U.S.C. §
2254(e)(1). To overcome this presumption, the petitioner bears “the burden of rebutting the presumption
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of correctness by clear and convincing evidence.” 28
U.S.C. § 2254(e)(1). “When a state court’s adjudication
of a claim is dependent on an antecedent unreasonable application of federal law, the requirement set
forth in § 2254(d)(1) is satisfied.” Panetti v. Quarterman, 551 U.S. 930, 953 (2007). Under such circumstances, the “federal court must then resolve the claim
without the deference AEDPA otherwise requires.” Id.
“A federal court can disagree with a state court’s credibility determination and, when guided by AEDPA,
conclude the decision was unreasonable or that the
factual premise was incorrect by clear and convincing
evidence.” Miller-El v. Cockrell, 537 U.S. 322, 340
(2003).
III. ANALYSIS
“A federal court cannot grant habeas relief unless
the state court’s rejection of the claim: (1) was contrary to or involved an unreasonable application of
clearly established federal law, or (2) was based on an
unreasonable determination of the facts.” Bryan v.
Bobby, 843 F.3d 1099, 1105 (6th Cir. 2016). Only “the
holdings of the Supreme Court’s decisions, not the
dicta,” determine “whether a state-court decision is
contrary to or an unreasonable application of clearly
established Supreme Court precedent.” Id. at 1105.
The Warden appeals the district court’s grant of habeas based on Upshaw’s ineffective assistance of counsel and Batson claims. We discuss each in turn.
A. Ineffective Assistance of Trial Counsel
(IAC)
The district court’s first ground for granting
Upshaw habeas relief was his ineffective assistance of
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counsel claim. “[T]o obtain habeas relief for ineffective
assistance of counsel, [a petitioner] must show that
the state court’s decision was contrary to, or an unreasonable application of, Supreme Court precedent,
namely, Strickland v. Washington, 466 U.S. 668
(1984).” Poindexter v. Booker, 301 F. App’x 522, 527
(6th Cir. 2008). “[W]here there is no other Supreme
Court precedent directly on point,” a reviewing court
applies Strickland “to evaluate ineffective-assistanceof-counsel claims.” Knowles v. Mirzayance, 556 U.S.
111, 122-23 (2009). Only rulings by the Supreme
Court establish “principles of ‘clearly established
law’”; however, “the decisions of lower federal courts
may be instructive in assessing the reasonableness of
a state court’s resolution of an issue.” Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007).
The Strickland test has two prongs: performance
and prejudice. Applying the performance prong, a reviewing court must determine whether an attorney’s
performance failed to meet the constitutional minimum. See Hinton v. Alabama, 571 U.S. 263, 273
(2014). “[P]revailing professional norms,” not “best
practices” or “common custom,” define this constitutional standard. Harrington v. Richter, 562 U.S. 86,
105 (2011) (quoting Strickland, 466 U.S. at 694). To
demonstrate prejudice, a petitioner “must show that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at
694. A petitioner satisfies “reasonable probability” if
he demonstrates “a probability sufficient to undermine confidence in the outcome.” Id.
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Many courts—including this one—”have found ineffective assistance of counsel in violation of the Sixth
Amendment where . . . a defendant’s trial counsel fails
to file a timely alibi notice and/or fails adequately to
investigate potential alibi witnesses.” Clinkscale v.
Carter, 375 F.3d 430, 443 (6th Cir. 2004). Citing binding Supreme Court precedent, we have emphasized
that “[c]ounsel’s duty to investigate has been repeatedly reaffirmed by the Supreme Court.” Poindexter,
301 F. App’x at 528 (citing Wiggins v. Smith, 539 U.S.
510, 534 (2003); and then citing Williams v. Taylor,
529 U.S. 362, 399 (2000)). Though “Strickland does
not require counsel to investigate every conceivable
line” of evidence, “‘strategic choices made after less
than complete investigation are reasonable’ only to
the extent that ‘reasonable professional judgments
support the limitations on investigation.’” Wiggins,
539 U.S. at 533 (quoting Strickland, 466 U.S. at 69091). Counsel’s choice “not to investigate thus ‘must be
directly assessed for reasonableness in all the circumstances.’” Id. (quoting Strickland, 466 U.S. at 691). A
choice is deemed strategic “based on what investigation reveals witnesses will actually testify to, not
based on what counsel guesses they might say in the
absence of a full investigation.” Ramonez v. Berghuis,
490 F.3d 482, 489 (6th Cir. 2007).
“If a claim has been adjudicated on the merits by
a state court, a federal habeas petitioner must overcome the limitation of § 2254(d)(1) on the record that
was before that state court.” Pinholster, 563 U.S. at
185. This means “that a habeas petitioner who raise[s]
IAC claims in state post-conviction [cannot] rely on
new evidence presented in federal court to show that
the state unreasonably adjudicated his constitutional
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claim on the merits.” Mitchell v. Genovese, 974 F.3d
638, 646 (6th Cir. 2020). Pinholster thus bars a federal
court “from admitting new evidence upon which to assess the reasonableness of a state court’s constitutional analysis.” Id. at 647.
Once a petitioner “clear[s] AEDPA’s procedural
hurdles” of § 2254(d) on the state court record, however, a district court may hold an evidentiary hearing.
Brumfield v. Cain, 576 U.S. 305, 324 (2015). “[I]f a review of the state court record shows that additional
fact-finding was required under clearly established
federal law or that the state court’s factual determination was unreasonable, the requirements of §
2254(d) are satisfied and the federal court can review
the underlying claim on its merits.” Stermer v. Warren, 959 F.3d 704, 721 (6th Cir. 2020). Stated otherwise, where an evidentiary hearing serves “as a remedy for a federal-law error that had already been
found by [a reviewing court] on the basis of the record
that was before the state courts, Pinholster does not
bar consideration of the evidence introduced for the
first time in the district court.” Harris v. Haeberlin,
752 F.3d 1054, 1058 (6th Cir. 2014) (Harris II).
The district court here held that the state court’s
resolution of Upshaw’s ineffective assistance of counsel claim was both an unreasonable application of
Strickland and rested on an unreasonable determination of facts. On that basis, the court held that a federal evidentiary hearing was warranted to address
this violation of federal law.
On appeal, the Warden urges that the district
court erred in conducting the evidentiary hearing. In
its order granting habeas relief, however, the district
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court emphasized that “even without the evidence
from the May 17 [2022] evidentiary hearing, and even
when viewed under AEDPA’s deferential standard of
review,” Upshaw qualified for habeas relief on his IAC
claim. “Based only on the record before the Michigan
courts,” the court explained, “it is clear that the State
courts unreasonably adjudicated Upshaw’s” IAC
claim. Because the district court’s evidentiary hearing
was not necessary to resolve Upshaw’s habeas claim,
we decline to rely on the federal evidentiary hearing
here. 6 Instead, we review the district court’s decision
to grant Upshaw relief on his IAC claim based on the
record before the state court.
In analyzing Upshaw’s IAC claim, the district
court determined that “although the COA correctly
identified Strickland as the proper standard, its application of Strickland was unreasonable as were its
factual determinations regarding Upshaw’s alibi defenses and counsel’s performance.” At base, this conclusion rested on the court’s determination that the
Michigan Court of Appeals impermissibly “collapsed
Strickland’s two-prong inquiry into a single question
focused on the strength of Upshaw’s alibi testimony.”
Looking at the facts, the district court observed that
the Michigan COA “defied common-sense in failing to
consider travel time when evaluating the substance of
Green’s statement,” because “it unreasonably assumed Upshaw could have traveled instantaneously
between his home and the gas station.” Uncontroverted testimony in the state court record establishes
6 Because we are relying on the record before the state court
exclusively, we find it unnecessary to—and decline to—determine whether the federal evidentiary hearing was proper.
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that the gas station was three and a half miles from
Upshaw’s residence, and Upshaw did not have a car.
If Upshaw was at home with Green between 3:20 and
3:30 a.m., then it was impossible for him to make it to
the gas station several miles away for the 3:37 a.m.
robbery.
The Warden argues that the district court’s assessment of Green’s letter amounted to a legal, not a
factual, determination. But the district court clarified
that “it was the State court’s factual determination
that the witness’s statement did not contain certain
information that this Court found objectively unreasonable because the statement did contain that information.” Green’s statement indicated that “she was
with Upshaw between 3:20 and 3:30 AM” and “that
she saw [Upshaw] leave the house around 7:45 AM.”
Yet the COA discredited Green’s letter based on its
conclusion that the letter did not “state that [Green]
observed [Upshaw] at the exact time of the robbery.”
Walker, 2016 WL 2942215, at *6. This assessment, the
district court emphasized, “defied common-sense” by
not accounting for the time necessary to travel to the
gas station when evaluating Green’s statement.
The Warden also attempts to discount Green’s letter by arguing that it does not qualify as “sworn testimony in this case,” and therefore, is insufficient to
support Upshaw’s IAC claim. But the Warden provides no precedent articulating a basis for why these
claims undermine the district court’s determination.
Such an approach is also unpersuasive because “no legal authority” supports the proposition “that a defendant claiming ineffectiveness of counsel based on the
failure to file a timely alibi notice must produce an
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affidavit from the potential alibi witnesses documenting the substance of their anticipated testimony.”
Clinkscale, 375 F.3d at 444.
As the district court found, Blake’s failure to investigate Upshaw’s alibi witnesses, and his “failure to
attempt to remedy the situation” when he missed the
alibi witness deadline, constituted independent bases
supporting Upshaw’s ineffective assistance of counsel
claim. Blake’s performance, including his failure to request an adjournment to rectify the situation or request permission to file a late notice of his intent to
call alibi witnesses, was, the court concluded, “not objectively reasonable,” because “Blake offered no reason for his actions.” The state court record alone, the
district court emphasized, supports this conclusion.
Determining that this “record reflects, at the very
least, trial counsel’s failure to investigate Upshaw’s
alibi defense,” and that “a week before trial Blake still
had not reviewed the evidence against Upshaw,” the
court concluded that the state court record presented
“no reasonable justification for counsel’s decisions.”
This analysis comports with our precedent. See Ramonez, 490 F.3d at 489 (finding counsel’s performance
“objectively unreasonable” where he failed to interview or make reasonable attempts to interview three
known potential alibi witnesses); Towns v. Smith, 395
F.3d 251, 258-60 (6th Cir. 2005) (holding that counsel’s failure to investigate a potential defense witness
was objectively unreasonable); Clinkscale, 375 F.3d at
443 (same). On these bases, the district court correctly
determined that the state court unreasonably applied
Strickland.
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Next, we consider prejudice. “Strickland instructs
that ‘a verdict or conclusion only weakly supported by
the record is more likely to have been affected by errors than one with overwhelming record support,’”
and that “the availability of willing alibi witnesses
must also be considered in light of the [weight of the
other evidence] supporting [a petitioner’s] conviction.”
Avery v. Prelesnik, 548 F.3d 434, 439 (6th Cir. 2008)
(quoting Strickland, 466 U.S. at 696). Put another
way, “potential alibi witnesses coupled with an otherwise weak case renders the failure to investigate the
testimony sufficient to ‘undermine confidence’ in the
outcome of the jury verdict.” Id. In Avery, we affirmed
the principle that a record showing counsel “never
personally attempted to contact any of the potential
alibi witnesses” warrants habeas relief. Id. at 438
(emphasis omitted). Avery also teaches that such failure, coupled with “the otherwise flimsy evidence supporting [a defendant’s] conviction,” comprised “almost
entirely” of one eyewitness’s testimony, justifies a
grant of habeas. Id. at 439.
Avery guides the disposition of Upshaw’s case. As
in Avery, the State primarily relied on one piece of evidence to connect Upshaw to the robbery: Williams’s
eyewitness identification of Upshaw as the robber.
Eyewitness testimony is notoriously unreliable. We
have noted our “grave reservations concerning the reliability of eyewitness testimony.” Clinkscale, 375
F.3d at 445 (quoting Blackburn v. Foltz, 828 F.2d
1177, 1186 (6th Cir. 1987)). Empirical studies support
such concerns: a study by the Innocence Project determined that mistaken eyewitness identification arose
“in approximately 69% of DNA exoneration cases, of
which
77%
involved
multiple
identification
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procedures (i.e., witnesses were shown a photo more
than once).” 7 Case law recognizes this reality. See
Towns, 395 F.3d at 254 (describing the prosecution’s
case against the petitioner as “weak” where there was
“no direct evidence” and “the strongest evidence
against [the petitioner] was [a single person’s] eyewitness testimony, which was equivocal at best”); Ferensic, 501 F.3d at 482-83 (recognizing eyewitness testimony’s “inherent unreliability,” and emphasizing that
“eyewitness misidentification is ‘the single most important factor leading to wrongful convictions in the
United States’”) (first quoting Watkins v. Sowders,
449 U.S. 341, 352 (1981); and then quoting United
States v. Brownlee, 454 F.3d 131, 141 (3d Cir. 2006)).
The conclusion that the State’s case against
Upshaw was not overwhelming coheres with binding
precedent. See Matthews v. Abramajtys, 319 F.3d 780,
790 (6th Cir. 2003). Stressing that “Upshaw’s defense
was that he had been misidentified and was elsewhere
at the time of the gas station robbery,” the district
court concluded that Blake’s failure to introduce alibi
witnesses prejudiced Upshaw. The court characterized Blake’s reliance on Haugabook’s testimony that
he dropped Upshaw off after work, and the fact that
Upshaw “was wearing different shoes than those worn
by the perpetrator of the armed robbery several
minutes later,” as “not much of a defense.” This is particularly true in light of available evidence showing
7 Ryanne Berube, Miko M. Wilford, Allison D. Redlich, Yan
Wang, Identifying Patterns Across the Six Canonical Factors Underlying Wrongful Convictions, 3 Wrongful Conviction L. Rev.
166, 172 (2022) (citing DNA Exonerations in the United States,
Innocence Project, https://innocenceproject.org/dna-exonerations-in-the-united-states/).
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that “Green would have told the jury that within
minutes of the robbery taking place, Upshaw was at
home, with her, his aunt, his daughter, and his daughter’s mother, being reprimanded by Green, and that
he left the house the next morning, hours after the
armed robbery occurred.” 8 These conclusions were
drawn from the state court record. This record reveals
that the State’s case “was not overwhelming,” as the
district court explained, because “[a]part from Williams’ testimony, the State’s only evidence against
Upshaw was that he had been arrested for home invasion with Walker several hours after the gas station
was robbed.” In contrast, the other alibi witnesses
that Upshaw provided but counsel ignored “could account for Upshaw’s whereabouts at the time of the
crime,” and up until he left the home and became involved in the home invasion that resulted in his arrest.
On these facts, we conclude, like the district court,
that “there is a substantial likelihood that the trial
would have turned out differently if counsel had called
even one alibi witness.” Other factual disparities in
the state court record further support this conclusion.
For example, Williams testified that the masked robber wore blue sneakers and carried a gun. But Haugabook said that he never observed Upshaw “wearing
purple gym shoes”—not that night, not ever, and the
officer who apprehended Upshaw hours after the robbery stated that Upshaw wore tan Timberlands and
did not smell like gunpowder, nor did he carry a gun
8 The court also observed that though “Green is now de-
ceased, her statement is part of the record and may be considered.”
19a
or any shell casings. The evidence presented at trial
was not, as the Warden contends, “extremely damning.” We affirm the grant of habeas relief on Upshaw’s
IAC claim.
B. Batson Claim
The district court also concluded that Upshaw’s
Batson claim entitled him to habeas relief. A Batson
challenge proceeds in three steps. First, the party
challenging the strike “must make a prima facie case
that the challenged strike was based on race.” United
States v. McAllister, 693 F.3d 572, 578 (6th Cir. 2012).
“Once the defendant makes a prima facie showing, the
burden shifts to the State to come forward with a neutral explanation for challenging” that potential juror.
Batson v. Kentucky, 476 U.S. 79, 97 (1986). Last, the
burden shifts back to the challenger, and the court
then decides “whether the opponent of the peremptory
strike has proven purposeful discrimination.” McAllister, 693 F.3d at 578. Evidence of pretext can include
comparator juror analysis, see id. at 581; differential
voir dire questioning of Black and non-Black prospective jurors, see Miller-El v. Dretke, 545 U.S. 231, 25556 (2005); and other evidence indicating “that discrimination may have infected the jury selection process,”
Johnson v. California, 545 U.S. 162, 172 (2005). Each
step is mandatory: “the trial court may not short circuit the process by consolidating any two of the steps.”
United States v. Kimbrel, 532 F.3d 461, 466 (6th Cir.
2008). If the State proceeds to give “a race-neutral explanation for the peremptory challenges and the trial
court has ruled on the ultimate question of intentional
discrimination,” however, “the preliminary issue of
whether the defendant had made a prima facie
20a
showing becomes moot.” Hernandez v. New York, 500
U.S. 352, 359 (1991) (plurality opinion). The impermissible exclusion of even a single juror violates Batson. See Snyder v. Louisiana, 552 U.S. 472, 478 (2008).
A Batson challenge does not turn on the number
of race-based peremptory challenges. Rather, “the Supreme Court has directly held that even a single racially motivated peremptory strike by the prosecutor
requires relief.” Drain v. Woods, 595 F. App’x 558, 568
(6th Cir. 2014). Nor can the eventual empaneling of a
Black juror obviate the taint of an earlier Batson violation. See Dretke, 545 U.S. at 250.
The Warden challenges the district court’s decision granting habeas relief under Batson on several
grounds. He first urges that the court erred in holding
that the Michigan COA unreasonably applied Batson.
This argument rests on the contention that the Supreme Court’s holding in Hernandez is not clearly established because it derives from a plurality opinion.
Even were the step one inquiry moot, the Warden submits that Upshaw failed to meet his burden of persuasion.
At step one of the Batson inquiry, the challenger
must make a prima facie showing that the prosecutor
used her peremptory strikes to discriminate based on
race. This step “becomes moot,” however, “[o]nce a
prosecutor has offered a race-neutral explanation for
the peremptory challenges and the trial court has
ruled on the ultimate question of intentional discrimination.” Hernandez, 500 U.S. at 359. The Warden
contends that “[i]t cannot be said that a pattern of
strikes against black jurors creates a prima facie case
of discrimination if there is nothing more on the
21a
record from which to establish the context of those
strikes.” Though acknowledging “that this Court has
held or implied that Hernandez’s mootness language
is clearly established law for purposes of § 2254(d)(1),”
the Warden argues that “none of those cases provided
any reasoned analysis” in support of this practice.
As a threshold matter, Hernandez provides clearly
established law. In a “fragmented” decision, the “position taken by those Members who concurred in the
judgments on the narrowest grounds” controls. Marks
v. United States, 430 U.S. 188, 193 (1977) (quoting
Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976)). This
means that the plurality opinion, which included the
mootness holding at the prima facie step, sets forth
the clearly established federal law. Hernandez, 500
U.S. at 359. Precedent reflects this reality. First,
“[t]he Supreme Court has subsequently relied upon
the Hernandez plurality opinion in a number of cases.”
Drain, 595 F. App’x at 569-70 (collecting cases). Second, the Sixth Circuit “has previously applied Hernandez’s mootness holding as clearly established law.” Id.
at 570 (citing Lancaster, 324 F.3d at 434-35). Those
prior applications are binding. See Smith v. Stegall,
385 F.3d 993, 998 (6th Cir. 2004) (“We are also bound
by any prior Sixth Circuit decisions concluding that
federal law on a particular issue has been ‘clearly established’ by certain holdings of the Supreme Court.”).
The Warden complains that “none of those cases provided any reasoned analysis as to . . . how the plurality
opinion in Hernandez otherwise could be considered
clearly established,” but provides no authority that
undermines the precedential value of those prior decisions. We decline to depart from our prior cases and
the procedure set forth in the rules.
22a
The district court correctly applied Hernandez’s
holding in determining that because “the trial court
reached step two and three of the Batson inquiry” the
COA’s decision to ground its rejection of Upshaw’s
Batson claim solely on the prima facie analysis was
contrary to clearly established federal law, and appropriately reviewed Upshaw’s claim de novo. Because
the state trial court judge failed to rule on whether
Upshaw met his prima facie burden before the State
offered race-neutral reasons for its strikes, the step
one inquiry is moot. See Rice v. White, 660 F.3d 242,
258 (6th Cir. 2011) (holding that petitioner satisfied
his burden at step one “because the prosecutor proceeded to step two of Batson before the trial court
made a ruling at step one” and proceeding to consider
steps two and three). Our analysis turns to steps two
and three of Batson.
At step two, “the State must provide race-neutral
reasons for its peremptory strikes.” Flowers v. Mississippi, 139 S. Ct. 2228, 2241 (2019). As our sister circuits have observed, “when a trial court offers its own
speculation as to the prosecutor’s reasons for striking
minority jurors, it essentially disregards its own core
function under Batson—to evaluate the reasons offered by the prosecutor . . . to determine the prosecutor’s true intent.” Johnson v. Martin, 3 F.4th 1210,
1224 (10th Cir. 2021). The trial court here said to “[g]o
ahead” when the State asked whether it should provide its reasons for each of the challenged jurors. The
State then offered reasons for the first two challenged
jurors. The court then inserted its own justification for
the third challenged juror, stating that the juror had
“relatives in prison.” The district court recognized that
the state trial court’s statements “impermissibly
23a
signaled to the prosecutor that this was a reason the
court was prepared to find credible and never explored
the prosecutor’s real reason.” These actions prevented
the State from satisfying its burden at step two of Batson. By substituting its own reason for the State’s, the
trial court failed to fulfill its obligation to “determine
whether the prosecutor’s proffered reasons are the actual reasons” and to decide “whether the State was
‘motivated in substantial part by discriminatory intent.’” Flowers, 139 S. Ct. at 2244 (quoting Foster v.
Chatman, 578 U.S. 488, 513 (2016)).
A second issue on step two also emerged at
Upshaw’s trial. The Supreme Court has previously observed that the State’s refusal “to respond to a trial
judge’s inquiry regarding [its] justification for making
a strike” provides “additional support for the inference
of discrimination raised by a defendant’s prima facie
case.” Johnson, 545 U.S. at 171 n.6. At Upshaw’s trial,
neither the State—nor the court—provided reasons
for striking two of the challenged jurors. After the
trial judge expressed that he did not “think the Batson
motion [could] be sustained,” Blake renewed his challenge to one of the jurors whose strike the State failed
to explain. The State did not respond. And the court
moved on, without having the State justify the strike
or conducting its own analysis as to the exclusion of
this juror. Although the court failed to press the State
on this point, the State’s refusal to offer a race-neutral
reason for striking this juror after Blake, twice, challenged her exclusion “provide[d] additional support
for the inference of discrimination.” Johnson, 545 U.S.
at 171 n.6. “In the eyes of the Constitution, one racially discriminatory peremptory strike is one too
many.” Flowers, 139 S. Ct. at 2241. Even if the other
24a
Batson issues identified above did not amount to constitutional violations, then, as explained by the district court, the State’s failure to put forth any justification for excluding this juror provides grounds for relief.
The final step requires the trial court to “determine whether the prosecutor’s stated reasons were
the actual reasons or instead were a pretext for discrimination.” Id. As emphasized by the Supreme
Court, “[i]f any facially neutral reason sufficed to answer a Batson challenge, then Batson would not
amount to much more than Swain,” Dretke, 545 U.S.
at 240, which imposed too onerous a burden on petitioners by requiring evidence of “systemic discrimination” by the State in jury trials, id. at 236. Based on
this reality and the fact that “[s]ome stated reasons
are false,” Batson teaches that “a defendant may rely
on ‘all relevant circumstances’ to raise an inference of
purposeful discrimination.” Id. (quoting Batson, 476
U.S. at 96-97). Moreover, “[i]f the stated reason [for a
peremptory strike] does not hold up, its pretextual significance does not fade because a trial judge, or an appeals court, can imagine a reason that might not have
been shown up as false.” Id. at 252.
Additional problems arose at step three. The trial
court stated: “Well, the Prosecutor has given some explanation other than race being challenged. I don’t
think the Batson motion can be sustained. I don’t have
any further comments on whether it’s good or bad.
That’s the strategy of a trial.” The district court characterized this assessment as “the court summarily
conclud[ing] that there had been no discrimination
purely because ‘the Prosecutor . . . gave some
25a
explanation other than race being challenged.’” The
record corroborates this characterization. Nowhere in
the transcript does the trial court consider, implicitly
or explicitly, “the persuasiveness of the prosecutor’s
justification for [her] peremptory strike.” Cockrell,
537 U.S. at 338-39. Instead of properly considering the
validity and adequacy of the State’s reasons, the trial
court asked whether the State provided any explanation. That is not the appropriate inquiry. And this inquiry is critical: if it reveals that “a prosecutor’s proffered reason for striking a black panelist applies just
as well to an otherwise-similar nonblack [panelist]
who is permitted to serve, that is evidence tending to
prove purposeful discrimination to be considered at
Batson’s third step.” Dretke, 545 U.S. at 241.
Although the State claimed that it struck an older
Black woman from the jury due to her age, not her
race, it empaneled three other retired nonblack
women. This raises the probability that the State’s
race-neutral explanation for striking the juror was
pretextual. See McAllister, 693 F.3d at 581-82 (citing
comparator analysis between excluded and impaneled
jurors as reflecting “a failure on the part of the district
court . . . to conduct a constitutionally sufficient Batson analysis” to “definitively resolv[e] these issues”).
The State’s argument that Upshaw failed to meet his
burden of persuasion misses the mark because it fails
to account for these violations of Batson’s process.
“[T]he job of enforcing Batson rests first and foremost with trial judges.” Flowers, 139 S. Ct. at 2243.
Because “America’s trial judges operate at the front
lines of American justice,” they also “possess the primary responsibility to enforce Batson and prevent
26a
racial discrimination from seeping into the jury selection process.” Id. Here, the Michigan Supreme Court
had previously warned Upshaw’s trial judge that his
handling of a Batson challenge, which included the
judge’s observation that he was “not going to . . . indulge in . . . race baiting,” could justify a judicial misconduct investigation. Pellegrino v. AMPCO System
Parking, 785 N.W.2d 45, 49 (Mich. 2010). As shown by
the state court record, at Upshaw’s trial, the judge
failed to properly apply Batson in multiple respects.
On review, Michigan’s appellate courts failed to apply
clearly established Supreme Court precedent and
remedy these violations.
AEDPA requires “federal judges to attend with
the utmost care to state-court decisions.” Williams v.
Taylor, 529 U.S. 362, 386 (2000). It does not, however,
“require the federal courts to cede” to state courts
their “independent responsibility . . . to interpret federal law.” Id. at 379. This function is critical in the
context of jury service, recognized as one of “the most
substantial opportunit[ies] that most citizens have to
participate in the democratic process.” Flowers, 139 S.
Ct. at 2238. A federal court acts within its discretion
when it “say[s] what the law is” and corrects state
courts’ unreasonable application of clearly established
federal law. Marbury v. Madison, 5 U.S. (1 Cranch)
137, 177 (1803). We affirm the district court’s grant of
habeas on Upshaw’s Batson claim.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s judgment granting Upshaw habeas relief
on both his IAC and Batson claims.
27a
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Mar 28, 2024
KELLY L. STEPHENS, Clerk
No. 22-1705
LAFAYETTE DESHAWN UPSHAW,
Petitioner - Appellee,
v.
GEORGE STEPHENSON, Warden,
Respondent - Appellant.
Before: MOORE, GIBBONS, and STRANCH,
Circuit Judges.
JUDGMENT
On Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
THIS CAUSE was heard on the record from the
district court and was argued by counsel.
IN CONSIDERATION THEREOF, it is ORDERED that the judgment of the district court is AFFIRMED.
ENTERED BY ORDER OF THE COURT
Kelly L. Stephens
Kelly L. Stephens, Clerk
28a
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
LAFAYETTE DESHAWN UPSHAW,
Petitioner,
Case No. 20-cv-12560
v.
Honorable Linda V. Parker
GEORGE STEPHENSON,
Respondent.
__________________________________/
ORDER LIFTING STAY
Petitioner Lafayette Deshawn Upshaw (“Petitioner”) filed an application for the writ of habeas corpus pursuant to 28 U.S.C. § 2254, which this Court
granted in a decision issued July 14, 2022. (ECF No.
26.) Judgment was entered the same date. (ECF No.
27.) The Court ordered Petitioner released from state
custody for any further punishment related to the convictions at issue in his petition unless the State of
Michigan commenced a new trial within 120 days of
the entry of final judgment. 1 (Id. at Pg ID 1750.) Respondent appealed the Court’s decision (ECF No. 28)
and filed a motion for a stay pending appeal (ECF No.
35). On November 10, 2022, this Court granted Respondent’s motion to stay. (ECF No. 38).
1 In a previous decision, the Court indicated that the deadline to
retry Petitioner was 180 days, not 120. (ECF No. 42 at PageID.
2006.) That was an error. The Judgment and other decisions
clearly set forth a 120-day deadline. (See ECF No. 27 at PageID.
1750; ECF No. 38 at PageID. 1992.)
29a
On March 28, 2024, the Sixth Circuit Court of Appeals affirmed the grant of habeas relief to Petitioner.
(ECF No. 43.) The Sixth Circuit issued its mandate on
May 1, 2024.
Accordingly,
IT IS ORDERED that the stay is LIFTED.
IT IS FURTHER ORDERED the State of Michigan must grant Petitioner a new trial within 120 days
of the date of this Order or discharge him from any
further punishment related to these convictions.
Dated: May 6, 2024
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
30a
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
No: 22-1705
Filed: May 01, 2024
LAFAYETTE DESHAWN UPSHAW
Petitioner - Appellee
V.
GEORGE STEPHENSON, Warden
Respondent - Appellant
MANDATE
Pursuant to the court’s disposition that was filed
03/28/2024 the mandate for this case hereby issues today.
COSTS: None
31a
No. 22-1705
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Apr 23, 2024
KELLY L. STEPHENS, Clerk
LAFAYETTE DESHAWN UPSHAW, )
)
Petitioner-Appellant,
)
) ORDER
v.
)
)
GEORGE STEPHENSON, Warden, )
)
Respondent-Appellee.
)
Before: MOORE, GIBBONS, and STRANCH, Circuit Judges.
On March 28, 2024, we issued an opinion affirming the district court’s grant of habeas relief to Lafayette Deshawn Upshaw. On April 18, 2024, the day
before the mandate was scheduled to issue, the State
filed a motion to stay the mandate to permit time for
it to file a petition for a writ of certiorari. Petitioner
Upshaw filed a response within 10 days, making the
motion ripe for decision. See Fed. R. App. P.
27(a)(3)(A). The mandate from the panel’s opinion has
thus been stayed to allow time for the disposition of
the State’s motion. See Fed. R. App. P. 41(b); 6 Cir. R.
41(a). This case’s docket does not show that the State
has filed a petition for a writ of certiorari during this
time, which a review of the Supreme Court’s docket
32a
confirms. For the reasons discussed below, we deny
the State’s motion.
Federal Rule of Appellate Procedure 41(d)(1) allows a party to “move to stay the mandate pending the
filing of a petition for a writ of certiorari in the Supreme Court.” Its motion “must show that the petition
would present a substantial question and that there
is good cause for a stay.” Id. Generally, this is a daunting standard. See Nara v. Frank, 494 F.3d 1132, 1133
(3d Cir. 2007) (parties may only obtain a stay in “exceptional cases”); 16AA Charles A. Wright et al., Fed.
Prac. & Proc. § 3987.1 (5th ed. Sept. 2020 update)
(“[T]he grant of a motion to stay the mandate in these
circumstances is far from a foregone conclusion.”).
A stay pending the filing and disposition of a petition for a writ of certiorari is “not a matter of right”
but “instead an exercise of judicial discretion, and the
‘party requesting a stay bears the burden of showing
that the circumstances justify an exercise of that discretion.’” Indiana State Police Pension Tr. v. Chrysler
LLC, 556 U.S. 960, 961 (2009) (quoting Nken v.
Holder, 556 U.S. 418, 433-334 (2009)). The State did
not present “good cause” for a stay, which Rule
41(d)(1) requires. See United States v. Silver, 954 F.3d
455, 460 (2d Cir. 2020) (per curiam) (denying stay
when defendant did not demonstrate good cause).
Specifically, the Warden’s arguments that the
mandate will force it to endure the expense of retrying
Upshaw and its unsubstantiated speculation that
Upshaw presents a threat to the public fail to demonstrate that the State will suffer irreparable harm if
the stay were denied. See Renegotiation Bd. v. Bannercraft Clothing Co., 415 U.S. 1, 24 (1974)
33a
(emphasizing that “[m]ere litigation expense, even
substantial and unrecoupable cost, does not constitute
irreparable injury”). Such a showing is required; in its
absence, we will not stay the mandate. See Hollingsworth v. Perry, 558 U.S. 183, 190 (2010) (per curiam). Issuance of the mandate does not prevent the
State from filing a petition for certiorari. See 6 Cir.
I.O.P. 41(d). Indeed, it has had several weeks to do so.
Therefore, the State’s motion to stay the mandate
is DENIED.
ENTERED BY ORDER OF THE COURT
Kelly L. Stephens
Kelly L. Stephens, Clerk
34a
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
LAFAYETTE DESHAWN UPSHAW,
Petitioner,
v.
Case No. 20-12560
Honorable Linda V. Parker
GEORGE STEPHENSON,
Respondent.
__________________________________/
OPINION AND ORDER GRANTING
RESPONDENT’S MOTION FOR A STAY
PENDING APPEAL (ECF NO. 35)
Petitioner Lafayette Deshawn Upshaw (“Petitioner”) filed an application for the writ of habeas corpus pursuant to 28 U.S.C. § 2254, which this Court
granted in an Opinion and Order issued July 14, 2022.
(ECF No. 26.) Judgment was entered on the same
date. (ECF No. 27.) The Court ordered Petitioner released from state custody for any further punishment
related to the convictions at issue in his petition unless the State of Michigan commenced a new trial
within 120 days of the entry of final judgment. (Id. at
Pg ID 1750.) Respondent appealed the Court’s decision (ECF No. 28) and moved to stay pending appeal
(ECF No. 35). Petitioner has moved for bond pending
appeal. (ECF No. 31.)
There is a presumption that a successful habeas
petitioner should be released from custody pending
35a
the state’s appeal of a federal court decision granting
habeas relief, but this presumption may be overcome
if the judge rendering the decision, or an appellate
court or judge, orders otherwise. Hilton v. Braunskill,
481 U.S. 770, 774 (1987); Workman v. Tate, 958 F.2d
164, 166 (6th Cir. 1992); see also Fed. R. App. P 23(c).
Because habeas proceedings are civil in nature, the
general standards governing stays of civil judgments
guide courts deciding whether to release a habeas petitioner pending the state’s appeal. Hilton, 481 U.S. at
776. The factors relevant to the decision are: “(1)
whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2)
whether the applicant will be irreparably injured absent a stay; (3) whether the issuance of the stay will
substantially injure the other parties interested in the
proceeding; and (4) where the public interest lies. Hilton, 481 U.S. at 776; Workman, 958 F.2d at 166.
For the reasons already set forth in the Court’s
July 14 decision, this Court strongly disagrees with
Respondent’s assertion that he is likely to succeed on
appeal. The state courts unreasonably applied clearly
established federal law when analyzing Petitioner’s
Batson challenge. Further, even when considering
only the record before the state court, the state courts
made an unreasonable determination of the facts and
unreasonably applied clearly established federal law
when concluding that trial counsel was not ineffective
in failing to investigate Petitioner’s alibi witnesses
and pursuing an alibi defense. Nevertheless, the
Court is granting Respondent’s request for a stay
pending appeal because resources will be wasted if the
State is required to retry Petitioner while the matter
proceeds in the Sixth Circuit Court of Appeals.
36a
As to Petitioner’s request for bond pending appeal,
the Court requires more time to assess the request
and will issue a separate decision as soon as it does.
Accordingly,
IT IS ORDERED that Respondent’s Motion for
Stay Pending Appeal (ECF No. 43) is GRANTED.
IT IS SO ORDERED.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: November 10, 2022
37a
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
LAFAYETTE DESHAWN
UPSHAW,
Petitioner,
v.
Case No. 20-cv-12560
Honorable Linda V. Parker
GEORGE STEPHENSON,
Respondent.
_________________________/
OPINION AND ORDER GRANTING PETITION
FOR A WRIT OF HABEAS CORPUS
Petitioner, Lafayette Deshawn Upshaw, is currently serving between twenty and forty-two years in
state prison for a conviction arising from a May 28,
2014 armed robbery. Two witnesses were available to
testify that Upshaw was at home during the robbery;
however, his trial attorneys failed to investigate and
call them at trial. Claiming that his Sixth Amendment
rights were violated due to counsel’s ineffectiveness,
as well as other errors in the proceedings, Upshaw
filed an application for the writ of habeas corpus pursuant to 28 U.S.C. § 2254 in September 2020. (ECF
No. 1.) On May 2, 2022, the Court granted summary
judgment in favor of Upshaw on one of his claims and
ordered that an evidentiary hearing be held with respect to two others. (ECF No. 19.) That hearing was
held on May 17, 2022.
38a
For the reasons set forth below and in its previous
opinion and order (ECF No. 19), the Court is granting
Upshaw’s Petition as to three of his claims. As already
discussed in the Court’s May 2 decision, and as Respondent concedes, Upshaw’s Sixth Amendment
rights were violated when the trial court used facts
not found by the jury when calculating the sentencing
guidelines. As also discussed in that decision, and will
be further discussed below, the State court unreasonably assessed the facts when evaluating whether
Upshaw’s two trial attorneys were ineffective in failing to investigate and present alibi witnesses. Two individuals had evidence that, when placed in context
with judicially noticeable facts, indicated that
Upshaw was at home when the armed robbery occurred. Upshaw repeatedly tried to get his attorneys
to raise an alibi defense. Yet trial counsel failed to investigate and/or present Upshaw’s alibi witnesses despite the fact that there was no strategic reason for
failing to do so. Finally, the State court unreasonably
applied Supreme Court precedent when rejecting
Upshaw’s claim that the prosecution exercised peremptory challenges based on race in violation of Batson v. Kentucky, 476 U.S. 79 (1986).
I. Standard of Review
The Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”) provides the standard of review applicable to Upshaw’s application for habeas relief:
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
39a
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; or
(2) resulted in a decision that was based on
an unreasonable determination of the facts in
light of the evidence presented in the State
court proceeding.
28 U.S.C. § 2254(d)
A state-court decision satisfies the “contrary to”
clause if it “applies a rule that contradicts the governing law set forth in [the Supreme Court’s] cases” or
“confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and
nevertheless arrives at a result different from [its]
precedent.” Williams v. Taylor, 529 U.S. 362, 405-06
(2000). Likewise,
[a] state-court decision is an unreasonable application of clearly established federal law if it
“correctly identifies the governing legal rule
but applies it unreasonably to the facts of a
particular prisoner’s case,” [Williams, 529
U.S.] at 407-08 . . . or if it “either unreasonably
extends or unreasonably refuses to extend a
legal principle from Supreme Court precedent
to a new context,” Seymour v. Walker, 224
F.3d 542, 549 (6th Cir. 2000).
40a
Murphy v. Ohio, 551 F.3d 485, 494 (6th Cir. 2009). The
Supreme Court has cautioned, however, that “evidence introduced in federal court has no bearing on §
2254(d)(1) review.” Cullen v. Pinholster, 563 U.S. 170,
185 (2011). Thus, where, as here, “a claim has been
adjudicated on the merits by a state court, a federal
habeas petitioner must overcome the limitation of §
2254(d)(1) on the record that was before that state
court.” Id.
Finally, with respect to the “unreasonable determination” clause, 28 U.S.C. § 2254(d)(2)
the question . . . “is not whether a federal court
believes the state court’s determination was
incorrect but whether that determination was
unreasonable—a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 .
. . (2007). . . . [And] “the petitioner must show
that the resulting state court decision was
‘based on’ that unreasonable determination.”
Rice v. White, 660 F.3d 242, 250 (6th Cir.
2011).
Hill v. Shoop, 11 F.4th 373, 384 (6th Cir. 2021); see
also 28 U.S.C. § 2254(e)(1) (explaining that “determination[s] of . . . factual issue[s] made by a State court
shall be presumed to be correct” but that “th[is] presumption of correctness [can be rebutted] by clear and
convincing evidence”).
In conducting the § 2254(d) analysis, courts must
be mindful “that even a strong case for relief does not
mean the state court’s contrary conclusion was unreasonable.” Richter, 562 U.S. at 102 (citing Lockyer v.
Andrade, 538 U.S. 63, 75 (2003)). Rather, under
41a
AEDPA, “[a] state court’s determination that a claim
lacks merit precludes federal habeas relief so long as
‘fairminded jurists could disagree’ on the correctness
of the state court’s decision.” Id. at 101 (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
II. Revisiting the Court’s May 2 Decision
The Court finds it necessary to address two issues
before proceeding further with its analysis of
Upshaw’s claims. First, in a supplemental brief filed
after the evidentiary hearing, Respondent argues that
the Court erred by “redetermine[ing] whether a state
rule was properly applied” in relation to the affidavit
of one of Upshaw’s alibi witnesses. (ECF No. 24 at Pg
ID 1640.) While the Court did indicate in its May 2
decision that the affidavit satisfied the requirements
of Michigan Court Rule 2.119(B)(1), contrary to the
Michigan Court of Appeals’ conclusion, that did not
factor into the Court’s conclusion that the State
court’s analysis of Upshaw’s ineffective assistance
claim was unreasonable. Instead, it was the State
court’s factual determination that the witness’s statement did not contain certain information that this
Court found objectively unreasonable because the
statement did contain that information. (ECF No. 19
at Pg ID 1522.) Stated differently, this Court was not
communicating that the Michigan Court of Appeals’
interpretation or application of state law was “unreasonable”—as that term is used in § 2254(d). (See ECF
No. 19 at Pg ID 1522.) Instead, what the Court found
objectively unreasonable, as contemplated in the habeas statute, was the State court’s reading of the witness’ statement. (Id.); see also 28 U.S.C. § 2254(d)(2)
(providing for the grant of habeas relief where the
42a
State court’s adjudication of a claim “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in
the State court proceedings”).
Next, as will be discussed more fully below, even
without the evidence from the May 17 evidentiary
hearing, and even when viewed under AEDPA’s deferential standard of review, the Court concludes that
Upshaw is entitled to habeas relief. Based only on the
record before the Michigan courts, it is clear that the
State courts unreasonably adjudicated Upshaw’s ineffective assistance of counsel and Batson claims.
III. Background
A. Upshaw’s Convictions and Sentence
Shortly after 8:00 a.m. on May 28, 2014, Upshaw
and Darrell Miles Walker “were arrested in the process of committing a home invasion at a residence” located at 19475 Washburn Street in Detroit, Michigan.
(ECF No. 6-9 at Pg ID 623; ECF No. 6-14 at Pg ID
863.) They “were caught as they exited separate windows of the house,” from which they “had attempted
to steal several items of jewelry.” (ECF No. 6-14 at Pg
ID 863.) Upshaw was charged with second-degree
home invasion in violation of Michigan Compiled
Laws § 750.110a(3); larceny in a building in violation
of Michigan Compiled Laws § 750.360; and resisting
and obstructing in violation of Michigan Compiled
Laws § 750.81d(1). (ECF No. 6-6 at Pg ID 327.)
Several hours before Upshaw and Walker were arrested, an armed robbery occurred at 1920 West
Fischer Service Drive, a gas station approximately ten
43a
miles south of the invaded home. 1 (ECF No. 6-2 at Pg
ID 231-32; ECF No. 6-14 at Pg ID 862-63.) Tina Williams was the only employee working at the time.
(ECF No. 6-8, Pg ID 523.) She reported that around
3:30 a.m., just after she had returned to her bulletproof cashier booth from attempting to help a
strangely behaving man with the gas station’s coffee
machine, another man entered the station and robbed
a female customer at gunpoint. (ECF No. 6-14 at Pg
ID 863.)
The second man, whose face was obstructed by a
t-shirt, then demanded that Williams give him the
money in the cash register. (Id.; ECF No. 6-8 at Pg ID
489-90.) When Williams refused, the man tried to kick
open the door of the cashier booth and fired several
shots in her direction, which were blocked by the bullet-proof glass. (ECF No. 6-14 at Pg ID 863.) The first
man “shouted at her to open the access door, indicating that . . . [she] should do so in order to simply end
the situation and get [the shooter] out of the gas station,” but Williams “stood her ground and did not comply.” (Id.) The shooter eventually “gave up and ran out
of the gas station.” (Id.) After the altercation, the first
man, who had remained at the coffee machine and had
not run when the shooter’s gun was pointed in his direction, approached the booth and told Williams that
1 The distance between the house and the gas station is a fact of
which the Court may take judicial notice. See Livingston Christian Sch. v. Genoa Charter Twp., 858 F.3d 996, 1008 (6th Cir.
2017); see also, e.g., Hund v. Hund, No. 334313, 2017 Mich. App.
LEXIS 1082, at *14 (Mich. Ct. App. July 6, 2017) (taking judicial
notice of distance and extrapolating travel time).
44a
she should call the police. (Id.) He “then fled in the
same direction as the shooter.” (Id.)
A few days later, Williams identified Walker as
the coffee machine man and Upshaw as the shooter in
separate photographic lineups. (Id.; ECF No. 6-8 at Pg
ID 500-04.) Upshaw thereafter was charged with five
additional crimes: armed robbery in violation of Michigan Compiled Laws § 750.529; carrying a dangerous
weapon with unlawful intent in violation of Michigan
Compiled Laws § 750.226; possession of a firearm during the commission of a felony (“felony-firearm”) in violation of Michigan Compiled Laws § 750.227b; assault with intent to commit murder in violation of
Michigan Compiled Laws § 750.83; and assault with
intent to do great bodily harm less than murder in violation of Michigan Compiled Laws § 750.84. (ECF
No. 6-2 at Pg ID 229.)
Upshaw ultimately pleaded guilty to second-degree home invasion but elected to go to trial on the gas
station robbery charges. (ECF No. 6-7 at Pg ID 34041; ECF No. 6-11 at Pg ID 757.) He was tried jointly
with Walker before the Honorable Michael J. Callahan in Wayne County Circuit Court. (See, e.g., ECF
No. 6-7 at Pg ID 329.) A week before trial, during an
October 2, 2014 pre-trial conference, Upshaw requested an adjournment. (ECF No. 6-5 at Pg ID 322.)
He explained to the trial judge that he was dissatisfied with his attorney, Ray Paige, who failed to appear
at an August 5, 2014 conference, 2 and had just
2 In a letter to the Michigan Attorney Grievance Commission,
Upshaw’s mother, Toya Green, stated that Paige had, in fact,
failed to appear on four separate occasions. (ECF No. 6-14 at Pg
ID 950.)
45a
retained a new attorney, Wright Blake, who was present at the conference. (ECF No. 6-4 at Pg ID 314-15;
ECF No. 6-5 at Pg ID 322.) The full colloquy proceeded
as follows:
MR. BLAKE: And we’re going to talk some
more. Mr. Upshaw wants an adjournment. He
doesn’t feel that we’re quite ready. I told him
that I would bring myself up to speed by the
time for the trial date. Is that correct, Mr.
Upshaw?
MR. UPSHAW: Yes, but as you can see, your
Honor, I have retained a new lawyer because
of my insufficient counsel for not showing up
and not coming and telling me the information. So I feel like my lawyer hasn’t, my
lawyer hasn’t saw the DVD. He hasn’t retained the transcript or anything and I feel
like it’s best grounds of adjournment right
there, your Honor, just to get him caught up
on what’s going on with the case cause I just
retained him like a week and a half ago, probably not even that.
THE COURT: Well, I’m not granting an adjournment at this point. We’ll see what happens. Okay.
MR. BLAKE: Thank you, your Honor.
(ECF No. 6-5 at Pg ID 321-22.)
The trial began on October 9, 2014 and lasted
three days. (See ECF No. 6-1 at Pg ID 225.) On October 16, 2014, the jury found Upshaw guilty of armed
46a
robbery, carrying a dangerous weapon with unlawful
intent, and felony-firearm. (ECF No. 6-10 at Pg ID
743.) He was acquitted of the assault charges. (Id.)
On November 14, 2014, the trial court sentenced
Upshaw to prison for two years for felony-firearm followed by concurrent terms of eighteen to forty years
for armed robbery, one to five years for carrying a dangerous weapon, and one to fifteen years for second-degree home invasion. (ECF No. 6-11 at Pg ID 756-57.)
B. Upshaw’s State Appellate and Post-Conviction Efforts
On December 17, 2014, Upshaw commenced an
appeal as of right through counsel. (ECF No. 6-14 at
Pg ID 905.) Upshaw raised several claims, including
denial of his Sixth Amendment right to the effective
assistance of counsel due to trial counsel’s failure to
investigate potential alibi witnesses, file the required
notice to present an alibi defense, and present alibi
witnesses. (Id. at 975.) Upshaw also moved to remand
for an evidentiary hearing pursuant to Michigan
Court Rule 7.211(C)(1) and People v. Ginther, 212
N.W.2d 922 (Mich. 1973). (ECF No. 6-14 at Pg ID 89596.)
In support, Upshaw provided an affidavit in which
he stated:
. . . on May 28, 2014, at about 3:30 a.m., a coworker dropped me off at my home, where my
aunt (Crystal Holloway) let me in, and along
with my grandmother (Joann Holloway),
along with my significant other (Diamond
47a
Woods), all heard me preparing a meal in the
kitchen of the home before I went to bed.
I was never at, or near[,] the Mobil gas station
located at 1920 West Fischer Drive. Neither
was I with Darrell Walker in that early morning, until around 7:30-7:45 a.m., due to the
fact I caught the bus to go help someone move,
and saw him along the bus ride and which we
did a criminal act along the way. The information above is true, and are facts that need
to be established, due to my attorney lacking
adequate information and time to prepare my
defense. I had nothing to do with an armed
robbery, nor did I have any knowledge of one.
(Id. at 897 (capitalization omitted).) Also attached was
an affidavit from Upshaw’s co-defendant, Walker, in
which Walker stated that Upshaw was not at the gas
station with him and that Walker went to the gas station alone. (Id. at 898.) On May 6, 2015, the Court of
Appeals denied Upshaw’s Motion to Remand. (Id. at
894.)
With the assistance of newly retained appellate
counsel, Upshaw filed a successive motion to remand
and moved for leave to file a supplemental brief on
January 25, 2016. (Id. at 912-14.) In support of the
motion to remand, Upshaw attached a new affidavit
that he signed, along with notarized statements from
his grandmother, JoAnn Green, and his aunt, Crystal
Holloway. (Id. at 878-84.) In her statement, Holloway
averred:
I was a [sic] alibi witness to some events that
happened on May [sic]. [Upshaw’s] lawyer
48a
knew about me being a witness but he choose
[sic] not to call on me to give my testimony. . .
. I am writing this letter in hopes that
[Upshaw] will be granted a new trial in which
he will be able to have his witness called to the
stand to testify on his behalf.
(Id. at 882.)
Green’s affidavit provided Upshaw an alibi for the
time immediately preceding the robbery, suggested
that Upshaw did not leave the home until 7:45 a.m.
that day, and described with particularity why Green
remembered the details of that night. Green wrote, in
part, that she lived with her children and Upshaw and
on May 28, 2014:
I know Shawn . . . could not have been anywhere else, because at between 3:20 and 3:30
he was getting blessed out by me[.] [H]e’d
woke me again. I’d been watching one of my
programs and fell asleep[.] I woke up from the
knock on the door[,] look at the tv set the time
on the cable box[,] that’s why I know he
couldn’t be in too [sic] places at a time[.] I was
mad after seeing what time it was and I let
(Shawn) Lafayette Upshaw know it to[o], later
when he left at around 7:45, I was still upset,
sitting on my front porch didn’t want a kiss or
say love you.
(ECF No. 6-14 at Pg ID 884.)
The Michigan Court of Appeals denied Upshaw’s
successive motion to remand, holding that Upshaw
failed to “demonstrate[] that further factual
49a
development of the record or an initial ruling by the
trial court [was] necessary.” (Id. at 874.)3 Nevertheless, the court of appeals permitted the filing of a supplemental brief. (Id. at 911.) As relevant here,
Upshaw argued in the supplemental brief that “the
trial court abused its discretion when it denied [his]
request for a brief adjournment” and that “[he] was
denied a fair trial and due process of law [because] the
prosecutor improperly dismissed minority venire
members” and gave “insufficient [race-neutral reasons] to avoid a finding of purposeful discrimination.”
(Id. at 927, 930 (capitalization omitted).)
On May 19, 2016, the Michigan Court of Appeals
rejected all of Upshaw’s arguments and affirmed his
convictions and sentence. People v. Walker, Nos.
324672, 325195, 2016 WL 2942215 (Mich. Ct. App.
May 19, 2016). On April 4, 2017, the Michigan Supreme Court denied leave to appeal. People v.
Upshaw, 891 N.W.2d 487 (Mich. 2017) The United
States Supreme Court denied Upshaw’s petition for
the writ of certiorari on November 6, 2017. Upshaw v.
Michigan, 138 S. Ct. 422 (2017).
On July 10, 2018, Upshaw filed a pro se motion for
relief from judgment. (ECF No. 6-12 at Pg ID 760.) In
it, he argued, among other things, that his Sixth
Amendment rights were violated by the trial court’s
use of judicially found facts to score offense variables
one, four, and nine (which increased his mandatory
minimum sentence and guidelines range), as well as
his appellate counsel’s failure to raise this issue; and
3 Presiding Judge Cynthia Diane Stephens disagreed and would
have granted the motion to remand. (Id.)
50a
that the Michigan Court of Appeals unreasonably applied the Supreme Court’s precedent in Batson v. Kentucky, 476 U.S. 79 (1986), in violation of the Fourteenth Amendment. (Id. at 796, 806.) On November
27, 2018, the Honorable Wanda A. Evans (to whom
the case was reassigned following Judge Callahan’s
retirement) denied Upshaw’s motion. (ECF No. 6-13
at Pg ID 855; see also ECF No. 6-1 at Pg ID 225.) Both
the Michigan Court of Appeals and the Michigan Supreme Court denied leave to appeal. (ECF No. 6-15 at
Pg ID 1057; ECF No. 6-17 at Pg ID 1316.)
C. Upshaw’s Habeas Petition (ECF No. 1)
On September 18, 2020, Upshaw filed the current
federal habeas petition. (ECF No. 1.) Upshaw raises
seven grounds for relief in his petition: (1) that his
“trial counsel was constitutionally ineffective for failing to investigate potential alibi witnesses and failing
to file an alibi notice;” (2) that “the trial court denied
[his] motion for a brief adjournment . . . in violation of
due process;” (3) that “the prosecutor dismissed African-American potential jurors in a discriminatory
manner, in violation of the Equal Protection Clause;”
(4) that “the trial court found facts that were not found
by the jury to score offense variable 14, which increased the mandatory minimum sentence, in violation of the Sixth and Fourteenth Amendments;” (5)
that “appellate counsel was constitutionally ineffective for failing to request a ‘Crosby remand’ as the
remedy for [the offense variable 14] claim;” (6) that
“the trial court found facts that were not found by the
jury to score offense variables 1, 4, and 9, which increased the mandatory minimum sentence, in violation of the Sixth and Fourteenth Amendments, and
51a
[that] appellate counsel was constitutionally ineffective for failing to raise this claim on direct appeal;”
and (7) that “trial and appellate counsel were constitutionally ineffective for failing to argue that prior record variable 5 was [inappropriately] []scored.” (Id. at
Pg ID 6-11 (capitalization omitted).)
On May 2, 2022, this Court granted summary
judgment in favor of Upshaw on claim six; found
claims four, five, and seven moot in light of the relief
appropriate for claim six; and ordered an evidentiary
hearing on claims one and two. (ECF No. 19.) With
respect to claim one, the Court concluded that the
State court’s adjudication of the claim involved an unreasonable application of Strickland v. Washington,
466 U.S. 668, 685-86 (1984), as well as an unreasonable determination of the facts. (Id. at Pg ID 1520.) The
Court therefore held that Upshaw had overcome the
limitation of § 2254(d)(1) and that AEDPA deference
is inappropriate as to that claim. (Id. at Pg ID 1530.)
The evidentiary hearing was held on May 17,
2022. (ECF No. 23.) Three witnesses testified:
Upshaw, Blake, and Holloway. (See id. at Pg ID 1548.)
D. Evidentiary Hearing
1) Upshaw’s and Holloway’s Testimony
After getting off work at Tony’s Bar and Grill in
the early morning of May 28, 2014, Upshaw received
a ride home from his manager, Jeffrey Haugabook.
(Id. at Pg ID 1555.) Upshaw needed a ride because, at
the time, he had no car or bike, and relied exclusively
on public transportation and ridesharing to get
around. (Id. at Pg ID 1555-56.) Upshaw did not have
52a
his keys with him when he arrived home around 3:25
a.m., so he knocked on the front door. (Id. at Pg ID
1556.) Holloway, who suffers from insomnia, heard
the knocking from her bedroom upstairs and let him
in. (Id. at Pg ID 1555, 1613-14.)
Upshaw’s knocking also woke up Green, who was
sleeping on the couch downstairs. (Id. at Pg ID 1583,
1614-15.) Green was very angry with Upshaw for waking her up and spent several minutes yelling at him.
(Id. at Pg ID 1583, 1608.) Eventually, Upshaw went
upstairs and began to attend to his infant daughter,
who had been awakened by the commotion. (Id. at Pg
ID 1583-84, 1609, 1612.) Holloway, who also went upstairs, was in and out of her bedroom for about twenty
or thirty minutes, during which time she spoke with
Upshaw and heard him playing with his daughter.
(Id. at Pg ID 1583-84, 1615.)
Diamond Woods, the mother of Upshaw’s daughter, was with Upshaw as well. (Id. at Pg ID 1615,
1619.) Holloway retired to her room for the night “a
little before 4:00 [a.m.].” (Id. at Pg ID 1615.) At some
point, Upshaw went downstairs to make something to
eat. (Id. at Pg ID 1583.) He then returned to his room,
which he shared with Woods, and went to sleep. (Id.
at Pg ID 1584.) The next morning, Upshaw awoke
around 6:30 or 7:00 and left the house shortly thereafter. (Id. at 1585.) Green was awake and sitting
downstairs when he left. (Id. at Pg ID 1585.)
After being charged with the armed robbery of the
gas station, Upshaw retained Ray Paige to represent
him at trial. (Id. at Pg ID 1572.) At their first meeting,
Upshaw informed Paige that he had been at home
with his baby, Green, Holloway, and Woods at the
53a
time of the robbery and that the three women were
willing to serve as alibi witnesses. (Id. at Pg ID 1562,
1565, 1572-73.) At no point during the following
months, however, did Paige try to contact them. (Id.
at Pg ID 1562-63, 1565, 1610, 1621.) This total failure
to investigate, combined with Paige’s poor communication and absence at certain pre-trial proceedings,
proved too much for Upshaw. (Id. at Pg ID 1564.) Accordingly, he replaced Paige with another attorney,
Wright Blake, about two weeks before trial. (Id. at Pg
ID 1566.) Despite the little time remaining before
trial, Blake waited nearly a week to meet with
Upshaw and failed to familiarize himself with the
facts of Upshaw’s case beforehand. (Id. at Pg ID 156667, 1573.)
At their first meeting, eight days before trial,
Upshaw told Blake that he was home at the time of
the gas station robbery and that Green, Holloway, and
Woods were prepared to testify at trial to his alibi.
(Id.) Upshaw also gave Blake their contact information. (Id. at Pg ID 1568.) Blake, who primarily used
the meeting to review Upshaw’s discovery packet for
the first time, offered no response and took no notes.
(Id. at Pg ID 1566-67, 1574.)
The next day, Blake told Upshaw that he had
missed the deadline to call alibi witnesses. (Id. at Pg
ID 1576-77.) Nevertheless, Blake declined to make
any arguments at the pre-trial conference in support
of Upshaw’s plea for an adjournment and, instead,
told the trial court that he could be prepared for trial
the following week. (Id. at Pg ID 1566-67; ECF No. 65 at Pg ID 321-22.) Blake did not meet with Upshaw
54a
again before trial and did not contact Holloway. (Id. at
Pg ID 1575-76, 1610.)
Green, Holloway, and Woods spoke with Upshaw
“[m]ultiple times” about serving as alibi witnesses and
even attempted to reach out to Blake. (Id. at Pg ID
1579-80.) Blake, however, called none of these individuals to testify—though all attended the trial. (Id. at
Pg ID 1580.) Blake ultimately called only one witness,
Haugabook. (Id. at Pg ID 1576.) Haugabook, however,
did not offer an alibi. (ECF No. 6-9 at Pg ID 671.)
From Upshaw’s perspective, Blake “just winged
the whole case.” (ECF No. 23 at Pg ID 1577.) At every
opportunity, even as the trial wore on, Upshaw renewed his pleas for Blake to call his alibi witnesses.
(Id. at Pg ID 1575.) But Blake repeatedly insisted that
he could do nothing because he had missed the alibi
witness deadline. (Id.)
2. Blake’s Testimony
Blake remembered very little of Upshaw’s case
and had no records pertaining to his representation of
Upshaw. (Id. at Pg ID 1596.)4 Blake recalled that the
trial took place in 2014, that the charges involved a
gas station, and that there was a video. (Id. at Pg ID
1595-96.) But that was about it. (Id. at Pg ID 159899.) He did not recall how many weeks before trial he
had been retained, whether he met with Upshaw more
than once before trial, whether he had been informed
of the existence of alibi witnesses, whether he contacted any of those witnesses, or how much time he
4 Blake stated that “[he] always take[s] notes,” but admitted that
he is “not a very good notetaker.” (ECF No. 23 at Pg ID 1604-05.)
55a
spent preparing for trial. (Id. at Pg ID 1596-98.) Despite these numerous lapses in memory, Blake was
“sure” that he was adequately prepared for Upshaw’s
trial. (Id. at Pg ID 1597.)
The Court’s confidence in Blake’s credibility was
seriously diminished, however, by his inconsistent
statements and complete lack of preparation—or attempt to prepare—for the evidentiary hearing. For example, Blake initially claimed that no one, except possibly the Attorney General’s office, contacted him
about the evidentiary hearing, and that he did not
know why he was being called to testify until he
looked up the docket. (Id. at Pg ID 1601.) He later recalled, however, that Upshaw’s habeas counsel contacted him via email before subpoenaing him and that
he responded. (Id. at 1602.) Similarly, Blake claimed
that he was “sure” he would have requested an adjournment if he was retained so soon before trial. (Id.
at Pg ID 1605.) Yet, at the October 2, 2014 pre-trial
conference, he did not do so. (ECF No. 6-5 at Pg ID
321-22.) 5
In addition, Blake declined to review (or even request) any materials from the record to prepare to give
testimony, save for the register of actions, despite the
fact that he could recall almost nothing related to his
representation of Upshaw and knew that the
5 Although Blake no longer remembers how soon before trial he
joined the case, he does not dispute Upshaw’s claim that it was
two weeks. (ECF No. 23 at Pg ID 1568, 1604.) The Court also
notes that at the October 2, 2014 pre-trial conference, where
Blake declined to argue for an adjournment, he did not disagree
with Upshaw’s statement that he had been retained “a week and
a half ago, probably not even that.” (ECF No. 6-5 at Pg ID 322.)
56a
evidentiary hearing would focus on that representation. (Id. at Pg ID 1598, 1601.) Against this backdrop,
the Court does not find credible Blake’s claim that he
would have asked the trial court for an adjournment
if he was provided alibi witnesses past the time to file
an alibi notice. (Id. at Pg ID 1599.)
IV. Analysis
A. Trial Counsel’s Failure to Investigate and
Call Alibi Witnesses to Testify at Trial (Claim
I)
In his first claim, Upshaw argues that his “trial
counsel was constitutionally ineffective for failing to
investigate potential alibi witnesses and failing to file
an alibi notice.” (ECF No. 1 at Pg ID 6 (capitalization
omitted).)
The Sixth Amendment to the United States Constitution guarantees criminal defendants the right to
the effective assistance of counsel. See Strickland v.
Washington, 466 U.S. 668, 685-86 (1984). To prove ineffective assistance of counsel, Upshaw must satisfy
Strickland’s familiar two-prong test. See, e.g., Peoples
v. Lafler, 734 F.3d 503, 512 (6th Cir. 2013).
The first prong assesses counsel’s performance. Under this prong, “the defendant must
show that counsel’s representation fell below
an objective standard of reasonableness.”
Strickland, 466 U.S. at 687-88. In other
words, a court assessing an ineffective assistance claim must “determine whether, in light
of all the circumstances, the challenged acts
or omissions were outside the wide range of
57a
professionally competent assistance.” Id. at
690. When making this assessment, “counsel
is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id.
Second, in order to amount to a constitutional
violation, the error by counsel must have been
prejudicial to the defendant. Id. at 691-92. To
prove prejudice, “the defendant must show
that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result
of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. “The question is not whether
a court can be certain counsel’s performance
had no effect on the outcome or whether it is
possible a reasonable doubt might have been
established if counsel acted differently. . . .
The likelihood of a different result must be
substantial, not just conceivable.” Richter, 562
U.S. at 111-12.
Stermer v. Warren, 959 F.3d 704, 736 (6th Cir. 2020)
(brackets omitted).
Before turning to the proper application of Strickland, the Court makes the following factual findings
as to the handling of Upshaw’s case by Paige and
Blake. These findings are based upon the Court’s careful review of the record evidence as well as its consideration of the testimony adduced at the evidentiary
hearing.
58a
Upshaw, with the assistance of his mother and
Green, retained Paige in June or July 2014. (ECF No.
6-2 at Pg ID 227; ECF No. 6-14 at Pg ID 950; ECF No.
23 at Pg ID 1565, 1572, 1620.) The two women took
responsibility for corresponding with Paige. (ECF No.
6-14 at Pg ID 950; ECF No. 23 at Pg ID 1620.) At their
very first attorney-client meeting, Upshaw told Paige
that he was innocent and that Green, Holloway, and
Woods could provide alibi testimony. (ECF No. 23 at
Pg ID 1562, 1565, 1572-73.) Paige, however, did not
contact Holloway, and likely did not contact Woods.
(Id. at Pg ID 1562-63, 1610, 1621.) Paige may have
spoken to Green on one occasion, but he did not pursue her alibi testimony. (Id. at Pg ID 1562-63; ECF
No. 6-14 at Pg ID 884.) At no time during the next two
months did Paige file an alibi notice. (ECF No. 23 at
Pg ID 1577.) In addition, Paige failed to appear for at
least one, and possibly multiple, proceedings. (ECF
No. 6-1 at Pg ID 225; ECF No. 6-4 at Pg ID 314-15;
ECF No. 6-5 at Pg ID 322; ECF No. 6-14 at Pg ID 950;
ECF No. 23 at Pg ID 1564.)
Approximately two weeks before trial, Upshaw,
again with the help of his mother and Green, retained
Blake to replace Paige. (ECF No. 6-5 at Pg ID 322;
ECF No. 6-14 at Pg ID 950; ECF No. 23 at Pg ID 1566.)
Although time was of the essence, Blake waited until
eight days before trial to meet with Upshaw and did
not begin familiarizing himself with the case materials until that first attorney-client meeting. (ECF No.
23 at Pg ID 1566-67, 1573.) During that meeting,
Upshaw told Blake that he had been home at the time
of the robbery and that Green, Holloway, and Woods
59a
were prepared to testify to his alibi at trial. 6 (Id.)
Upshaw also provided their contact information. (Id.
at Pg ID 1568; ECF No. 6-14 at Pg ID 950.) Blake,
however, used the meeting to review Upshaw’s discovery packet, which he had not obtained the previous
week, and did not discuss Upshaw’s alibi. (ECF No. 23
at Pg ID 1566-67, 1574.)
The next day, Blake told Upshaw that he missed
the deadline to call alibi witnesses and, at the pre-trial
conference, declined to make any arguments in support of Upshaw’s plea for an adjournment. (Id. at Pg
ID 1566-67, 1576-77; ECF No. 6-5 at Pg ID 321-22.)
Blake made no attempt to seek an extension of the alibi-witness deadline. He instead told the trial court
that he could be prepared for trial by the following
week. (ECF No. 6-5 at Pg ID 322). That was the last
time Upshaw saw Blake before trial. (ECF No. 23 at
Pg ID 1575-76.) And although Green reached out to
Blake on behalf of herself, Holloway, and Woods,
Blake did not attempt to file an alibi notice, did not
investigate Holloway if not also Green and Woods, and
ultimately called none of the women to testify. (Id. at
6 Respondent argues that Upshaw’s testimony should not be be-
lieved because it is “self-serving.” (ECF No. 24 at Pg ID 1636.)
This argument is unpersuasive, however. See Hodges v. Colson,
727 F.3d 517, 538 (6th Cir. 2013) (en banc) (quoting Miller v.
Straub, 299 F.3d 570, 581 (6th Cir. 2002)) (explaining that “testimony, though self-serving, may be enough by itself to satisfy
[Strickland’s] prejudice prong”). Upshaw and Holloway were
both very credible at the hearing. Their testimony, in combination with Green’s notarized letter, lead the Court to find that
Upshaw told Paige and Blake that he had an alibi defense and
witnesses to back it up. Significantly, Blake never claimed that
he was not informed of Upshaw’s alibi witnesses but stated that
he “did not remember.”
60a
Pg ID 1580, 1610; ECF No. 6-14 at Pg ID 884.) At
every opportunity, Upshaw renewed his pleas for
Blake to call alibi witnesses, but Blake insisted that
he could do nothing because he had missed the deadline. (Id. at Pg ID 1575.)
1) Performance
“Under Strickland, trial counsel has a duty to investigate his case[.]” Stewart v. Wolfenbarger, 468
F.3d 338, 356 (6th Cir. 2006). “This duty includes the
obligation to investigate all witnesses who may have
information concerning . . . [a] client’s guilt or innocence.” Id. (quoting Towns v. Smith, 395 F.3d 251, 258
(6th Cir. 2005)) (emphasis added). In this case, it was
objectively unreasonable for Paige to neither contact
nor investigate Holloway after Upshaw informed him
at their initial meeting that she was a potential alibi
witness. 7 Id.; see also, e.g., McQueen v. Winn, No. 192212, 2020 U.S. App. LEXIS 14373, at *17 (6th Cir.
May 5, 2020) (citing Towns, 395 F.3d at 258;
Clinkscale v. Carter, 375 F.3d 430, 443 (6th Cir. 2004))
(“An attorney is . . . ineffective when he or she fails to
investigate potential alibi witnesses.”). Likewise, it
was objectively unreasonable for Blake to fail to undertake any investigation into Upshaw’s case until
eight days before trial, after the deadline for filing an
alibi notice had passed. See Williams v. Taylor, 529
U.S. 362, 395 (2000) (failure to begin mitigation
7 Although it seems likely that Paige also failed to investigate
Green and Woods, the Court bases its decision specifically on
Holloway because her testimony at the evidentiary hearing was
highly credible and based on personal knowledge. (ECF No. 23 at
Pg ID 1610 (“I can’t speak for my mother, but he didn’t contact
me.”).
61a
investigation until a week before trial was unreasonable); see also Rompilla v. Beard, 545 U.S. 374, 387
(2005) (citation omitted) (requiring “a prompt investigation”) (emphasis added). Blake, who testified that
he has tried “thousands” of cases, knew or should have
known that Michigan law requires a defendant to file
an alibi notice at least ten days before trial, and
should have moved quickly to ascertain whether
Upshaw had an alibi. (ECF No. 23 at Pg ID 1599);
Mich. Comp. Laws § 768.20(1); see Clinkscale, 375
F.3d at 443 (citations omitted) (noting that “a number
of courts have found ineffective assistance of counsel
in violation of the Sixth Amendment where . . . a defendant’s trial counsel fails to file a timely alibi notice
and/or fails adequately to investigate potential alibi
witnesses”).
Even assuming that Blake’s late addition to the
case hindered his ability to timely discover Upshaw’s
alibi defense, Blake’s failure to attempt to remedy the
situation is independently sufficient to constitute ineffective assistance of counsel. See Bigelow v. Williams, 367 F.3d 562, 570-71 (6th Cir. 2004) (citing
Matthews v. Abramajtys, 319 F.3d 780, 789-90 (6th
Cir. 2003); Blackburn, 828 F.2d at 1182-83) (“[T]he
failure to call a known alibi witness generally . . . constitute[s] ineffective assistance of counsel.”); see also
Wilson v. Cowan, 578 F.2d 166, 168 (6th Cir. 1978)
(reaching same conclusion under pre-Strickland
standard).
After learning of the existence of Upshaw’s alibi
defense, Blake had various remedial options available
to him to avoid the preclusion of Upshaw’s alibi witnesses. The most reasonable course of action was for
62a
Blake to argue for an adjournment which, given the
circumstances, the trial court was obliged to grant.
See People v. Merritt, 238 N.W.2d 31, 37-38 (Mich.
1976) (providing that it would be an abuse of discretion for the trial court to preclude a defendant from
filing a timely alibi notice by denying a continuance
where there is no evidence of prejudice to the prosecution or intentional delay by the defendant). But at the
very least, Blake could have requested permission to
file a late alibi notice. See Mich. Comp. Laws §
768.20(1) (requiring notice to be served “not less than
10 days before the trial of the case, or at such other
time as the court directs”) (emphasis added); People v.
Travis, 505 N.W.2d 563, 568 (Mich. 1993) (explaining
that this language “preserves the trial court’s discretion to fix the timeliness of notice in view of the circumstances”). Blake, however, did neither. 8 Instead,
he compounded his ineffectiveness by emphasizing
that the adjournment request was coming from his client, not him, and assuring the trial court that he could
be ready to try the case the following week. (ECF No.
6-5 at Pg ID 322 (“Mr. Upshaw wants an adjournment. He doesn’t feel that we’re quite ready. I told him
8 It seems likely that Blake’s failure to request permission to file
a late alibi notice was at least partially based on his lack of
knowledge of the trial court’s discretion “to fix the timeliness of
notice in view of the circumstances.” Travis, 505 N.W.2d at 568;
(see ECF No. 23 at Pg ID 1575 (“Even during trial, I kept telling
him [about my alibi witnesses]. He was like, ‘We can’t do nothing.
We – it’s a deadline. I didn’t meet my deadline.’”).) This is further
evidence of deficient performance. See King v. Westbrooks, 847
F.3d 788, 797 (6th Cir. 2017) (quoting Hinton v. Alabama, 571
U.S. 263, 274 (2014)) (“An attorney’s ignorance of a point of law
that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential example of
unreasonable performance under Strickland.”).
63a
that I would bring myself up to speed by the time for
the trial date.”) (emphasis added); ECF No. 23 at Pg
ID 1567.)
Counsel’s actions were not objectively reasonable.
See Roe v. Flores-Ortega, 528 U.S. 470, 481 (2000) (citing Strickland, 466 U.S. at 688) (“The relevant question is not whether counsel’s choices were strategic,
but whether they were reasonable.”); Matthews, 319
F.3d at 790 (finding that trial counsel “[met] the
standard for incompetence” where he “actively barred
his client from introducing [an] alibi witness” and
thereby “appear[ed] to . . . furnish[] a net negative to
the defense”); Clinkscale, 375 F.3d at 443-44 & n.9
(holding that trial counsel’s failure to call the defendant’s father as an alibi witness was objectively unreasonable even though the jury might have suspected
the father had motive to lie and might have found his
alibi weak). Blake offered no reason for his actions and
in fact indicated that if he had been retained so soon
before Upshaw’s trial, he certainly would have requested a continuance. But, again, he did not. Upshaw
has accordingly overcome the “strong presumption
that [his] counsel’s conduct [fell] within the wide
range of reasonable professional assistance.” Strickland, 466 U.S. at 689. The Court reaches the same
conclusion even if it considers only the record before
the State court.
That record reflects, at the very least, trial counsel’s failure to investigate Upshaw’s alibi defense. See
Stewart, 468 F.3d at 356 (an attorney’s duty “includes
the obligation to investigate all witnesses who may
have information concerning his or her client’s guilt or
innocence”) (emphasis added). Despite being aware of
64a
Upshaw’s claim that he was home with Woods, Holloway, and Green at the time of the armed robbery,
Paige apparently did nothing to investigate that defense. The Court sees no reasonable justification for
that failure. See Ramonez v. Berghuis, 490 F.3d 482,
488 (6th Cir. 2007) (“[T]he investigation leading to the
choice of a so-called trial strategy must itself have
been reasonably conducted lest the ‘strategic’ choice
erected upon it rest on a rotten foundation.”).
Blake could have attempted to remedy that defect
when he stepped in as trial counsel but he made no
attempt to do so. Although he was hired to represent
Upshaw less than two weeks before trial, the record
reflects that a week before trial Blake still had not reviewed the evidence against Upshaw. (See ECF No. 65 at Pg ID 321-22.) Blake was made aware of
Upshaw’s alibi defense. Yet Blake undermined
Upshaw’s request for a continuance, which would
have given Blake time to investigate and prepare a
defense. Again, there is no reasonable justification for
counsel’s decisions.
2) Prejudice
“When trial counsel fails to present an alibi witness, ‘the difference between the case that was and
the case that should have been is undeniable.’” Caldwell v. Lewis, 414 F. App’x 809, 818 (6th Cir. 2011)
(quoting Stewart 468 F.3d at 361) (brackets omitted).
For this reason, the Sixth Circuit has repeatedly
found prejudice where trial counsel fails to present a
known alibi witness, especially where “alibi is a critical aspect of [the] defendant’s defense.” Clinkscale,
375 F.3d at 443; see, e.g., Stewart, 468 F.3d at 360
65a
(finding prejudice where the “[p]etitioner’s entire defense strategy was an alibi defense”).
In this case, Upshaw’s defense was that he had
been misidentified and was elsewhere at the time of
the gas station robbery. (ECF No. 6-14 at Pg ID864.)
But because of Blake’s deficient performance, Upshaw
did not offer a single alibi witness to back up that argument. By Blake’s own admission, Haugabook could
not “testify to where . . . Upshaw was at the time that
the shooting happened” and would not be providing
Upshaw with an alibi. (ECF No. 6-9 at Pg ID 670.)
Through Haugabook, Upshaw was able to establish
only that he had been dropped off at home around 3:20
a.m. and was wearing different shoes than those worn
by the perpetrator of the armed robbery several
minutes later. (ECF No. 6-8 at Pg ID 542-44; ECF No.
6-10 at Pg ID 682-83.) This was not much of a defense.
In contrast, had Holloway and Green been able to
testify, the jury would have heard an entirely different
narrative. The State court records reflect that, at the
very least, Green would have told the jury that within
minutes of the robbery taking place, Upshaw was at
home, with her, his aunt, his daughter, and his daughter’s mother, being reprimanded by Green, and that
he left the house the next morning, hours after the
armed robbery occurred. (ECF No. 23 at Pg ID 160809, 1613-15; ECF No. 6-14 at Pg ID 884.)
The Court finds no reasonable explanation for presenting Haugabook as a witness but not Upshaw’s alibi witnesses, and Blake has offered none. Haugabook
could have bolstered and corroborated Green’s and
Holloway’s alibi testimony. Standing alone,
66a
Haugabook’s testimony was of marginal benefit to the
defense.
Contrary to the State court’s conclusion, Green’s
statements did place Upshaw at home at the time of
the robbery—or close enough to it that “there is a reasonable probability that, but for counsel’s [failure to
investigate and present her testimony], the result of
the proceeding would have been different.” 9 Strickland, 466 U.S. at 694. Green’s statements had to be
read in context of Haugabook’s testimony that he
dropped Upshaw at home around 3:20 a.m., trial testimony that Walker entered the gas station at 3:35
a.m. and the person believed to be Upshaw approached seconds before 3:37 a.m., that they both arrived on foot, that the gas station is approximately
three-and-a-half miles from Upshaw’s home, and
Walker’s statement that Upshaw was not with him at
the gas station when the robbery occurred.
There is no reason to conclude that Green or Holloway would have testified to anything other than
what has been presented in the record. And while the
Court recently learned that Green is now deceased,
her statement is part of the record and may be considered. See Rule 7(b) of the Rules Governing § 2254
Cases (permitting a federal habeas court to consider
“letters predating the filing of the petition” as well as
“documents” and other “exhibits”). The Michigan
Court of Appeals noted that Green’s statement did not
9 Green’s statement strongly suggests that Upshaw was home
from 3:20 a.m. until he left at 7:45 a.m. Effective counsel at least
would have questioned Green to determine whether she knew
and intended to convey in her statement that Upshaw was home
this entire period.
67a
comply with Michigan Court Rule 2.119(B), see 2016
WL 2942215, at *6; however, the court did not strike
the statement, although it had the authority to do so,
and still evaluated it as an offer of proof.
Respondent argues that Upshaw cannot demonstrate prejudice because “the jury would not have
been obligated to believe the[] testimony” of his alibi
witnesses. (ECF No. 24 at Pg ID 1636.) However, the
Sixth Circuit rejected a nearly identical argument in
Clinkscale:
The state attacks the significance of Arthur
Clinkscale’s affidavit on the grounds that: (1)
he is defendant Clinkscale’s father and therefore has a motive to lie; and (2) the substance
of his affidavit “only barely provides an alibi
for Clinkscale” because “Clinkscale could certainly have driven from Columbus to Youngstown in the hours between the shooting and
the time his father allegedly saw him that
morning.” . . . These arguments are unavailing. In considering the significance of this affidavit, our role is limited to determining
whether there is a “reasonable probability”
that the outcome of Clinkscale’s trial would
have been different but for his counsel’s errors. Strickland, 466 U.S. at 694. The factors
that the state has highlighted may ultimately
affect the credibility of Arthur Clinkscale’s
testimony in the eyes of the jury, but they are
not dispositive with respect to our analysis.
375 F.3d at 444 n.9. The lesson from Clinkscale is that
where a defense theory hinges upon placing the defendant elsewhere than at the scene of the crime, a
68a
trial attorney’s failure to call a willing and available
alibi witness will likely be prejudicial even if the persuasive value of the testimony might be diminished on
cross-examination. See, e.g., Matthews, 319 F.3d at
789 (finding a reasonable probability of a different
outcome where trial counsel failed “to present potential alibi witnesses, whose testimony would have been
quite useful, even if not conclusive”) (emphasis added).
Indeed, the Sixth Circuit has found prejudice “even
where the state postconviction court said the alibi witnesses would have been ‘unconvincing,’ and there
were other alibi witnesses presented at trial.” Caldwell, 414 F. App’x at 818 (quoting Bigelow v.
Haviland, 576 F.3d 284, 291 (6th Cir. 2009)); see also
Ramonez v. Berghuis, 490 F.3d 482, 485-86 (6th Cir.
2007) (“Even though the jury could have discredited
the potential witnesses here based on factors such as
bias and inconsistencies in their respective stories,
there certainly remained a reasonable probability
that the jury would not have.”); Matthews, 319 F.3d at
790 (citing Strickland, 466 U.S. at 694) (“[A] ‘reasonable probability’ does not mean a certainty, or even a
preponderant likelihood, of a different outcome, nor,
even more, that no rational juror could constitutionally find [the defendant] guilty.”) (internal citation
omitted).
Finally, “the availability of willing alibi witnesses
must . . . be considered in light of . . . otherwise flimsy
evidence supporting [a defendant’s] conviction.” Avery
v. Prelesnik, 548 F.3d 434, 439 (6th Cir. 2008) (citing
Strickland, 446 U.S. at 696). Here, contrary to Respondent’s assertions, the State’s case against
Upshaw “was not overwhelming.” Matthews, 319 F.3d
at 790. The State’s chief evidence as to Upshaw’s guilt
69a
was Williams’ testimony. But eyewitness testimony is
“inherent[ly] unreliab[le].” Ferensic v. Birkett, 501
F.3d 469, 482 (6th Cir. 2007) (quoting Watkins v.
Sowders, 449 U.S. 341, 352 (1981)); see also Wilson v.
Cowan, 578 F.2d 166, 168 (6th Cir. 1978) (explaining
that “the identification of strangers in violent crime
situations is fraught with the hazard of mistake” and
collecting cases). Furthermore, “[e]ven putting aside
[the Sixth Circuit’s] ‘grave reservations concerning
the reliability of eyewitness testimony,’ the accuracy
of [the] identification [in this case] is highly suspect”
given the particular circumstances under which Williams saw the shooter. Clinkscale, 375 F.3d at 445
(quoting Blackburn, 828 F.2d at 1186). Not only was
Williams unable to see the shooter’s entire face, which
was covered with a t-shirt, but she viewed him while
in a state of fear, while he pointed a gun and shot at
her six or seven times. (ECF No. 6-2 at Pg ID 237-38);
see, e.g., Thomas v. Heidle, 615 F. App’x 271, 278 (6th
Cir. 2015) (listing “factors . . . known to create problems for accurate eyewitness testimony,” including
“stress,” “fright,” and “weapon focus”).
Apart from Williams’ testimony, the State’s only
evidence against Upshaw was that he had been arrested for home invasion with Walker several hours
after the gas station was robbed. 10 (ECF No. 6-10 at
10 Respondent argues that this evidence is “highly incriminating”
and must be considered when deciding Strickland’s prejudice
prong. (ECF No. 24 at Pg ID 1649.) But this argument fails to
appreciate that the Court is not determining that the State
court’s prejudice analysis was an unreasonable application of
Strickland. Rather, the Michigan Court of Appeals’ prejudice
analysis relies upon multiple objectively unreasonable factual
determinations and assumptions. See 28 U.S.C. § 2254(d)(2). Because subsections (d)(1) and (2) of § 2254 are disjunctive, the
70a
Pg ID 691-94.) But the Sixth Circuit has found prejudice in the face of far more damning evidence. In Matthews, for example, the court found prejudice where
trial counsel failed to call the defendant’s family members as alibi witnesses, despite evidence that the defendant had (1) sold jewelry stolen from the victim’s
house within days of his murder, and (2) previously
been photographed wearing a distinctive jacket that
was also seen on a man fleeing the scene of the crime.
319 F.3d at 783-84, 789-90. Likewise, in Stewart, the
court found prejudice where two alibi witnesses were
unable to testify due to a deficient alibi notice, even
though one of the State’s witnesses “testified that he
saw [the defendant] holding a gun and point[ing] the
gun . . . at the victim” and another testified that the
defendant had “stated he was going to kill the victim.”
468 F.3d at 343-44, 357-59.
“If [Upshaw’s] alibi witnesses are to be believed,
they present a complete defense to the crime.” United
States v. Murillo, No. 07-20417, 2011 WL 5039800, at
*13 (E.D. Mich. Oct. 24, 2011). “Had even one alibi
witness been permitted to testify,” Haugabook’s testimony would have been corroborated and far more persuasive. Clinkscale, 375 F.3d at 445. And the jury
would not have been left to wonder why no one could
account for Upshaw’s whereabouts at the time of the
crime. Without Upshaw’s alibis, however, “the only
credible identifying witness’s testimony [was] virtually unchallenged” and the jury was “foreclosed . . .
from hearing valuable countervailing evidence.”
Blackburn, 828 F.2d at 1186. Thus, because there is a
Court is not required to also find that the State court’s prejudice
analysis was an objectively unreasonable application of Strickland.
71a
substantial likelihood that the trial would have
turned out differently if counsel had called even one
alibi witness, habeas relief is appropriate based on
Claim I.
B. Prosecutor’s Dismissal of Six Black Prospective Jurors (Claim III)
In his third claim, Upshaw argues that he was denied equal protection, in violation of the Fourteenth
Amendment, when the prosecutor used six of her peremptory challenges against Black prospective jurors
in violation of Batson. (ECF No. 1 at Pg ID 8.) In Batson, the Supreme Court held that the Equal Protection Clause prohibits a prosecutor from using the
State’s peremptory challenges for the purpose of excluding from the jury members of the defendant’s
race. 476 U.S. at 96.
1) State Court’s Decision
The Michigan Court of Appeals rejected Upshaw’s
Batson claim, 11 summarizing the trial proceedings
and reasoning:
Our Supreme Court in Knight stated that Batson “announced a three-step process for determining the constitutional propriety of a peremptory challenge.” [People v. Knight, 473
11 While Upshaw last presented his Batson claim in his July 10,
2018 motion for relief from judgment (ECF No. 6-12 at Pg ID 76365), the State trial court made no reference to the claim when
denying the motion (ECF No. 6-13 at Pg ID 855-59.) The Court
therefore “look[s] through the [trial court’s] unexplained decision
to the last related state-court decision that does provide a relevant rationale[.]” Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).
72a
Mich. 324, 336 (2005)]. “First, the opponent of
the peremptory challenge must make a prima
facie showing of discrimination.” Id. . . . “Second, if the trial court determines that a prima
facie showing has been made, the burden
shifts to the proponent of the peremptory challenge to articulate a race-neutral explanation
for the strike.” Id. at 337. . . . “Finally, if the
proponent provides a race-neutral explanation as a matter of law, the trial court must
then determine whether the race-neutral explanation is a pretext and whether the opponent of the challenge has proved purposeful
discrimination.” Id. at 337-338. . . .
In the instant case, after the prosecutor exercised multiple peremptory challenges,
Upshaw’s attorney informed the trial court
that he had a motion to make. The trial court
excused the veniremembers and those remaining in the jury pool. Upshaw’s counsel
then presented a Batson challenge, arguing
that six of the eight peremptory challenges exercised by the prosecutor pertained to AfricanAmericans; both defendants are AfricanAmerican. Walker’s attorney indicated that he
would join in the motion. Other than noting
the number of peremptory challenges exercised by the prosecutor and the race of those
excused veniremembers, the defense attorneys did not provide any additional argument
in support of making a prima facie case of discrimination. The trial court, failing to indicate
whether defendants had made the required
prima facie showing of discrimination, asked
73a
the prosecutor whether she had any response
as to why the African-American veniremembers were excused. The prosecutor then provided race-neutral explanations for the strikes
in regard to four of the African-American veniremembers. Before the prosecutor could
continue with her explanations concerning the
remaining two African-American veniremembers, the trial court interjected, asking
Upshaw’s counsel whether he had any response. Upshaw’s attorney then began addressing and challenging the race-neutral explanation given by the prosecutor in regard to
one of the stricken veniremembers. The trial
court quickly chimed in, “Yes, but are you saying that’s a pretext to get her off the jury because she’s black?” Upshaw’s counsel replied
in the affirmative, at which point the trial
court queried, “Anything else?” Upshaw’s attorney replied, “No, your Honor.” Walker’s attorney also indicated that he had nothing to
add.
Next, the trial court ruled:
Well, the prosecutor has given some
explanation other than race being
challenged. I don’t think the Batson
motion can be sustained. I don’t have
any further comments on whether it’s
good or bad. . . . .
After some further discussion on the matter, Upshaw’s attorney began challenging the
race-neutral explanation given by the prosecutor regarding another veniremember, but
74a
the trial court interrupted, making clear that
it had denied the Batson motion.
In Knight, 473 Mich. at 339, our Supreme
Court counseled the bench with respect to
Batson challenges, stating that “trial courts
must meticulously follow Batson’s three-step
test, and we strongly urge our courts to clearly
articulate their findings and conclusions on
the record.” The Court further noted that
“when a trial court methodically adheres to
Batson’s three-step test and clearly articulates its findings on the record, issues concerning what the trial court has ruled are significantly ameliorated.” Id. at 338-339. Here, unfortunately, the trial court failed to adhere to
the directive announced by the Knight Court
a decade earlier.
With respect to the first step, i.e., whether
defendants made a prima facie showing of discrimination, actual proof of discrimination is
not required. Id. at 336. And, given that there
is no dispute that the veniremembers at issue
in this case were members of a cognizable racial group and that peremptory challenges
were exercised to exclude them from the jury,
the question in regard to step one becomes
whether all of the relevant circumstances
raised an inference that the prosecutor struck
the excluded veniremembers on the basis of
race. Id. The trial court’s statements on the
bench failed to expressly indicate whether it
found that defendants had made a prima facie
case of discrimination. Although such a
75a
finding might be implied because the court
asked the prosecutor to articulate explanations for why veniremembers were stricken,
the court’s ruling is ultimately unclear and
muddled on the matter. We cannot conclude,
on the existing record, that defendants made
a prima facie showing or case of racial discrimination. While not binding precedent, we find
persuasive the following discussion by the
United States Court of Appeals for the Eleventh Circuit in United States v OchoaVasquez, 428 F3d 1015, 1044 ([11th Cir.]
2005):
In order to determine whether a Batson objector . . . has established a
prima facie case of discrimination,
courts must consider all relevant circumstances. This Court has cautioned
that the mere fact of striking a juror
or a set of jurors of a particular race
does not necessarily create an inference of racial discrimination. While
statistical evidence may support an
inference of discrimination, it can do
so only when placed in context. For example, the number of persons struck
takes on meaning only when coupled
with other information such as the racial composition of the venire, the race
of others struck, or the voir dire answers of those who were struck compared to the answers of those who
were not struck. . . . .
76a
The Eleventh Circuit observed that pertinent circumstances to consider include the racial composition of remaining potential jurors,
“the percentage of jurors of a particular race
or ethnicity struck and the percentage of their
representation on the venire,” whether members of the relevant racial group served unchallenged on the jury, and whether the prosecutor used all or nearly all of his or her challenges to strike veniremembers of a particular
race. Id. at 1044-1045. Here, the only argument posed by defense counsel during voir
dire was that six of eight peremptory challenges exercised by the prosecutor concerned
veniremembers of the same race as defendants. Neither Walker nor Upshaw’s attorney
made a record regarding any other surrounding circumstance, such as those alluded to in
Ochoa-Vasquez, nor are we able to discern
from the existing record whether additional
relevant facts or circumstances were present,
e.g., information regarding the percentage of
African-American jurors on the venire. Assuming that the trial court found that defendants had made a prima facie case of discrimination, it erred in that part of its analysis. Absent a prima facie showing of discrimination,
the remaining two steps in the Batson analysis are rendered moot. Reversal is unwarranted.
2016 WL 2942215, *7-8 (original brackets and footnote omitted).
77a
2) Overall Analysis
Although the Michigan Court of Appeals correctly
identified Batson as providing the relevant standard,
its application of Batson and its progeny was objectively unreasonable. 28 U.S.C. § 2254(d)(1). Specifically, the State court failed to adhere to the Supreme
Court’s admonition that “[o]nce a prosecutor has offered a race-neutral explanation for the peremptory
challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a
prima facie showing becomes moot.” Hernandez v.
New York, 500 U.S. 352, 359 (1991) (plurality opinion). 12
12 Respondent argues that Hernandez is not “clearly established”
for purposes of AEDPA because it was a plurality opinion. (ECF
No. 5 at Pg ID 183.) The Sixth Circuit has explicitly rejected this
argument, however. See Drain v. Woods, 595 F. App’x 558, 570
(6th Cir. 2014) (citation omitted) (“This Court has previously applied Hernandez’s mootness holding as clearly established law
and we see no reason to treat it otherwise now.”); see also Braxton
v, Gansheimer, 561 F.3d 453, 461 (6th Cir. 2009) (treating Hernandez’s mootness holding as clearly established); Smith v. Stegall, 385 F.3d 993, 998 (6th Cir. 2004) (“We are . . . bound by any
prior Sixth Circuit decisions concluding that federal law on a particular issue has been ‘clearly established’ by certain holdings of
the Supreme Court.”). Moreover, the concurring justices in Hernandez “wr[o]te separately because [they] believe[d] that the plurality opinion [went] further than it need[ed] to in assessing the
constitutionality of the prosecutor’s asserted justification for his
peremptory strikes.” Hernandez, 500 U.S. at 372 (O’Connor, J.,
concurring in the judgment). However, they otherwise “agree[d]
with [the plurality’s] analysis of th[e discriminatory intent] issue,” a necessary subset of which was its preliminary mootness
determination. Id.
78a
In Lancaster v. Adams, the Sixth Circuit, applying
Batson and Hernandez, held that the State court unreasonably applied Supreme Court precedent by
solely analyzing step one of the Batson analysis—the
strength of the petitioner’s prima facie showing of discrimination—even though “the trial court . . . had
ruled on the ultimate question under Batson.” 324
F.3d 423, 435 (6th Cir. 2003). Here, like in Lancaster,
the trial court reached step two and three of the Batson inquiry, 13 but the court of appeals nevertheless
analyzed the prima facie issue anew and rested its decision solely on that issue. (ECF No. 6-7 at Pg ID 427;
ECF No. 6-14 at Pg ID 870.) This was an unreasonable
application of Batson and Hernandez. See Lancaster,
324 F.3d at 435; cf. Braxton v. Gansheimer, 561 F.3d
453, 461 (6th Cir. 2009) (citing Lancaster, 324 F.3d at
435) (concluding “that the Ohio Court of Appeals’ application of Batson and Hernandez was neither erroneous nor unreasonable because the appellate court
did not rely solely upon the moot issue in rejecting [the
petitioner’s] Batson claim”) (emphasis added).
Accordingly, the Court will review de novo the
trial court’s Batson inquiry, “unencumbered by the
deference AEDPA normally requires.” Rice, 660 F.3d
at 251-52 (quoting Panetti v. Quarterman, 551 U.S.
930, 948 (2007)); see also id. (citing Henness v. Bagley,
644 F.3d 308 (6th Cir. 2011); Smith v. Bradshaw, 591
F.3d 517, 522, 525 (6th Cir. 2010)) (explaining that a
claim adjudicated on the merits is review de novo “if
13 As set forth in more detail below, the trial court failed to con-
duct the proper analysis at step three. However, this failure does
not change the fact that the court still reached a final decision on
the merits of Upshaw’s motion, mooting the prima facie inquiry
on appeal.
79a
the petitioner shows, by virtue of one of its exceptions,
that the relitigation bar of § 2254(d) does not apply”
and explaining that one of those exceptions includes
the state court’s unreasonable application of clearly
established law).
3) Batson Steps Two and Three
As set forth above, “[Upshaw] met his burden [at
step one] because the prosecutor proceeded to step two
of Batson before the trial court made a ruling at step
one. As a result, ‘the preliminary issue of whether
[Upshaw] . . . made a prima facie showing [is] moot.’”
Rice, 660 F.3d at 258 (quoting Braxton, 561 F.3d at
461); see Hernandez, 500 U.S. at 355 (plurality opinion). Accordingly, the Court proceeds directly to steps
two and three.
At step two, “the burden shifts to the prosecutor
to articulate a race-neutral explanation for striking
the jurors in question.” Hernandez, 500 U.S. at 358
(citing Batson, 476 U.S. at 97-98); see Johnson v. California, 545 U.S. 162, 171 (2005) (noting that “even . .
. frivolous or utterly nonsensical justification[s]” are
sufficient to satisfy this step of the inquiry). Finally,
step three requires the trial court to “determine
whether the defendant has carried his burden of proving purposeful discrimination.” Hernandez, 500 U.S.
at 358 (citing Batson, 476 U.S. at 98); see Bryan v.
Bobby, 843 F.3d 1099, 1110 (6th Cir. 2016) (citing Miller-El v. Cockrell, 537 U.S. 322, 339 (2003)) (explaining that “[t]he critical question here is . . . whether the
trial court finds the prosecutor’s race-neutral explanations credible or pretextual”).
80a
Upshaw’s counsel made his Batson motion after
the prosecutor exercised peremptory challenges
against eight prospective jurors, six of whom were
Black. (ECF No. 6-14 at Pg ID 869.) And although
Upshaw’s counsel initially referenced only two of the
stricken Black jurors by name, it is clear that his challenge encompassed all six. (ECF No. 6-7 at Pg ID 426
(arguing that “[a]ll of them had neutral responses that
they could be fair and impartial”)); see People v.
Knight, 701 N.W.2d 715, 728 (2005) (explaining that
Batson objections launched after several jurors are
stricken apply “to all strikes in [an] alleged pattern”).
After moving past the prima facie determination,
the trial court engaged the attorneys in the following
colloquy:
THE COURT: Do you have any response why
they were challenged?
[PROSECUTOR]: Well, do you want me to go
specifically one by one, Judge?
THE COURT: Go ahead.
[PROSECUTOR]: Ms. Stinson, I dismissed recently because she seemed to have very delayed responses to questions as if she really
wasn’t focused or paying attention and she’s
an older female. As relates to Ms. Williams,
Ms. Williams is convicted of a CCW. Mr.
Smith was in seat #6, I believe.
THE COURT: He was. He’s the jury with had
[sic] the relatives in prison.
81a
[PROSECUTOR]: Yes, thank you, Judge. That
is correct. Ms. Jones, was a student, I believe.
I believe she was too young, in my opinion. Too
young for this particular case. Not based on
her race, but based on her age. I also thought
that when I watched her, her demeanor was
very distracted. You’d have to repeat questions to her as if she really wasn’t listening.
That is seat #13. I think that I’ve established—
THE COURT: Mr. Blake?
MR. BLAKE: Well, Judge, too young? Apparently she’s not too young, Ms. Jones, to be a
juror. So, that particular response is—
THE COURT: Yes, but are you saying that’s a
pretext to get her off the jury because she’s
black?
MR. BLAKE: Yes, Judge.
THE COURT: Anything else?
MR. BLAKE: No, your Honor.
THE COURT: Mr. Goze?
[WALKER’S COUNSEL]: Just joining what
the Counsel said.
THE COURT: Well, the Prosecutor has given
some explanation other than race being challenged. I don’t think the Batson motion can be
sustained. I don’t have any further comments
on whether it’s good or bad. That’s the
82a
strategy of a trial. The Batson challenge, well,
see Batson would be to a specific juror. Were
you challenging her excusal of the last, of
White and Stinson?
MR. BLAKE: Of both of the Jones’; Pamela
Jones.
THE COURT: No, you can’t do it that way.
Once you say there’s a pattern, then you challenge a specific juror challenge.
MR. BLAKE: Well, Judge, with respect to Ms.
Stinson, the fact that she’s elderly. She gave
direct responses, although they weren’t rapid
speed, but her answers were clear and concise
and we’d ask the Court not to excuse her.
THE COURT: Denied. As to Ms. White? She
was challenged in the last challenges by the
People. Was she the student? Ms. White has
not been challenged?
[PROSECUTOR]: Ms. White was in seat #14.
She was a white female.
THE COURT: Oh, then it doesn’t apply.
(ECF No. 6-7 at Pg ID 426-28.)
“In criminal trials, trial judges possess the primary responsibility to enforce Batson and prevent racial discrimination from seeping into the jury selection process.” Flowers v. Mississippi, 139 S. Ct. 2228,
2243 (2019). In this instance, the trial court failed to
shoulder this burden.
83a
Although the trial court directed the prosecutor to
explain her strikes “specifically one by one,” the prosecutor offered race-neutral explanations for her
strikes against only three jurors: Margie Stinson, Perrice Williams, and Kimberly Jones. (ECF No. 6-7 at Pg
ID 426-27.) The trial court provided the race-neutral
explanation for the prosecutor’s excusal of a fourth juror, Donald Smith. (Id. at Pg ID 427.) And no raceneutral explanations were ever proffered for the prosecutor’s strikes of Latrice Wilborn and Pamela Jones.
(Id. at Pg ID 426-28.) Finally, rather than properly
evaluating the prosecutor’s explanations for any indications of pretext, as required by Batson, the trial
court found that there had been no discrimination
merely because “the Prosecutor ha[d] given some explanation other than race being challenged.” (Id. at Pg
ID 427.) These errors warrant habeas relief.
Batson itself makes clear that a trial court cannot
“flatly reject[] [an] objection [to a peremptory strike]
without requiring the prosecutor to give an explanation for [her] action.” 476 U.S. at 100 (emphasis
added). However, that is precisely what the trial court
did with respect to Wilborn and Pamela Jones. (ECF
No. 6-7 at Pg ID 427-28.)
In addition, with respect to Smith, the trial court
irreparably tainted the Batson inquiry by supplying
the prosecutor with a race-neutral reason the court
would find acceptable: that Smith had relatives in
prison. (ECF No. 6-7 at Pg ID 427); see Flowers, 139 S.
Ct. at 2243-44 (“[T]he prosecutor must provide raceneutral reasons for the strikes). The trial court must
consider the prosecutor’s race-neutral explanations in
light of all of the relevant facts and circumstances,
84a
and in light of the arguments of the parties.”) (emphasis added). Although the prosecutor implicitly adopted
the trial court’s explanation by offering him thanks,
the damage was done. (ECF No. 6-7 at Pg ID 427.)
“[W]hen a trial court offers its own speculation as to
the prosecutor’s reasons for striking minority jurors,
it essentially disregards its own core function under
Batson—to evaluate the reasons offered by the prosecutor, including the prosecutor’s demeanor and other
contextual information, in order to determine the
prosecutor’s true intent.” Johnson v. Martin, 3 F.4th
1210, 1227 (10th Cir. 2021) (citing Flowers, 139 S. Ct.
at 2243-44); see Paulino v. Castro, 371 F.3d 1083,
1089-90 (9th Cir. 2004) (“[I]t does not matter that the
prosecutor might have had good reasons to strike the
prospective jurors. What matters is the real reason
they were stricken.”). In suggesting a race-neutral
reason before the prosecutor could supply one herself,
the trial court impermissibly signaled to the prosecutor that this was a reason the court was prepared to
find credible and never explored the prosecutor’s real
reason.
Finally, with respect to Stinson, Williams, and
Kimberly Jones, those jurors for whom the prosecutor
actually articulated a race-neutral explanation, the
trial court decided the ultimate question of discrimination without conducting the analysis “constitutionally required” at step three. Rice, 660 F.3d at 258.
“The third step is important; Batson imposes upon the
trial court a strict constitutional ‘duty to determine if
the defendant has established purposeful discrimination.’” Id. at 250 (quoting Batson, 476 U.S. at 98).
“[T]he critical question” at step three is “the persuasiveness of the prosecutor’s justification for [her]
85a
peremptory strike.” Cockrell, 537 U.S. at 338-39.
Here, although the trial court briefly alluded to pretext, it is clear from the record that the court did not
actually focus on that issue. Instead, the court summarily concluded that there had been no discrimination purely because “the Prosecutor . . . [gave] some
explanation other than race being challenged.” (ECF
No. 6-7 at Pg ID 427 (emphasis added).)
A trial court’s determination at step three is a
“historical fact” that may be overturned only if
“clearly erroneous.” Hernandez, 500 U.S. at 367-69;
see Rice, 660 F.3d at 242 (citing Snyder v. Louisiana,
552 U.S. 472, 477 (2008)); Lancaster, 324 F.3d at 429
(internal quotation marks and citations omitted)
(“Under AEDPA, primary or historical facts found by
state courts are presumed correct and are rebuttable
only by clear and convincing evidence.”). Here, the
trial court’s step three determination was clearly erroneous for three reasons. First, the court did not “require[e] the prosecutor to give an explanation for [two
of her peremptory] action[s.]” Batson, 476 U.S. at 100.
Second, the trial court suggested a race-neutral reason for one of the strikes that the prosecutor could
adopt. See Flowers, 139 S. Ct. at 2243-44; Johnson, 3
F.4th at 1227. Third, the court considered only
whether “the Prosecutor ha[d] given some explanation
other than race being challenged” (ECF No. 6-7 at Pg
ID 427), as opposed to “the persuasiveness of [her] justification for [the] peremptory strike[s,]” Cockrell, 537
U.S. at 338-39. 14
14 Even if the trial court conducted a proper step three inquiry
as to Stinson, Williams, and Kimberly Jones, Upshaw would be
entitled to habeas relief based on the other errors addressed
86a
Respondent argues that “Upshaw’s counsel only
challenged two of [the prosecutor’s] explanations as
pretextual” and that “because he failed to argue that
the remaining challenged jurors were dismissed for
discriminatory reasons, he has failed to meet his burden to succeed on his Batson claim.” (ECF No. 5 at Pg
ID 186.) Although Respondent is correct that Upshaw
carries the final “burden of proving purposeful discrimination,” Johnson, 545 U.S. at 171, Respondent’s
argument ultimately lacks merit. True, the Sixth Circuit has “held that once the proponent of the peremptory strike proffers a race-neutral explanation, the opposing party has the burden to rebut those reasons on
the record,” and that “[f]ailure to rebut race-neutral
explanations or the district court’s conclusion will result in a plain error review.” United States v. McAllister, 693 F.3d 572, 582 (6th Cir. 2012) (citing United
States v. Jackson, 347 F.3d 598, 605 (6th Cir. 2003)).
But even assuming that this plain error rule is valid, 15
above—namely, the prosecutor’s failure to advance a race-neutral explanation for her strikes against Wilborn and Pamela
Jones and the trial court’s impermissible suggestion of a raceneutral reason for Smith’s excusal. For this reason, the Court
does not attempt to review the prosecutor’s explanations for Stinson, Williams, and Kimberly Jones using only the cold record.
15 The Court questions whether this interpretation of the plain
error doctrine is consistent with precedent. See United States v.
Davis, 809 F.2d 1194, 1202 (6th Cir. 1987) (“Batson does not require rebuttal of the Government’s explanation by defense counsel. . . . Once the defendants had established a prima facie case
of racial motivation sufficient for the district court to make an
inquiry of the Government, there was nothing more defendants
were required to do.”); see also Salmi v. Sec’y of Health & Human
Servs., 774 F.2d 685, 689 (6th Cir. 1985) (explaining that “prior
decision[s] [of the Sixth Circuit] remain[] controlling authority”
unless abrogated by the Supreme Court or the Sixth Circuit sitting en banc). The “failure to rebut” rule appears to stem from a
87a
Respondent’s logic at most applies to the prosecutor’s
explanations for Stinson, Williams, Kimberly Jones,
and Smith.
Respondent ignores that the prosecutor never offered race-neutral explanations for striking Wilborn
and Pamela Jones, and that accordingly, there was
“no race-neutral evidence [for the trial court] to
weigh,” Paulino v. Harrison, 542 F.3d 692, 703 (9th
Cir. 2008), and nothing for Blake to rebut, see Johnson, 545 U.S. at 171 n.6 (citation omitted) (“[Where]
the prosecutor declines to respond to a trial judge’s inquiry regarding [her] justification for making a strike,
the evidence before the judge . . . consist[s] not only of
the original facts from which the prima facie case was
established, but also the prosecutor’s refusal to justify
[her] strike in light of the court’s request. Such a refusal . . . provide[s] additional support for the inference of discrimination raised by a defendant’s prima
facie case.”). Furthermore, despite the prosecutor’s
failure to come forward with race-neutral explanations, Upshaw’s counsel reiterated that he was
footnote in United States v. Wilson, 11 F. App’x 474, 476 n.3 (6th
Cir. 2001), which cited neither Batson nor its progeny and instead focused on the doctrine of plain error more generally. But
this was contrary to the Sixth Circuit’s earlier holding in Davis,
and the Supreme Court’s Batson cases suggest no such rule. See,
e.g., Cockrell, 537 U.S. at 326 (“[I]f [a prima facie] showing is
made, the prosecutor must then offer a race-neutral basis for
striking the juror in question. Third, in light of the parties’ submissions, the trial court must determine whether the defendant
has shown purposeful discrimination.”). In any case, because the
trial court’s summary denial of Upshaw’s motion in the absence
of two race-neutral explanations from the prosecutor could not
withstand even plain error review, the Court need not resolve
this conflict.
88a
challenging the strike of Pamela Jones, essentially renewing his Batson objection. (ECF No. 6-7 at Pg ID
428.) The prosecutor offered no response. (Id.). Consequently, even if Respondent’s plain error argument
had merit with respect to the other jurors stricken by
the prosecutor, the record still supports an inference
of purposeful discrimination as to Pamela Jones. Respondent has made no arguments to the contrary.
4) Remedy
Because “even a single instance of race discrimination against a prospective juror is impermissible,”
Flowers, 139 S. Ct. at 2242, the only remaining question is the proper remedy. “District courts have ‘broad
discretion in conditioning a judgment granting habeas
relief.’” Morrell v. Wardens, 12 F.4th 626, 631 (6th Cir.
2021) (quoting Hilton v. Braunskill, 481 U.S. 770, 775
(1987)); see also 28 U.S.C. § 2243 (directing habeas
courts to “dispose of the matter as law and justice require”).
The Sixth Circuit has not addressed this precise
situation. 16 The Second, Seventh, and Tenth Circuits
16 The Sixth Circuit addressed a similar situation in Ewing v.
Horton, 914 F.3d 1027 (6th Cir. 2019), which involved a claim of
extraneous influence on the jury requiring an evidentiary hearing “to afford the defendant the opportunity to establish actual
bias” pursuant to Remmer v. United States, 347 U.S. 227, 229-30
(1954). The Ewing court acknowledged “that the passing of time
since [the defendant]’s conviction eight years ago may make it
difficult to conduct a suitable Remmer hearing at this stage,” but
concluded that it would not be impossible. 914 F.3d at 1033-34.
Its decision, however, was largely based upon the fact that the
defendant had not shown actual prejudice, and that a hearing to
determine prejudice was the Supreme Court’s well-established
remedy for “allegations of juror partiality.” Id. at 1031. Here, in
89a
have indicated that a district court presented with
these circumstances must remand for a new trial if
the passage of time since jury selection renders it “impossible or unsatisfactory” for the state court to conduct a hearing attempting “to reconstruct the prosecutor’s state of mind at the time of jury selection.” Jordan v. Lefevre, 206 F.3d 196, 202 (2d Cir. 2000); accord
Johnson v. Martin, 3 F.4th at 1227 (“If the district
court concludes that a Batson reconstruction hearing
is impossible or unsatisfactory, it must grant habeas
relief in the form of an order that [the petitioner] be
released from custody unless the State grants him a
new trial within 120 days from the entry of the district
court’s order.”); United States v. McMath, 559 F.3d
657, 666 (7th Cir. 2009) (same). This is the approach
the Supreme Court took in Snyder v. Louisiana, albeit
not in a habeas posture. See 552 U.S. at 486 (declining
to remand for judicial factfinding because roughly
eleven years had passed since the petitioner’s trial).
Here, like Snyder, there is no “realistic possibility
that [Batson’s] subtle question of causation could be
profitably explored further” due to the eight-year
lapse since Upshaw’s trial. Id. The trial court judge is
no longer on the bench but, even if he were, conditioning the writ upon a reconstruction hearing at this late
juncture would place an unreasonable burden on both
contrast, Upshaw’s “Batson error is structural, requiring automatic reversal without a showing of prejudice.” United States v.
Whiteside, 747 F. App’x 387, 396 n.6 (6th Cir. 2018) (citing McAllister, 693 F.3d at 582 n.5). And the Supreme Court has recognized that improper Batson factfinding cannot realistically be explored if too much time has passed between jury selection and
remand. See Snyder, 552 U.S. at 486. Accordingly, Ewing is not
controlling.
90a
the prosecutor and the judge with unreliable results.
See Jones v. Butler, 864 F.2d 348, 370 (5th Cir. 1988)
(“Years after trial, the prosecutor cannot adequately
reconstruct his reasons for striking a venireman. Nor
can the judge recall whether he believed a potential
juror’s statement that any alleged biases would not
prevent him from being a fair and impartial juror.”);
see also United States v. Biaggi, 909 F.2d 662, 679 (2d
Cir. 1990) (“Postponing consideration of a Batson
claim until the trial is . . . completed, as in this case,
risks infecting what would have been the prosecutor’s
spontaneous explanations with contrived rationalizations, and may create a subtle pressure for even the
most conscientious [trial] judge to accept explanations
of borderline plausibility to avoid . . . a new trial.”); see
generally William H. Burgess & Douglas G. Smith,
The Proper Remedy for a Lack of Batson Findings: The
Fall-Out from Snyder v. Louisiana, 101 J. Crim. L. &
Criminology 1, 24 (2011) (“In addition to the unreasonableness of asking trial courts to make retroactive
findings on Batson challenges, such requests invite
post hoc justifications on remand from prosecutors for
making peremptory challenges and from trial judges
in allowing them.”).
For these reasons, the Court concludes that
Upshaw is entitled to relief based on Claim III, as
well, and a new trial is the only way to cure the violation of Upshaw’s Fourteenth Amendment rights.
C. Trial Court’s Denial of an Adjournment
(Claim II)
In his second claim, Upshaw argues that he was
denied due process when the trial court denied his
91a
request for an adjournment to give Blake the opportunity to prepare for trial. (ECF No. 1 at Pg ID 7.)
The Supreme Court has cautioned that “broad discretion must be granted [to] trial courts on matters of
continuances.” Morris v. Slappy, 461 U.S. 1, 11 (1983).
Nevertheless, “a myopic insistence upon expeditiousness in the face of a justifiable request for delay can
render the right to defend with counsel an empty formality.” Ungar v. Sarafite, 376 U.S. 575, 589 (1964)
(citing Chandler v. Fretag, 348 U.S. 3 (1954)). To warrant habeas relief under due process principles, the
“petitioner must show that [the trial court’s] error was
so egregious as to deprive him of a fundamentally fair
adjudication” and that “the denial of his request resulted in actual prejudice to his defense.” Powell v.
Collins, 332 F.3d 376, 396 (6th Cir. 2003) (citation
omitted). “Actual prejudice may be demonstrated by
showing that additional time would have made relevant witnesses available or otherwise benefited the
defense.” Id. (citation omitted).
As set forth above, Upshaw requested an adjournment a week before trial. (ECF No. 6-5 at Pg ID 32122.) Upshaw explained to the trial court that he recently had to replace Paige and wanted Blake, who
had neither reviewed the video of the incident nor acquired the preliminary examination transcript, to
have more time to prepare for trial. (Id. at Pg ID
322.)17 Upshaw did not delve into the alibi issue because he was worried about letting the prosecutor in
17 The trial transcript reflects that Blake ultimately did famil-
iarize himself with those items prior to trial, even if he had not
yet reviewed them at the time of the pre-trial conference. (ECF
No. 6-8 at Pg ID 534, 567.)
92a
on his defense strategy and “[didn’t] really know how
. . . this stuff works.” (ECF No. 23 at Pg ID 1578.) The
trial court denied Upshaw’s request without explanation, stating, “I’m not granting an adjournment at this
point. We’ll see what happens.” (ECF No. 6-5 at Pg ID
322.)
Although the Court strongly disapproves of this
“[w]e’ll see what happens” approach, the trial judge’s
decision ultimately did not amount to a denial of due
process. That is because Blake, who had authority to
make strategic decisions for Upshaw, see Taylor v. Illinois, 484 U.S. 400, 417-18 (1988), represented that a
continuance was unnecessary (ECF No. 6-5 at Pg ID
322). This significantly undercut Upshaw’s claim that
Blake needed extra time to prepare for trial, especially
in the absence of any information about Upshaw’s alibi witnesses. (Id.). Accordingly, while Blake’s statement that additional time would not be necessary underscores his ineffectiveness, it also shows that the
trial court’s denial of Upshaw’s request was not an “error . . . so egregious as to deprive [Upshaw] of a fundamentally fair adjudication.” Powell, 332 F.3d at
396. Habeas relief is thus unwarranted on Claim II.
V. Conclusion
In summary, the Court concludes that Upshaw is
entitled to the writ of habeas corpus based on Claims
I, III, and VI.
Accordingly,
IT IS ORDERED that Upshaw’s application for
the writ of habeas corpus pursuant to 28 U.S.C. § 2254
is GRANTED and his Michigan convictions for
93a
felony-firearm, armed robbery, and carrying a dangerous weapon are VACATED.
IT IS FURTHER ORDERED that the State of
Michigan must grant Upshaw a new trial within 120
days of the date of this Opinion and Order or discharge him from any further punishment related to
these convictions.
IT IS SO ORDERED.
Dated: July 14, 2022
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
94a
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
LAFAYETTE DESHAWN
UPSHAW,
Petitioner,
Case No. 20-cv-12560
Honorable Linda V. Parker
v.
GEORGE STEPHENSON,
Respondent.
_________________________/
JUDGMENT
Petitioner filed an application for the writ of habeas corpus under 28 U.S.C. § 2254, challenging his
state court conviction for armed robbery. In an Opinion and Order issued on this date, the Court concluded
that Petitioner is entitled to habeas relief.
Accordingly,
IT IS ORDERED that Upshaw’s application for
the writ of habeas corpus pursuant to 28 U.S.C. § 2254
is GRANTED and his Michigan convictions for felony-firearm, armed robbery, and carrying a dangerous weapon are VACATED.
IT IS FURTHER ORDERED that the State of
Michigan must grant Upshaw a new trial within 120
days of the date of this Opinion and Order or discharge him from any further punishment related to
these convictions.
95a
IT IS SO ORDERED.
Dated: July 14, 2022
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
96a
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
LAFAYETTE DESHAWN
UPSHAW,
Petitioner,
v.
Case No. 20-cv-12560
Honorable Linda V. Parker
GEORGE STEPHENSON,
Respondent.
__________________________/
OPINION AND ORDER GRANTING AN EVIDENTIARY HEARING AND PETITIONER’S
MOTION FOR SUMMARY JUDGMENT [8]
Petitioner, Lafayette Deshawn Upshaw, is currently serving between twenty and forty-two years in
state prison for convictions arising out of an armed
robbery and a home invasion in May of 2014. In September 2020, Upshaw filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (ECF No.
1). His Petition [1] raises seven grounds for relief, all
of which relate solely to the armed robbery case. Respondent agrees that partial habeas relief is warranted on at least one of these claims. (ECF No. 5,
PageID.193). Upshaw has moved for summary judgment on that claim. (ECF No. 8).
For the reasons articulated below, the Court will
ORDER an evidentiary hearing on Upshaw’s first
and second claims, and GRANT his Motion for Summary Judgment [8].
97a
BACKGROUND
I. Upshaw’s Crimes and Sentence
Shortly after 8:00 AM on May 28, 2014, Upshaw
and Darrell Miles Walker “were arrested in the process of committing a home invasion at a residence” located at 19475 Washburn Street in Detroit. (ECF No.
6-9, PageID.623; ECF No. 6-14, PageID.863). They
“were caught as they exited separate windows of the
house,” from which they “had attempted to steal several items of jewelry.” (ECF No. 6-14, PageID.863).
Upshaw was charged with second-degree home invasion, in violation of MICH. COMP. LAWS § 750.110a(3);
larceny in a building, in violation of MICH. COMP.
LAWS § 750.360; and resisting and obstructing, in violation of MICH. COMP. LAWS § 750.81d(1). (ECF No. 66, PageID.327).
Several hours before Upshaw and Walker were arrested, an armed robbery took place at 1920 West
Fischer Service Drive, a gas station approximately ten
miles south of the invaded home. (ECF No. 6-2,
PageID.231-32; ECF No. 6-14, PageID.862-63). 1 Tina
Williams was the only employee working at the time.
(ECF No. 6-8, PageID.523). She reported that around
3:30 AM, just after she had returned to her bulletproof cashier booth from attempting to help a
strangely behaving man with the gas station’s coffee
1 The distance between the house and the gas station is a fact of
which the Court may take judicial notice. See Livingston Christian Sch. v. Genoa Charter Twp., 858 F.3d 996, 1008 (6th Cir.
2017); see also, e.g., Hund v. Hund, No. 334313, 2017 Mich. App.
LEXIS 1082, at *14 (Ct. App. July 6, 2017) (taking judicial notice
of distance and extrapolating travel time).
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machine, another man entered the station and robbed
a female customer at gunpoint. (ECF No. 6-14,
PageID.863). The second man then demanded that
Williams give him the money in her cash register.
(Id.). When Williams refused, the man tried to kick
open the door of the cashier booth and fired several
shots in her direction, which were blocked by the bullet-proof glass. (Id.). The first man “shouted at her to
open the access door, indicating that . . . [she] should
do so in order to simply end the situation and get [the
shooter] out of the gas station,” but Williams “stood
her ground and did not comply.” (Id.). The shooter
eventually “gave up and ran out of the gas station.”
(Id.). After the altercation, the first man, who had remained at the coffee machine and had not run when
the shooter’s gun was pointed in his direction, approached the booth and told Williams that she should
call the police. (Id.). He “then fled in the same direction as the shooter.” (Id.).
On June 3, 2014, Williams identified Walker as
the coffee machine man and Upshaw as the shooter.
(Id.; ECF No. 6-8, PageID.500-04). Upshaw was
charged with five additional crimes: armed robbery, in
violation of MICH. COMP. LAWS § 750.529; carrying a
dangerous weapon with unlawful intent, in violation
of MICH. COMP. LAWS § 750.226; possession of a firearm during the commission of a felony (“felony-firearm”), in violation of MICH. COMP. LAWS § 750.227b;
assault with intent to commit murder, in violation of
MICH. COMP. LAWS § 750.83; and assault with intent
to do great bodily harm less than murder, in violation
of MICH. COMP. LAWS § 750.84. (ECF No. 6-2,
PageID.229).
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Upshaw ultimately pleaded guilty to second-degree home invasion but elected to go to trial on the gas
station robbery charges. (ECF No. 6-7, PageID.340-41;
ECF No. 6-11, PageID.757). At a motion hearing on
October 2, 2014, one week before trial, Upshaw requested an adjournment. (ECF No. 6-5, PageID.322).
He explained to the Honorable Michael J. Callahan
that he had been dissatisfied with his attorney, Ray
Paige, who had failed to appear at an August 5, 2014,
motion hearing, 2 and had just retained a new attorney, Wright Blake. (ECF No. 6-4, PageID.314-15; ECF
No. 6-5, PageID.322). The full colloquy proceeded as
follows:
MR. BLAKE: And we’re going to talk some
more. Mr. Upshaw wants an adjournment. He
doesn’t feel that we’re quite ready. I told him
that I would bring myself up to speed by the
time for the trial date. Is that correct, Mr.
Upshaw?
MR. UPSHAW: Yes, but as you can see, your
Honor, I have retained a new lawyer because
of my insufficient counsel for not showing up
and not coming and telling me the information. So I feel like my lawyer hasn’t, my
lawyer hasn’t saw the DVD. He hasn’t retained the transcript or anything and I feel
like it’s best grounds of adjournment right
there, your Honor, just to get him caught up
on what’s going on with the case cause I just
2 In a letter to the State of Michigan’s Attorney Grievance Com-
mission, Upshaw’s mother, Toya Greene, alleged that Paige had,
in fact, failed to appear on four separate occasions. (ECF No. 614, PageID.950).
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retained him like a week and a half ago, probably not even that.
THE COURT: Well, I’m not granting an adjournment at this point. We’ll see what happens. Okay.
MR. BLAKE: Thank you, your Honor.
(ECF No. 6-5, PageID.321-22).
The trial lasted three days, and on October 16,
2014, Upshaw was found guilty of armed robbery, carrying a dangerous weapon with unlawful intent, and
felony-firearm. (ECF No. 6-10, PageID.743). He was
acquitted of the assault charges. (Id.).
On November 14, 2014, Judge Callahan sentenced
Upshaw to a two-year term of imprisonment for felony-firearm followed by concurrent sentences of eighteen to forty years imprisonment for armed robbery,
one to five years imprisonment for carrying a dangerous weapon, and one to fifteen years imprisonment for
second-degree home invasion. (ECF No. 6-11,
PageID.756-57).
II. Upshaw’s State Appellate and Post-Conviction Efforts
On December 17, 2014, Upshaw commenced an
appeal as of right. (ECF No. 6-14, PageID.905). Jonathan B.D. Simon was appointed to represent Upshaw
in his appeal. (Id.). On April 6, 2015, Simon filed a
brief arguing 1) that “the trial court abused its discretion in granting the prosecutor’s motion to endorse a
key witnesses [sic] on the second day of trial over
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[Upshaw’s] timely objection;” 2) that “the trial court
denied [Upshaw] a fair trial by admitting irrelevant
and unduly prejudicial testimony that he refused to
participate in a lineup;” and 3) that “[Upshaw] was
denied his Sixth Amendment right to the effective assistance of counsel [because] his trial attorney failed
to investigate potential alibi witnesses, . . . failed to
file the required notice of intent to present an alibi defense[,] and [failed to] present . . . alibi witnesses.” (Id.
at 970, 973, 975) (capitalization omitted).
Simon also moved to remand for an evidentiary
hearing pursuant to Mich. Ct. R. 7.211(C)(1) and People v. Ginther, 390 Mich. 436 (1973). (Id. at 895-96).
In support of the Motion, Simon attached an affidavit
in which Upshaw stated, among other things, that on
May 28, 2014, his aunt, grandmother, and significant
other “heard [him] preparing a meal in the kitchen of
the home” shortly after 3:30 AM, and that his trial attorney was unable to establish these facts due to inadequate time to prepare a defense. (Id. at 897) (capitalization omitted). Also attached was an affidavit from
Upshaw’s co-defendant, Walker. (Id. at 898). On May
6, 2015, the Court of Appeals denied Upshaw’s Motion
to Remand. (Id. at 894).
Upshaw thereafter retained new appellate counsel, Neil J. Leithauser. (Id. at 984). On January 25,
2016, Leithauser filed a successive Motion to Remand
and moved for leave to file a supplemental brief. (Id.
at 912-14). In support of the Motion to Remand,
Leithauser attached a new affidavit signed by
Upshaw and notarized statements from his grandmother, JoAnn Green, and his aunt, Crystal Holloway. (Id. at 878-84). Holloway averred:
102a
I was a alibi witness to some events that happened on May [sic]. [Upshaw’s] lawyer knew
about me being a witness but he choose not to
call on me to give my testimony. . . . I am writing this letter in hopes that [Upshaw] will be
granted a new trial in which he will be able to
have his witness called to the stand to testify
on his behalf.
(Id. at 882). Green, meanwhile, stated that she lived
with Upshaw at 6390 Colfax Avenue, and that on May
28, she had fallen asleep while “watching one of [her]
programs and . . . woke up from [Upshaw] knock[ing]
on the door.” (Id. at 884). She explained that “[she]
was mad after seeing what time it was [on the cable
box] and let . . . Upshaw know it.” (Id.). She “thought
[Wright] would call [her] as a witness, because [she]
knew [Upshaw] . . . could not have been anywhere else
. . . between 3:20 and 3:30 [because] he was getting
blessed out by [her for waking her] up.” (Id.). “[L]ater,
when [she saw Upshaw] le[ave] around 7:45, [she] was
still upset . . . .” (Id.). The Court of Appeals denied
Upshaw’s successive Motion to Remand, holding that
Upshaw failed to “demonstrate[] that further factual
development of the record or an initial ruling by the
trial court [was] necessary.” (Id. at 874). 3
Nevertheless, the Court of Appeals permitted filing of a supplemental brief. (Id. at 911). Leithauser’s
supplemental brief made three new arguments on
Upshaw’s behalf: 1) that “the trial court abused its
discretion when it denied [Upshaw’s] request for a
3 Presiding Judge Cynthia Diane Stephens disagreed, and would
have granted the motion to remand. (Id.).
103a
brief adjournment;” 2) that “Upshaw was denied a fair
trial and due process of law [because] the prosecutor
improperly dismissed minority venire members” and
gave “insufficient [race-neutral reasons] to avoid a
finding of purposeful discrimination;” and 3) that “the
trial court’s scoring of . . . offense variable 14 [offender’s role] was error which placed . . . Upshaw in a
higher grid than supported by the record” and resulted in “an unsupported departure from the guidelines’ range, an abuse of discretion, and an unreasonable sentence.” (Id. at 927, 930, 937) (capitalization
omitted) (final alteration in original).
On May 19, 2016, the Court of Appeals rejected all
six of these arguments and affirmed Upshaw’s convictions and sentence. (Id. at 866-72). On April 4, 2017,
the Michigan Supreme Court denied leave to appeal.
(ECF No. 6-16, PageID.1196). The United States Supreme Court denied certiorari on November 6, 2017.
(Id. at 1315).
On July 10, 2018, Upshaw filed a pro se Motion for
Relief From Judgment, arguing 1) that “he was denied
his Sixth Amendment right to effective . . . counsel”
because his “trial attorney failed to object to the invalid, inaccurate scoring of prior record variable (PRV)
five” and his “appellate counsel[] . . . fail[ed] to raise
[the issue on] direct appeal;” 2) that he “was denied
his Sixth Amendment right to effective assistance of
counsel when his appellate attorney . . . fail[ed] to file
a motion for a Crosby hearing;” 3) that his Sixth
Amendment rights were violated by the trial court’s
use of judicially found facts to score offense variables
one, four, and nine (which increased his mandatory
minimum and guidelines range), as well as his
104a
appellate counsel’s failure to raise this issue; and 4)
that the Michigan Court of Appeals unreasonably applied the Supreme Court’s precedent in Batson, in violation of the Fourteenth Amendment. (ECF No. 6-12,
PageID.760, 778, 791, 796, 806) (capitalization omitted).
On November 27, 2018, the Honorable Wanda A.
Evans denied Upshaw’s Motion. (ECF No. 6-13,
PageID.855). Both the Michigan Court of Appeals and
the Michigan Supreme Court denied leave to appeal.
(ECF No. 6-15, PageID.1057; ECF No. 6-17,
PageID.1316).
III. Upshaw’s Habeas Petition [1]
On September 18, 2020, Upshaw filed a Petition
for a Writ of Habeas Corpus. (ECF No. 1). Upshaw’s
Petition [1] raises seven grounds for relief: 1) that his
“trial counsel was constitutionally ineffective for failing to investigate potential alibi witnesses and failing
to file an alibi notice;” 2) that “the trial court denied
[his] motion for a brief adjournment . . . in violation of
due process;” 3) that “the prosecutor dismissed African-American potential jurors in a discriminatory
manner, in violation of the Equal Protection Clause;”
4) that “the trial court found facts that were not found
by the jury to score offense variable 14, which increased the mandatory minimum sentence, in violation of the Sixth and Fourteenth Amendments;” 5)
that “appellate counsel was constitutionally ineffective for failing to request a ‘Crosby remand’ as the
remedy for [the offense variable 14] claim;” 6) that
“the trial court found facts that were not found by the
jury to score offense variables 1, 4, and 9, which increased the mandatory minimum sentence, in
105a
violation of the Sixth and Fourteenth Amendments,
and [that] appellate counsel was constitutionally ineffective for failing to raise this claim on direct appeal;”
and 7) that “trial and appellate counsel were constitutionally ineffective for failing to argue that prior record variable 5 was [inappropriately] []scored.” (Id. at
6-11) (capitalization omitted).
After Respondent conceded that “Upshaw is entitled to partial habeas relief on his judicial factfinding
claim with respect to offense variables 1, 4, and 9,”
(ECF No. 5, PageID.193), Upshaw filed a Motion for
Summary Judgment. (ECF No. 8).
ANALYSIS
Upshaw’s Petition [1] is governed by the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. 104-132, 110 Stat. 1214, which
provides, in pertinent part:
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; or
(2) resulted in a decision that was
based
on
an
unreasonable
106a
determination of the facts in light of
the evidence presented in the State
court proceeding.
28 U.S.C. § 2254(d).
I. Claims I and II: Trial Counsel’s Failure to Investigate Alibi Witnesses/File an Alibi Notice
and the Trial Court’s Denial of an Adjournment
A. Adjudication on the Merits
Because Upshaw’s first two claims are closely related, the Court addresses them together. The first
question is whether these claims were “adjudicated on
the merits in State court proceedings.” Id.; see Harrington v. Richter, 562 U.S. 86, 99 (2011). In answering this question, the Court must scrutinize the May
19, 2016, decision of the Michigan Court of Appeals
(“COA”), which was “the last . . . reasoned opinion on
thes[se claims].” Hoffner v. Bradshaw, 622 F.3d 487,
505 (6th Cir. 2010) (quoting Payne v. Bell, 418 F.3d
644, 660 (6th Cir. 2005)).
The COA rejected Upshaw’s ineffecti
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