Brooks v. Anderson

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0537n.06
Filed: August 29, 2008
No. 06-4286
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
)
QUAMAINE BROOKS, )
)
Petitioner-Appellant, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
) COURT FOR THE NORTHERN
v. ) DISTRICT OF OHIO
)
CARL ANDERSON, Warden, )
)
Respondent-Appellee. )
BEFORE: COLE and GRIFFIN, Circuit Judges; and SARGUS, District Judge.*
SARGUS, District Judge. Petitioner-Appellant Quamaine Brooks appeals the decision
of the district court denying his petition for a writ of habeas corpus. For the reasons that follow,
the decision of the district court is affirmed.
I.
A. FACTS
The Petitioner-Appellant Quamaine Brooks (“Appellant” or “Brooks”) was charged with
a serious assault against an infant family member, Angelique Stratford. At the time of the
incident, Brooks was a twenty-year-old high school junior. He lived with his mother, Geraldine
*
The Honorable Edmund A. Sargus, Jr., United States District Judge for the Southern District of Ohio,
sitting by designation.
Brooks, together with Angelique and a number of other extended family members.
At trial, the prosecution contended that Brooks assaulted Angelique and inflicted severe
injuries resulting from “shaken baby syndrome.” Michael Brooks, nephew of the Appellant, was
an eight-year-old residing in the same home. He testified at trial that he saw the appellant punch
Angelique in her back and side and also hold her upside down by her leg. Appellant denied that
he had any physical contact with the infant. While there was no dispute that Angelique was
severely injured, the evidence against Brooks included the testimony of Michael Brooks, and
Brooks’ false claim that he was at work or school at the time of the assault, an alibi later
discredited by the prosecution.
Brooks was charged and tried together with his mother, Geraldine Brooks (“Mrs.
Brooks”), who was charged with child endangering. Mrs. Brooks and several family members,
other than Appellant, arranged to have one lawyer represent both Mrs. Brooks and Appellant.
Before the trial began, the trial judge engaged in the following colloquy:
THE COURT: Okay. Now, I don’t know the facts at all of this
case. It could be that there are facts that may be favorable to one of
you and unfavorable to the other. Do you know that and do you
understand that by having the same attorney, there may be a fact
favorable to you, Mrs. Brooks, but because of it, it would be
unfavorable to your husband [sic]? I don’t know what your
attorney would choose to do in that instance.
Do you each understand that by having one attorney, you may be
giving up some of your own individual rights? Not rights in the
terms of constitutional but factors that may inure to your benefit
even though they might hurt the other one. Do you understand
that?
DEFENDANT QUAMAINE BROOKS: Yes.
THE COURT: Do you understand that?
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DEFENDANT GERALDINE BROOKS: Yes.
THE COURT: And it’s my understanding that you choose to
each have the same attorney?
DEFENDANT GERALDINE BROOKS: Yes.
THE COURT: Mr. Brooks?
DEFENDANT QUAMAINE BROOKS: Yes.
THE COURT: Now, Mr. Jordan, I assume based on your
competency that you have gone over conflict of interest with your
clients and that you have kept that in mind when reviewing the
evidence as you may understand the evidence to be?
MR. JORDAN: I have, your Honor.
THE COURT: However, you and I both know by experience
that the evidence that comes out in the courtroom isn’t always as
we anticipate it is.
MR. JORDAN: That’s correct.
THE COURT: You understand that you know if later shown that
there was a conflict of interest that inured to one of your clients’
detriments, that is a grave condition and a very serious matter
under the rules of ethics? You understand that, and you are taking
that risk? You understand that, Mr. Jordan?
MR. JORDAN: Yes, I understand that, your Honor.
During the trial, defense counsel called Wadell Jefferson as a defense witness. Jefferson
lived in an apartment directly above the residence in which Angelique was attacked. Jefferson
testified that she knew that Elaine Brooks, a sister of Geraldine Brooks, lived in the same
apartment with Appellant and his mother, and that Angelique’s parents had left Angelique with
Elaine Brooks. Defense counsel then attempted to elicit testimony that Elaine Brooks suffered a
breakdown in February of 1998, just prior to Angelique being injured. The following exchange
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occurred during the trial:
Q Do you know approximately how long Angelique stayed in
the care of Elaine?
A Until like February, the second week in – second week in
February.
Q During that time period, did you have an occasion to
experience something unusual with Elaine?
A Yes.
Q Could you please describe to the jury what that
experience was?
A She –
MS. NAIMAN: Objection.
THE COURT: Approach the bench.
-----
(A discussion was had at the bench, on the record,
out of the hearing of the jury:)
-----
THE COURT: Go ahead.
MR. JORDAN: Your Honor, at this
time she is going to testify that in February of 1998
that Elaine suffered some kind of a mental
breakdown or what not, that they came up to her
apartment and that she hurt her – hurt her children
and she had to be taken away by the police and the
ambulance to seek care and that she was treated and
then returned back to the house just prior to the time
period of February 22nd through March 7th. And I
believe at this time Elaine has been there at the
house the whole time that Angelique was present
during the time and, again, that my theory is that
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Elaine could have been the one who injured this
child.
THE COURT: Doesn’t this kind of
conflict with your other client’s rights because if
this is true and Geraldine knew of Elaine’s violent
tendency and Elaine did in fact hurt this baby,
wouldn’t that really make your client guilty of child
endangering? Isn’t this a conflict between your
clients here, Mr. Jordan, just the kind I questioned
all throughout the pendency of this case?
MR. JORDAN: Your Honor, she is
going to question – she gives Elaine medication and
she’s fine on the medication. Any kind of outbreak
is –
THE COURT: Well, then, what’s –
MS. NAIMAN: First of all, if I heard
the – did you state she is going to say that Elaine
hurt those children? Is that what you said?
MR. JORDAN: Yes.
MS. NAIMAN: I’d like to know on
what basis you are – I mean, all you showed me was
a copy of a CFS report that indicated that Wadell
said that Elaine said she was going to hurt the
babies, which is hearsay. Wadell never reported
that her children were hurt. So, I would say first of
all that this is perjuring herself because she is
making this story more serious than it is and the
statement was, Elaine said she was going to do
something, not that she did hurt anybody.
THE COURT: Okay. That’s number
one. Do you have any other objection to this
testimony coming in and if so state your objection,
please.
MS. NAIMAN: Well, it is – well, it is
going to be a conflict especially as to Geraldine, not
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so much as to Quamaine. And it’s my
understanding that you had this witness on your
witness list from the beginning and you knew what
she was going to testify to.
THE COURT: Which is a total
conflict to your client, right, which puts me in a
position of possibly granting a mistrial here because
you cannot put her on to make the jury believe that
she is a dangerous person and then somehow
absolve you by saying your client is going to say
that I trusted her. That is ludicrous.
MR. JORDAN: BJ said she trusted her
also.
THE COURT: I don’t care. It’s a
conflict of interest, number one. Number two, if
you want to show Elaine’s a violent person, bring
on Elaine. You are not going get into hearsay.
Everything you have gotten is hearsay and quite
frankly I didn’t hear – I don’t know why I didn’t
hear an objection earlier. Sustained.
(JA 868-872).
Later, defense counsel asked Jefferson:
Q Do you know how those scratches came to be on
Angelique’s body?
THE COURT: Yes or no only.
A Yes.
Q How did you know this?
A I went to a meeting at the –
MS. NAIMAN: Objection.
THE COURT: Sustained. Sustained. Did you see the scratches
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occur?
THE WITNESS: No.
THE COURT: Move on. One more question on that issue you
could ask.
Q Do you know approximately what time you came downstairs on Saturday
the 7th?
A About 9:00.
Q I’m sorry?
A 9:00.
Q Was Quamaine present?
A No.
Q Did you have occasion to tell Geraldine anything with regards to Michael
and Angelique?
A Yes.
Q And what did you tell them?
MS. NAIMAN: Objection.
THE COURT: Sustained. Approach the bench.
-----
(A discussion was had at the bench, on the record,
out of the hearing of the jury)
-----
THE COURT: You keep trying to elicit
hearsay. First of all, I’m going to tell you, you
could have asked about the scratches, you could ask
did anyone admit to you that they themselves caused
the scratches. I don’t know what your answer is
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going to be. But you have to ask the questions in a
way they do not appear to elicit the hearsay. I will
sustain objections always. So, that’s the question I
meant that you could ask. Now, wait a minute. I
don’t know what’s going on here. What’s your
objection?
(JA 875-876).
The jury subsequently convicted Appellant Brooks of felonious assault and child
endangering, and he was sentenced to serve a term of eleven years in prison. Mrs. Brooks was
convicted of child endangerment.
B. PROCEDURAL BACKGROUND
Following their convictions, Appellant and his mother retained another attorney, and both
appealed their convictions. No issues related to trial counsel’s potential conflict of interest were
raised on direct appeal. The Ohio Court of Appeals for the Eighth District affirmed the
convictions on March 30, 2000. Appellant thereafter filed a timely appeal to the Ohio Supreme
Court, which dismissed the appeal for failure to comply with a series of filing requirements.
Appellant then filed a Motion for Delayed Appeal in the Ohio Supreme Court, which the Court
denied on November 22, 2000.
Brooks also filed a timely Application for Reopening under Ohio App. R. 26(B), which
the Ohio Court of Appeals denied on August 21, 2001. Brooks appealed the denial of that
application to the Ohio Supreme Court, which denied relief on December 5, 2001.
On July 22, 2002, Brooks filed a petition in federal district court seeking a writ of habeas
corpus. The petition contains four claims including: (1) trial counsel was ineffective and should
have withdrawn from the case in light of an actual conflict of interest; (2) the trial court erred by
8
not declaring a mistrial, given an actual conflict of interest on behalf of trial counsel;
(3) appellate counsel was ineffective by failing to raise meritorious issues on appeal; (4) the state
appellate court erred by refusing to reopen the appellant’s appeal despite evidence demonstrating
a conflict of interest on the part of both trial and appellate counsel.
On August 19, 2003, the Magistrate Judge for the Northern District of Ohio issued a
Report and Recommendation finding merit as to all four grounds for relief. The Magistrate
Judge first found that trial counsel had an actual conflict of interest which became apparent
during the testimony of Wadell Jefferson. The Magistrate Judge also concluded that the trial
judge excluded Jefferson’s testimony because of the apparent conflict, and incorrectly
characterized her testimony as hearsay. The Magistrate Judge found that trial counsel failed to
pursue or elicit testimony regarding the alleged violent behavior of Elaine Brooks, which could
have exculpated the appellant while inculpating Mrs. Brooks. Based upon these conclusions, the
Magistrate Judge recommended that a conditional writ be granted directing the state of Ohio to
retry the appellant or, alternatively, to direct the respondents to accord Brooks a new appeal.
The district court disagreed with the recommendation, and found that Brooks had
knowingly and voluntarily waived the conflict of interest before the trial began. Additionally, the
district judge concluded that, if the proferred testimony was properly excluded as constituting
inadmissible hearsay, no actual conflict of interest could have arisen. The court concluded, as
did the state appellate court, that the proffer made by trial counsel was muddled as to whether the
witness could or could not testify as to personal knowledge. Given the lack of clarity, the alleged
inconsistency between the witness’s testimony and prior statements, together with other evidence
inculpating the appellant, the district court concluded that exclusion of the proffered testimony
9
“did not violate constitutional standards of due process.” Brooks v. Bobby, 2006 U.S. Dist.
LEXIS 59205 (N.D. Ohio Aug. 22, 2006).
Appellant now appeals the decision of the district court. Brooks contends that he was
deprived of his constitutional right to be represented by an attorney who did not labor under an
actual conflict of interest. He also asserts that, contrary to the decision of the district court, he
did not intelligently, knowingly and voluntarily waive his right to be represented by conflict-free
counsel.
II.
The district court had jurisdiction over this action based upon 28 U.S.C. § 2254, which
authorizes the issuance of a writ of habeas corpus upon a showing that a petitioner was in state
custody in violation of the United States Constitution.
Since the district court did not hold an evidentiary hearing, this court reviews the lower
court’s judgment de novo. Ramonez v. Berghius, 490 F.3d 482, 486 (6th Cir. 2007).
III.
The Antiterrorism and Effective Death Penalty Act of 1996 provides:
(d) An application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the merits
in State court proceedings unless the adjudication of the claim -
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
10
28 U.S.C. 2254 (d)(1) and (2).
As this court held in Wilson v. Parker, 515 F.3d 682, 691 (6th Cir. 2008):
Under the “contrary to” clause, a federal court may grant habeas relief
if the state court arrives at a conclusion opposite to that reached by
the Supreme Court on a question of law or if the state court decides
a case differently than the Supreme Court has decided on a set of
materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362,
405-06, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000); Bugh v. Mitchell,
329 F.3d 496, 501 (6th Cir. 2003).
“‘[C]learly established Federal law, as determined by the Supreme
Court of the United States,’ refers to ‘the holdings, as opposed to the
dicta, of [the Supreme] Court’s decisions as of the time of the
relevant state-court decision.’” Williams v. Bagley, 380 F.3d 932, 942
(6th Cir. 2004) (quoting Williams, 529 U.S. at 412, 120 S. Ct. 1495).
The Supreme Court recognized as early as Glasser v. United States, 315 U.S. 60 (1942),
that the Sixth Amendment right to the effective assistance of counsel is violated if one attorney
represents two co-defendants whose interests are in conflict. More recently, the Supreme Court
has noted the dangers of joint representation, ranging from a failure to challenge the admission of
evidence damaging to one client, and favorable to the other, to the conflict during sentencing
regarding claims of the relative culpability of each defendants. See, e.g., Holloway v. Arkansas,
435 U.S. 475, 482 (1978); Wheat v. United States, 486 U.S. 153, 168 (1988).
This appeal is premised upon the claim that trial counsel labored under an actual conflict
of interest. The Ohio state court of appeals correctly framed the issue as follows:
In order to establish ineffective assistance of counsel in this case,
appellate counsel had to establish an actual conflict existed. An
actual conflict would not exist if it depended on inadmissible
evidence, such as hearsay. . . [citations omitted].
If Wadell’s hearsay statements were unquestionably admissible, then
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there would have been an actual conflict of interest. There could be
no doubt that trial counsel could have pursued a strategy which would
incriminate one of his clients while it also was a benefit to the other
client. Thus the issue is the admissibility of the hearsay statements.
State v. Brooks, Case Nos. 75711, 75712 (Ohio App. 8th Dist., Aug. 14, 2001).
As the Ohio Court of Appeals noted, the constitutional question of whether counsel
labored under a conflict of interest turns on the admissibility of the testimony of Wadell
Jefferson, as determined by the Ohio Rules of Evidence. While an improper application of such
rules does not itself provide the basis for federal habeas corpus relief, an actual conflict of
interest by trial counsel cannot be obviated by the erroneous exclusion of otherwise admissible
evidence. This is particularly the case if the exclusion of evidence was based on the trial judge’s
concern that admitting the testimony of Jefferson would create such conflict. An erroneous
exclusion of her testimony does not avoid what would otherwise be an actual conflict of interest.
As trial counsel asked Jefferson to testify regarding Elaine Brooks, as set out above, the
prosecution made an objection, at which time the trial judge convened a side-bar conference and
immediately raised the issue of defense counsel’s conflict of interest. The prosecutor contended
that, if Jefferson intended to testify that Elaine Brooks had hurt children on a prior occasion, such
statements would be inconsistent with her previous statements and possibly perjury.
It is unclear whether the trial judge excluded Jefferson’s testimony based upon trial
counsel’s conflict of interest or on the claimed hearsay nature of the testimony. From the entirety
of the transcript of Jefferson’s testimony, however, it is clear that the trial judge viewed her
testimony regarding Elaine Brooks as constituting inadmissible hearsay. Wadell was asked if she
knew how the scratches she saw on the baby were inflicted. The witness began her answer by
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describing a meeting she went to. The judge cut off her answer and asked her, “Did you see the
scratches occur?” (JA 875). When the witness answered in the negative, the trial judge made it
clear that he viewed her testimony as inadmissible hearsay. (JA 876).
The record appears to substantiate the conclusion of the trial court that the offered
testimony was inadmissible hearsay. Moreover, the trial counsel did not make a proffer that
would provide a basis to conclude that the testimony was actually admissible. Ohio Rule of
Evidence 103(A)(2) requires a party to advise the court of the substance of the offered evidence
that the court intends to exclude, unless such information is obvious from the record.
As to whether the proposed testimony by Jefferson was hearsay, the district court
correctly observed that, because federal habeas corpus relief does not lie for errors in the
application of state law unless such errors result in the denial of a fundamentally fair trial, federal
habeas courts are not permitted to substitute their judgment for that of a state court on a state
evidentiary ruling. (JA 1213-16). It is well-settled “that it is not the province of a federal habeas
court to reexamine state-court determinations on state-law questions.” Estelle v. McGuire, 502
U.S. 62, 67-68 (1991). Thus, this Court has held that federal habeas courts “‘must defer to a
state court’s interpretation of its own rules of evidence and procedure’ when assessing a habeas
petition.” Miskel v. Karnes, 397 F.3d 446, 453 (6th Cir. 2005) (quoting Allen v. Morris, 845
F.2d 610, 614 (6th Cir. 1988)). It stands to reason that this is true even when the petitioner is not
seeking habeas relief on the state court evidentiary determination at issue. Cf. Adams v. Smith,
280 F. Supp. 2d 704, 721 (E.D. Mich. 2003) (rejecting claim of ineffective assistance of counsel
for the failure to object to hearsay based on state court’s determination under state law that
testimony at issue was not hearsay).
13
In this case, the trial court determined that Jefferson’s testimony would have been
hearsay. It is not the province of this Court to substitute its judgment for that of the state trial
court on this state-law evidentiary decision. Although the precise issue before the Court is
whether petitioner received ineffective assistance of counsel due to the fact that counsel was
laboring under an actual conflict of interest, resolving that issue requires this Court to determine
whether the proposed testimony by Jefferson was hearsay. The record supports the conclusion of
the state courts.
To the extent petitioner is now claiming that his representation was ineffective based on
his trial counsel’s apparent failure to pursue a defense or investigate the possibility that Elaine
Brooks may have injured Angelique, that argument was not raised on direct appeal at any level.
There is no evidence in the trial transcript or elsewhere in the record establishing whether the
attorney did, in fact, fail to investigate or pursue this defense. Also, no facts or evidence were
proffered or admitted at trial that might lead to the conclusion that Elaine Brooks may have or
did injure Angelique or any other child. As the district court found, petitioner had the
opportunity post-trial to investigate Elaine Brooks’ involvement; he did not take advantage of
any such procedures to create a record establishing his trial attorney’s ineffectiveness or failure to
pursue. Brooks, 2006 U.S. Dist. LEXIS 59205, *41-42. There is therefore no record upon which
this Court could find that trial counsel’s ineffectiveness “undermined the proper functioning of
the adversarial process” and resulted in a fundamental defect at trial amounting to a miscarriage
of justice or violation of due process, for which collateral relief is available. See Strickland v.
14
Washington, 466 U.S. 668 (1984); Reed v. Farley, 512 U.S. 339, 348, 353 (1994).1
III.
For these reasons, the decision of the district court is AFFIRMED.
1
Given the conclusion that counsel for petitioner did not labor under a conflict of interest,
the Court does not address the question of whether Brooks had waived such right in a
constitutional manner.
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