Timothy Etherton v. Steven Rivard

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 15a0216p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
TIMOTHY ETHERTON, ┐
Petitioner-Appellant, │
│
│ No. 14-1373
v. │
>
│
STEVEN RIVARD, │
Respondent-Appellee. │
┘
Appeal from the United States District Court .
for the Eastern District of Michigan at Detroit
No. 2:11-cv-11958—Arthur J. Tarnow, District Judge.
Decided and Filed: September 2, 2015
Before: KETHLEDGE and DONALD, Circuit Judges; McCALLA, District Judge.*
_________________
COUNSEL
ON BRIEF: James Sterling Lawrence, Southfield, Michigan, for Appellant. David H. Goodkin,
OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee.
McCALLA, D.J., delivered the opinion of the court in which DONALD, J., joined.
KETHLEDGE, J. (pp. 24–25), delivered a separate dissenting opinion.
_________________
OPINION
_________________
JON P. McCALLA, District Judge. On February 15, 2007, a Michigan jury convicted
Timothy Etherton of possession with intent to deliver cocaine. After exhausting both direct and
collateral appellate review procedures in Michigan, Etherton timely filed a petition for writ
*
The Honorable Jon P. McCalla, United States District Judge for the Western District of Tennessee, sitting
by designation.
1
No. 14-1373 Etherton v. Rivard Page 2
habeas corpus in the United States District Court for the Eastern District of Michigan. The
district court denied Etherton’s petition but certified for appeal four issues: (1) whether the
anonymous tip presented at trial denied Etherton’s right to confrontation under the Sixth
Amendment so as to result in prejudice; (2) whether the prosecutor improperly vouched for the
credibility of a witness during closing argument; (3) whether Etherton’s counsel’s failure to
object to the anonymous tip, as well as other alleged shortcomings, amounted to prejudicially
ineffective assistance of counsel; and (4) whether Etherton was prejudiced by ineffective
assistance of counsel on appeal. For the reasons discussed below, we AFFIRM IN PART and
REVERSE IN PART the district court’s decision, and REMAND with directions to issue a writ
of habeas corpus unless Etherton is afforded a new appeal or, in the alternative, is granted a new
trial.
I
A
Timothy Etherton was tried in Michigan State Court on a single count of possession with
intent to deliver 50 grams or more but less than 450 grams of cocaine. (R. 5-3, 5-4.) The trial
began with voir dire at 9:09 a.m. on February 15, 2007. (R. 5-3 at PageID 243.) The prosecutor
called his first witness at 10:59 a.m. (R. 5-3 at PageID 315.) After roughly forty-five minutes of
testimony, the jury broke for lunch and returned approximately an hour later. (R. 5-3 at PageID
341–42.) At 3:18 p.m., the final witness stepped down. (R. 5-4 at PageID 441.) The jury began
deliberations at 5:16 p.m. and returned a verdict of guilty at 6:10 p.m. that same day. (R. 5-4 at
PageID 496, 499–500.)
During trial, the prosecution called six witnesses, (R. 5-3 at PageID 314, 342, 370, 380,
388, 421), and introduced three exhibits into evidence: a video tape of the stop and search of
Etherton’s car (R. 5-3 at PageID 322); a bag of cocaine (R. 5-3 at PageID 354); and a plastic bag
(R. 5-3 at PageID 354).
The following facts were not contested at trial: Etherton was driving a white Audi on I-96
between Detroit and Grand Rapids at the time he was pulled over for speeding; Etherton
admitted that the Audi was his car; co-defendant Ryan Pollie was in the passenger seat; Etherton
No. 14-1373 Etherton v. Rivard Page 3
initially did not consent to a search of the car, but then quickly did consent to a search; Trooper
Trevin Antcliff did a preliminary physical search of the car, but did not find anything illegal; a
K-9 unit was called to the scene and searched the car, but also did not find anything illegal;
Detective Adam Mercer then searched the car and ultimately found a 125.2 gram bag of cocaine
under an empty bag of potato chips in the map compartment of the driver’s side door. Although
the bag was tested, neither Etherton’s nor Pollie’s fingerprints were found on the bag.
The only evidence that Etherton had knowledge that the cocaine was in the car—aside
from potential inferences that could arguably be drawn from the above-mentioned evidence—
came from two sources: first, the testimony of Etherton’s co-defendant, Pollie; and, second, an
anonymous tip that was introduced for its truth.
1
On direct examination, Pollie testified in some detail regarding the day that he and
Etherton were arrested. (R. 5-4 at PageID 388–94.) Pollie stated that he accompanied Etherton
on a trip to Detroit in order to drop off members of Etherton’s family at the airport. (R. 5-4 at
PageID 388–89.) According to Pollie, Etherton dropped him off at a Ruby Tuesday’s restaurant
while Pollie “was under the assumption that [Etherton] was going to the airport to drop these
family members off.” (R. 5-4 at PageID 390.) Pollie testified that he had a couple of beers while
he was at the restaurant before Etherton came back to pick him up approximately thirty to forty-
five minutes later. (R. 5-4 at PageID 390–91.) Pollie stated that after he and Etherton got back
in the car:
[W]e pull out of the parking lot and we’re about to get onto the highway and
that’s when the package of cocaine became known to myself. He showed it to
me. I held it like kind of, wow you know that’s quit [sic] a bit. Gave it back to
him.
(R. 5-4 at PageID 391:4–8.) Pollie went on to explain that he and Etherton talked about how he
had obtained the cocaine. According to Pollie:
[Etherton] met a guy down by McDonald’s, I think it was further down the road
from the Ruby Tuesday’s. . . . What initially was supposed to happen was the title
for his vehicle was supposed to go up to pay for the---I guess as collateral and the
vehicle had got transferred from his dad’s name the previous day into his name so
he didn’t have the title. So he was supposed to return there by Sunday to go
No. 14-1373 Etherton v. Rivard Page 4
ahead and pay the money for the cocaine that was given to him that day. . . .
[Etherton] made a comment about, you know, I can do a certain amount of it and
then still be able to go ahead and sell the rest for payment.
(R. 5-4 at PageID 392:7–25.)
Pollie also testified on direct that he was testifying as part of a plea agreement. (R. 5-4 at
PageID 389.) Pollie acknowledged that he was to be sentenced to nine months in jail as a result
of the plea. (Id.)
On cross, redirect, and recross-examination, Pollie acknowledged at least eight facts that
were damaging to his testimony. (See R. 5-4 at PageID 402–411, 418–21.) First, he disclosed
on redirect examination that he had read the police reports concerning both his arrest and
Etherton’s. (R. 5-4 at PageID 416.) Second, he acknowledged that he had been convicted of
both cocaine possession and distribution in the past. (R. 5-4 at PageID 409–10.) Third, he
admitted that he had been alone in the car on the day of the arrest. (R. 5-4 at PageID 403.)
Fourth, he conceded that he had eaten chips that day:
Q. Now there was testimony that the cocaine was found on the driver’s side door
and there were chips----a bag of chips covering it.
A. I don’t know what was covering it. I wasn’t able to see that side of the vehicle
when the cop took that out----took that out of wherever he found it.
Q. Okay but you admitted that you had chips that day?
A. I did.
(R. 5-4 at PageID 405:18–25.) Fifth, Pollie admitted that he was allowed to plead to a lesser
charge when he was otherwise facing what he agreed was “a very lengthy incarceration.” (R. 5-4
at PageID 409, 420.) Sixth, Pollie testified that he believed his fingerprints would be on the bag
of cocaine. (R. 5-4 at PageID 405:18–25.) Specifically, Pollie testified:
Q. And you plead[ed] also not just for a deal but because you knew your finger
prints were going to come back on the---or you thought they were going to come
back on the bag, didn’t you?
A. That’s correct. I explained---
Q. Because you had handled the bag?
A. I did.
No. 14-1373 Etherton v. Rivard Page 5
(R. 5-4 at PageID 405:18–25.) Seventh, he acknowledged that he had initially lied to the police
and had only changed his story when offered a plea deal. (R. 5-4 at PageID 416, 419–20.) Last,
defense counsel impeached Pollie concerning his testimony regarding not driving. The
following exchange occurred on cross-examination after defense counsel asked whether Pollie
had driven on the way to Detroit:
A. I do not have a driver’s license, so no I did not drive.
Q. Well, that doesn’t mean you can’t drive. Have you never driven without---
you’re telling---how long have you not had a license?
A. I’m not sure actually. Probably about a year.
Q. Okay and you’re telling the jury that in a year you have never driven a vehicle?
A. Oh, I have. But I didn’t on that day.
(R. 5-4 at PageID 405:18–25.) On recross-examination, defense counsel once again asked about
Pollie’s driving:
Q. Okay and also sir you said that you don’t drive or that you wouldn’t have
driven that day but isn’t it true that Mr. Etherton actually passed you driving in a
truck, I think it was his brother’s truck or roommate[’]s Blazer, when he went to
pick you up?
A. Yeah, I went to cash my check. That’s correct.
Q. Okay, so you admit that you were driving earlier that day when you just said
you wouldn’t have been driving.
A. I didn’t drive his vehicle but I can admit to driving to cash my check.
(R. 5-4 at PageID 420:21–422:5.)
2
Recognizing the factual questions inherent in Pollie’s testimony, the Court must examine
the role of the accusatory content of the tip testimony in the trial. Testimony regarding the
anonymous tip was elicited by the prosecution on three separate occasions. The first elicitation
occurred during the direct examination of Trooper Antcliff of the Michigan State Police, who
testified that he pulled over Etherton’s car. (R. 5-3 at PageID 315–17.) The prosecutor asked
Antcliff why he pulled Etherton over. (R. 5-3 at PageID 316:15–316:16.) Antcliff responded:
No. 14-1373 Etherton v. Rivard Page 6
Well, on our radio I received a call from Lieutenant that the CMET team,
Lieutenant Roe, and he advised that there was a white Audi matching the
description from an anonymous tip that we were looking for. A BOL was put out
for us, a be on the look out [sic] for a white Audi with two while [sic] males
traveling from Grand Rapids to Detroit back to Grand Rapids, possibly carrying
cocaine in the vehicle. . . . So Lieutenant Roe advised that he had---the possible
suspect vehicle in sight. I was in position near Lieutenant Roe’s vehicle, he
advised me that the suspect vehicle was in front of him.
(R. 5-3 at PageID 316:17–317:4.)
The prosecutor then elicited testimony regarding the tip for a second time during the
direct examination of Detective Mercer, who stated:
We wanted, based on the tip, we wanted to try and separate the two passengers of
the vehicle, the driver and the passenger and give a short interview and see if their
stories matched up and if they didn’t that would add to our probable cause and go
along with the tip that we had received.
(R. 5-3 at Page ID 344:21–345:1.)
The third time the prosecutor elicited testimony regarding the tip was from Detective
Sergeant Joel Abendroth. (R. 5-4 at PageID 427.) The prosecutor specifically asked Abendroth
about the tip: “[T]o cut to the chase, in regard to the defendant here did you receive some sort of
tip earlier in the day?” (R. 5-4 at PageID 427:7–8.) Abendroth responded:
Yes, we did. We received a very specific tip. I followed up personally on the tip
and spoke to the individual that received the anonymous call. The tip consisted of
information provided to a secretary at the Grand Rapids vice unit, reference [to] a
specific vehicle, a white Audi, occupied by two individuals, two white males.
The tip was specific on the time frame they were going to be leaving Grand
Rapids and specific on the approximate time frame returning back. It also
included a route of travel along I-96. The tip was that the---
(R. 5-4 at PageID 427:9–18.) At this point, defense counsel objected to Abendroth’s testimony
as hearsay. (R. 5-4 at PageID 427:19–21.) The trial judge did not rule on the objection; the
prosecutor simply stated, “I’ll move on, your Honor,” and then proceeded to ask her next
question. (R. 5-4 at PageID 427:22–24.) The prosecutor next asked, “You received a tip?”
(R. 5-4 at PageID 427:24.) Abendroth responded, “Yes.” (R. 5-4 at PageID 427:25.) The
prosecutor then inquired “who Grand Rapids vice is.” (R. 5-4 at PageID 428:1.) Abendroth
No. 14-1373 Etherton v. Rivard Page 7
responded that “Grand Rapids vice is the drug team for the City of Grand Rapids.” (R. 5-4 at
PageID 428:2–3.)
Having elicited testimony regarding the tip in its case-in-chief, the prosecution used the
content of the tip during closing argument:
We started out with Trooper Antcliff and you got to see the video, which is kind
of neat cause that doesn’t always happen but you saw what precipitated this.
There was a tip that a white Audi would be traveling at such and such time on
I-96 with two white males that came in through the drug team in Grand Rapids
....
(R. 5-4 at PageID 452:9–14.) During his rebuttal argument, the prosecutor once again discussed
the content of the tip:
What [the witnesses] did talk about was this tip that they received and
coincidently, the defendant and his car matched the tip headed west from Detroit
to Grand Rapids. Was there another Audi stopped that day, yeah and they told
you about that. But this is the Audi that was found later in the day that matched
the tip, two white males heading from Detroit to Grand Rapids, and coincidently
they have a hundred and twenty-five grams of cocaine in the car.
(R. 5-4 at PageID 476:8–16.)1
1
The prosecution also made comments in closing that Etherton argues amounted to improper vouching for
Pollie:
And honestly enough, what else did he tell you? . . . Do I wish that we could bring
somebody in here that doesn’t have a criminal history, who doesn’t have prior drug convictions
and who didn’t lie to the police when he initially encountered them? Heck yeah I wish we could
do that but those aren’t the kind of people we’re dealing with in the drug culture, the drug world.
So what we have is Mr. Pollie who came in here and was incredibly frank with you.
...
What else did Mr. Pollie do today that would suggest to you that he was lying? Let me
point out some of his testimony and she raised it. He said I never drove his car and then a follow
up question, because I don’t have a license. Well are you saying you never drive? What did he
say, when she asked him didn’t he pass you driving before he got to your house? Yeah, he did.
He admitted under oath on the stand that he was committing another crime today. Thus exposing
himself to potentially more criminal charges. Does that sound like somebody is lying to you,
someone who is not trying to be truthful with you? Somebody who is arguing with the----the
attorney? That’s one of the questions the Judge will give you when you’re judging creditability.
Did he sound like somebody who was hiding something, arguing with the attorney? No, in fact he
admitted another crime today that he as [sic] committing in answering her questions truthfully.
(R. 5-4 at PageID 455:1–456:5, 479:9–480:1.)
No. 14-1373 Etherton v. Rivard Page 8
B
Following his conviction, Etherton was sentenced to twenty to forty years in prison.
(R. 5-5 at PageID 515.) Etherton sought relief on both direct and collateral appeal in the State of
Michigan. On direct review, Etherton’s counsel sought a reversal of the conviction on four
grounds: (1) that the trial court abused its discretion in denying defendant’s request for an
adjournment of trial; (2) that defense counsel was ineffective for failing to adequately prepare for
trial; (3) that the trial court erred in denying defendant’s motion to suppress the evidence found
in Etherton’s car; and (4) on the basis of purportedly newly discovered evidence. (R. 5-7 at
PageID 641–80.) The Michigan Court of Appeals affirmed the trial court on October 16, 2008.
(R. 5-7 at PageID 706–14.) On February 24, 2009, the Michigan Supreme Court denied
Etherton’s application for leave to appeal. (R. 5-8.)
Etherton subsequently filed a motion for relief from judgment pursuant to
Subchapter 6.500 of the Michigan Rules of Court. (R. 5-11.) In the motion, Etherton argued six
grounds for relief: (1) that the anonymous tip was hearsay and violated his right to confrontation;
(2) that the prosecutor improperly explained during closing argument why he had given a plea
deal to Pollie but not Etherton; (3) that the prosecutor acted improperly in closing argument by
vouching for Pollie’s credibility; (4) that the prosecution presented false testimony; (5) that
defense counsel at trial was ineffective; and (6) that appellate counsel was ineffective. (R. 5-11
at PageID 920-22.) The Circuit Court for Ionia County denied the motion. (R. 5-12.) That court
found that the first five grounds were procedurally defaulted under M.C.R. 6.508(D)(3), which
prohibits granting a petitioner relief on grounds “other than jurisdictional defects, which could
have been raised on appeal from the conviction and sentence.” (R. 5-12 at PageID 987.)
Because the first five asserted grounds were not jurisdictional and could have been—but were
not—raised on appeal, the Ionia County Circuit Court declined to review them on the merits.
(See id.) The court only considered Etherton’s argument that his appellate counsel was
ineffective, denying the motion on the basis of both sound strategy and a lack of prejudice. (R.
5-12 at PageID 988.)
The Michigan Court of Appeals denied Etherton’s application for leave to appeal, noting
that Etherton had “failed to meet his burden of establishing entitlement to relief under
No. 14-1373 Etherton v. Rivard Page 9
MCR 6.508(D).” (R. 5-9 at PageID 773.) On October 26, 2010, the Supreme Court of Michigan
again denied Etherton’s application for leave to appeal on the same grounds. (R. 5-10.)
C
Etherton timely filed a petition for habeas corpus pursuant to 28 U.S.C. § 2254 on May 4,
2011. (R. 1.) His petition asserted the same six grounds that he had raised on collateral review
in the state courts of Michigan. (Id.) On February 26, 2014, the United States Court for the
Eastern District of Michigan issued an opinion denying Etherton’s petition for relief and
certifying four issues for appeal: (1) whether the admission of the anonymous tip violated
Etherton’s right to confrontation and was prejudicial; (2) whether the prosecution improperly
vouched for Pollie’s credibility; (3) whether trial counsel was constitutionally ineffective; and
(4) whether appellate counsel was constitutionally ineffective. Etherton now argues that each
issue entitles him to a new trial. Rivard argues in response that the first three issues certified for
appeal were procedurally defaulted by Etherton when he failed to raise them on direct appeal and
that, in any case, none of the four issues raised entitles Etherton to relief on the merits.
II
We agree that Etherton has procedurally defaulted the first three claims certified for
appeal. A habeas petitioner procedurally defaults a claim if four conditions are met:
“(1) the petitioner fails to comply with a state procedural rule; (2) the state courts
enforce the rule; (3) the state procedural rule is an adequate and independent state
ground for denying review of a federal constitutional claim; and (4) the petitioner
cannot show cause and prejudice excusing the default.”
Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir. 2010) (en banc) (quoting Tolliver v. Sheets,
594 F.3d 900, 928 n.11 (6th Cir. 2010)).
Etherton argues that there is no state procedural rule that barred him from raising new
arguments in his motion for relief from judgment. He is mistaken. As noted in Part I.B, supra,
M.C.R. 6.508(D)(3) prohibits granting a petitioner relief on grounds “other than jurisdictional
defects, which could have been raised on appeal.” Etherton does not argue that the first three
grounds certified for appeal were jurisdictional defects, nor does he argue that they could not
No. 14-1373 Etherton v. Rivard Page 10
have been raised on direct appeal. We therefore conclude that Etherton failed to comply with a
state procedural rule.
As to the second condition, the Supreme Court has held that there is a presumption that a
state court denying a federal claim “adjudicated the claim on the merits in the absence of any
indication or state-law procedural principles to the contrary.” Harrington v. Richter, 131 S. Ct.
770, 784–85 (2011). As we noted in Barton v. Warden, the presumption is rebuttable. 786 F.3d
450, 460 (6th Cir. 2015). “The presumption may be overcome when there is reason to think
some other explanation for the state court’s decision is more likely.” Richter, 131 S. Ct. at 785
(citing Yist v. Nunnemaker, 501 U.S. 797, 803 (1991)). In general, however, “we may only treat
a state court order as enforcing the procedural default rule when it unambiguously relied on that
rule.” Peoples v. Lafler, 734 F.3d 503, 512 (6th Cir. 2013).
In this case, the state courts applied the procedural rule. Where the short orders of
appellate courts “are ambiguous as to whether they refer to procedural default or denial of relief
on the merits,” we must “look to the last reasoned state court opinion to determine the basis for
the state court’s rejection of [a petitioner’s] claim.” Guilmette, 624 F.3d at 291. Because both
the intermediate and supreme courts simply issued form orders in this case finding that Etherton
had not met his burden to establish relief under M.C.R. 6.508(D), we look to the Ionia County
Circuit Court’s decision. (R. 5-12.)
Although the Ionia County Court’s decision is far from clear, it unambiguously relies on
a procedural rule in dismissing the first three claims certified for appeal in this case. The court
begins its opinion by questioning “whether the court can even grant relief under
MCR 6.508(D)(3).” (R. 5-12 at PageID 987.) According to the court’s opinion, “[w]ith the
exception of the failure to appoint counsel, constitutional violations, including the denial of
effective assistance of counsel, do not constitute a jurisdictional defect under MCR 6.508(D).”
(Id.) The court then addressed only one of Etherton’s claims on the merits: his claim for
ineffective assistance of appellate counsel. (R. 5-12 at PageID 988.) Without further discussing
any of his other claims, the court denied Etherton’s motion. (Id.) Because of the unambiguous
references to MCR 6.508(D)(3)—which applies only in cases of procedural default—and the
context of the opinion that makes a ruling on the basis of procedural default as opposed to a
No. 14-1373 Etherton v. Rivard Page 11
finding on the merits the more likely explanation, we find that the state courts enforced their
procedural default rule as to Etherton’s first three claims.
Procedural default is not, however, an absolute bar to habeas relief. See McFarland v.
Yukins, 356 F.3d 688, 699 (6th Cir. 2004). “Ineffective assistance of counsel can supply the
cause that, together with prejudice, would excuse a procedural default.” Id. (citing Murray v.
Carrier, 477 U.S. 478, 488 (1986)). We therefore turn to the fourth issue certified for appeal:
whether Etherton’s appellate counsel was constitutionally ineffective.
III
Because the Michigan courts ruled on the merits of Etherton’s ineffective assistance of
appellate counsel claim (see R. 5-12 at PageID 988), Etherton is only entitled to relief if he can
demonstrate that the ruling was either: (1) “contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court,” or (2) “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). At issue in this case is whether the Michigan court’s ruling
was “an unreasonable application” of clearly established Federal law.
Under the “unreasonable application” clause, habeas relief is available in two scenarios:
first, if “the state court correctly identifie[s] the correct legal principle from Supreme Court
precedent but unreasonably applie[s] that principle to the facts of the case before it,” Dennis v.
Mitchell, 354 F.3d 511, 517 (6th Cir. 2003); and second, when a “state court decision either
unreasonably extends or unreasonably refuses to extend a legal principle from the Supreme
Court precedent to a new context,” Keith v. Mitchell, 455 F.3d 662, 669 (6th Cir. 2006).
We first consider whether the Michigan court “identified the correct legal principle.”
Dennis, 354 F.3d at 517. To prevail on a habeas petition on the basis of ineffective assistance of
appellate counsel, a habeas petitioner must demonstrate that his appellate counsel’s failure to
raise a potentially meritorious argument rose to the level of a constitutional violation under
Strickland v. Washington, 466 U.S. 668 (1984). Smith v. Robbins, 528 U.S. 259, 289 (2000). To
meet this burden, a petitioner must satisfy two prongs: deficiency and prejudice. In order to
demonstrate deficiency, a petitioner must show his “counsel’s representation fell below an
No. 14-1373 Etherton v. Rivard Page 12
objective standard of reasonableness.” Strickland, 466 U.S. at 688. To demonstrate prejudice, a
petitioner must show “that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Id. at 694. Consequently, in the
appellate context as to counsel’s failure to raise a claim, a petitioner must show that “there is a
reasonable probability that the claim would have prevailed at the time counsel failed to raise it.”
McFarland, 356 F.3d at 699.
The Michigan court applied the correct legal principal from Supreme Court precedent.
(See R. 5-12 at PageID 988 (considering, under state law, an analogous two prongs in evaluating
the merits of Etherton’s ineffective assistance of appellate counsel claim).) Accordingly, we
consider whether the Michigan court “unreasonably applied that principle to the facts of the case
before it.” Dennis, 354 F.3d at 517. That requires us to determine whether, once a Strickland
violation is found, “it is possible fairminded jurists could disagree.” Harrington, 562 U.S. at
102.
Etherton argues that his appellate counsel was constitutionally ineffective for failing to
raise any of the five issues raised in his Motion for Relief from Judgment (R-11). We address
each in turn.
A
We begin by considering whether the Michigan court unreasonably applied Strickland in
addressing Etherton’s argument that his appellate counsel was constitutionally ineffective for
failing to argue that his confrontation rights were violated. The admission of the content of an
anonymous tip should have alerted Etherton’s appellate counsel as to the presence of a serious
Confrontation Clause issue. Many less meritorious issues were raised on direct appeal in this
case, which suggests that the failure to raise the issue was an oversight and not deliberate
strategy. See Smith, 528 U.S. at 288 (“‘[W]hen ignored issues are clearly stronger than those
presented, . . . the presumption of effective assistance of counsel [is] overcome.’”) (quoting Gray
v. Greer, 800 F.2d 644, 646 (7th Cir. 1986)); Joshua v. DeWitt, 341 F.3d 430, 441 (6th Cir.
2003); Roe v. Delo, 160 F.3d 416, 419 (8th Cir. 1998). In these circumstances, “the
ineffectiveness prong of Strickland turns on whether an objectively reasonable attorney would
have presented the issue for plain error review because it had a reasonable likelihood of success.”
No. 14-1373 Etherton v. Rivard Page 13
Roe, 160 F.3d at 419. In other words, both prongs of Strickland in this case turn on the same
issue regarding appellate counsel’s failure to present a Confrontation Clause argument: whether
there is a reasonable probability that Etherton would have prevailed on appeal if the issue were
raised.
As a threshold matter, we note that without a constitutional violation, there would have
been no chance of success on appeal. Consequently, we first address whether Etherton’s
confrontation rights were violated. We then address whether the violation was sufficiently
serious such that there was a reasonable probability Etherton would have prevailed on appeal.
Strickland, 466 U.S. at 694.
1
The Confrontation Clause categorically prohibits the introduction of a certain class of
out-of-court statements. Cf. Crawford v. Washington, 541 U.S. 36, 54 (2004). There are two
necessary and mutually sufficient conditions to identify whether an out-of-court statement
implicates the protection of the Confrontation Clause. See id. First, the statement must be
testimonial. Id. Second, the statement must be introduced for its truth. See id.
The Supreme Court stated in Crawford that “the principal evil at which the Confrontation
Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex
parte examinations as evidence against the accused.” 541 U.S. at 50. Consequently, the Court
held that “[t]he Sixth Amendment must be interpreted with this focus in mind.” Id. The Court
explained that “[t]he text of the Confrontation Clause reflects this focus. It applies to ‘witnesses’
against the accused—in other words, those who ‘bear testimony.’” Id. at 51 (quoting 2 N.
Webster, An American Dictionary of the English Language (1828)). The Court noted that
various formulations of what might constitute a testimonial statement existed, id. at 51–52, and
held—without endorsing any particular formulation—that “[s]tatements taken by police officers
in the course of interrogations” are per se testimonial. Id. at 52.
Davis v. Washington was the next case that presented the Supreme Court an opportunity
to elaborate on what constitutes a testimonial statement. 547 U.S. 813 (2006). Davis concerned
the admission of a recorded statement made to a 911 operator. Id. at 817. The Court carved an
No. 14-1373 Etherton v. Rivard Page 14
exception to its ultimate holding in Crawford to mirror the emergency exception to Miranda
announced in New York v. Quarles, 467 U.S. 649, 658–59 (1984). The Davis Court held that
when the totality of the circumstances objectively indicates that the primary purpose of police
interrogation is “to enable police assistance to meet an ongoing emergency,” statements made in
response are not testimonial. 547 U.S. at 828.
Although in both Crawford and Davis, the Court’s holdings applied to statements made
in response to police interrogation, the Court made clear that it was not implying that “statements
made in the absence of any interrogation are necessarily nontestimonial.” Davis, 547 U.S. at 822
n.1. In fact, the Court reiterated in Melendez-Diaz v. Massachusetts that volunteered testimony
can trigger the protections of the Confrontation Clause. 557 U.S. 305, 316–17 (2009). The
Court asserted that “‘[t]he Framers were no more willing to exempt from cross-examination
volunteered testimony or answers to open-ended questions than they were to exempt answers to
detailed interrogation.’” Id. at 316 (quoting Davis, 547 U.S. at 822 n.1); see also Davis,
547 U.S. at 822 n.1 (noting that “[p]art of the evidence against Sir Walter Raleigh was a letter
from Lord Cobham that was plainly not the result of sustained questioning”); Crawford,
541 U.S. at 51–52 (describing one formulation of testimonial statements as “statements that were
made under circumstances which would lead an objective witness reasonably to believe that the
statement would be available for use at a later trial” (internal citations and quotation marks
omitted)).
In this case, an anonymous tipster made a formal accusation to government officers. It
was therefore testimonial.2 See Davis, 547 U.S. at 824 (“‘An accuser who makes a formal
statement to government officers bears testimony . . . .’”) (quoting Crawford, 541 U.S. at 51).
2
We had occasion to consider directly whether the content of an anonymous tip is testimonial in United
States v. Cromer, 389 F.3d 662 (6th Cir. 2004). In that case, we held that “statements of a confidential informant are
testimonial.” Id. at 670. We stated in Cromer not just that the admission of an anonymous tip was unconstitutional,
but further held that “[t]he allowance of anonymous accusations of crime without any opportunity for cross-
examination would make a mockery of the Confrontation Clause.” Id. at 675. Every other circuit court that has
considered this issue is in accord. United States v. Maher, 454 F.3d 13, 22–23 (1st Cir. 2006); United States v.
Adams, 628 F.3d 407, 417 (7th Cir. 2010) (finding a Confrontation Clause violation in the admission of a
confidential informant’s statement to a police officer that stated the defendant “was involved in drugs, had a large
amount of money on him[,] was on his way to buy crack, and describ[ing] the car [the defendant] was driving”);
United States v. Holmes, 620 F.3d 836, 841 (8th Cir. 2010); United States v. Lopez-Medina, 596 F.3d 716, 730 (10th
Cir. 2010).
No. 14-1373 Etherton v. Rivard Page 15
The content of the tip was also admitted into evidence for its truth. It was elicited by the
prosecution from three different witnesses during its case-in-chief, and the prosecution
emphasized the tip during closing argument: “[T]his is the Audi that was found later in the day
that matched the tip, two white males heading from Detroit to Grand Rapids, and coincidently
they have a hundred and twenty-five grams of cocaine in the car.” (R. 5-4 at PageID 476:8–16.)
The prosecutor’s repeated references both to the existence and the details of the content of the tip
went far beyond what was necessary for background—thereby indicating the content of the tip
was admitted for its truth.
Accordingly, it was error to admit the content of the anonymous tip in this case. We now
consider whether, if Etherton’s appellate counsel had raised the issue on appeal, there would
have been a reasonable probability that his appeal would have been successful. Strickland,
466 U.S. at 694.
2
On direct appeal, a preserved objection to a federal constitutional violation necessitates
reversal unless the error was “‘harmless beyond a reasonable doubt.’” Lilly v. Virginia, 527 U.S.
116, 139–40 (1999) (quoting Chapman v. California, 386 U.S. 18, 24 (1967)). In contrast, an
unpreserved objection to a constitutional violation is subject to a state’s procedural forfeiture
rules. See Osborne v. Ohio, 495 U.S. 103, 122–23 (1990) (finding no constitutional violation
when the state court procedurally barred review of an unpreserved objection of a violation of the
defendant’s due process rights)). Although defense counsel ultimately objected to the tip at trial
as hearsay (R. 5-4 at PageID 427:19–21), this did not amount to preservation of a Confrontation
Clause objection under clearly established federal law. See United States v. Hadley, 431 F.3d
484, 498 (6th Cir. 2005) (“Because Defendant raised only a hearsay objection to these statements
at trial, and did not challenge their admissibility on constitutional grounds, our review here is
governed by the plain error standard.”). Accordingly, we consider whether the Confrontation
Clause violation would have been forfeited under Michigan’s procedural forfeiture rules.
Michigan’s procedural forfeiture rules are modeled on the plain error rule in Rule 52(b)
of the Federal Rules of Criminal Procedure as interpreted by the United States Supreme Court in
United States v. Olano, 507 U.S. 725, 731–34 (1993). See People v. Carines, 597 N.W.2d 130,
No. 14-1373 Etherton v. Rivard Page 16
138 (Mich. 1999). In Michigan, to avoid forfeiture under its plain error rule, “three requirements
must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the
plain error affected substantial rights.” Carines, 597 N.W.2d at 138 (citing United States v.
Olano, 507 U.S. 725, 731–34 (1993)). “The third requirement generally requires a showing of
prejudice, i.e., that the error affected the outcome of the lower court proceedings.” Id. Once a
defendant establishes these requirements, reversal is warranted “when the plain, forfeited error
resulted in the conviction of an actually innocent defendant or when an error seriously affected
the fairness, integrity or public reputation of judicial proceedings independent of the defendant’s
innocence.” Id. (internal quotation marks and alterations omitted).
a
As explained in Part III.A.1, supra, Etherton’s right to confrontation was violated when
the trial court admitted the content of the anonymous tip. Because of the clear, consistent, and
voluminous precedent indicating that the admission of the content of the tip violated Etherton’s
rights, we find that the error was plain.3 We therefore turn to whether the tip was prejudicial.
The district court found that the tip did not prejudice Etherton for two reasons:
(1) because of “the trial court’s jury instruction”; and (2) because of “the overall strength of the
prosecutor’s case apart from the hearsay testimony.” Etherton v. Rivard, No. 11-11958, 2014
WL 764843, at *8 (E.D. Mich. Feb. 26, 2014). We respectfully disagree.
The trial court’s attempt to issue a curative instruction did nothing to alleviate the
prejudice of the tip. The trial court stated that the tip was “not evidence per [se] of the
defendant’s guilt.” (R. 5-4 at PageID 487.) The instruction was vague, and could have been
taken by a jury to mean that the tip by itself was not sufficient to find Etherton guilty, but that it
could otherwise be considered for its truth. The instruction was therefore not in fact curative.
3
Even before Etherton’s judgment became final, appellate courts in Michigan consistently held that
statements of anonymous and confidential informants made to police officers are testimonial. People v. Chambers,
742 N.W.2d 610, 616 (Mich. Ct. App. 2007) (“A statement by a confidential informant to the authorities generally
constitutes a testimonial statement.”) (citing Cromer at 675); People v. Montgomery, No. 269682, 2007 WL
3085513, at *2 (Mich. Ct. App. Oct. 23, 2007) (same); People v. Demann, No. 268657, 2007 WL 2404534, at *4
(Mich. Ct. App. Aug. 23, 2007) (same); People v. Thompson, No. 258336, 2007 WL 2051977, at *4 (Mich. Ct. App.
July 17, 2007) (same); People v. Tolbert, No. 262792, 2006 WL 2924577, at *2 (Mich. Ct. App. Oct. 12, 2006)
(same).
No. 14-1373 Etherton v. Rivard Page 17
As to the strength of the prosecutor’s case absent the tip, the evidence was
underwhelming as to Etherton’s knowledge of the presence of the cocaine. The government’s
case turned almost entirely on the uncorroborated testimony of a codefendant. Although the bag
of cocaine was found in the driver’s door next to Etherton, the evidence strongly indicated that it
would not have been obvious to the driver. The video indicates that it took two officers and a
K-9 unit more than ten minutes of searching before the bag was discovered under an empty bag
of potato chips. As a result, absent Pollie’s incriminating testimony, the evidence that Etherton
knew the cocaine was in the car amounted to only the following three facts: (1) the cocaine was
well-hidden; (2) Etherton was near the cocaine; and (3) the car belonged to Etherton. On their
own, these three facts, especially in light of the presence of another person in the car, would have
fallen far short of establishing beyond a reasonable doubt that Etherton had knowledge of the
cocaine. See, e.g., United States v. Newsom, 452 F.3d 593, 609 (6th Cir. 2006) (holding that a
“defendant’s mere presence in a car where [contraband] is found and proximity to [contraband]
are insufficient proof of constructive possession”—even when the defendant is the only person in
a car); United States v. Campbell, 549 F.3d 364, 374 (6th Cir. 2008) (holding that “incriminating
evidence must supplement a defendant’s proximity to [contraband] in order to tip the scale in
favor of constructive possession”). Given the prosecutor’s heavy reliance on the otherwise
uncorroborated testimony of a codefendant to establish mens rea, Etherton was vulnerable to
being prejudiced by error. See United States v. Necoechea, 986 F.2d 1273, 1283 (9th Cir. 1993)
(“[A] defendant is more likely to be prejudiced by error or misconduct when the government’s
case rests on uncorroborated accomplice testimony.”), as amended on denial of reh’g (Apr. 15,
1993).
Despite this vulnerability, Respondent-Appellee argues that the information contained in
the tip did not prejudice Etherton for two reasons. First, Rivard argues the tip is not prejudicial
because it is “fully consistent with Etherton’s defense that, while there was cocaine in the car, he
did not know about it.” Corrected Brief for Respondent-Appellee at 8. Second, he asserts that it
caused no prejudice because the tip “stated what was, based on the other evidence presented, an
undisputed fact.” Id. at 9. The Circuit Court for Ionia County found no prejudice resulting from
the admission of the tip on just these grounds. (R. 5-12 at PageID 988.)
No. 14-1373 Etherton v. Rivard Page 18
Both Rivard and the Circuit Court for Ionia County overlook the most prejudicial aspect
of the tip in this case: the tip tends to suggest improper inferences precisely because it is
consistent with the admitted evidence. The content of the tip that was introduced described:
(1) two white men; (2) in a White Audi; (3) driving from Grand Rapids to Detroit and back to
Grand Rapids on I-96; and (4) possibly with cocaine in the vehicle. As Respondent-Appellee
correctly notes, each element of the tip was ultimately corroborated by largely undisputed
evidence. The corroboration, though, does not render the tip harmless. The high-degree of
corroboration exacerbates the error. Any jury would be unlikely to view the similarity between
the tip and the other evidence at trial as a matter of mere coincidence. As a result, the jury was
likely to find the tip reliable, and thereby to draw improper inferences from the tip. For example,
the tip’s reference to two white men could very well have indicated that both were involved with
the possession with intent to deliver the cocaine—an inference that could have been thoroughly
examined given the opportunity for cross-examination, which was lacking at trial.
Because much of Pollie’s testimony was reflected in the content of the tip that was put
before the jury, the jury could have improperly concluded that Pollie was thereby testifying
truthfully—that it was unlikely for it to be a coincidence for his testimony to line up so well with
the anonymous accusation.4
Absent the tip that may have bolstered Pollie’s testimony, there were at least eight
significant reasons that the jury had to doubt Pollie. First, Pollie acknowledged that he had
received a plea deal to plead to possession of cocaine and serve nine months in jail in exchange
for his testimony. (R. 5-4 at PageID 389.) Second, Pollie admitted that he had initially lied to
the police and only changed his story when, facing “a lengthy incarceration term,” he agreed to a
plea deal. (R. 5-4 at PageID 416–17, 419–20.) Third, Pollie stated that he had spent some time
in the car on his own while Etherton went into Meijer to cash a check, indicating that Pollie had
an opportunity to hide evidence on the driver’s side of the car. (R. 5-4 at PageID 403.) Fourth,
Pollie admitted that he had eaten chips on the day of the arrest, which demonstrated that the bag
on top of the cocaine might have been Pollie’s. (Id.) Fifth, Pollie acknowledged that he had
handled the bag of cocaine and expected his fingerprints to be found on it. (Id.) Sixth, although
4
Indeed, in the context of evaluating law enforcement’s quantum of suspicion, corroboration renders an
anonymous tip more reliable. See, e.g., Alabama v. White, 496 U.S. 325, 331 (1990).
No. 14-1373 Etherton v. Rivard Page 19
Pollie initially denied driving on the day of the arrest because he did not have a license, he
admitted that he had in fact driven a different vehicle earlier that day. (R. 5-4 at PageID 420–
21.) Seventh, Pollie acknowledged that he had both used and dealt cocaine in the past. (R. 5-4
at PageID 406.) Finally, Pollie disclosed that he had read the police reports concerning both his
and Etherton’s arrests, indicating an opportunity to fabricate testimony in order to conform to the
expected testimony of other witnesses for the prosecution. (R. 5-4 at PageID 416.)
The entire case from opening statement to return of the verdict was less than a day. The
proof presented lasted a mere four hours and nineteen minutes. In that time, the prosecution
relied on the tip as a critical piece of evidence to support and corroborate the otherwise
unsupported testimony of a cooperating co-defendant who admitted to having lied to the
police—and to having the opportunity and motive to fabricate. Under the circumstances of this
case, it is apparent that the admission of the anonymous tip was prejudicial.
b
Because Etherton has established each of the three conditions stated in Carines, we now
consider whether the error seriously affected the fairness, integrity or public reputation of
judicial proceedings independent of the defendant’s innocence. We find that there is a
reasonable probability that Etherton would have prevailed on this argument on direct review.
People v. Shafier, 768 N.W.2d 305 (Mich. 2009) is particularly instructive, as it was
decided less than four months after the Michigan Supreme Court denied Etherton leave to appeal
on direct review. In Shafier, the prosecutor repeatedly referred to the defendant’s post-Miranda
silence throughout trial, including during closing argument. Id. at 315. “[T]he strength of the
prosecutor’s overall case against defendant hinged entirely on the jury’s assessments of the
witnesses’ credibility.” Id. In light of the repeated nature of the error and the involvement of a
constitutional right, the Michigan Supreme Court held that “there is no question that this is the
sort of error that compromises the fairness, integrity, and truth-seeking function of a jury trial.”
Id. at 316. The Michigan Supreme Court elaborated, stating that the constitutional violation
“rendered the trial fundamentally unfair and cast a shadow on the integrity of [Michigan’s]
judicial processes.” Id.
No. 14-1373 Etherton v. Rivard Page 20
This case bears striking similarities to Shafier. The constitutional error was made
repeatedly throughout Etherton’s trial. The prosecutor’s case against Etherton hinged entirely on
the jury’s assessment of the credibility of witness testimony—in this case of one witness with the
motive and opportunity to fabricate. Accordingly, there is a reasonable probability that
Michigan courts would have found on direct review that the constitutional error in this case
seriously affected the fairness, integrity or public reputation of judicial proceedings independent
of the defendant’s innocence.
3
Shafier illustrates why an objectively reasonable attorney would have raised this issue for
plain-error review, and why there is a reasonable probability that Michigan appellate courts
would have found plain error had the issue been raised. Etherton has therefore established that
he was denied the right to effective assistance of counsel on his first appeal as of right.
Moreover, having considered the arguments raised by Rivard and relied on by the Michigan
courts, we hold that it was an unreasonable application of clearly established Federal law for the
Michigan court to hold otherwise. Fairminded jurists could not disagree. Etherton is therefore
entitled to a belated appeal on the issue that counsel ineffectively failed to raise.
B
Next, we consider Etherton’s argument that he was denied effective assistance of counsel
on appeal as a result of appellate counsel’s failure to argue ineffective assistance of trial counsel.
He argues that appellate counsel should have raised three grounds for ineffective assistance of
trial counsel: (1) that trial counsel should have objected to the admission of the content of the
anonymous tip on Confrontation Clause grounds; (2) that trial counsel failed to object to
improper explanations offered by the prosecution on closing argument; and (3) that defense
counsel was unprepared for trial.
We agree with Etherton that appellate counsel should have argued that failure to object to
the admission of the content of the anonymous tip constituted ineffective assistance of trial
counsel. Because there was a Confrontation Clause violation that resulted in substantial
prejudice, there is a reasonable probability that Michigan appellate courts would have found trial
No. 14-1373 Etherton v. Rivard Page 21
counsel constitutionally ineffective. See Part III.A.3, supra. The failure to include this
compelling argument was therefore prejudicial and, in light of the less meritorious arguments
raised on appeal, amounted to deficient performance of appellate counsel. See id. For the
reasons stated above, we find that it was an unreasonable application of Federal law to hold
otherwise. Consequently, we hold that Etherton is also entitled to a belated appeal on this issue.
Etherton’s second argument, however, is unpersuasive. Minor improprieties in a
prosecutor’s closing argument can be corrected “by instructing the jury that closing arguments
are not evidence.” United States v. Crosgrove, 637 F.3d 646, 664 (6th Cir. 2011). The trial
court instructed the jury in this case that “[t]he lawyer[s’] statements and arguments are . . . not
evidence.” (R. 5-4 at PageID 486.) There was therefore no prejudice—and thus no ineffective
assistance—due to trial counsel’s failure to object to the closing argument.
Finally, Etherton’s third argument is inconsistent with the record. Appellate counsel in
fact argued that trial counsel was ineffective as a result of being unprepared. Accordingly, there
was no ineffective assistance of counsel due to any failure to make such an argument.
C
We now turn to the remaining three issues that Etherton argues should have been raised
by his appellate counsel: (1) that the prosecutor improperly explained on closing argument why
he had given a plea deal to the codefendant but not Etherton; (2) that the prosecutor acted
improperly in closing argument by vouching for Pollie’s credibility; and (3) that the prosecution
elicited false testimony. None of these arguments are persuasive.
First, as noted in Part III.B, supra, there was no prejudice as a result of the prosecution’s
explanations offered during closing argument. Appellate counsel was therefore not ineffective in
not raising it.
Second, for similar reasons, we find no ineffectiveness in appellate counsel’s failure to
argue that the prosecution improperly vouched for Pollie’s credibility. As the district court
correctly noted, any comments that improperly bolstered Pollie’s “were not extensive.”
Etherton, 2014 WL 764843, at *10. Any minor improprieties that may have resulted from the
prosecution’s comments as to Pollie’s testimony were thus corrected by the trial court’s jury
No. 14-1373 Etherton v. Rivard Page 22
instructions that lawyers’ statements are not evidence. Accordingly, appellate counsel was not
ineffective in choosing not to argue this issue.
Finally, we find that appellate counsel was not ineffective in failing to argue that the
prosecution introduced false testimony about the rate at which fingerprints are found on plastic
bags. In order to establish a denial of due process as a result of the introduction of false
testimony, a petitioner must show: “(1) the statement was actually false; (2) the statement was
material; and (3) the prosecution knew it was false.” Brooks v. Tennessee, 626 F.3d 878, 894–95
(6th Cir. 2010) (quoting Coe v. Bell, 161 F.3d 320, 343 (6th Cir. 1998)). Even assuming the
evidence was material and false, Etherton has put forward no evidence or argument at any stage
of the proceedings that the prosecution knew it was false. Etherton has therefore not established
reasonable probability of success as to this argument, and his appellate counsel was thus not
ineffective in failing to argue it.
D
Although Etherton has established a violation of clearly established federal law sufficient
for relief under § 2254, that relief is circumscribed by the nature of the error and “AEDPA’s
purpose to further the principles of comity, finality, and federalism.” Williams v. Taylor,
529 U.S. 420, 436 (2000). When a federal court grants a petition under § 2254 for ineffective
assistance of appellate counsel, the petitioner is entitled only to have the opportunity for the state
courts to review the merits of the claims that appellate counsel ineffectively failed to raise,
consistent with the substantive and procedural rules of the state and the requirements of the
United States Constitution. See Mapes v. Tate, 388 F.3d 187, 194 (6th Cir. 2004); see also
Payne v. Stansberry, 760 F.3d 10, 18 (D.C. Cir. 2014); Shaw v. Wilson, 721 F.3d 908, 919
(7th Cir. 2013), cert. denied sub nom. Brown v. Shaw, 134 S. Ct. 2818, 189 L. Ed. 2d 785 (2014).
“This remedy avoids unnecessarily interfering with [the State’s] interest in correcting its own
errors.” Mapes, 388 F.3d at 194. Accordingly, we hold that Etherton is entitled to have
Michigan courts consider the issues that, absent the ineffective assistance of appellate counsel,
would have been raised on direct appeal.
No. 14-1373 Etherton v. Rivard Page 23
IV
For the foregoing reasons, the judgment of the district court is AFFIRMED IN PART
and REVERSED IN PART. The case is REMANDED with directions to issue a writ of habeas
corpus unless, within whatever reasonable period of time the district court deems appropriate,
Etherton is afforded a new appeal in which he may raise the Confrontation Clause and
ineffective assistance of trial counsel arguments omitted from his original direct appeal or, in the
alternative, is granted a new trial.
No. 14-1373 Etherton v. Rivard Page 24
_________________
DISSENT
_________________
KETHLEDGE, Circuit Judge, dissenting. The problem with the majority opinion is not
that it misapplies the habeas standard, but that it fails to apply that standard at all. The opinion
nowhere gives deference to the state courts, nowhere explains why their application of Strickland
was unreasonable rather than merely (in the majority’s view) incorrect, and nowhere explains
why fairminded jurists could view Etherton’s claim only the same way the majority does. The
opinion, in other words, does exactly what the Supreme Court has repeatedly told us not to do.
I grant that one could argue the merits of Etherton’s Strickland claim both ways, though
personally I have a hard time seeing the putative prejudice upon which the majority rests its
decision. The issue at trial was whether the cocaine in Etherton’s Audi belonged to him or to
Pollie. Had the tip taken a position on that issue—had it included, for example, some suggestion
that Etherton purchased the cocaine before picking up Pollie—then Etherton would have had a
solid argument as to prejudice. But in fact the tip was agnostic as to whom the cocaine
belonged: it relayed only that two white men would be travelling down I-96 in a white Audi
containing cocaine. All of those facts were consistent with Etherton’s defense. All of them,
indeed, were undisputed. One may therefore ask why a “fairminded jurist,” Harrington v.
Richter, 562 U.S. 86, 102 (2011), could conclude only that the tip was so prejudicial that
Etherton’s counsel in state court was constitutionally required to make eight arguments on appeal
rather than six.
The majority does not answer that question—its analysis sticks to Strickland rather than
Harrington—but it does try to make out a case for prejudice simpliciter. The argument boils
down to this: the tip was prejudicial precisely because all of the information contained in it was
already common ground at trial. Specifically, since all of the tip’s information was undisputed at
trial, and because Pollie’s testimony included (among many other things) that same information,
the tip tended to bolster Pollie’s credibility at trial. If Pollie was right about the color of the Audi
and the interstate number and the fact that cocaine was in the car, the argument seems to go,
maybe a juror would think he was right about who possessed the cocaine too. That argument is
No. 14-1373 Etherton v. Rivard Page 25
creative—in the sense that making do with the ingredients on hand is often creative—but it is
hardly constitutionally required. Meanwhile, the cocaine was found in a driver’s-door
compartment only inches away from Etherton in a car that he owned and was driving at the time.
That the cocaine was found under an empty bag of potato chips—as opposed to lying in plain
view by the time the officers approached—does not help Etherton’s case much. In short, a
fairminded jurist could conclude, as the state court concluded, that Etherton had bigger problems
at trial than the tip.
Too often in habeas cases the petitioner’s brief, or an opinion granting the writ, read just
like they would in a direct appeal. The court’s opinion here illustrates the point. Respectfully, it
takes more to apply the fairminded-jurist standard than to perform a direct-review analysis and
then simply announce that “[f]airminded jurists could not disagree.” Maj. Op. at 20. What it
takes, rather, is a willingness to take seriously the arguments that supported or “could have
supported” the state-court decision, Harrington, 562 U.S. at 102; and then to ask not merely
whether we agree with those arguments, but whether they are coherent and grounded enough in
the facts and applicable law that an unbiased jurist could agree with them. See, e.g., Drummond
v. Houk, ___ F.3d ___, 2015 WL 4774940 at *2-3 (6th Cir. 2015). But we have none of that
here.
In sum, the governing Supreme Court precedent in this case is not Strickland but
Harrington. One passage in particular: “Federal habeas courts must guard against the danger of
equating unreasonableness under Strickland with unreasonableness under § 2254(d).”
Harrington, 562 U.S. at 105. Our decision today falls prey to that danger, and thus I respectfully
dissent.