BERNARD IVORY v. BONITA HOFFNER (2016)

ORDER

Bernard Ivory, a Michigan prisoner proceeding pro se, appeals a district court judgment denying his 28 U.S.C. § 2254 petition. This case has been referred to a panel of the court that, upon examination, unanimously agrees that oral argument is not needed. See Fed. R. App. P. 34(a).

Ivory was convicted in a bench trial of two counts of assault with intent to commit murder, one count of possession of a firearm by a felon (felon-in-possession), and one count of possession of a firearm during the commission of a felony (felony-firearm). The case involved a shooting arising from an eviction of the residents of an apartment. On appeal, Ivory argued that trial counsel was ineffective for (1) failing to interview witness Toryanno Griffin before he testified at trial; (2) failing to investigate and call other eyewitnesses to testify at trial; (3) failing to obtain a police report regarding another incident that had occurred on the day of the offense; (4) failing to allow him to take a polygraph test in exchange for dismissal of some of the charges if he passed; and (5) advising him to waive his right to a jury trial. The Michigan Court of Appeals affirmed. The appellate court declined to remand Ivory's case to the trial court for an evidentiary hearing pursuant to People v. Ginther, 212 N.W.2d 922 (Mich. 1973), because Ivory had failed to comply with state rules for requesting a Ginther hearing. However, due to discrepancies regarding Ivory's sentence, the court sua sponte remanded the case for resentencing. People v. Ivory, No. 300861, 2011 WL 6279243 (Mich. Ct. App. Dec. 15, 2011). The Michigan Supreme Court denied Ivory leave to appeal. After several remands by the appellate court regarding Ivory's sentence, he was resentenced to 225 months to twenty years of imprisonment for the assault convictions and to two to five years for the felon-in-possession conviction, to be served concurrently; and to two years of imprisonment for the felony-firearm conviction, to be served consecutively. People v. Ivory, No. 310380, 2013 WL 5731732, at *1 (Mich. Ct. App. Oct. 22, 2013).

In October 2015, Ivory filed a § 2254 petition, arguing that (1) the state trial court erred in failing to hold an evidentiary hearing; and (2) trial counsel was ineffective for the reasons asserted on direct appeal. The district court denied the petition on the merits. On appeal, Ivory challenges the district court's denial of his ineffective-assistance-of-counsel claims and his claim requesting an evidentiary hearing in the trial court and district court.

We review the district court's legal conclusions de novo and its factual findings for clear error. Slaughter v. Parker, 450 F.3d 224, 232 (6th Cir. 2006). Under § 2254(d), habeas corpus relief may be granted on claims that were adjudicated in state court only if (1) the state-court adjudication was “contrary to, or involved an unreasonable application of, clearly established Federal law,” or (2) the state-court adjudication “was based on an unreasonable determination of the facts.” 28 U.S.C. § 2254(d).

Ivory argues that the district court erred in determining that the state courts did not unreasonably deprive him of an evidentiary hearing. The district court determined that Ivory failed to properly request a hearing under Michigan law and that he was not entitled to a hearing in the district court.

Under Michigan law, an appellant seeking to argue ineffective assistance of counsel based on facts not included in the record must request a Ginther hearing. Such a hearing must be supported by affidavits or other proof regarding the evidence that the appellant wishes to submit at the hearing. Mich. Ct. R. 7.211(C)(1). The Ginther hearing must also be requested in a timely motion; a request for a Ginther hearing made for the first time on direct appeal is untimely. Id. The record supports the Michigan Court of Appeals' determination that Ivory did not meet these requirements. In any event, this is an issue of state law that is not cognizable on habeas review. See Estelle v. McGuire, 502 U.S. 62, 67 (1991).

Additionally, Ivory has not shown that the district court erred in denying his request for an evidentiary hearing. “[R]eview under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011). The Michigan Court of Appeals denied Ivory's ineffective-assistance-of-counsel claims on the merits, and thus the district court lacked authority to expand the record in an evidentiary hearing. See id.

Ivory also argues that the district court erred in denying his ineffective-assistance-of-counsel claims. To establish ineffective assistance of counsel, the defendant must show both deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). “[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). The test for prejudice is whether “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. Where, as here, “§ 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.” Harrington v. Richter, 562 U.S. 86, 105 (2011).

Ivory first argues that trial counsel was ineffective for failing to interview Griffin or prepare for his testimony. The Michigan Court of Appeals determined that there was no evidence in the record establishing that counsel did not interview Griffin before he testified. Additionally, the court determined that Ivory did not demonstrate that he was prejudiced because Griffin's testimony was similar to that of Ivory, especially regarding their assertions that Ivory was unarmed and was the victim in the offense. The district court determined that Griffin's and Ivory's testimony was similar in most material respects, and Griffin indeed portrayed Ivory as an unarmed victim in the matter. The record supports the district court's determination. Accordingly, Ivory has not shown that the district court erred in concluding that the Michigan Court of Appeals did not unreasonably determine that counsel was not ineffective on this basis.

Ivory also argues that trial counsel was ineffective for failing to call favorable eyewitnesses. The Michigan Court of Appeals determined that Ivory had not identified any eyewitnesses that counsel failed to call, nor did he show that he was deprived of a defense or that he was prejudiced by counsel's failure to seek out additional eyewitnesses. The district court determined that Ivory's § 2254 petition likewise did not identify any eyewitnesses that should have been called. Although Ivory's district court reply brief contended that counsel should have called James Meyers and Theresa McCoy as witnesses, the district court determined that Ivory had not established that their testimony would have been helpful. Meyers's statement to police, which Ivory attached to his reply brief, stated that Meyers said that Ivory was armed, rather than unarmed, during the incident but did not shoot the victims. Evidence that Ivory was armed during the incident would have been harmful to Ivory, and Ivory did not provide any evidence establishing that McCoy would have provided exculpatory testimony. Ivory has not demonstrated prejudice, and thus he has not shown that the district court erred in concluding that the Michigan Court of Appeals did not unreasonably determine that counsel was not ineffective on this basis.

Ivory next contends that counsel was ineffective for failing to obtain a police report about an incident occurring at the apartment earlier that day. He asserts that the report likely would have refuted the trial court's finding that the landlord did not kick in the door to the apartment during the incident. The Michigan Court of Appeals determined that it was not apparent from the record that counsel did not obtain the police report and that the trial court had considered the earlier incident. The district court determined that witnesses testified at length in Ivory's favor regarding the incident, and thus Ivory had not shown that he was prejudiced by any failure by counsel to obtain the police report. The record supports the district court's determination. Accordingly, Ivory has not shown that the district court erred in concluding that the Michigan Court of Appeals did not unreasonably determine that counsel was not ineffective on this basis.

Ivory argues that counsel was ineffective for failing to schedule a polygraph test. The Michigan Court of Appeals determined that there was no record of an offer of a polygraph test and that, in any event, such decisions were a matter of trial strategy. The district court agreed. Ivory has not provided any facts or arguments sufficient to overcome the presumption that counsel's advice was the result of sound trial strategy. See Strickland, 466 U.S. at 689. Accordingly, Ivory has not shown that the district court erred in concluding that the Michigan Court of Appeals did not unreasonably determine that counsel was not ineffective on this basis.

Finally, Ivory argues that trial counsel was ineffective for advising him to waive his right to a jury trial. The Michigan Court of Appeals determined that Ivory “knowingly and voluntarily waived his right to a jury trial,” that counsel's advice to waive this right was a matter of trial strategy, especially because Ivory's and Griffin's prior criminal convictions could be used for impeachment purposes, and that Ivory had not demonstrated prejudice. Ivory, 2011 WL 6279243, at *2. The district court noted that at a pretrial hearing, Ivory acknowledged that he had waived his right to a jury trial in writing after extensively discussing the issue with counsel and denied that he had been coerced or threatened into executing the waiver. The district court concluded that Ivory did not demonstrate that counsel's advice was not the result of sound trial strategy, nor did he demonstrate prejudice, either as a result of judicial bias or otherwise. Although Ivory argues that his prior convictions were not admissible at trial, he does not challenge the admissibility of Griffin's prior convictions, and he has not overcome the presumption that counsel's advice was the result of sound trial strategy. Nor has he shown that he was prejudiced by counsel's advice. Thus, the Michigan court of appeals reasonably concluded that Ivory's trial counsel did not render ineffective assistance on this basis. See Willis v. Smith, 351 F.3d 741, 746 (6th Cir. 2003).

In light of the foregoing, the district court's judgment is AFFIRMED.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk