Opposition Brief — Steven Lee Moss, Petitioner v. Gary Miniard, Warden
Supreme Court briefJan 16, 2024
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i
QUESTIONS PRESENTED
1. Is this case an appropriate vehicle for this
Court to review whether “state action” is required to
presume prejudice under United States v. Cronic, 466
U.S. 648 (1984), where the habeas petition is independently barred by both the statute of limitations
and an inexcusable procedural default?
2. Given that the central cases on which the petitioner relies are decades old, are the circuits currently
divided on whether “state action” is required to trigger
Cronic’s presumption of prejudice where a defendant
is completely denied the assistance of counsel?
ii
PARTIES TO THE PROCEEDING
The only parties to the proceeding are those listed
in the caption. The petitioner is Steven Moss, a Michigan prisoner who is presently on federal bond pending appeal. The named respondent, Gary Miniard,
was the warden of the Saginaw Correctional Facility,
where Moss was held in State custody prior to his release on bond. The warden of the Saginaw Correctional Facility is now Adam Douglas.
RELATED CASES
Respondent identifies two additional related cases
from those listed in the petition:
•
Michigan Court of Appeals, People of the State of
Michigan v. Steven Lee Moss, No. 319954, Opinion
issued June 9, 2015 (affirming conviction on direct
appeal).
•
Michigan Supreme Court, People of the State of
Michigan v. Steven Lee Moss, No. 152082, Order
issued December 22, 2015 (denying leave to appeal
on direct appeal).
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TABLE OF CONTENTS
Questions Presented .................................................... i
Parties to the Proceeding ........................................... ii
Related Cases .............................................................. ii
Table of Authorities .................................................... v
Opinions Below ........................................................... 1
Jurisdiction ................................................................. 2
Constitutional Provision Involved ............................. 2
Introduction ................................................................ 3
Statement of the Case ................................................ 4
Reasons for Denying the Petition............................. 12
I.
Regardless of any “state action” requirement
under United States v. Cronic, habeas review
is barred in this case because Moss has not
overcome two separate procedural barriers. ..... 12
A. Moss’s habeas petition was untimely. ......... 13
B. Moss procedurally defaulted his
ineffective-assistance-of-trial-counsel
claim. ............................................................ 16
II. The Sixth Circuit has not created or
contributed to a circuit split—let alone a
mature split—on the question of whether
“state action” is required to trigger Cronic’s
presumption of prejudice for an ineffectiveassistance-of-counsel claim. ............................... 20
A. “State action” had little to do with the
Sixth Circuit’s Cronic analysis in this
case. .............................................................. 21
iv
B. Any alleged circuit split is not mature. ....... 24
C. In any event, the Sixth Circuit correctly
held that Cronic is not the proper metric
in this case.................................................... 27
Conclusion ................................................................. 28
Table of Contents to Appendix for Brief in
Opposition ................................................................. ia
Michigan Supreme Court
Order in 152082
Issued December 22, 2015 ........................................ 1a
Michigan Court of Appeals
Case No. 319954
Opinion
Issued June 9, 2015 .......................................... 2a–16a
v
TABLE OF AUTHORITIES
Cases
Ambrose v. Booker,
684 F.3d 638 (6th Cir. 2012) .............................. 19
Appel v. Horn,
250 F.3d 203 (3d Cir. 2001) ................................ 26
Bell v. Cone,
535 U.S. 685 (2002) ...................................... 23, 27
Burdine v. Johnson,
262 F.3d 336 (5th Cir. 2001) ........................ 25, 26
Chadwick v. Green,
740 F.2d 897 (11th Cir. 1984) ...................... 25, 26
Clark v. Lindsey,
141 S. Ct. 165 (2020) .......................................... 24
Coleman v. Thompson,
501 U.S. 722 (1991) ............................................ 17
Davila v. Davis,
582 U.S. 521 (2017) ............................................ 20
Edwards v. Carpenter,
529 U.S. 446 (2000) ............................................ 17
Flanagan v. Johnson,
154 F.3d 196 (5th Cir. 1998) .............................. 13
Holland v. Florida,
560 U.S. 631 (2010) ................................ 14, 15, 16
Johnson v. Hendricks,
314 F.3d 159 (3d Cir. 2002) ................................ 14
Keeling v. Warden, Lebanon Corr. Inst.,
673 F.3d 452 (6th Cir. 2012) .............................. 14
vi
Lambrix v. Singletary,
520 U.S. 518 (1997) ............................................ 12
Lewis v. Zatecky,
993 F.3d 994 (7th Cir. 2021) .............................. 26
Lindh v. Murphy,
521 U.S. 320 (1997) ............................................ 13
Maples v. Thomas,
565 U.S. 266 (2012) ............................................ 15
Martinez v. Ryan,
566 U.S. 1 (2012) ................................................ 17
Maslonka v. Hoffner,
900 F.3d 269 (6th Cir. 2018) ............ 10, 21, 22, 23
Maslonka v. Nagy,
139 S. Ct. 2664 (2019) ........................................ 24
Mickens v. United States,
148 F.3d 145 (2d Cir. 1998) ................................ 13
Mitchell v. Mason,
325 F.3d 732 (6th Cir. 2003) .............................. 10
Moore v. United States,
173 F.3d 1131 (8th Cir. 1999) ............................ 13
Murray v. Carrier,
477 U.S. 478 (1986) ............................................ 17
Pace v. DiGuglielmo,
544 U.S. 408 (2005) ............................................ 15
Rogers v. United States,
180 F.3d 349 (1st Cir. 1999) ............................... 13
Sanders v. Lane,
861 F.2d 1033 (7th Cir. 1988) ............................ 26
vii
Schmidt v. Foster,
911 F.3d 469 (7th Cir. 2018) .............................. 25
Strickland v. Washington,
466 U.S. 668 (1984) .................................. 7, 18, 19
Taylor v. McKee,
649 F.3d 446 (6th Cir. 2011) .............................. 27
Trest v. Cain,
522 U.S. 87 (1997) .............................................. 17
United States v. Collins,
430 F.3d 1260 (10th Cir. 2005) .......................... 26
United States v. Cronic,
466 U.S. 648 (1984) ............. i, 7, 18, 19, 20, 21, 23
United States v. Locke,
471 U.S. 84 (1985) .............................................. 14
United States v. Marcello,
212 F.3d 1005 (7th Cir. 2000) ............................ 13
United States v. Mateo,
950 F.2d 44 (1st Cir. 1991) ................................. 26
United States v. Moussaoui,
591 F.3d 263 (4th Cir. 2010) .............................. 26
United States v. Sanchez,
790 F.2d 245 (2d Cir. 1986) ................................ 26
United States v. Swanson,
943 F.2d 1070 (9th Cir. 1991) ...................... 25, 26
Vroman v. Brigano,
346 F.3d 598 (6th Cir. 2003) .............................. 14
Weaver v. Massachusetts,
582 U.S. 286 (2017) ............................................ 19
viii
Statutes
28 U.S.C. § 2244(d) ................................................... 13
28 U.S.C. § 2244(d)(1)(A) .......................................... 13
28 U.S.C. § 2244(d)(2) ............................................... 14
28 U.S.C. § 2254(b)(2) ............................................... 12
Rules
Fed. R. Civ. P. 6(a) .................................................... 13
Mich. Ct. R. 6.508(D)(3) .............................................. 7
Constitutional Provisions
U.S. Const. amend. VI ................................................ 2
1
OPINIONS BELOW
The district court’s opinion and order initially
denying Moss’s habeas petition is not reported but is
available at 2020 WL 5793268. Pet. App. 54a–71a.
Upon Moss’s motion for reconsideration, the district
court issued an opinion and order granting Moss’s habeas petition, which is not reported but is available at
2021 WL 4437913. Pet. App. 72a–91a. The Sixth Circuit’s opinion reversing the district court’s grant of habeas relief is reported at 62 F.4th 1002. Pet. App. 1a–
53a. The Sixth Circuit’s order denying Moss’s petition
for rehearing en banc is not reported. Pet. App. 104a.
The Michigan Court of Appeals’ opinion affirming
Moss’s convictions on direct appeal is not reported but
is available at 2015 WL 3604582. Br. in Opp. App. 2a–
16a. The Michigan Supreme Court’s order denying
Moss’s application for leave to appeal is reported as a
table decision at 872 N.W.2d 474. Br. in Opp. App. 1a.
The Oakland Circuit Court’s opinion and order denying Moss’s state postconviction motion for relief from
judgment, in which he raised the ineffective-assistance-of-trial-counsel claim at issue in his petition, is
not reported. Pet. App. 94a–103a. The Michigan Court
of Appeals’ order denying Moss’s application for leave
to appeal from the trial court’s decision is not reported. Pet. App. 93a. The Michigan Supreme Court’s
order denying Moss’s subsequent application for leave
to appeal is reported as a table decision at 918 N.W.2d
817. Pet. App. 92a.
2
JURISDICTION
The State accepts Moss’s statement of jurisdiction
as accurate and complete and agrees that this Court
has jurisdiction over the petition.
CONSTITUTIONAL PROVISION INVOLVED
The Sixth Amendment to the U.S. Constitution
provides, in pertinent part:
In all criminal prosecutions, the accused shall
enjoy the right . . . to have the assistance of
counsel for his defense.
3
INTRODUCTION
Moss challenges the Sixth Circuit’s holding that
prejudice can be presumed from ineffective assistance
of counsel under Cronic only if “state action” hindered
counsel’s ability to represent the defendant. At a quick
glance, this may appear to be an enticing carrot. But
a closer look reveals it to be nothing more than a stick
painted orange.
First, Moss must overcome two procedural hurdles to pave the way for habeas review: timeliness and
procedural default. Yet his petition devotes just three
sentences to the former and none to the latter, and he
fails on both counts. These barriers render this case a
poor vehicle to address any merits claims, let alone
the limited “state action” issue.
Second, even if Moss could clear these two independent procedural hurdles, he does not demonstrate
any need for this Court’s intervention on the “state action” question. Indeed, the Sixth Circuit’s decision below did not hinge on a lack of state action. That principle governs only under the “complete denial” scenario of Cronic, and although Moss did allege that scenario, he also argued entitlement to relief based on his
counsel’s alleged failure to subject the prosecution’s
case to “meaningful adversarial testing.” State action
plays no role in the latter scenario.
Nor is the “state action” issue dividing the circuits. This Court has previously rejected such petitions, and like Moss, none of those petitioners could
identify a mature split. At best, any split is stale given
that most of Moss’s cited cases are decades old. Additionally, and tellingly, those cases have sat idle with
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nearly nonexistent citation in later decisions on the
“state action” principle.
This Court should therefore deny certiorari.
STATEMENT OF THE CASE
Moss was charged with possession of narcotics
with intent to deliver, along with felony firearm, when
he purchased 10 kilograms of cocaine from undercover
police, after unsuccessfully attempting to purchase
four times that amount:
Defendant’s convictions arise from his purchase of 10 kilograms of cocaine from a police
undercover informant. After learning that defendant was interested in acquiring a large
amount of cocaine and after conducting preliminary surveillance of defendant’s activities,
the police arranged for defendant to meet
their informant. In addition to the police testimony, the prosecution presented evidence of
video and audio recordings capturing the
meetings and telephone conversations between defendant and the informant. The first
meeting, on November 6, 2012, lasted approximately 30 minutes and defendant agreed to
purchase 10 kilograms of cocaine. At their
next meeting on November 7, 2012, defendant
and the informant discussed the drug deal,
and defendant unsuccessfully attempted to
persuade the informant to increase the purchase amount to 40 kilograms. In a restaurant
parking lot, the informant showed defendant
10 kilograms of cocaine that were hidden in a
compartment of an undercover police van.
5
Defendant was instructed to contact the informant if he wanted to consummate the deal.
Defendant contacted the informant on November 8, 2012, and they agreed to meet at a
restaurant. They then agreed to transact the
drug deal on November 9, 2012, which was
when defendant believed he would have all
the purchase money. Defendant unsuccessfully attempted to convince the informant to
complete the transaction at defendant’s
house. Defendant also discussed his desire for
future transactions with the informant. On
November 9, 2012, defendant and the informant met in the parking lot of a Home Depot
store, as planned. The informant was accompanied by another undercover officer who
drove the van containing the drugs, and defendant also brought an associate with him.
After defendant showed that he had the purchase money, which was in a suitcase in his
car, the men walked to the undercover van
where defendant was again shown the product. Defendant took possession of the van
keys, got in the driver’s seat, and turned on
the ignition before the police remotely disabled the van. Defendant fled the vehicle on
foot, but was arrested after a brief chase.
Br. in Opp. App. 2a–4a.
In defense, Moss claimed entrapment. He filed a
motion to dismiss the charges on that basis, and the
trial court held an evidentiary hearing, after which
the trial court denied the motion.
6
Trial counsel recognized that the evidence against
Moss was overwhelming, including audio and video
recordings of Moss arranging the cocaine purchase
with the informant. Br. in Opp. App. 11a. So, counsel
advised Moss to proceed with a bench trial, not a jury
trial, and to stipulate to most of the facts at the trial
to expedite an appeal of the entrapment defense. Id.
Thus, at trial, Moss’s counsel waived his opening
statement and closing argument, and cross-examined
only one of the prosecution’s two witnesses.
Unsurprisingly, and, in a sense, as planned, Moss
was convicted at trial. The trial court sentenced him
to 15 to 45 years’ imprisonment for his possessionwith-intent-to-deliver conviction and a consecutive
two-year prison term for his felony-firearm conviction.
On direct appeal, Moss challenged the denial of
his entrapment motion and his trial counsel’s effectiveness in recommending a bench trial with stipulated facts. Br. in Opp. App. 4a, 9a. The Michigan
Court of Appeals denied both claims. Id. First, the
court determined that the entrapment defense was
meritless because Moss was a willing participant in
the drug deal and was not subject to undue pressure
from either his friend who introduced him to the informant or the informant himself. Id. at 6a–9a. Second, his ineffective-assistance claim failed because the
trial court credited counsel’s testimony over Moss’s
testimony at an evidentiary hearing where counsel
testified to his strategy of recommending a bench trial
to expedite an appeal on the entrapment defense—a
strategy with which Moss agreed. Id. at 11a–14a. Ultimately, the Michigan Court of Appeals held that
7
counsel’s decision was reasonable and strategic under
the circumstances. Id. at 13a–14a.
The Michigan Supreme Court denied Moss’s application for leave to appeal on December 22, 2015. Br.
in Opp. App. 1a.
Moss’s time to file a petition for writ of certiorari
with this Court expired 90 days later, on March 21,
2016.
One year and one day later, on March 22, 2017,
Moss filed a motion for relief from judgment in the
state trial court. There, he again claimed ineffective
assistance of trial counsel but this time asserted his
claim under United States v. Cronic, 466 U.S. 648
(1984), from which prejudice could be presumed if
Moss could establish deficient performance. The trial
court disagreed and instead evaluated the claim under Strickland v. Washington, 466 U.S. 668 (1984).
Pet. App. 100a. The trial court determined that counsel’s decision to recommend a stipulated-facts bench
trial was strategic to litigate the entrapment defense
on appeal—Moss’s only conceivable avenue to relief.
Id. The trial court therefore denied the claim both on
the merits and under Mich. Ct. R. 6.508(D)(3) because
Moss could have raised the Cronic claim on direct appeal but did not do so, and he failed to show good cause
and actual prejudice for that failure, including
through ineffective assistance of appellate counsel. Id.
at 100a–101a.
The Michigan Court of Appeals denied Moss’s application for leave to appeal on March 15, 2018. Pet.
App. 93a. The Michigan Supreme Court also denied
leave to appeal on October 30, 2018. Pet. App. 92a.
8
While his application for leave to appeal was
pending before the Michigan Supreme Court, Moss
filed his habeas petition, through counsel, on May 30,
2018. (5/30/18 Pet., R. 1.)
The State filed a motion to dismiss because the
petition was untimely given that Moss filed his motion
for relief from judgment in the state trial court one
day after the habeas limitations period had already
expired. (12/10/18 Mot. to Dismiss, R. 4.) In response,
Moss contended that his counsel had believed he had
an extra day to file the motion for relief from judgment
because 2016 was a leap year. (3/8/19 Resp., R. 8.) The
district court agreed with the State that the petition
was untimely, but granted Moss equitable tolling due
to his counsel’s mistaken date calculation. (6/19/19
Op. & Order, R. 9.)
The district court ordered the State to file an answer to the petition, which the State did, maintaining
its statute of limitations argument, asserting procedural default, and arguing that Moss’s claims lacked
merit. (8/19/19 Resp., R. 10.)
The district court ruled that the petition lacked
merit and denied the claims. Pet. App. 54a–71a. The
court elected to bypass the procedural-default argument and skip to the merits. Id. at 62a n.4. The court
also denied a certificate of appealability. Id. at 71a.
Moss then filed a motion for reconsideration, reiterating his position that the ineffective-assistance
claims fell under Cronic rather than Strickland.
(10/29/20 Mot. For Reconsideration, R. 21.) The State
opposed. (1/25/21 Resp., R. 23.) The district court
9
initially intended to hold oral argument on the motion, but ultimately ruled on the pleadings alone.
This time, the district court found the claims procedurally defaulted but excused the defaults because
of ineffective assistance of appellate counsel. Pet. App.
78a–83a. Then, addressing the merits, the district
court reversed course and conditionally granted habeas relief on reconsideration. Id. at 84a–90a. The
court ruled that Moss’s trial counsel provided ineffective assistance in two related ways: (1) agreeing to a
stipulated-fact bench trial to expedite the case to a direct appeal so that counsel could dispute the trial
court’s ruling on the entrapment motion, and (2) not
conducting an “independent investigation into potential witnesses or defenses, relying instead on the motion to dismiss on entrapment grounds that Petitioner’s prior attorney had filed.” Id. at 85a–90a.
The district court held that both claims qualified
for presumed prejudice under Cronic because Moss
was “constructively denied the assistance of trial
counsel,” that is, “counsel’s conduct amounted to a
complete abandonment of Petitioner at his trial.” Id.
at 90a. The court conditionally granted habeas relief
on this basis and gave the State 180 days to commence
a new trial. Id. at 91a.
The Sixth Circuit reversed. Pet. App. 3a. The
court began with the timeliness of Moss’s petition. Id.
at 11a–14a. The court agreed Moss’s petition was untimely, but it did not engage with whether equitable
tolling applied. Id. at 14a–15a.
The Sixth Circuit instead moved on to procedural
default and the merits of the Cronic claim. Id. at 15a.
10
The court found that Moss procedurally defaulted his
ineffective-assistance claim under Cronic, and Moss
agreed. Id. at 15a n.5. Accordingly, to forge the path
to habeas relief, Moss had to demonstrate good cause
and actual prejudice to excuse the default. Id. at 15a.
Although he alleged ineffective assistance of appellate
counsel to excuse the default, he failed to meet his
burden. Id. at 15a–16a. In reaching that conclusion,
the Sixth Circuit analyzed the merits of Moss’s Cronic
claim under the Antiterrorism and Effective Death
Penalty Act (AEDPA) deference. Id. at 16a–18a.
Moss argued that two scenarios under Cronic applied to his case: (1) he was constructively denied
counsel at a critical stage, and (2) his counsel failed to
subject the prosecution’s case to meaningful adversarial testing. Id. at 18a. The Sixth Circuit addressed
each contention in turn. Id.
The Sixth Circuit first rejected the constructivedenial claim “because there is no evidence that Moss’s
counsel was physically absent throughout an entire
phase of the litigation or that a state actor prevented
Moss’s counsel from adequately representing him.” Id.
(citing Maslonka v. Hoffner, 900 F.3d 269, 280 (6th
Cir. 2018), and Mitchell v. Mason, 325 F.3d 732 (6th
Cir. 2003)).
The Sixth Circuit further rejected Moss’s claim
under the “meaningful adversarial testing” scenario,
which had nothing to do with “state action.” Id. The
court reasoned that “[trial counsel] prepared for the
entrapment hearing by consulting with Moss for two
hours before it began and by reviewing Moss’s ‘private
restricted record.’ ” Id. at 18a–19a. This distinguished
11
Moss’s case from others where counsel did next to
nothing. Id. at 19a.
Even for his part at trial, the Sixth Circuit agreed
that Moss’s counsel “acted in a limited capacity . . .
because the trial court had already denied the motion
to dismiss based on entrapment, and [trial counsel]
strategically focused on its appeal to the Michigan appellate courts—Moss’s only available recourse at that
time.” Id. at 20a. “An artificial distinction between
[trial counsel’s] pre-trial and trial actions overlooks
his strategic focus on an entrapment defense.” Id.
“The stipulated nature of the bench trial and the lack
of further investigation, examination, or cross-examination of witnesses would not have happened but for
this strategy crafted in the earlier stages of the litigation.” Id.
In addition, the Sixth Circuit concluded that counsel’s actions did not deprive Moss of a viable defense.
Id. at 20a–21a. This was because “stipulated evidence
at Moss’s trial included video and audio recordings of
his meetings and telephone conversations with Diego,
the informant; his own testimony delivered at the entrapment hearing; and witness testimony of the transaction that occurred in the Home Depot parking lot.”
Id. at 21a.
Thus, the Sixth Circuit concluded, “Strickland,
not Cronic, governs Moss’s ineffective assistance
claims.” Id. at 22a. And because “Moss does not argue
nor establish that [trial counsel’s] behavior prejudiced
the outcome of Moss’s case,” he could not meet the
strictures of the Strickland test. Id. The state-court
decision was therefore reasonable under clearly established federal law. Id.
12
Without a meritorious trial-counsel claim, the
Sixth Circuit held that appellate counsel could not
have provided ineffective assistance to excuse the procedural default. Id. at 22a–23a. The court thus reversed the habeas grant and remanded with instructions to deny the habeas petition with prejudice. Id. at
23a.
The Sixth Circuit further denied rehearing en
banc. Id. at 104a. While Judge Cole would have
granted rehearing for the reasons stated in his dissent, “[n]o judge . . . requested a vote on the suggestion
for rehearing en banc.” Id.
REASONS FOR DENYING THE PETITION
I.
Regardless
of
any
“state
action”
requirement under United States v. Cronic,
habeas review is barred in this case because
Moss has not overcome two separate
procedural barriers.
Before addressing whether “state action” is required for an ineffective-assistance claim under
Cronic, this Court should consider the integrity of this
case as a proper vehicle for that question because
Moss first faces two procedural hurdles. One: timeliness. Two: procedural default.
While neither hurdle is jurisdictional and need be
overcome for this Court to deny relief on the merits,
Moss must overcome them for this Court to grant relief. See Lambrix v. Singletary, 520 U.S. 518, 525
(1997) (citing 28 U.S.C. § 2254(b)(2)). He cannot do so.
13
A. Moss’s habeas petition was untimely.
To begin, Moss’s habeas petition was untimely under AEDPA’s statute of limitations, 28 U.S.C.
§ 2244(d), and Moss is not entitled to any tolling. This
alone precludes habeas relief in this case. Moss dedicates three sentences to timeliness in his petition to
this Court, none of which include affirmative arguments for the petition being timely. See Pet. at 18–19.
AEDPA governs the filing date for habeas petitions filed after AEDPA’s effective date of April 24,
1996. Lindh v. Murphy, 521 U.S. 320, 336 (1997).
AEDPA provides for a one-year statute of limitations
after finalization of direct review. § 2244(d)(1)(A). In
this case, “[t]he parties agree that Moss’s conviction
became final on March 21, 2016, when his opportunity
to petition the Supreme Court expired.” Pet. App. 12a.
The question then became how to calculate the
deadline for Moss’s habeas petition. Under Federal
Rule of Civil Procedure 6(a), for computing periods of
time, and Sixth Circuit precedent holding that the
“one year” in § 2244(d)(1) falls on the anniversary of
the date of finality, 1 Moss had until March 21, 2017,
to file his habeas petition or to continue his state proceedings to toll the habeas limitations period. Id. at
12a–14a.
1 The anniversary approach is consistent with multiple other cir-
cuits. See, e.g., United States v. Marcello, 212 F.3d 1005, 1009–
10 (7th Cir. 2000); Moore v. United States, 173 F.3d 1131, 1135
(8th Cir. 1999); Rogers v. United States, 180 F.3d 349, 355, n.13
(1st Cir. 1999); Flanagan v. Johnson, 154 F.3d 196, 200–02 (5th
Cir. 1998); Mickens v. United States, 148 F.3d 145, 148 (2d Cir.
1998).
14
There are two roads for tolling: statutory tolling
under § 2244(d)(2), and equitable tolling, see Holland
v. Florida, 560 U.S. 631, 634–35 (2010). Neither applies here.
First, the Sixth Circuit correctly held that statutory tolling is not applicable because Moss filed his
state postconviction motion for relief from judgment
after the habeas limitations period had already expired. Pet. App. 14a. Moss filed his state motion for
postconviction relief on March 22, 2017—one day past
the deadline. Id. When the habeas statute of limitations expires, a postconviction motion “does not reset
the date from which the one-year statute of limitations begins to run.” Johnson v. Hendricks, 314 F.3d
159, 161–62 (3d Cir. 2002); see also Keeling v. Warden,
Lebanon Corr. Inst., 673 F.3d 452, 460 (6th Cir. 2012),
and Vroman v. Brigano, 346 F.3d 598, 602 (6th Cir.
2003) (same). “A filing deadline cannot be complied
with, substantially or otherwise, by filing late—even
by one day.” United States v. Locke, 471 U.S. 84, 101
(1985).
Moss filed his habeas petition on May 30, 2018. By
that time, and absent statutory tolling, more than 14
months had passed since the statute of limitations
had expired on March 21, 2017. His petition was
therefore untimely.
Second, the petition could not be equitably tolled.
Moss contended below that equitable tolling should
apply because his counsel believed he had an extra
day to file the state postconviction motion due to 2016
being a leap year. Counsel thus erroneously believed
he had 366 days, rather than 365 days, to file the state
postconviction motion. The Sixth Circuit elected not to
15
analyze this question, instead skipping ahead to reverse the habeas grant on the merits. Pet. App. 14a–
15a. But, again, Moss’s habeas petition must be timely
for this Court to grant habeas relief, which, at this
point, means he must establish entitlement to equitable tolling. To his detriment, he cannot.
Equitable tolling is available in habeas challenges
to state convictions only when a litigant can show “ ‘(1)
that he has been pursuing his rights diligently, and
(2) that some extraordinary circumstance stood in his
way.’ ” Holland, 560 U.S. at 649 (quoting Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005)). Here, even if
Moss could meet the first prong, he cannot meet the
second.
This Court has been clear that a “garden variety
claim of excusable neglect, such as a simple miscalculation that leads a lawyer to miss a filing deadline,
does not warrant equitable tolling.” Holland, 560 U.S.
at 651–52 (cleaned up). The Court reiterated that
principle in Maples v. Thomas, 565 U.S. 266 (2012).
There, the Court highlighted the difference between
“a claim of attorney error, however egregious, and a
claim that an attorney had essentially abandoned his
client,” reasoning that the latter would be an extraordinary circumstance to justify equitable tolling while
the former would not. Id. at 282–83 (citing Justice
Alito’s concurrence in Holland).
Here, counsel had no reason, and certainly not an
extraordinary one, to believe he had an extra day to
file Moss’s state postconviction motion to toll the habeas limitations period. Contrary to Moss’s argument
below, a leap year is relevant only when the limitations period includes the leap day, February 29. That
16
is the sole scenario in which a typical year of 365 days
is extended to 366 days. The limitations period in this
case, however, did not include the relevant leap day—
February 29, 2016. Rather, Moss’s habeas clock began
ticking after the leap day, on March 21, 2016, and ran
until March 21, 2017. That period was thus a standard year with 365 days, not a leap year with 366 days.
Moss’s counsel’s error was therefore “a simple miscalculation” insufficient to invoke equitable tolling.
The district court abused its discretion in granting
equitable tolling because it mistakenly believed that
Moss’s counsel had cited cases in which courts had applied a 366-day period of limitations that did not include a leap day, and that counsel was therefore justified in being confused on the rule. In truth, counsel
cited no cases in support of his error. Counsel’s error
was not justified by inconsistent rulings by various
courts—it was “a simple miscalculation” of the sort
this Court has already held does not justify equitable
tolling. Holland, 560 U.S. at 651–52.
Accordingly, Moss is not entitled to either statutory or equitable tolling, and his petition remains untimely.
B. Moss
procedurally
defaulted
his
ineffective-assistance-of-trial-counsel
claim.
Next, Moss’s ineffective-assistance-of-trial-counsel claim is procedurally defaulted, and the default
cannot be excused. As the Sixth Circuit recognized,
Moss has conceded that his claim is procedurally defaulted. Pet. App. 15a n.5. Thus, the default must be
excused to clear the path for habeas review and relief.
17
But Moss fails on this front as well. In fact, Moss’s petition does not even touch on procedural default.
A procedural default is “a critical failure to comply
with state procedural law.” Trest v. Cain, 522 U.S. 87,
89 (1997). Under this doctrine, “a federal court will not
review the merits of claims, including constitutional
claims, that a state court declined to hear because the
prisoner failed to abide by a state procedural rule.”
Martinez v. Ryan, 566 U.S. 1, 9 (2012). A state prisoner who fails to comply with a state procedural rule
waives the right to federal habeas review absent cause
for noncompliance and actual prejudice from the alleged constitutional violation, or a fundamental miscarriage of justice. 2 Coleman v. Thompson, 501 U.S.
722, 748–50 (1991).
To establish cause, a petitioner must show some
external impediment frustrated his ability to comply
with the state’s procedural rule. See, e.g., Murray v.
Carrier, 477 U.S. 478, 488 (1986). This can include attorney error for failure to properly raise the claim under state procedural rules. Id. “Not just any deficiency
in counsel’s performance will do, however; the assistance must have been so ineffective as to violate the
Federal Constitution.” Edwards v. Carpenter, 529
U.S. 446, 451 (2000).
2 Moss has never asserted a fundamental miscarriage of justice
as a reason to excuse the default. Even if Moss did so, that claim
would fail. A fundamental miscarriage of justice is based on actual innocence, Dretke v. Haley, 541 U.S. 386, 393 (2004), which
is axiomatically untrue in this case where Moss has always proclaimed entrapment—an affirmative defense inherently admitting to the criminal activity but claiming legal excuse. See United
States v. Russell, 411 U.S. 423, 435 (1973).
18
In this case, Moss first raised his ineffective-assistance claim under Cronic in his state postconviction
motion for relief from judgment. The state trial court
found a procedural default from that posture because
Moss could and should have first raised that claim in
his direct appeal. Moss blamed his appellate counsel
for that oversight, but the trial court rejected his claim
as insufficient to establish good cause and actual prejudice for his tardy Cronic claim. Pet. App. 97a–98a,
103a.
Moss similarly asserted ineffective assistance of
appellate counsel to excuse his procedural default on
habeas review. The district court agreed, but the Sixth
Circuit reversed. While the Sixth Circuit analyzed the
underlying Cronic claim to conclude that it was meritless, such that appellate counsel could not have been
ineffective, there is a shorter path to that conclusion.
On his direct appeal, Moss’s appellate counsel did
assert ineffective assistance of trial counsel, but he
did so solely under Strickland, not Cronic. Yet, the
grounds for trial counsel’s alleged deficiencies were
virtually identical between Moss’s direct appeal and
his state postconviction motion. The only difference
was the legal framework in which the claims were presented.
The differentiating factor between Strickland and
Cronic is whether prejudice is evaluated or presumed,
respectively. But counsel’s performance must be evaluated under both cases and, here, Moss challenged his
counsel’s performance on direct appeal and in his
postconviction motion. On direct appeal, the Michigan
Court of Appeals held that “under the circumstances,
defense counsel’s decision to recommend a bench trial
19
was within the purview of trial strategy . . . and did
not fall below an objective standard of reasonableness
. . . .” Br. in Opp. App. 13a. That holding would have
been the same even if appellate counsel had also
raised the claim under Cronic. And because the performance prong failed, relief was precluded regardless
of prejudice, presumed or not.
Further, even if Moss’s trial-counsel claims did
fall under Cronic, he would still need to show actual
prejudice for his appellate-counsel claim to excuse the
procedural default. See Weaver v. Massachusetts, 582
U.S. 286, 305 (2017) (holding that prejudice must be
shown even for a structural-error claim raised in the
context of ineffective assistance of counsel); see also
Ambrose v. Booker, 684 F.3d 638, 649 (6th Cir. 2012)
(“Having shown cause, petitioners must show actual
prejudice to excuse their default, even if the error is
structural.”).
Yet, here, Moss cannot demonstrate actual prejudice from his appellate counsel’s failure to frame his
trial-counsel claim on direct appeal under Cronic rather than Strickland. Again, even if appellate counsel
had done so, there is no reasonable probability that
the Michigan Court of Appeals would have granted
Moss relief on that claim because the court had already rejected the argument that trial counsel’s performance was deficient. Br. in Opp. App. 12a–14a. The
Michigan Court of Appeals therefore would have
lacked any basis to presume prejudice under Cronic.
Moreover, the Michigan Court of Appeals was presented with and passed on another opportunity to address the claims under Cronic when Moss filed his application for leave to appeal from the denial of his
20
state postconviction motion. Moss did not prevail
there either.
Consequently, Moss’s appellate counsel provided
effective assistance. The procedural default cannot be
excused and therefore habeas review is barred. See
Davila v. Davis, 582 U.S. 521, 527 (2017) (“[A] federal
court may not review federal claims that were procedurally defaulted in state court.”).
Due to not one but two procedural barriers—both
of which Moss must overcome to obtain habeas relief
from this Court—this case presents a poor vehicle to
review Moss’s question presented solely concerning
his merits claim under Cronic.
II. The Sixth Circuit has not created or
contributed to a circuit split—let alone a
mature split—on the question of whether
“state action” is required to trigger Cronic’s
presumption of prejudice for an ineffectiveassistance-of-counsel claim.
Even getting to the merits of Moss’s question presented, there is no ruckus amongst the circuits for this
Court to quell. Moss points to decades-old cases to cobble together what he purports to be a circuit split, but
it is at best a stale one. Nor did “state action” even
play a significant role in the Sixth Circuit’s decision in
this case. And, at the end of the day, the Sixth Circuit
was correct that Cronic does not govern Moss’s ineffective-assistance claim.
21
A. “State action” had little to do with the
Sixth Circuit’s Cronic analysis in this
case.
The sole premise of Moss’s petition for writ of certiorari is that the Sixth Circuit incorrectly required
“state action” for Moss to establish ineffective assistance of counsel under Cronic. But it is not, as Moss
purports it to be, the load-bearing premise without
which the Sixth Circuit’s reasoning comes crashing
down. Rather, the “state action” requirement composed but one, supplemental part of the Sixth Circuit’s
analysis. Indeed, it was a single paragraph. See Pet.
App. 18a.
There are several ways to satisfy Cronic such that
prejudice may be presumed from trial counsel’s ineffective assistance. Counsel’s errors must be “so likely
to prejudice the accused that the cost of litigating
their effect in a particular case is unjustified.” Cronic,
466 U.S. at 658. The Cronic Court identified three situations in which a defendant is entitled to a presumption of prejudice: (1) the “complete denial of counsel,”
including situations where counsel was actually or
constructively absent at a “critical stage” of the proceedings; (2) situations where defense counsel “entirely fails to subject the prosecution’s case to meaningful adversarial testing;” and (3) situations where
“the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small
that a presumption of prejudice is appropriate.” Id. at
659–60.
In Maslonka v. Hoffner, the petitioner sought habeas relief under the “complete denial of counsel” scenario of Cronic, alleging his counsel failed to attend
22
federal-cooperation meetings as part of his state plea
negotiations. 900 F.3d at 279–80. The Sixth Circuit
surveyed this Court’s holdings under the “complete
denial” scenario and found that “each of the cases the
Supreme Court cited for this proposition involved a
state statute’s or state actor’s denying the physical
presence of counsel during a critical stage or otherwise placing limits on counsel’s representation of a
criminal defendant.” Id. at 279 (emphasis in original).
Accordingly, the Sixth Circuit “emphatically reject[ed]
the theory that a counsel’s mere physical absence from
a critical stage of a proceeding, based on the counsel’s
own failure to be present rather than any denial by
the state, can constitute a constructive denial of counsel under Cronic.” Id. (emphasis in original).
That narrow holding comprises the entirety of
Moss’s petition seeking this Court’s review. Pet. at
10–11. To be sure, Moss did allege a “complete denial”
of counsel under Cronic in this case, and the Sixth Circuit did cite Maslonka in denying relief under that
scenario (again, in a single paragraph). Pet. App. 18a.
But even the Maslonka citation did not exclusively
point to state action. That was only one piece: “However, the complete-denial scenario does not apply to
Moss’s claims because there is no evidence that Moss’s
counsel was physically absent throughout an entire
phase of the litigation or that a state actor prevented
Moss’s counsel from adequately representing him.” Id.
(emphasis added). The disjunctive puts even more distance between the Sixth Circuit’s decision and the
question presented in Moss’s petition. One more
thing: the dissent seemed to distinguish Maslonka,
noting that Moss’s counsel was physically present at
the relevant critical stages, though finding his
23
performance deficient during those proceedings. See
Pet. App. 49a.
In another step away from Maslonka, Moss did
not solely rely on the “complete denial” scenario in this
case to garner review under Cronic. Moss also claimed
that his trial counsel failed to subject the prosecution’s case to “meaningful adversarial testing,” such
that Cronic should apply. Pet. App. 18a (“Moss argues
that his claims warrant review under Cronic under
both scenarios because Steingold constructively abandoned him during pre-trial proceedings and failed to
meaningfully test the prosecution’s case at trial.” (emphasis added)). The “state action” principle identified
in Maslonka does not speak to the “meaningful adversarial testing” scenario in Cronic. Indeed, the Sixth
Circuit spent considerably more time dispelling this
point below without any reference to Maslonka or
“state action” generally. See Pet. App. 18a–22a.
Given these distinctions, the Sixth Circuit held
that “Strickland, not Cronic, governs Moss’s ineffective assistance claims.” Id. at 22a. This is because
Moss had pointed to failures at “specific points” rather
than a “complete” failure of counsel. Id. at 19a. That
comports with clearly established federal law: “When
we spoke in Cronic of the possibility of presuming
prejudice based on an attorney’s failure to test the
prosecutor’s case, we indicated that the attorney’s failure must be complete,” rather than “at specific
points.” Bell v. Cone, 535 U.S. 685, 696–97 (2002). “For
purposes of distinguishing between the rule of Strickland and that of Cronic, this difference is not of degree
but of kind.” Id. at 697.
24
The minor reference to “state action” in the Sixth
Circuit’s decision significantly militates against any
need for this Court’s intervention.
B. Any alleged circuit split is not mature.
Assuming this Court finds the petition timely, excuses the procedural default, and determines that the
Sixth Circuit’s decision below significantly hinged on
“state action”—none of which are warranted—Moss’s
allusion to a circuit split is a non-starter. Contrary to
Moss’s assertion, the circuits are hardly “divided” on
the “state action” issue. See Pet. at 10. At best, any
alleged split is not mature.
At the outset, Respondent notes that this Court
has twice denied certiorari on this same issue in the
last four years. See Maslonka v. Nagy, 139 S. Ct. 2664
(2019), and Clark v. Lindsey, 141 S. Ct. 165 (2020).
The alleged circuit split was not true then and it is not
true now. Moss attempts to distinguish this case from
those, Pet. at 18, but the only basis for his distinction
is that Maslonka and Clark concerned undefined “critical stages” whereas the critical stages at issue in this
case are clear. Id. Those were not the only hiccups in
Maslonka and Clark, however. Both petitioners in
those cases alleged a circuit split on the “state action”
issue, and in both cases, Respondent dispelled the alleged split. Further, both cases shared similar foundational cases as those on which Moss relies to erect
such a split. But, as in Maslonka and Clark, it is nothing more than a house of cards.
The primary case in common with Maslonka,
Clark, and, now, Moss, is Burdine v. Johnson, 262
25
F.3d 336 (5th Cir. 2001). It is true that Burdine explicitly rejected a state-action requirement for Cronic to
apply. 262 F.3d at 345. But that holding has not fractured the country. Of the 263 cases to cite Burdine as
of the date of this filing, Westlaw flags only two that
addressed the Fifth Circuit’s state-action analysis.
One of those two cases was another action filed by
Burdine to enforce the Fifth Circuit’s judgment in his
prior case. The other cites Burdine only as generally
applying Cronic to situations in which counsel’s absence is complete, whether by falling asleep or otherwise, despite Westlaw flagging it under the state-action headnote from Burdine. See Schmidt v. Foster,
911 F.3d 469, 502 (7th Cir. 2018). This hardly creates
a raft of differing treatment of the state-action issue.
Moss points to only one other case that explicitly
rejected any necessity of state action: United States v.
Swanson, 943 F.2d 1070, 1074 (9th Cir. 1991). Pet. at
12–13. The reach of that case is even more limited
than in Burdine. Of the 417 cases to cite Swanson,
only one even mentions state action in the Cronic context, and that was Burdine. Notably, though, the
Swanson citation in Burdine came in a footnote in the
dissent, unrelated to the state-action discussion. See
Burdine, 262 F.2d at 395 n.33 (Barksdale, J., dissenting) (citing Swanson in a string citation for “additional instances” of presumed prejudice). Swanson is
thus even less compelling than Burdine.
Moss also cites Chadwick v. Green, 740 F.2d 897
(11th Cir. 1984), but his reliance backfires. See Pet. at
13–14. Chadwick opined that Cronic “expressly refused to attach any significance to whether the alleged
ineffectiveness was because of ‘external constraints,’
26
such as the denial of a continuance, or was caused by
defense counsel’s own actions.” 740 F.2d at 901. But
the Eleventh Circuit noted that the “Cronic and
[Strickland v.] Washington opinions are not entirely
in accord on this point” in that Strickland “apparently
places at least some significance on whether government interference was involved.” Id. at 901 n.5. Regardless, the Eleventh Circuit found that any difference in approaches “ha[d] no effect on the outcome of
this case,” because, state action aside, “the petitioner
ha[d] failed to show circumstances that would warrant a presumption of prejudice.” Id. Chadwick is thus
inapposite.
Moreover, and significantly, any alleged split is
stale. The cases to which Moss points are, almost exclusively, decades old. Though age may not diminish
the value of a case or its reasoning, the fact that these
are the only such cases Moss could find that even discuss a state-action requirement, let alone reach differing conclusions on the matter, reveals that there is no
nationwide point of contention calling for this Court’s
resolution. See Pet. at 11–16. Moss’s three primary
cases are from 2001 (Burdine), 1991 (Swanson), and
1984 (Chadwick). And his collateral cases range from
1986 to 2010, with one outlier in 2021 in which the
Seventh Circuit merely remained neutral on the topic.
See Lewis v. Zatecky, 993 F.3d 994 (7th Cir. 2021);
United States v. Moussaoui, 591 F.3d 263, 290 (4th
Cir. 2010); United States v. Collins, 430 F.3d 1260,
1265 (10th Cir. 2005); Appel v. Horn, 250 F.3d 203,
206, 215–16 (3d Cir. 2001); United States v. Mateo,
950 F.2d 44, 49 (1st Cir. 1991); Sanders v. Lane, 861
F.2d 1033, 1037 (7th Cir. 1988); and United States v.
Sanchez, 790 F.2d 245, 254 (2d Cir. 1986).
27
The paucity of cases on this issue speaks volumes—and not in Moss’s favor. In short, the state-action issue has not percolated to any meaningful apex
worthy of this Court’s review.
C. In any event, the Sixth Circuit correctly
held that Cronic is not the proper metric
in this case.
To whatever minor extent any other courts have
rejected the limited state-action analysis the Sixth
Circuit employed in this case, the Sixth Circuit’s reasoning stands on the right side of the law. In Bell v.
Cone, this Court outlined the cases in which the Court
had contemplated presumptive prejudice “where the
accused [wa]s denied the presence of counsel at a critical stage,” including Cronic itself. 535 U.S. at 696 n.3.
Even this Court then acknowledged that “[e]ach involved criminal defendants who had actually or constructively been denied counsel by government action.” Id. (emphasis added). Thus, the Sixth Circuit’s
reasoning in this case was justified based on this
Court’s own precedent.
Even if this Court disagrees with the Sixth Circuit’s reasoning that state action is required for a
Cronic violation under the “complete denial” scenario,
the Sixth Circuit’s ultimate conclusion remains
sound: Cronic does not apply in this case for a myriad
of other reasons. A reviewing court may affirm the
lower-court decision “if it is correct for any reason,
even a reason different from that relied upon by the
[lower] court.” Taylor v. McKee, 649 F.3d 446, 450 (6th
Cir. 2011).
28
Hence, regardless of the basis, the Sixth Circuit
correctly determined that Moss’s ineffective-assistance claim falls under Strickland, not Cronic, and
that Moss cannot demonstrate actual prejudice. This
Court should deny certiorari.
CONCLUSION
The petition for certiorari should be denied.
Respectfully submitted,
Dana Nessel
Michigan Attorney General
Ann M. Sherman
Solicitor General
Counsel of Record
P.O. Box 30212
Lansing, Michigan 48909
ShermanA@michigan.gov
(517) 335-7628
Scott R. Shimkus
Assistant Attorney General
Criminal Trials and
Appeals Division
Dated: JANUARY 2024
Attorneys for Respondent
ia
BRIEF IN OPPOSITION APPENDIX
TABLE OF CONTENTS
Michigan Supreme Court
Order in 152082
Issued December 22, 2015 ........................................ 1a
Michigan Court of Appeals
Case No. 319954
Opinion
Issued June 9, 2015 .......................................... 2a–16a
1a
Order
Michigan Supreme Court
Lansing, Michigan
Robert P. Young, Jr.,
Chief Justice
December 22, 2015
152082
Stephen J. Markman
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
Joan L. Larsen,
Justices
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
SC: 152082
COA: 319954
Oakland CC: 2013-244474-FC
STEVEN LEE MOSS,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to
appeal the June 9, 2015 judgment of the Court of Appeals is considered, and it is DENIED, because we are
not persuaded that the questions presented should be
reviewed by this Court.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and
complete copy of the order entered at the direction of
the Court.
December 22, 2015
Larry S. Royster
Clerk
2a
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE
OF MICHIGAN,
Plaintiff-Appellee,
v
STEVEN LEE MOSS,
UNPUBLISHED
June 9, 2015
No. 319954
Oakland Circuit Court
LC No. 2013-244474-FC
Defendant-Appellant.
Before: JANSEN, P.J., and SAWYER and FORT
HOOD, JJ.
PER CURIAM.
Following a bench trial, defendant was convicted
of possession with intent to deliver 1,000 or more
grams of cocaine, MCL 333.7401(2)(a)(i), and possession of a firearm during the commission of a felony
(felony-firearm), MCL 750.227b. The trial court sentenced defendant to 15 to 45 years’ imprisonment for
the drug conviction, and a consecutive two-year term
of imprisonment for the felony-firearm conviction. He
appeals as of right. We affirm.
Defendant’s convictions arise from his purchase of
10 kilograms of cocaine from a police undercover informant. After learning that defendant was interested
3a
in acquiring a large amount of cocaine and after conducting preliminary surveillance of defendant’s activities, the police arranged for defendant to meet their
informant. In addition to the police testimony, the
prosecution presented evidence of video and audio recordings capturing the meetings and telephone conversations between defendant and the informant. The
first meeting, on November 6, 2012, lasted approximately 30 minutes and defendant agreed to purchase
10 kilograms of cocaine. At their next meeting on November 7, 2012, defendant and the informant discussed the drug deal, and defendant unsuccessfully
attempted to persuade the informant to increase the
purchase amount to 40 kilograms. In a restaurant
parking lot, the informant showed defendant 10 kilograms of cocaine that were hidden in a compartment
of an undercover police van. Defendant was instructed
to contact the informant if he wanted to consummate
the deal. Defendant contacted the informant on November 8, 2012, and they agreed to meet at a restaurant. They then agreed to transact the drug deal on
November 9, 2012, which was when defendant believed he would have all the purchase money. Defendant unsuccessfully attempted to convince the informant to complete the transaction at defendant’s house.
Defendant also discussed his desire for future transactions with the informant. On November 9, 2012, defendant and the informant met in the parking lot of a
Home Depot store, as planned. The informant was accompanied by another undercover officer who drove
the van containing the drugs, and defendant also
brought an associate with him. 3 After defendant
3 The associate, Lamar Kendrick, was also charged for his par-
ticipation in the transaction. He pleaded guilty to conspiracy to
4a
showed that he had the purchase money, which was
in a suitcase in his car, the men walked to the undercover van where defendant was again shown the product. Defendant took possession of the van keys, got in
the driver’s seat, and turned on the ignition before the
police remotely disabled the van. Defendant fled the
vehicle on foot, but was arrested after a brief chase.
I. ENTRAPMENT
Defendant argues that the trial court erred in
denying his motion to dismiss on the basis of entrapment. We disagree. We review de novo the trial court’s
determination whether the police entrapped a defendant, but review the trial court’s findings of fact for
clear error. People v Vansickle, 303 Mich App 111,
114-115; 842 NW2d 289 (2013). A finding of fact is
clearly erroneous if this Court is left with a firm conviction that the trial court made a mistake. Id. at 115.
Defendant has the burden of proving the defense
of entrapment by a preponderance of the evidence.
People v Johnson, 466 Mich 491, 498; 647 NW2d 480
(2002); People v Akhmedov, 297 Mich App 745, 752;
825 NW2d 688 (2012). “Entrapment occurs if (1) the
police engage in impermissible conduct that would induce an otherwise law-abiding person to commit a
crime in similar circumstances or (2) the police engage
in conduct so reprehensible that the court cannot tolerate it.” Vansickle, 303 Mich App at 115 (citation
omitted). The police do not engage in entrapment by
merely providing a defendant with the opportunity to
commit the crime. Johnson, 466 Mich at 498. In
deliver 1,000 or more grams of cocaine, MCL 750.157a, and possession with intent to deliver 1,000 or more grams of cocaine.
5a
determining whether defendant was impermissibly
induced by the police to commit criminal activity, this
Court should consider the following factors:
(1) whether there existed appeals to the defendant’s sympathy as a friend, (2) whether
the defendant had been known to commit the
crime with which he was charged, (3) whether
there were any long time lapses between the
investigation and the arrest, (4) whether there
existed any inducements that would make the
commission of a crime unusually attractive to
a hypothetical lawabiding citizen, (5) whether
there were offers of excessive consideration or
other enticement, (6) whether there was a
guarantee that the acts alleged as crimes were
not illegal, (7) whether, and to what extent,
any government pressure existed, (8) whether
there existed sexual favors, (9) whether there
were any threats of arrest, (10) whether there
existed any government procedures that
tended to escalate the criminal culpability of
the defendant, (11) whether there was police
control over any informant, and (12) whether
the investigation was targeted. [Id. at 498499.]
Defendant argues that the police entrapped him
by exploiting his friendship with Michael Bennett,
who introduced him to the paid police informant, Diego. Defendant’s friendship exploitation claim is twofold: (1) that Bennett appealed to defendant’s sympathy, claiming to be in danger because he owed people
money, and (2) that because of their friendship, Bennett knew that defendant was vulnerable because he
6a
was in danger of losing his West Bloomfield home, and
Bennett used that information to pressure defendant
into participating in drug trafficking. We agree with
the trial court that the record does not support defendant’s claim that he was unduly pressured into purchasing the drugs or that he was an unwilling participant.
Defendant is correct in his argument that entrapment occurs when “investigative enforcement
measures extend beyond a tolerable level when by design the government uses continued pressure [or] appeals to friendship or sympathy[.] People v Jamieson,
436 Mich 61, 89; 461 NW2d 884 (1990). However, defendant’s arguments are inconsistent with the evidence presented at the entrapment hearing. Initially,
defendant overstates the depth of his friendship with
Bennett as indicated by the evidence. According to defendant’s testimony, he originally talked to Bennett,
whom defendant believed was imprisoned for a drug
offense, on the telephone while Bennett was in federal
prison with defendant’s cousin; they met “face to face”
in April 2011. As the trial court aptly observed, defendant’s testimony indicated that he had only sporadic and limited contact with Bennett from April
2011 until Bennett introduced defendant to Diego in
November 2012. During that period, Bennett would
often stop by defendant’s rental properties, they
would have brief meetings, and they left the rental
properties on occasion and ate together. Bennett had
never been to defendant’s primary residence, and defendant did not know where Bennett lived or much
about his upbringing. Defendant described Bennett as
an “acquaintance and borderline friend.” An acquaintance relationship is not sufficient to support a
7a
defendant’s claim of entrapment. People v Juillet, 439
Mich 34, 66-67; 475 NW2d 786 (1991). In addition, defendant’s testimony that he ultimately agreed to participate in the drug transaction because he needed the
money to save his West Bloomfield residence suggests
that he was not motivated because of his friendship
with Bennett, but by his own opportunity for profit.
Regarding Bennett’s alleged relentless pressuring, defendant testified that Bennett approached him
about obtaining drugs in April 2012, and continuously
pressured him until he finally agreed in November
2012. Defendant explained that Bennett first
broached the subject by asking a general question
about where to obtain drugs to a group of people who
were at one of defendant’s rental properties. Thereafter, Bennett continued to ask defendant about participating in a drug deal whenever he stopped by defendant’s properties. As the trial court relevantly observed, defendant “didn’t have to tell Mr. Bennett
where [he] was located when Mr. Bennett would call
and want to see him, especially after the discussions
of—of dealing in drugs came about.” Defendant’s own
testimony established that he chose to expose himself
to the allegedly drug-dealing Bennett, “a borderline
friend,” which belies his claim that he was under unwanted, persistent pressure to participate in a drug
deal.
Furthermore, after agreeing to participate in the
drug deal, defendant met Bennett and Diego at a restaurant and discussed the drug transaction. Notably,
defendant brought more than $230,000 for the drug
deal (while, according to defendant, Bennett contributed $39,000), Bennett left shortly after introducing
8a
defendant to Diego, and Bennett did not attend any
further meetings between defendant and Diego. In the
recorded interactions that followed, defendant was observed and heard discussing the purity of the drugs
with Diego, being shown drugs in a hidden compartment in a van, seeking to purchase a greater quantity,
contacting Diego, and inviting Diego to transact the
drug deal at defendant’s residence. A special agent for
the Drug Enforcement Administration, who observed
the interactions, testified that defendant did not appear to be nervous during the meetings and phone
conversations, and it did not appear that this was defendant’s first time being involved in a drug transaction. The evidence further showed that defendant voluntarily met with Diego, acted of his own free will,
and was never threatened. Consequently, the record
does not support defendant’s claim that, through an
informant, the police placed undue pressure on him to
buy drugs. It supports the trial court’s finding that defendant was a willing participant.
Defendant’s suggestion that his opportunity to
save his primary residence was a sufficient inducement to commit the crime also lacks merit. Defendant
testified that the drug deal would provide him an additional $90,000 to help save his primary residence.
The evidence disclosed, however, that defendant
owned numerous rental properties, including a hall
and several rental houses, but he claimed to be unaware of any of the values of those properties. He admitted that, for various reasons, he did not put any of
those properties up for sale. Moreover, as the trial
court found, “if his sole purpose was to keep his house
from being foreclosed upon, one wonders why he
couldn’t work with the bank with a substantial
9a
payment [more than $230,000] toward his mortgage
to save his home.” Defendant and a witness also testified that defendant gave the witness a substantial
amount of money to invest in a shrimp business during this period that he was in danger of losing his
house.
In sum, defendant failed to establish by a preponderance of the evidence that either Bennett or Diego
placed excessive pressure on him, that Bennett made
a sufficient emotional plea to induce him to engage in
the criminal activity, or that a friendship between defendant and Bennett was otherwise exploited to induce defendant to commit the crime. Further, no excessive consideration was provided to defendant. The
police actions were insufficient to induce or instigate
an otherwise unwilling average person, similarly situated to defendant, to commit the crime. Rather, the
facts indicate that defendant was simply offered an
opportunity to commit the crime, which is insufficient
to support a finding of entrapment. Johnson, 466 Mich
at 498. Consequently, the trial court did not clearly
err in finding that defendant was not entrapped.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant next argues that the trial court erred
by denying his motion for a new trial based on ineffective assistance of counsel. Defendant argues that defense counsel was ineffective for recommending that
defendant waive his right to a jury trial. We disagree.
We review a trial court’s decision on a motion for
a new trial for an abuse of discretion. People v Cress,
468 Mich 678, 691; 664 NW2d 174 (2003). A claim alleging ineffective assistance of counsel presents a
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mixed question of law and fact. People v LeBlanc, 465
Mich 575, 579; 640 NW2d 246 (2002). Questions of law
are reviewed de novo, and a trial court’s findings of
fact, if any, are reviewed for clear error. Id. To establish ineffective assistance of counsel, defendant first
must show that counsel’s performance was below an
objective standard of reasonableness. People v Armstrong, 490 Mich 281, 289-290; 806 NW2d 676 (2011).
Second, defendant must show that, but for counsel’s
deficient performance, it is reasonably probable that
the result of the proceeding would have been different.
Id. at 290.
A criminal defendant has the ultimate authority
to make certain fundamental decisions regarding his
case, including the decision whether to waive a jury.
Jones v Barnes, 463 US 745, 751; 103 S Ct 3308; 77 L
Ed 2d 987 (1983). The record shows that defendant’s
jury waiver complied with MCR 6.402(B), and was
knowing and voluntary. Defendant acknowledged
during the Ginther 4 hearing that he was questioned
about his decision to waive a jury to ensure that it was
a voluntary decision. Defense counsel testified that he
explained “exactly” what a jury waiver meant to defendant. The colloquy between defendant and defense
counsel during the waiver proceeding reveals that defendant understood his right to a jury trial, including
the difference between a bench and jury trial, and voluntarily waived that right. Specifically, defendant
acknowledged his understanding that, by waiving his
right to a jury, “the Judge will be the fact finder and
will make all the findings necessary[.]” Thus, the record belies defendant’s claim that he would not have
4 People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).
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waived his right to a jury had he known that it meant
that the trial court would be the trier of fact.
The decision to recommend a jury or bench trial is
within the purview of trial strategy, People v Davenport (After Remand), 286 Mich App 191, 197; 779
NW2d 257 (2009), which this Court does not secondguess. People v Russell, 297 Mich App 707, 716; 825
NW2d 623 (2012). Defendant claims, however, that
defense counsel’s advice was improperly based on his
lack of preparedness to proceed to trial. Defendant
testified that on the first day of the entrapment hearing, defense counsel told him that he was “get[ting] a
bench trial” because counsel was not prepared to proceed to trial immediately after the entrapment hearing and needed to “buy [] more time.” In contrast, defense counsel testified that he had strategic reasons
for recommending a bench trial and, had trial started
immediately, he “would have been prepared for the
trial.” Counsel explained that he and defendant had
discussed that there was only one defense to the
charges, which was entrapment, and that the entrapment issue could not be argued at trial. Counsel advised defendant that if he did not prevail at the entrapment hearing, defendant should immediately appeal the decision. A stipulated-fact bench trial was the
most expeditious in that regard, especially given that
“the prosecution had obviously overwhelming evidence” against defendant. In counsel’s opinion, it
“would have been a bit of a charade and a waste of
time to impanel and go through a jury[.]” According to
defense counsel, defendant understood that he lacked
any other defense, knew that he would likely be convicted at trial, agreed with counsel’s strategy, and
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never expressed any dissatisfaction with counsel’s
representation.
As the trial court below observed, resolution of
this claim depended on how the court resolved the conflicting accounts of defense counsel and defendant.
The trial court determined that defendant was not
credible. This Court gives deference to a trial court’s
superior ability to judge the credibility of witnesses
who appeared before it. People v Farrow, 461 Mich
202, 209; 600 NW2d 634 (1999). Moreover, as the trial
court observed, other aspects of the record supported
defense counsel’s testimony. The parties’ testimony
discloses that defense counsel, who was defendant’s
fifth attorney, agreed to represent defendant with full
knowledge that a trial was imminent. Although trial
was forthcoming, both the prosecutor and defense
counsel advised the court that, at the time of the entrapment hearing, neither had information that the
trial was scheduled to immediately follow the entrapment hearing. Therefore, defense counsel would not
have had any reason to make that representation to
defendant. In addition, upon filing his appearance, defense counsel requested and was granted an adjournment to prepare for the entrapment hearing. As the
trial court noted, the record reveals that defense counsel was present and prepared for the three-day entrapment hearing and much of the same evidence and
testimony from the entrapment hearing presumably
would be presented at trial. In light of this record, and
affording deference to the trial court’s superior ability
to evaluate credibility, we reject defendant’s claim
that he agreed to forego his right to a jury trial because defense counsel told defendant that he was not
prepared to proceed with a jury trial. Rather, the
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decision was a tactical choice, which this Court will
not second-guess. Russell, 297 Mich App at 716.
Defendant complains that by recommending a
bench trial, defense counsel improvidently allowed defendant’s testimony at the entrapment hearing,
wherein defendant admitted his involvement in the
drug offense, to be available to the same judge who
tried the case. Contrary to what defendant argues,
however, defense counsel did not stipulate to the admission of defendant’s testimony at trial, and the record discloses that it was not admitted or considered at
trial. The trial court expressly stated that it did not
consider defendant’s entrapment hearing testimony
at trial, and that its determination of defendant’s guilt
was based solely on the testimony, facts, and exhibits
that were admitted at the trial. The trial court also
recognized the prohibition against considering a defendant’s testimony at an entrapment hearing as substantive evidence. In a bench trial, it is presumed that
the trial court can ignore inadmissible evidence when
rendering its decision. People v Taylor, 245 Mich App
293, 305; 628 NW2d 55 (2001) (citation omitted). A review of the trial court’s findings of fact and conclusions of law at the bench trial establishes that defendant’s entrapment hearing testimony did not affect the
trial court’s verdict, which instead was clearly based
on the evidence properly presented at trial.
In sum, under the circumstances, defense counsel’s decision to recommend a bench trial was within
the purview of trial strategy, Davenport (After Remand), 286 Mich App at 197, and did not fall below an
objective standard of reasonableness, Armstrong, 490
Mich at 289-290. “The fact that trial counsel’s strategy
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may not have worked does not constitute ineffective
assistance of counsel.” People v Stewart (On Remand),
219 Mich App 38, 42; 555 NW2d 715 (1996).
III. SCORING OF OFFENSE VARIABLES
Lastly, defendant argues that the trial court improperly scored OV 14 and OV 19 of the sentencing
guidelines. Again, we disagree. When reviewing a
trial court’s scoring decision, the trial court’s “factual
determinations are reviewed for clear error and must
be supported by a preponderance of the evidence.”
People v Hardy, 494 Mich 430, 438; 835 NW2d 340
(2013). “Whether the facts, as found, are adequate to
satisfy the scoring conditions prescribed by statute,
i.e., the application of the facts to the law, is a question
of statutory interpretation, which an appellate court
reviews de novo.” Id.
A. OV 14
MCL 777.44(1)(a) directs a score of 10 points if
“[t]he offender was a leader in a multiple offender situation.” The entire criminal transaction should be
considered. MCL 777.44(2)(a). The evidence indicates
that defendant arranged a large drug transaction with
a police informant. Lamar Kendrick accompanied defendant to the prearranged location for the buy.
Kendrick remained in the car with the keys and the
purchase money. Another person, Jay Smith, was at
defendant’s house, waiting for him to return with the
drugs so that Smith could purchase a portion. The evidence supports the trial court’s finding that more
than one offender was involved in this criminal episode, and that defendant, the person who negotiated
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the transaction, was the leader. Therefore, the trial
court did not err in assessing 10 points for OV 14.
B. OV 19
OV 19 must be scored at 10 points if “[t]he offender otherwise interfered with or attempted to interfere with the administration of justice.” MCL
777.49. In assessing points under OV 19, a court may
consider the defendant’s conduct after the completion
of the sentencing offense. People v Smith, 488 Mich
193, 200; 793 NW2d 666 (2010). A defendant interferes with the administration of justice by “oppos[ing]
so as to hamper, hinder, or obstruct the act or process
of administering judgment of individuals or causes by
judicial process.” People v Hershey, 303 Mich App 330,
343; 844 NW2d 127 (2013). This Court has specifically
recognized that a defendant’s conduct of “fleeing from
police contrary to an order to freeze,” is sufficient to
support a score of 10 points under OV 19. Id. at 343344.
In this case, there was evidence that after defendant put the undercover van in reverse to leave, a detective stopped the van with a remote control kill
switch and pulled the police vehicle behind the van.
The detective and other officers were in fully marked
police gear. Defendant exited the vehicle and “attempted to run approximately twenty feet” into “a
berm, a grassy area.” The detective identified himself
as a police officer, ordered defendant to the ground,
pulled his weapon, and “again ordered to the ground,
which he finally complied.” (Emphasis added.) Although defendant ultimately complied with the detective’s command to stop and get on the ground, there
was evidence that defendant initially disobeyed the
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directive, causing the detective to pull his weapon and
“again” order defendant to the ground. Given that defendant initially disregarded a direct order from the
police, a preponderance of the evidence supports that
he interfered with the administration of justice. Id. at
343-344. Accordingly, the trial court did not err in assessing 10 points for OV 19.
Affirmed.
/s/ Kathleen Jansen
/s/ David H. Sawyer
/s/ Karen M. Fort Hood
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.