Woods v. Etherton , 136 S. Ct. 1149 ( 2016 )

Cite as: 578 U. S. ____ (2016) 1
Per Curiam
SUPREME COURT OF THE UNITED STATES
JEFFREY WOODS, WARDEN v. TIMOTHY ETHERTON
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
No. 15–723. Decided April 4, 2016
PER CURIAM.
In the fall of 2006, Michigan law enforcement received
an anonymous tip that two white males were traveling on
I–96 between Detroit and Grand Rapids in a white Audi,
possibly carrying cocaine. Officers spotted a vehicle
matching that description and pulled it over for speeding.
Respondent Timothy Etherton was driving; Ryan Pollie
was in the passenger seat. A search of the car uncovered
125.2 grams of cocaine in a compartment at the bottom of
the driver side door. Both Etherton and Pollie were
arrested.
Etherton was tried in state court on a single count of
possession with intent to deliver cocaine. At trial the facts
reflected in the tip were not contested. The central point
of contention was instead whether the cocaine belonged to
Etherton or Pollie. Pollie testified for the prosecution
pursuant to a plea agreement. He claimed that he had
accompanied Etherton from Grand Rapids to Detroit, not
knowing that Etherton intended to obtain cocaine there.
According to Pollie, once the pair arrived in Detroit,
Etherton left him alone at a restaurant and drove off,
returning some 45 minutes later. It was only after they
were headed back to Grand Rapids that Etherton revealed
he had obtained the drugs.
The prosecution also called several police officers to
testify. Three of the officers described the content of the
anonymous tip leading to Etherton’s arrest. On the third
recounting of the tip, Etherton’s counsel objected on hear-
say grounds, but the objection was not resolved when the
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prosecutor agreed to move on. At closing, the prosecutor
also described the tip. The court instructed the jury that
“the tip was not evidence,” but was admitted “only to show
why the police did what they did.” App. to Pet. for Cert.
88a. The jury convicted Etherton, and his conviction was
affirmed on direct appeal. The Michigan Supreme Court
denied leave to appeal. People v. Etherton, 483 Mich. 896,
760 N.W.2d 472 (2009).
Etherton sought postconviction relief in state court on
six grounds. Three are relevant here: First, he claimed
that the admission of the anonymous tip violated his
rights under the Confrontation Clause of the Sixth
Amendment. Second, that his trial counsel was ineffective
for failing to object to the tip on that ground. And third,
that his counsel on direct appeal was ineffective for failing
to raise the Confrontation Clause and the ineffective
assistance of trial counsel claims.
The state habeas court rejected the first two claims on
procedural grounds and the third on the merits. To pre-
vail on a claim for ineffective assistance of appellate coun-
sel, the state court explained, Etherton had to demon-
strate that “appellate counsel’s decision not to pursue an
issue on appeal fell below an objective standard of reason-
ableness and that the representation so prejudiced [him]
as to deprive him of a fair trial.” App. to Pet. for Cert.
87a–88a. The state court concluded that Etherton failed
on both counts.
First, the court reasoned, appellate counsel may have
reasonably forgone any Confrontation Clause claim after
concluding that trial counsel’s failure to object was the
product not of ineffectiveness but of strategy. While
Etherton’s current counsel argues that trial counsel
should have objected because the tip’s reference to “two
men” suggested involvement by Etherton from the outset,
Brief in Opposition 20–21, the reference also suggested
Pollie’s prior involvement, contrary to his testimony that
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he was not with Etherton when he picked up the cocaine
and had nothing to do with it. As the state court ex-
plained, not objecting would have been consistent with
trial counsel’s “strategy to show defendant’s non-
involvement and possible responsibility of the passenger
(who was also charged).” App. to Pet. for Cert. 88a.
Second, the court determined, Etherton had not been
prejudiced by counsel’s choice: there was “ample evidence”
of his guilt and “the complained of errors, even if true,
would not have changed the outcome” of the case. Id., at
89a. Etherton’s allegations, the court concluded, ultimately
failed to overcome the presumption that his appellate
counsel functioned reasonably in not pursuing the Con-
frontation Clause or ineffectiveness claims. Ibid. Both
the Michigan Court of Appeals and the Michigan Supreme
Court denied leave to appeal.
Etherton next sought federal habeas relief. Under the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), federal habeas relief was available to him only
if the state court’s decision “was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United
States.” 28 U.S. C. §2254(d)(1). “A state court’s determi-
nation that a claim lacks merit precludes federal habeas
relief so long as ‘fairminded jurists could disagree’ on the
correctness of the state court’s decision.” Harrington v.
Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)). The state court
decision must be “so lacking in justification that there was
an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.”
White v. Woodall, 572 U. S. ___, ___ (2014) (slip op., at 4)
(internal quotation marks omitted).
When the claim at issue is one for ineffective assistance
of counsel, moreover, AEDPA review is “doubly deferen-
tial,” Cullen v. Pinholster, 563 U.S. 170, 190 (2011), be-
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cause counsel is “strongly presumed to have rendered
adequate assistance and made all significant decisions in
the exercise of reasonable professional judgment,” Burt v.
Titlow, 571 U. S. ___, ___ (2013) (slip op., at 9) (quoting
Strickland v. Washington, 466 U.S. 668, 690 (1984); in-
ternal quotation marks omitted). In such circumstances,
federal courts are to afford “both the state court and the
defense attorney the benefit of the doubt.” Burt, supra, at
___ (slip op., at 1).
The District Court denied relief, but the Court of Ap-
peals for the Sixth Circuit reversed in relevant part, over
the dissent of Judge Kethledge. The majority concluded
that Etherton’s appellate counsel had been constitution-
ally ineffective, and that no fairminded jurist could con-
clude otherwise. Etherton v. Rivard, 800 F.3d 737 (2015).
Without ruling on the merits of the court’s holding that
counsel had been ineffective, we disagree with the deter-
mination that no fairminded jurist could reach a contrary
conclusion, and accordingly reverse.
In finding counsel ineffective, the majority first con-
cluded that Etherton’s right to confrontation had been vio-
lated. The Confrontation Clause prohibits an out-of-court
statement only if it is admitted for its truth. Crawford v.
Washington, 541 U.S. 36, 60, n. 9 (2004). The Sixth Cir-
cuit determined that the contents of the tip were admitted
for their truth because the tip was referenced by three
different witnesses and mentioned in closing argument.
These “repeated references both to the existence and the
details of the content of the tip went far beyond what was
necessary for background,” the majority below concluded,
“indicating the content of the tip was admitted for its
truth.” 800 F.3d, at 751.
The majority next found that Etherton had been preju-
diced by the violation, a showing Etherton’s state court
counsel would have had to make on appeal to obtain relief
either on the forfeited Confrontation Clause objection, see
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People v. Carines, 460 Mich. 750, 763–764, 597 N.W.2d
130, 138–139 (1999) (showing of prejudice required to
overcome forfeiture), or the ineffectiveness claim, Strick-
land, supra, at 687 (showing of prejudice required to
demonstrate ineffective assistance of counsel). In finding
prejudice, the majority acknowledged the evidence of
Etherton’s guilt: the cocaine was found in a driver side
compartment inches from Etherton; he owned the car; and
he was driving at the time of arrest. But, according to the
majority, that evidence was not enough to convict Ether-
ton absent Pollie’s testimony. And that is where the tip
came in. “Because much of Pollie’s testimony was reflect-
ed in the content of the tip that was put before the jury,”
the Sixth Circuit stated, “the jury could have improperly
concluded that Pollie was thereby testifying truthfully—
that it was unlikely for it to be a coincidence for his testi-
mony to line up so well with the anonymous accusation.”
800 F.3d, at 753.
In reaching these conclusions, the Sixth Circuit did not
apply the appropriate standard of review under AEDPA.
A “fairminded jurist” could conclude that repetition of the
tip did not establish that the uncontested facts it conveyed
were submitted for their truth. Such a jurist might reach
that conclusion by placing weight on the fact that the
truth of the facts was not disputed. No precedent of this
Court clearly forecloses that view. It is also not beyond
the realm of possibility that a fairminded jurist could
conclude that Etherton was not prejudiced when the tip
and Pollie’s testimony corresponded on uncontested facts.
After all, Pollie himself was privy to all the information
contained in the tip. A reasonable judge might accord-
ingly regard the fact that the tip and Pollie’s testimony corre-
sponded to be unremarkable and not pertinent to Pollie’s
credibility. (In fact, the only point of Pollie’s testimony
actually reflected in the tip was that he and Etherton were
traveling between Detroit and Grand Rapids.)
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Etherton’s underlying complaint is that his appellate
lawyer’s ineffectiveness meant he had “no prior opportu-
nity to cross-examine the anonymous tipster.” Brief in
Opposition 11. But it would not be objectively unreason-
able for a fairminded judge to conclude—especially in light
of the deference afforded trial counsel under Strickland—
that the failure to raise such a claim was not due to in-
competence but because the facts in the tip were uncon-
tested and in any event consistent with Etherton’s de-
fense. See Harrington, 562 U.S., at 105 (“Even under
de novo review, the standard for judging counsel’s repre-
sentation is a most deferential one.”). A fairminded jurist
could similarly conclude, again deferring under Strick-
land, that appellate counsel was not incompetent in draw-
ing the same conclusion. And to reach the final point at
issue before the Sixth Circuit, a fairminded jurist—
applying the deference due the state court under AEDPA—
could certainly conclude that the court was not objectively
unreasonable in deciding that appellate counsel was not
incompetent under Strickland, when she determined that
trial counsel was not incompetent under Strickland.
Given AEDPA, both Etherton’s appellate counsel and
the state habeas court were to be afforded the benefit of
the doubt. Burt, supra, at ___. Because the Sixth Circuit
failed on both counts, we grant the petition for certiorari
and reverse the judgment of the Court of Appeals.
It is so ordered.