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Byrd v. Skipper

United States Court of Appeals, Sixth Circuit

October 8, 2019

Curtis Jerome Byrd, Petitioner-Appellant,
Greg Skipper, Warden, Respondent-Appellee.

          Argued: May 1, 2019

          Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:15-cv-13528-Laurie J. Michelson, District Judge.



          Elizabeth L. Jacobs, Detroit, Michigan, for Appellant. Ann M. Sherman, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee.

         ON BRIEF:

          Elizabeth L. Jacobs, Detroit, Michigan, for Appellant. Ann M. Sherman, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee.

          Before: DAUGHTREY, COOK, and GRIFFIN, Circuit Judges



         Petitioner Curtis Byrd seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Byrd is serving life in prison without the possibility of parole for aiding and abetting a first-degree felony murder, despite the fact that the prosecutor in his case was interested in-and, indeed, would have preferred-negotiating an agreement that could have allowed Byrd to plead guilty to a lesser charge and receive a lighter sentence. Byrd argues that his counsel's ineffectiveness deprived him of the opportunity to secure a plea deal. Specifically, he alleges that, based on an egregious misunderstanding of the law, his attorney conveyed to the prosecutor an unwillingness to consider a plea and conveyed to Byrd an assurance of acquittal-effectively halting plea negotiations before they could begin.

         We find that Byrd's counsel was deficient and that it is reasonably probable that, absent this incompetency, Byrd would have negotiated a more favorable outcome. Accordingly, we conclude that Byrd was denied his Sixth Amendment right to effective counsel, reverse the judgment of the district court, and remand the case for entry of a writ of habeas corpus unless new state proceedings consistent with this opinion are reopened within 180 days of the issuance of our mandate in this matter.


         In February 2010, Byrd and his then-girlfriend, Charletta Atkinson, attempted to rob Richard Joiner at a bank ATM. Byrd, who had no criminal record to that point, suggested the plan and provided the gun, but at the last minute had a change of heart. He told Atkinson, "I can't do this. This is not for me, I'm not going to do it." The record is unclear as to whether Atkinson took the gun or Byrd gave her the gun. It is clear, however, that, while armed, Atkinson approached Joiner and demanded that he hand over his money. Joiner resisted and, in a struggle with Atkinson, the gun went off. Joiner suffered a fatal wound to the head. Atkinson returned to the car and Byrd drove away. Later, the couple drove by the scene, saw that paramedics and police had arrived, and drove off. Shortly thereafter, Byrd turned himself in to the police.

         Byrd and Atkinson were charged with first-degree premediated murder, first-degree felony murder, assault with intent to rob while armed, and possession of a firearm while committing a felony.[1] Byrd was charged on a theory of aiding and abetting. Because Michigan law provides that an aider and abettor is subject to the same penalties as the principal, Byrd faced a mandatory sentence of life without parole.[2]

         Atkinson, the principal defendant, negotiated a plea agreement with the prosecution, allowing her to plead guilty to charges of second-degree murder and felony firearm. She received a sentence of 30 to 50 years in exchange for providing testimony in Byrd's trial. This outcome comports with the Wayne County prosecutor's demonstrated record of preferring plea deals over trials.[3] As David Braxton, the prosecutor in Byrd and Atkinson's cases, explained in an evidentiary hearing in the district court, Wayne County prosecutors have a practice of waiting for defense counsel to request an offer before beginning negotiations. After a request is made, the prosecutor will develop a proposal and consult with the interested parties. Braxton testified that once a principal defendant has pleaded guilty, prosecutors have even more incentive to reach plea agreements with aiders and abettors. He also explained that, in his experience, Wayne County judges rarely reject plea agreements. Nevertheless, Byrd was denied the opportunity to accept a lesser charge and more lenient sentence because his trial counsel, Marvin Barnett, never initiated plea negotiations with the prosecutor's office.

         From the outset, Byrd's counsel was determined to go trial. According to Byrd, Barnett met with him for approximately 30 minutes before Byrd's preliminary hearing and for another 30 minutes the night before trial began. Byrd and Barnett also spoke on the phone once in between these meetings, at which point Barnett told Byrd about Atkinson's plea agreement. These brief conversations comprise the entirety of Barnett's time in preparation with Byrd in advance of trial. Byrd testified that, throughout their brief interactions, Barnett insisted that they were going to trial, assured Byrd that he would "hit a home run" for him by securing an acquittal, and that Byrd would be "going home" instead of going to prison. Byrd also asserts that during their meetings, Barnett did not review the sentencing guidelines with him and did not explain aiding and abetting or other legal concepts underlying Byrd's case. Barnett baldly denied these allegations but also testified that he did not remember his conversations with Byrd "precisely" or "particularly." In much of his testimony, Barnett discussed his usual practices as a defense attorney, but he did not confirm whether he engaged in any specific ones in representing Byrd.[4]

         Despite Barnett's assurances of acquittal, Byrd specifically asked Barnett about the possibility of pleading guilty. Barnett convinced Byrd that a guilty plea was unnecessary and against his interest. In the district court, Barnett testified that he did not seek a plea deal on Byrd's behalf because Byrd asserted his innocence and "wanted to go home." Further, Barnett apparently thought that Byrd was not guilty as a matter of law solely due to Byrd's supposed "abandonment" of the crime.

         Barnett's reliance on the abandonment defense reflects his confusion about-and possibly his abject ignorance of-the law. Michigan requires a defendant claiming abandonment as an affirmative defense to establish "by a preponderance of the evidence voluntary and complete abandonment of a criminal purpose." People v. Akins, 675 N.W.2d 863, 873 (Mich. Ct. App. 2003). In Akins, the Michigan Court of Appeals ruled that, despite the defendant's protestation that he changed his mind about a robbery, his abandonment defense failed because, among other things, he "gave his gun to [the principal], knowing that it would be used to commit the robbery." Id. This act, in the eyes of the Akins court, showed that the defendant intended to aid the commission of the crime and that a jury could reasonably find him guilty of felony murder. Id.

         Despite this prior case law, which virtually mirrored the facts in Byrd's case, Barnett continued to rely on and vastly overestimate the strength of the abandonment defense. At the preliminary hearing, he moved for dismissal of the charges, describing the case to the trial judge as "real simple" and "straightforward," i.e., a clear case of abandonment. Post-trial in the district court, Barnett once again displayed confusion about the case when he asserted his continued belief that abandonment was "an excellent defense" for his client. He went so far as to say that he believed "that Mr. Byrd should have been found not guilty."

         The trial transcript demonstrates that the defense Barnett crafted for Byrd was further hindered by Barnett's misunderstanding of accomplice liability. For instance, in closing, Barnett told the jury:

"[I]t don't matter how [Atkinson] got the gun . . . . He's into this 'gave her the gun,' [she] took the gun. She grabbed the gun. He took the gun. It don't matter. If he gave her the gun and knew that she was going to commit the offense, he's not guilty. Did you hear me? He doesn't have to stop her . . . . If he gave her the gun and knew that she was going to rob somebody, he'd be not guilty unless he intended to help her, and he didn't know cause the girl got out of the car."

         As a legal proposition, this theory is flatly wrong. Michigan law does not require an aider or abettor to intend the commission of the crime. A defendant need only have knowledge of the principal's intent. See Michigan Compiled Laws § 767.39; Michigan Model Criminal Jury Instruction 8.1(3)(c) ("[A]t the time the defendant must . . . have known that the other person intended [the crime's] commission . . . ."). Moreover, Byrd's felony-murder charge meant that the prosecutor in Byrd's case needed to establish only that Byrd knew of Atkinson's intention to rob the victim; not that she intended to kill him. See Michigan Compiled Laws § 750.316(1)(b); Michigan Model Criminal Jury Instruction 16.4(3). As long as Byrd was aware of Atkinson's plans, his actions in support of those plans need not have been considerable because "[t]he amount of advice, aid or encouragement is not material if it had the effect of inducing the commission of the crime." People v. Palmer, 220 N.W.2d 393, 378 (Mich. 1974). Thus, a decidedly low evidentiary threshold stood between Byrd and conviction for aiding and abetting felony murder.

         Not surprisingly, the abandonment defense failed at trial. Byrd was convicted of first-degree felony murder, assault with intent to rob, and felony firearm, and he was sentenced to life imprisonment without the possibility of parole.[5] Michigan courts denied Byrd's direct appeal of his conviction and rejected his motion for post-conviction relief. He then made his way to federal court seeking a writ of habeas corpus.

         The district court dismissed all of Byrd's claims except one: ineffective assistance based on Barnett's alleged misunderstanding of the law and resultant failure of representation at the pleading stage. Following an evidentiary hearing, the district determined that, although Byrd's petition "allowed for the possibility that Barnett performed deficiently," Byrd did not make a sufficient showing of prejudice because it was not clear that Byrd would have accepted a plea. Byrd v. Bauman, No. 15-13528, 2018 WL 4005549, at *5 (E.D. Mich. Aug. 22, 2018). The court denied Byrd a writ but granted a certificate of appealability.[6]


         When we consider a denial of habeas corpus relief under 28 U.S.C. § 2254, "we review the district court's legal conclusion's de novo and its factual findings for clear error." Magana v. Hofbauer, 263 F.3d 542, 546 (6th Cir. 2001). The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs habeas corpus petitions filed after the act's effective date, as was Byrd's. Pub. L. No. 104-132, 110 Stat. 1214 (1996). "However, the stringent requirements of § 2254(d) apply only to claims that were 'adjudicated on the merits in State court proceedings.'" Bies v. Sheldon, 775 F.3d 386, 395 (6th Cir. 2014) (quoting Cullen v. Pinholster, 563 U.S. 170');">563 U.S. 170, [186] (2011)). The parties agree that no state court has adjudicated the merits of Byrd's ineffective-assistance claim. Thus, we consider the claim de novo. See id.

         The familiar two-part test announced in Strickland v. Washington, 466 U.S. 668, 687 (1984), controls ineffective-assistance claims. To satisfy Strickland, a petitioner must establish "that counsel's representation fell below an objective standard of reasonableness" and that counsel's incompetence prejudiced him. Id. at 687-88. To establish prejudice, "a 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.'" Lafler v. Cooper, 566 U.S. 156, 163 (2012) (quoting Strickland, 466 U.S. at 694).

         Based on an overly constrained reading of Lafler, the dissent posits that we should not reach the merits of Byrd's ineffective-assistance claim because, in our colleague's view, it "falls outside the scope of the Sixth Amendment." But the Sixth Amendment's requirement that defendants receive "the effective assistance of competent counsel" extends to all critical stages of a criminal proceeding, Lafler, 566 U.S. at 163, including pretrial plea negotiation. See Padilla v. Kentucky, 559 U.S. 356, 373 (2010) ("[W]e have long recognized that the negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel."). See also Chaidez v. United States, 568 U.S. 342, 349 (2013) (explaining that "the Strickland standard extends generally to the plea process."); Lafler, 566 U.S. at 162; Hill v. Lockhart, 474 U.S. 52, 57-59 (1985). The Supreme Court has never cabined that right to negotiations that take place only after an offer has been made.

         Nevertheless, the dissent urges that we should ignore Byrd's allegations of his counsel's ineffectiveness because if the prosecution exercised its discretion not to offer a plea to Byrd, "there is no constitutional right to plea bargain." Weatherford v. Bursey, 429 U.S. 545, 561 (1977). This suggests a threshold requirement that, put simply, has no place in this matter, because the ineffectiveness of Byrd's counsel foreclosed the possibility that the prosecution, under the unique facts of this case, could exercise such discretion. Whether a constitutional right to plea bargaining exists thus simply is not relevant here. Indeed, as we explained recently, "in the context of the right to effective assistance of counsel, . . . the absence of a right to be offered a plea or to have it accepted . . . is beside the point." Rodriguez-Penton v. United States, 905 F.3d 481, 489 (6th Cir. 2018) (emphasis added).

         In Rodriguez-Penton, we determined that a defendant could establish Strickland prejudice when his counsel failed to alert him that accepting a plea offer could subject him to deportation, even if the prosecutor never offered a plea that excluded "adverse immigration consequences." Id. at 488. We held that the defendant could do so by establishing that he would have negotiated a more favorable plea deal and that "with proper advice, the outcome of those negotiations would have been different." Id. at 490. The mere potentiality of Rodriguez-Penton's negotiation of a more favorable plea did not prevent us from determining that he could succeed on his ineffective-assistance claim, much less prevent us from considering the claim. Id. at 488-89.[7]

         In reaching our conclusion, we looked, first, to the Supreme Court's rulings in Lafler and in Missouri v. Frye, 566 U.S. 140 (2012). Id. at 487-88. We recognized that those cases- contrary to the dissent's contention-do not establish a threshold requirement of a more favorable plea offer. Rather, they acknowledged the extensive system of pleas that now dominates our criminal justice process and affirmed a defendant's right to effective counsel in these "crucial" negotiations. Id. True, Lafler and Frye noted that, despite the prevalence of plea bargaining, there is no constitutional right to the prosecutor's maintenance of a plea offer or a judge's acceptance of a plea offer. See Lafler, 566 U.S. at 168; Frye, 566 U.S. at 148-49. Thus, in light of the absence of such rights, the Supreme Court clarified that when counsel's deficient performance deprives a defendant of a fair opportunity in plea negotiations, he must make additional showings to meet the Strickland test. Frye, 566 U.S. at 148-49. Namely, a defendant must demonstrate a reasonable probability that, absent counsel's errors, the prosecutor would not have rescinded a plea offer and a judge would not have rejected it. Id.; see also Lafler, 566 U.S. at 168; Rodriguez-Penton, 905 F.3d at 487-88.

         We then turned to whether a defendant could establish prejudice based on the assertion that "he would have negotiated a plea deal" that did not leave him threatened with deportation. Rodriguez-Penton, 905 F.3d at 488 (emphasis added). We looked to rulings from our sister circuits for guidance and found that he could. Id. For example, we approved of the Ninth Circuit's logic in United States v. Rodriguez-Vega, which held that a petitioner can establish prejudice by showing "a willingness by the government to permit defendants charged with the same or a substantially similar crime to plead guilty to a non-removable defense." 797 F.3d 781, 788 (9th Cir. 2015). Likewise, we cited a decision from the Seventh Circuit that found prejudice because a defendant "could have tried to negotiate a different plea deal," notwithstanding the fact that the prosecutor in that case never offered a more favorable plea. DeBartolo v. United States, 790 F.3d 775, 779 (7th Cir. 2015) (emphasis supplied). In these cases, the courts found that the petitioner satisfied Strickland by establishing a reasonable probability that, absent counsel's errors, the defendant would have bargained for a better plea. See also Gabay v. Woodford, 418 Fed.Appx. 649, 651 (9th Cir. 2011) (suggesting defendant could have established prejudice based on counsel's failure to engage in plea negotiations if he had shown that government was willing to offer a plea deal).

         This line of reasoning is easily applicable to Byrd's case: because there is no right to a plea offer, where a petitioner alleges ineffective assistance of counsel prevented plea negotiations, demonstrating prejudice requires that he establish a reasonable probability that but for counsel's errors, the petitioner would have received a plea offer. See Lafler, 566 U.S. at 163-64 (establishing the requirement of a "reasonable probability" showing for potential pleas); Frye, 566 U.S. at 148-49 (same). Finally, as explained in Lafler and Frye, a petitioner must also show that he would have accepted the offer, the prosecution would not have rescinded the offer, and that the trial court would not have rejected the plea agreement. See Lafler, 566 U.S. at 168; Frye, 566 U.S. at 148-49; see also Delatorre v. United States, 847 F.3d 837, 846 (7th Cir. 2017) (explaining that, to establish prejudice where no plea was offered, petitioner "had to show-at minimum-that the prosecutor would have actually offered him a deal had his attorney been competent."); cf. Ramirez v. United States, 751 F.3d 604, 608 (8th Cir. 2014) (holding that petitioner could not establish prejudice because he failed to "show[] that a reasonable probability existed that the government would have extended a plea offer" or to establish his willingness to cooperate).[8]

         A petitioner raising this variety of Strickland claim thus faces a formidable standard, but we are convinced that Byrd has met it. With regard to Strickland's deficiency prong, the record shows Barnett's blatant incompetence. His errors were apparent and abundant, and without doubt, his representation fell far outside "prevailing professional norms." Strickland, 466 U.S. at 688.

         First, Barnett manifested a shocking lack of comprehension regarding the pertinent law in Byrd's case. This ignorance, coupled with the inaccurate advice he gave his client about the likelihood of his acquittal, is sufficient to deem Barnett's performance constitutionally inadequate. See Padilla, 559 U.S. at 369 (noting an attorney's duty to give correct advice when the law is clear); Maples v. Stegall, 340 F.3d 433, 439 (6th Cir. 2003) (holding that "patently erroneous" advice falls below an objectively reasonable standard of assistance); Magana, 263 F.3d at 550 (6th Cir. 2001) ("[Counsel's] complete ignorance of the relevant law under which his client was charged, and his consequent gross misadvice to his client regarding the client's potential prison sentence, certainly fell below an objective standard of reasonableness under prevailing professional norms."); Blackburn v. Foltz, 828 F.2d 1177, 1182 (6th Cir. 1987) (holding that counsel's assistance was deficient where he displayed "a startling ignorance of the law").

         Second, Barnett erred by failing to "provide[] [Byrd] with competent and fully informed advice, including an analysis of the risks that [he] would face in proceeding to trial." Burt v. Titlow, 571 U.S. 12, 25 (2013) (Sotomayor, J., concurring). As we previously explained in Smith v. United States, 348 F.3d 545, 553 (6th Cir. 2003):

A criminal defendant has a right to expect at least that his attorney will review the charges with him by explaining the elements necessary for the government to secure a conviction, discuss the evidence as it bears on those elements, and explain the sentencing exposure the defendant ...

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