Kainte Hickey v. Bonita Hoffner ( 2017 )


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  •                        NOT RECOMMENDED FOR PUBLICATION
    File Name: 17a0389n.06
    No. 16-1186
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    FILED
    KAINTE DESHAWN HICKEY,                                  )                   Jun 30, 2017
    )               DEBORAH S. HUNT, Clerk
    Petitioner-Appellant,                            )
    )
    ON APPEAL FROM THE
    v.                                       )
    UNITED STATES DISTRICT
    )
    COURT FOR THE EASTERN
    BONITA J. HOFFNER, WARDEN,                              )
    DISTRICT OF MICHIGAN
    )
    Respondent-Appellee.                             )
    )
    )
    )
    BEFORE: GIBBONS, COOK, and GRIFFIN, Circuit Judges.
    JULIA SMITH GIBBONS, Circuit Judge. On March 25, 2008, Kainte Deshawn
    Hickey was convicted of first-degree premeditated murder and various other felonies following a
    joint jury trial with two codefendants, Quonshay Mason and Andre Jackson, in Wayne County,
    Michigan. His convictions arose from the fatal shooting of Bennie Peterson and the nonfatal
    shooting of Donteau Dennis. Hickey was sentenced to life imprisonment without the possibility
    of parole on the murder conviction and to a term of years on the remaining convictions. After
    Hickey’s various claims were denied by the Michigan Court of Appeals on direct appeal, he
    sought leave to appeal to the Michigan Supreme Court, arguing, for the first time, that his trial
    counsel was ineffective for failing to call Hickey’s sister, Talonda Haley, and her fiancé, Willie
    Johnson, as alibi witnesses and for failing to call Mason and a man named Hosiea Turner as
    Kainte Hickey v. Bonita Hoffner
    No. 16-1186
    exculpatory witnesses. The Michigan Supreme Court summarily denied Hickey’s application in
    a one-sentence order.
    Rather than seeking state post-conviction relief, Hickey filed a federal habeas petition,
    reasserting a number of the claims he raised on direct appeal, including, as relevant here, his
    ineffective-assistance-of-trial-counsel (“IATC”) claims regarding counsel’s failure to call the
    alibi and exculpatory witnesses at trial. Despite finding the IATC claims unexhausted, the
    district court nevertheless denied them on the merits. For the reasons stated below, we vacate the
    district court’s order and remand for further proceedings.
    I.
    The Michigan Court of Appeals summarized the relevant facts1 as follows:
    [Kainte Hickey’s and Quonshay Mason’s] convictions arise from the fatal
    shooting of Bennie Peterson and the nonfatal shooting of Donteau Dennis during
    the early morning hours of September 28, 2007, in the city of Detroit. Defendants
    were tried jointly with codefendant Andre Lamont Jackson, who was also
    convicted of first-degree premeditated murder, conspiracy to commit murder,
    assault with intent to commit murder, and felony-firearm.
    Dennis was the primary prosecution witness at trial. Dennis testified that he was
    at the home of Bennie Peterson when defendant Mason came to the house and
    invited them to participate in a planned robbery of a drug purchaser at the Cabana
    Hotel. Mason told them that the purchaser would be carrying a large sum of
    money. Peterson and Dennis agreed to go, and they left with Mason in Peterson’s
    van, with Mason driving. Codefendant Jackson followed them in a Jeep.
    According to Dennis, Jackson positioned himself in the Jeep to prevent Dennis
    from seeing another occupant in the Jeep.
    Instead of driving to the hotel, Mason drove to Malcolm Street, where he
    instructed Dennis to purchase drugs from a drug house; informing him that the
    drugs would be used as bait in the planned robbery. As Dennis began walking
    toward the drug house, he noticed that Mason and Jackson had positioned their
    vehicles so that Peterson’s van was trapped between the Jeep and another parked
    car. Hickey then approached Dennis, apparently having come from Jackson’s
    Jeep. Dennis owed a $50 drug debt to Hickey, who shot Dennis. During this
    same time, Dennis saw Mason and Jackson exit their vehicles carrying guns, and
    1
    These facts are presumed correct on federal habeas review. Wagner v. Smith, 
    581 F.3d 410
    , 413 (6th Cir.
    2009) (citing 
    28 U.S.C. § 2254
    (e)(1)).
    2
    Kainte Hickey v. Bonita Hoffner
    No. 16-1186
    one or both of them fired into the van. Peterson died from multiple
    gunshot wounds. Dennis was shot several times, but fled to the backyard of a
    home nearby and survived.
    Detroit Police Officer Frank Senter found Dennis lying in the backyard of that
    home. Dennis told Senter that Hickey had shot him over a drug debt, but did not
    say anything about Peterson, Mason, or Jackson. Over the next few days,
    Sergeant William Anderson interviewed Dennis at the hospital. Dennis reiterated
    that he was shot by Hickey, and also reported that Mason and Jackson had killed
    Peterson.
    People v. Hickey, Nos. 285253, 285254, 
    2011 WL 801034
    , at *1 (Mich. Ct. App. March 8, 2011)
    (footnote omitted).
    Hickey appealed his conviction and sentence to the Michigan Court of Appeals, raising
    various claims that are not at issue here. While that appeal was pending, Hickey filed a motion
    to remand for an evidentiary hearing and determination as to whether he should be granted a new
    trial on the basis of newly discovered evidence—namely, a post-trial affidavit from codefendant
    Mason. The allegations in Mason’s affidavit refuted Dennis’s trial testimony and, if believed,
    exculpated Hickey. Specifically, as summarized by the Michigan Court of Appeals, Mason
    alleged that
    he and another man, Hoseia “Man-Man” Turner, [had] waited outside the Cabana
    Hotel while Peterson robbed a drug addict and Dennis stole a gun from the
    robbery victim’s car. Mason claimed that when the group reconvened on
    Malcolm Street, Dennis and Peterson began arguing over the division of the
    robbery proceeds and struggled over the stolen gun. According to Mason, Dennis
    shot Peterson, jumped out of the van, and began to shoot at Mason and Turner,
    prompting Mason to shoot back in self-defense. Mason said that Jackson
    and Hickey were not present at the time of the shooting.
    
    Id. at *2
    . Turner also submitted an affidavit roughly corroborating Mason’s story. 
    Id.
     Hickey
    argued that Mason’s affidavit and proposed testimony was newly discovered evidence entitling
    Hickey to a new trial.
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    No. 16-1186
    The Michigan Court of Appeals granted Hickey’s motion to remand. Following a two-
    day evidentiary hearing—where Mason, Turner, Mason’s trial counsel, and Hickey’s trial
    counsel testified—the trial court denied Hickey’s motion for a new trial, concluding that
    Mason’s testimony was not newly discovered evidence but rather “newly available” evidence
    that Hickey did not attempt to secure before trial. DE 9-13, ID 971–75.
    Hickey returned to the Michigan Court of Appeals, where his initial appeal was pending.
    That court denied Hickey relief and affirmed his convictions. Hickey then sought leave to appeal
    from the Michigan Supreme Court, raising, for the first time, claims that his trial counsel was
    ineffective for failing to call Haley and Johnson as alibi witnesses and for failing to call Mason
    and Turner as exculpatory witnesses. The Michigan Supreme Court, in a one-sentence order,
    denied Hickey’s application because it was “not persuaded that the questions presented should be
    reviewed[.]” DE 9-14, ID 1136.
    Rather than pursuing state post-conviction relief, Hickey filed a federal habeas petition
    under 
    28 U.S.C. § 2254
    , asserting his IATC claims regarding counsel’s failure to call Haley,
    Johnson, Mason, and Turner at trial. The district court denied Hickey’s petition. Despite finding
    that Hickey’s IATC claims were unexhausted, the district court nevertheless denied them on the
    merits under 
    28 U.S.C. § 2254
    (b)(2) and Strickland v. Washington, 
    466 U.S. 668
     (1984).
    Hickey timely appealed and we granted a certificate of appealability as to whether
    Hickey’s counsel was ineffective for failing to call Haley, Johnson, and Turner as witnesses at
    trial and whether, as a threshold matter, those claims were procedurally defaulted.2 Hickey
    subsequently filed a motion to stay these proceedings in order to allow him to return to state
    court and exhaust his available remedies.
    2
    We did not grant a certificate of appealability regarding whether counsel was ineffective for failing to call
    Mason as a witness because we found that Mason could have invoked his Fifth Amendment right against self-
    incrimination if called to testify.
    4
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    No. 16-1186
    II.
    We review de novo a district court’s denial of habeas relief. Cowan v. Stovall, 
    645 F.3d 815
    , 818 (6th Cir. 2011) (citation omitted). Because no state court has addressed the merits of
    Hickey’s present IATC claims, we do not apply deference under 
    28 U.S.C. § 2254
    (d).
    Thompson v. Bell, 
    580 F.3d 423
    , 439 (6th Cir. 2009).
    III.
    We agree with the district court that Hickey’s IATC claims are unexhausted. A federal
    court is prohibited from granting habeas relief unless the petitioner has “exhausted the remedies
    available in the courts of the State.” 
    28 U.S.C. § 2254
    (b)(1)(A); see also Coleman v. Thompson,
    
    501 U.S. 722
    , 731 (1991). A habeas petitioner “shall not be deemed to have exhausted the
    remedies available in the courts of the State . . . if he has the right under the law of the State to
    raise, by any available procedure, the question presented.” 
    28 U.S.C. § 2254
    (c). The Supreme
    Court has interpreted this to require that prisoners give state courts a “fair opportunity to act on
    their claims” by “invoking one complete round of the State’s established appellate review
    process.” O’Sullivan v. Boerckel, 
    526 U.S. 838
    , 844–45 (1999).
    Hickey first presented his IATC claims regarding trial counsel’s failure to call Haley,
    Johnson, and Turner as witnesses in his application for leave to appeal to the Michigan Supreme
    Court.3 It summarily denied Hickey’s application, finding that the questions presented did not
    warrant review. Rather than pursuing state post-conviction relief, Hickey immediately filed a
    § 2254 habeas petition in federal court.
    Presenting new claims to the state’s highest court for the first time on discretionary
    review, however, does not constitute fair presentation of those claims. Skinner v. McLemore,
    3
    Hickey did present other theories of ineffective assistance to the Michigan Court of Appeals, but not his
    present claims that counsel was ineffective for failing to call Haley, Johnson, and Turner as witnesses.
    5
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    No. 16-1186
    425 F. App’x 491, 494 (6th Cir. 2011) (citing Castille v. Peoples, 
    489 U.S. 346
    , 349 (1989)). By
    raising his IATC claims for the first time on appeal to the Michigan Supreme Court and then
    eschewing state collateral relief, Hickey did not give the Michigan state courts a “fair
    opportunity to act” on his claims. O’Sullivan, 
    526 U.S. at 844
    .
    But Hickey can still do so. Specifically, he can file a post-conviction motion for relief
    from judgment in state court under MCR § 6.502. See Cowan, 
    645 F.3d at 820
    ; Wagner v.
    Smith, 
    581 F.3d 410
    , 419 (6th Cir. 2009). Because he has not yet filed such a motion, and since
    there is no statutory time limit for doing so, this avenue is still available to him. See Wagner,
    
    581 F.3d at 419
    ; see also MCR § 6.502(G). True, the state trial court may not entertain such a
    motion if it concludes that Hickey’s IATC claims could have been raised on direct appeal, unless
    he can show “good cause” for not raising them and “actual prejudice.”4 MCR § 6.508(D)(3).
    But Hickey could make such a showing by raising, for example, an ineffective-assistance-of-
    appellate-counsel claim. See Milstead v. Sherry, 525 F. App’x 323, 324–25 (6th Cir. 2013);
    People v. Walton, No. 276161, 
    2008 WL 2262177
    , at *2 (Mich. Ct. App. June 3, 2008). In any
    event, that is a decision for the state court. See Wagner, 
    581 F.3d at 419
    .
    Because Hickey’s IATC claims are unexhausted and because there is still a state
    procedure through which Hickey can pursue relief, we cannot grant him relief on these claims.
    Yet, we still must decide what to do with them. If they were plainly meritless, we could affirm
    the district court’s decision denying them as such. See 
    28 U.S.C. § 2254
    (b)(2); Farley v. Lafler,
    193 F. App’x 543, 549 (6th Cir. 2006). But unlike the district court, we do not find these claims
    plainly meritless. Hickey has alleged that his trial counsel was ineffective for failing to call two
    alibi witnesses and one exculpatory witness. The record suggests that these witnesses would
    4
    The other potential bar, MCR § 6.508(D)(2)—which prevents the Michigan trial court from granting post-
    conviction relief on any claim that was “decided against” the petitioner on direct appeal—is not triggered when the
    petitioner raises his claims for the first time before the Michigan Supreme Court. See Skinner, 425 F. App’x at 495.
    6
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    have all testified, in some form, that Hickey was not present at the crime scene. Moreover, the
    sole evidence linking Hickey to the crime was Dennis’s identification of Hickey as the shooter.
    On such a record, we conclude that Hickey has presented at least a colorable claim of ineffective
    assistance. See Bigelow v. Williams, 
    367 F.3d 562
    , 570 (6th Cir. 2004) (noting that “the failure
    to call a known alibi witness generally . . . constitute[s] ineffective assistance of counsel.”
    (citing Matthews v. Abramajtys, 
    319 F.3d 780
    , 789–90 (6th Cir. 2003))).
    That is not to say, however, that Hickey will necessarily succeed on his IATC claims. At
    this point, Hickey has not satisfied his burden of showing that counsel was ineffective. But we
    recognize that further factual development may allow him to do so. The development of these
    claims may illuminate, for example, the extent of counsel’s investigation into these witnesses,
    counsel’s reasons for not calling them, and further details concerning their testimony. Whether
    this evidence will ultimately help or hurt Hickey’s claims, we refuse to speculate. At this time, it
    is enough to say that his claims are not plainly meritless. Accordingly, we vacate the district
    court’s order denying them as such.
    IV.
    Hickey has filed a motion requesting that we stay these proceedings and hold his petition
    in abeyance until he can return to state court and exhaust his IATC claims. The “stay and
    abeyance” procedure is appropriate only where the petitioner can show that: (1) his unexhausted
    claims are not plainly meritless, and (2) there was good cause for failing to present the claims to
    the state court.5 Rhines v. Weber, 
    544 U.S. 269
    , 277 (2005); Wagner, 
    581 F.3d at 419
    . Although
    we have already concluded that Hickey’s IATC claims are not plainly meritless, we remand to
    the district court to decide, in the first instance, whether Hickey can show good cause for failing
    5
    Although Rhines discussed this procedure in the context of “mixed petitions,” other circuits have found it
    appropriate for petitions containing solely unexhausted claims. See, e.g., Mena v. Long, 
    813 F.3d 907
    , 912 (9th Cir.
    2016).
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    No. 16-1186
    to raise these claims in state court. See Wagner, 
    581 F.3d at
    419–20. If Hickey can make such a
    showing, then the district court should stay Hickey’s petition (now comprising only his present
    IATC claims) and hold it in abeyance while he returns to state court to exhaust his available
    remedies. 
    Id.
    V.
    For the foregoing reasons, we vacate the district court’s denial of Hickey’s ineffective-
    assistance claims and remand for further proceedings consistent with this opinion.
    8