No. 08-1389

In the Supreme Courtof the UnitedStates

Sup~me Court, U.S.FILED

OFFICE OF "i’HE CLERK,,

John Prelesnik,Petitioner,

Vo

Chamar Avery,Respondent.

ON PETITION FOR WRIT OF CERTIORARITO THE UNITED STATES COURT OFAPPEALS FOR THE SIXTH CIRCUIT

REPLY BRIEF FOR THE PETITIONER

Michael A. CoxAttorney General

B. Eric RestucciaSolicitor GeneralCounsel of RecordP. O. Box 30212Lansing, Michigan 48909(517) 373-1124

Mark G. SandsAssistant Attorney GeneralAttorneys for Petitioner

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ...............................................ii

PETITIONER’S REPLY BRIEF ........................................1

I. The State court’s finding of fact that theproposed alibi witnesses were not credible ispresumed to be correct under AEDPA.Respondent failed to overcome thatpresumption ...............................................................2

II. The Sixth Circuit did not overcome thepresumption of correctness by clear andconvincing evidence. Instead, it ignored thatfactual finding .....................................................4

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TABLE OF AUTHORITIESPage

Cases

Amadeo v. Zant,486 U.S. 214 (1988) ..................................................1

A very v. Prelesnik,548 F.3d 434 (6tlh Cir. 2008) ....................................6

Blaekledge v. Allison,431 U.S. 63 (1977) ....................................................2

Shabazz v. Artuz,336 F.3d 154 (2d Cir. 2003) ......................................1

Smith v. MeCormieJ~,914 F.2d 1153 (9th Cir. 1990) ..............................2, 4

Smith v. Spisak,case no 08-724, cert granted Feb. 23, 2009 .........1, 7

Striekland v. Wash~ngton,466 U.S. 668 (1984) ..........................................1, 6, 7

United States v Cronie,466 U.S. 648 (1984) ..................................................7

Woodford v. Visciot.¢i,537 U.S. 19, 123 S. Ct. 357, 154 L. Ed. 2d 279.(2002) (per curiam) ...................................................2

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Statutes

28 U.S.C. § 2254(e)(1) ................................................1, 3

28 U.S.C. § 2254(e)(2) ....................................................4

Other Authorities

Antiterrorism and Effective Death PenaltyAct of 1996 ......................................................passim

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PETITIONER’S REPLY BRIEF

This case is jurisprudentially significant becauseit represents part of a continuing pattern by the SixthCircuit of deciding i~nportant federal questions in a waythat conflicts with relevant decisions of this Court. Thesame error is present here as is present in Smith y.Spisak, where this Court granted certiorari on the issueof whether the Sixth Circuit failed to properly apply theAntiterrorism and Effective Death Penalty Act of 1996(AEDPA).~ This Court should grant certiorari ensurethat the Sixth Circuit properly applies the AEDPAstandard.

It is axiomatic that a federal appellate court mustgive "due regard.., to the opportunity of the trial courtto judge the credibility of the witnesses.’’2 This "dueregard" is strengthened on habeas review because of the"double layer" of deference given to State courtdeterminations of credibility. First, under the generalStriekland layer, a State prisoner must establish aprejudicial error - i.e., an error so serious that it callsinto question the reliability of the entire trial.:~ Second,under AEDPA, a federal appellate court must presumethat factual determinations are correct, especially thoseregarding witness credibility.4

The presumption of factual correctness can only beovercome if they are proven to be incorrect by clear andconvincing evidence.~ This Court has held that where, as

~ See, e.g., Smith v. Spisak, case no 08-724, cert granted Feb. 23,20O9.

2 Amadeo v. Zant, 486 U.S. 214, 223 (1988).

~ Strickland y. Washing.~on, 466 U.S. 668, 687 (1984).

4 See, e.g., Shabazz v. A~,tuz, 336 F.3d 154, 161 (2d Cir. 2003).

~ 28 U.S.C. § 2254(e)(1).

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here, the central issue is one of credibility, anevidentiary hearing will often be necessary to resolvematerial factual conflicts.~’ In other words, anevidentiary hearing is generally necessary to provide the"clear and convincing evidence" required for a federalhabeas court to reject the factual finding of a State trialcourt.

But in this case, the Sixth Circuit did not order anevidentiary hearing to determine whether the "alibi"witnesses cited by Respondent were as incredible as theState trial court who observed their testimony foundthem to be. Nor did the Sixth Circuit find that this wasone of the "rare instances" where credibility might bedetermined without an evidentiary hearing, "based ondocumentary testimony and evidence on the record.’’7

Instead, the Sixth Circuit ignored the finding of fact bythe State trial court and it held that as a matter of law,the failure to pursue any alibi defense is per seunreasonable because it deprives Respondent of a"reasonable shot of acquittal."

I. The State court’s f’mding of fact that the proposedalibi witnesses were not credible is presumed tobe correct under AEDPA. Respondent failed toovercome that presumption.

Under the highly deferential AEDPA standard, afederal habeas court must give the State-court decision"the benefit of the doubt.’’~ That "benefit of the doubt"

~ Blaekledge v. Allison, 431 U.S. 63, 82 n 25 (1977).v Smith v. McCormick, 914 F.2d 1153, 1170 (9th Cir. 1990).

s Woodfordv. Viseiotti, 537 U.S. 19, 24, 123 S. Ct. 357, 154 L. Ed. 2d279 (2002) (per euriam).

lasts until the habeas petitioner demonstrates that suchfindings are incorrect by clear and convincing evidence.9

Respondent argues that the finding by the Statetrial court that the alibi witnesses lacked credibility wascompletely unsupported. But Respondent, like the SixthCircuit, failed to give the State trial court the deferencethat is required under AEPDA.

Here, the trial court found as a matter of fact thatneither of the alibi witnesses proposed by Respondentwas credible. Since their testimony could not bebelieved, trial counsel was not ineffective for failing tocall them. Specifically, the trial court noted thatpurported alibi witness Damar Crimes’s statement wasinconsistent with Avery’s testimony on a fundamentalpoint. Pet. App. 41a. Damar Crimes testified that Averydropped off his automobile at the repair shop on the dayof the murder, while Avery claimed to have dropped theautomobile off on the day before the murder. Pet. App.40a- 41a. The trial court concluded that witness DariusBoyd- who was allegedly with Avery and Damar Crimes- was completely incredible. Specifically, the court notedthat his testimony "suggests to me a manufacturing oftestimony." Pet. App. 46 a.

Implicit in the State trial court’s conclusion is thatAvery could not have suffered prejudice from trialcounsel’s failure to call the "alibi" witnesses, because noreasonable juror could believe their manufactured story.In other words, the failure to call wholly non-crediblewitnesses cannot deprive a defendant of a fair trialbecause their false testimony could not with anyreasonable probability have changed the outcome.

~ 28 U.S.C. § 2254(e)(1).

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Under AEDPA, then, the federal habeas court wasbound to presume that these credibility determinationswere correct.

II. The Sixth Circuit did not overcome thepresumption of correctness by clear andconvincing evidence. Instead, it ignored thatfactual finding.

Respondent argues that the Petitioner is askingthis Court to create a new rule making a trial court’ssubjective finding on witness credibility unreviewable.While that is not correct, it nevertheless highlights theidea that Congress intended habeas review of State courtconvictions to be a ]imYted remedy. Under 28 U.S.C.§ 2254(e)(2), Congress set forth very limited conditionsunder which a federal habeas court can proceed with anevidentiary hearing in order to make its own findings offact. Unless those conditions are met, a habeaspetitioner is not entitled to hearing and the findings offact made at the State court level must be givendeference.

Where no evidentiary hearing is authorized, thefederal habeas court in rare circumstances might stillreview a State court determination of credibility where itis possible to conclusively decide the credibility question"based on documentary testimony and evidence on therecord."’° But the federal habeas court must have somebasis upon which it decides there is "clear andconvincing evidence" to overcome the presumption thatthe State trial court was correct. In the absence of eithera circumstance justifying an evidentiary hearing or of"evidence on the record" disputing the State trial court’sfinding, of fact, then a claim regarding those facts is

~o McCormick, 914 F.2d at 1170.

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essentially unreviewable. That is what Congressintended when it limited the scope of habeas reviewunder AEDPA.

Yet, the Sixth Circuit did not order an evidentiaryhearing to challenge the State trial court’s finding thatthe alibi witnesses were incredible. Nor did the SixthCircuit undertake an analysis of the "evidence on therecord" to demonstrate why the State trial court’sdetermination of credibility was incorrect. Rather, theSixth Circuit simply rejected the trial court’s factualdetermination and sl~bstituted its own determination ofthe facts:

We do ~ot denigrate the role of thefactfinder in judging credibility when wereview a record in hindsight, butevaluation o~ the credibility of alibiwitnesses is "exactly the task to beperformed by a rational jury[,]" not by areviewing court. Here, although thefactors the state judge highlighted in hercredibility assessment -- including Boyd’sability to re~nember exact times whilefailing to reca].l the date or day of the weekthat Avery visited his home -- may haveultimately affected the credibility of histestimony in the eyes of the jury, but theydo not dispose of the issue of prejudice.Notably, the evidentiary hearing occurredapproximately a year and three monthsafter Avery’s trial, and the record before usdoes not demonstrate that the presidingjudge found fault with Crimes’s testimony.Ultimately, a~,~ the district court properlyrecognized, "[0] ur Constitution leaves it tothe jury, not the judge, to evaluate the

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credibility of witnesses in deciding acriminal defendant’s guilt or innocence.’’~1

This was the new rule created by the Sixth Circuit inthis case - a rule that would deprive a State trial courtfrom determining whether a proposed alibi witness wasso incredible that his or her testimony could not havealtered the outcome of the trial.~2

According to this novel rule, any determination ofa witnesses’s credibility is a]ways within the providenceof the jury. Therefore, the failure to call a witness isalways prejudicial, because it deprives a defendant of a"reasonable shot of acquittal."

However, this is the exact opposite of whatStricklsnd requires. Under Strick]snd, a habeaspetitioner carries the burden of proof to demonstratethat there is a "reasonable probability" that, but forcounsel’s unprofessional errors, the result of theproceeding would have been different. A reasonableprobability is a probability sufficient to undermineconfidence in the outcome." 13 But that was not theholding of the Sixth Circuit in this case. Rather, theSixth Circuit identified the "error" as failing toinvestigate two incredible witnesses; and it defined the"harm" caused by that error as depriving Respondent ofa "reasonable shot of acquittal.TM

11 Avery v. Pre]esnik, 548 F.3d 434, 439 (6th Cir. 2008).

~’~ Respondent’s contention that the African-American State courtjudge in this case made her determination "based on a blatant,racist and ageist stereotype that a young black man would not havethe money to pay for his car repairs without robbing someone" ishyperbole and unsupported by any evidence whatsoever.1:~ Strickland, 466 U.S. at 698.

14 Avery, 548 F.3d at 439.

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But this case is not an isolated instance of theSixth Circuit deciding an important question of federallaw in a way that conflicts with decisions of this Court.Indeed, this case is not even the only instance where theSixth Circuit has imposed a Cronie standard on habeasreview without citing to United States v. Cronie.1~

This Court recently granted certiorari to the SixthCircuit in Smith Vo Spisak, and identified one of theissues for briefing as whether "the Sixth Circuitexceeded its authority under AEDPA when it appliedUnited States v. Crgnie ~, to presume that a habeaspetitioner suffered prejudice from several allegedlydeficient statement~,;"). In Smith, the Sixth Circuitundertook its analysis by noting that trial counsel wasineffective based on his arguments at closing. But theSixth Circuit determined that the comments were thefunctional equivalenv, of counsel not being present at alland, on the basis, found that the defendant was per seprejudiced by those arguments. Just as in the instantcase, the Sixth Circuit cited Strieklandand purported toapply that case. Moreover, like the instant case, theSixth Circuit did not even cite Croniein its analysis. Butthe Sixth Circuit’s decision not to cite Cronie is notdispositive - in both cases the Sixth Circuit held thattrial counsel’s failures were per se prejudicial andgranted habeas relief on that basis.

1,~ The State of Michigan notes that it has filed three other petitionsfor certiorari contemporaneously with this petition. See Berghuis v.Thompkin~, (08-1470); Motri~h v. Newman, (08-1401); and Berghui~v. Smith, (08-1402). All four are murder eases, all published, allreaching disposition in February 2009, in which the State ofMichigan contends the Sixth Circuit failed to accord the State courtdecisions with the proper level of deference required by AEDPA.

~ United States v Cronic; 466 U.S. 648, 659 (1984).

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Here, the Sixth Circuit did not demonstrate that,but for trial counsel’s deficient performance, there was a"reasonable probability" that the outcome of the trialwould have been different. Rather, the Sixth Circuitmerely opined that the alibi witnesses "could have"supplied reasonable doubt and the failure to call themdeprived Respondent of a "reasonable shot at acquittal."In other words, the Sixth Circuit articulated a C~’onicstandard for the failure to call an alibi witness; eventhough the Sixth Circuit did not cite Cronie.

Respectfully submitted

Michael A. CoxAttorney General

B. Eric RestucciaSolicitor GeneralCounsel of RecordP. O. Box 30212Lansing, Michigan 48909Telephone: (517) 373-1124

Mark G. SandsAssistant Attorney GeneralAttorneys for Petitioner

Dated: August, 2009