by Sam Rutherford

The U.S. Court of Appeals for the Sixth Circuit affirmed the U.S. District Court for the Eastern District of Michigan’s order granting a Michigan prisoner’s petition for writ of habeas corpus based on claims that he received ineffective assistance of counsel and that the State struck Blacks from the jury pool for potentially discriminatory reasons.

Background

In the early morning hours of May 28, 2014, Tina Williams was working as an attendant at a gas station in Detroit, Michigan. She was standing behind the register inside a bullet-proof enclosure. At approximately 3:30 a.m., a man, later identified as Darrell Walker, entered the business and asked where the coffee machine was. Williams existed from her enclosure and pointed to the coffee machine, but Walker seemed disoriented and just milled around the store.

A few minutes later, another man entered the store, and Williams heard him demand money from a female patron. Williams looked up and saw the man was wearing a gray hoodie, blue shoes, and a T-shirt pulled up over his mouth and nose. The man pointed a firearm at Williams and demanded she turn over money from the register. Williams responded by locking the door to her bulletproof enclosure. The masked gunman became enraged, attacked a display below the enclosure, fired his gun at it until he ran out of ammunition, and then fled. Walker did not flee during this encounter. Instead, he stayed inside the store screaming at Williams to open her enclosure and turn over the money to stop the shooting.

Meanwhile, Lafayette Deshawn Upshaw, who is Black, clocked off work at 3:00 a.m. His boss gave him a ride home, during which they discussed Upshaw’s Timberland boots, which was about three miles from the gas station. Upshaw arrived at his residence around 3:15 or 3:20 a.m. His aunt, Crystal Holloway, let him in the front door, which also woke his grandmother, JoAnn Green. Holloway and Green both witnessed Upshaw go upstairs and play with his young daughter until about 4:00 a.m.

A few hours later, police apprehended Upshaw and Walker in the midst of committing a home invasion robbery. The men were caught crawling out separate windows of an off-duty police officer’s home across town from Upshaw’s residence. Upshaw was wearing Timberland boots when he was arrested. The gas station cashier, Tina Williams, subsequently identified both men as the robbers. Both men pleaded guilty to the home invasion but proceeded to trial on the robbery charge. Walker claimed that he was merely an innocent bystander, while Upshaw challenged the evidence placing him at the gas station.

Upshaw was represented by several attorneys his family retained for him. He informed the first attorney, Anthony Paige, of his alibi witnesses, but Paige failed to contact them and was ultimately fired about two weeks before trial for missing numerous court dates. Upshaw’s second attorney, Wright Blake, also failed to contact the alibi witnesses but reassured the court that he would be “up to speed” in time for trial. Blake did not interview or call Upshaw’s aunt or grandmother to testify at trial, and instead, he relied solely on Upshaw’s boss and the Timberland boots Upshaw wore to establish that he was not the masked robber wearing blue shoes.

During jury selection, the State used six of its eight peremptory challenges to remove Blacks from the jury, prompting Upshaw’s attorney to object. Without first determining whether Upshaw presented a prima facie case of discrimination, the trial court invited the prosecutor to offer race-neutral justifications for the challenges. The State was able to do so for only three of its six peremptory strikes before the court interjected to provide a race-neutral justification on its own for the fourth strike. The court then overruled Upshaw’s objection without addressing the two remaining strikes.

Upshaw and Walker were both convicted. Upshaw was sentenced to a term of 20 to 42 years in prison for the robbery conviction, in addition to the 1 to15 year sentence he received for his guilty plea to the home invasion charge. After exhausting his state court remedies, Upshaw filed a petition for writ of habeas corpus in U.S. District Court. The District Court held an evidentiary hearing and then granted Upshaw’s petition, concluding that his attorney provided ineffective assistance by failing to investigate and present Upshaw’s alibi witnesses and that the trial court violated Upshaw’s right to equal protection by failing to properly determine whether the State’s peremptory challenges to the potential Black jurors were race-neutral. The State timely appealed.

Analysis

The Sixth Circuit began its analysis by setting forth the standard of review applicable to habeas petitions challenging state court convictions, which is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Such petitions may only be granted where the last reasoned state court decision rejecting the petitioner’s constitutional claims was either “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1) and (d)(2).

As the Supreme Court has repeatedly emphasized, this is an extremely demanding and difficult standard to meet. See, e.g., Williams v. Taylor, 529 U.S. 362 (2000). Thus, under the AEDPA, “[a] state court’s determination that a claim lacks merit precludes federal habeas relief so long as fair-minded jurists could disagree on the correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86 (2011) (internal quotation marks and citation omitted).

While only the “the holdings of the Supreme Court’s decisions, not the dicta,” determine “whether a state-court decision is contrary to or an unreasonable application of clearly established Supreme Court precedent,” Bryan v. Bobby, 843 F.3d 1099 (6th Cir. 2016), “the decisions of lower federal courts may be instructive in assessing the reasonableness of a state court’s resolution of an issue.” Stewart v. Erwin, 503 F.3d 488 (6th Cir. 2007). This determination must be made based solely on the record presented to the state courts, not on facts subsequently adduced at an evidentiary hearing in federal court. Cullen v. Pinholster, 563 U.S. 170 (2011).

Applying this deferential standard of review, the Court turned first to Upshaw’s ineffective assistance of counsel claim. To establish such a claim, Upshaw had to show that his attorney’s performance was both constitutionally deficient and prejudicial. Strickland v. Washington, 466 U.S. 668 (1984). Counsel’s performance is deficient when it falls below “prevailing professional norms,” not “best practices” or “common customs.” Harrington. Deficient performance is considered prejudicial when “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland.

The Supreme Court has repeatedly held that prevailing professional norms require defense attorneys to conduct reasonable investigations prior to trial. See, e.g., Wiggins v. Smith, 539 U.S. 510 (2003); Williams v. Taylor, 529 U.S. 362 (2000). The Sixth Circuit has likewise held that trial counsel violates this duty when he or she “fails to file a timely alibi notice and/or fails adequately to investigate potential alibi witnesses.” Clinkscale v. Carter, 375 F.3d 430 (6th Cir. 2004).

Based solely on the state court record, the Court easily determined that the Michigan Court of Appeals’ decision rejecting Upshaw’s ineffective assistance claim was both an unreasonable application of Strickland and an unreasonable determination of the facts. Nothing in record supported finding that defense counsel’s unexplained failure to interview the alibi witnesses prior to trial or request a continuance to do was anything other than constitutionally deficient performance, according to the Court. Likewise, the Court reasoned that the state court’s discounting of that alibi evidence “defied common-sense” because Upshaw’s aunt and grandmother both gave detailed accounts that placed him at home during the robbery.

The Court explained that this deficient performance was prejudicial because the State’s case against Upshaw was based on nothing more than a single eyewitness identification. “Eyewitness testimony is notoriously unreliable.” See Blackburn v. Foltz, 828 F.2d 1177 (6th Cir. 1987); Ryanne Berube, Milo M. Wolford, Alison D. Redlich, Yan Wang, Identifying Patterns Across the Six Canonical Factors Underlying Wrongful Convictions, 3 Wrongful Conviction L. Rev. 166, 172 (2022). Consequently, “potential alibi witnesses coupled with an otherwise weak case renders the failure to investigate the testimony sufficient to ‘undermine confidence’ in the outcome of the jury verdict.” Avery v. Prelesnik, 548 F.3d 434 (6th Cir. 2008).

The fact that the robber was masked rendered the clerk’s identification of Upshaw tenuous. His alibi witnesses, on other hand, conclusively placed him at home over three miles from the gas station at the exact time it was being robbed and further affirmed that he left the house hours later with plenty of time to participate in the home invasion. That Upshaw was apprehended with Walker, who was unquestionably at the gas station, in no way undermined his alibi. Thus, the Court concluded that counsel’s deficient performance was prejudicial because Upshaw likely would have been acquitted “if counsel had called even one alibi witness.”

The Court next addressed Upshaw’s jury discrimination claim. Clearly established Supreme Court case law holds that “the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State’s case against a black defendant.” Batson v. Kentucky, 476 U.S. 79 (1986); see also Miller-El v. Dretke, 545 U.S. 231 (2005). The impermissible exclusion of even a single minority juror violates Batson. See Snyder v. Louisiana, 552 U.S. 472 (2008).

A Batson challenge, as it is called, to a prosecutor’s peremptory strikes of minority jurors proceeds in three steps – first, the defendant must make a prima facie showing that the strike was based on race; second, the prosecutor must offer a race-neutral explanation for the challenge; and third, the court then determines whether the defendant has proven purposeful discrimination. United States v. McAllister, 693 F.3d 572 (6th Cir. 2012). Each step is mandatory, unless the State provides a race-neutral explanation for the strikes, and the trial court rules on the ultimate question of intentional discrimination. Then, “the preliminary issue of whether the defendant had made a prima facie showing becomes moot.” Hernandez v. New York, 500 U.S. 352 (1991) (plurality opinion).

In this case, the Michigan Court of Appeals rejected Upshaw’s Batson challenge by ruling that he failed to satisfy step one – establishing a prima facie case of intentional discrimination. However, the District Court held that this determination was an unreasonable application of Hernandez because the trial court addressed the second and third steps. The State argued on appeal that the District Court erred by finding that Hernandez constitutes “clearly established” law under the AEDPA because it is a plurality opinion. The Court rejected this argument, noting that the Supreme Court has repeatedly cited Hernandez as settled law and that Sixth Circuit precedent holds the decision qualifies as clearly established. Lancaster v. Adams, 324 F.3d 423 (6th Cir. 2003). Thus, like the District Court before it, the Court proceed to steps two and three under a de novo standard of review.

At step two, it is the prosecutor’s responsibility to provide race-neutral explanations for his or her strikes of minority jurors. Accordingly, “when a trial court offers its own speculation as to the prosecutor’s reasons for striking minority jurors, it essentially disregards its own core function under Batson – to evaluate the reasons offered by the prosecutor … to determine the prosecutor’s true intent.” Johnson v. Martin, 3 F.4th 1210 (10th Cir. 2021). This is exactly what the trial court did in the current case. After the prosecutor offered explanations for striking several of the six Black jurors it challenged, the trial court interjected its own additional reason for striking another and then abruptly ended the inquiry.

This created an additional issue under the second step. By terminating the inquiry before the prosecutor offered explanations for all six of its strikes, the trial court short-circuited the process and essentially relieved the State of its burden of proof under the second step, the Court stated. The prosecutor never offered any explanation at all for two of its six peremptory strikes, thereby violating Upshaw’s rights under Batson.

The Court also found that Upshaw’s rights were violated under the third step as well, which required the trial court to “determine whether the prosecutor’s stated reasons were the actual reasons or instead were a pretext for discrimination.” Flowers v. Mississippi, 139 S. Ct. 2228 (2019). Upshaw’s trial judge interrupted the prosecutor’s explanation for the six peremptory strikes and then stated: “Well, the Prosecutor has given some explanation other than race being challenged. I don’t think the Batson motion can be sustained. I don’t have any further comments on whether it’s good or bad. That’s the strategy of a trial.” The Court determined that this statement clearly indicated that the trial judge abdicated its “responsibility to enforce Batson and prevent racial discrimination from seeping into the jury selection process.” Flowers.

Thus, the Court held that the District Court properly granted Upshaw’s habeas petition on this claim because his trial “judge failed to properly apply Batson in multiple respects,” and “Michigan’s appellate courts failed to apply clearly established Supreme Court precedent [to] remedy these violations.”

Conclusion

Accordingly, the Court affirmed the District Court’s order granting habeas relief and directing the State to retry Upshaw within 120 days or release him from custody on the robbery charge. See: Upshaw v. Stephenson, 97 F.4th 365 (6th Cir. 2024).

Additional source: People v. Walker, 2016 Mich. App. LEXIS 1007 (2016) (unpublished).

Writer’s note: Upshaw’s co-defendant, Darrell Walker, was not as fortunate. His state court appeals and federal habeas petition were all rejected, and his 300-to-600-month sentence as a fourth-offense habitual offender was affirmed. See: Walker v. Chapman, 2020 U.S. App. LEXIS 32093 (6th Cir. 2020). Walker filed his habeas petition pro se, while Upshaw was represented by counsel in federal court. One wonders if this was the deciding factor since the State’s case against both men was far from overwhelming.

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