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Brown v. Romanowski

United States Court of Appeals, Sixth Circuit

January 9, 2017

Ryan Brown, Petitioner-Appellant,
v.
Kenneth Romanowski, Warden, Respondent-Appellee.

          Argued: October 19, 2016

         Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:13-cv-11367-Matthew F. Leitman, District Judge.

         ARGUED:

          Rajiv Mohan, GIBSON, DUNN & CRUTCHER LLP, Washington, D.C., for Appellant.

          Raina I. Korbakis, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee.

         ON BRIEF:

          Rajiv Mohan, GIBSON, DUNN & CRUTCHER LLP, Washington, D.C., for Appellant.

          Timothy C. Erickson, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee.

          Before: BOGGS, SUHRHEINRICH, and McKEAGUE, Circuit Judges.

          OPINION

          SUHRHEINRICH, Circuit Judge.

         Petitioner-Appellant Ryan Brown, a state prisoner, appeals the district court's denial of his petition for writ of habeas corpus based on violations of his speedy-trial rights and related claims of ineffective assistance of counsel.[1] We affirm.

         I.

         Brown's convictions resulted from controlled buys of cocaine initiated and made by an informant on September 16, November 8, and December 7, 2005, and on January 10, 2006. See People v. Brown, No. 284568, 2009 WL 1883978, at *1 (Mich. Ct. App. June 30, 2009) (per curiam). The informant, Jawad Mirza, called Detective Perry Dare, proposing "[t]o work with him, " in exchange for sentencing consideration. Mirza told Dare that Brown was a drug dealer and agreed to set up some controlled purchases to Brown. Mirza made the first call to Brown in September 2005, offering to buy an ounce of cocaine. They met on September 16, 2005, at Brown's apartment. Before Mirza went to Brown's apartment, Dare searched Mirza's car and person. Dare also gave Mirza an audio recorder and $800 to purchase the drugs. After the exchange, Mirza gave Dare the cocaine and the recording device.

         Mirza made similar purchases over the next few months. On November 8, 2005, Mirza attempted to purchase two ounces of cocaine from Brown. Prior to the transaction, Dare searched Mirza, gave him $1, 700, and provided an audio recorder. Undercover police officer Kenneth Spencer accompanied Mirza. Spencer waited in the car during the transaction, which took place at Brown's cousin's house. Mirza was able to purchase only one ounce of cocaine. Mirza returned $850 and gave Spencer the cocaine.

         On December 7, 2005, Mirza met Brown again at Brown's cousin's house. Dare searched Mirza and gave him $1, 700 to buy two ounces of cocaine. Dare also supplied Mirza with an audio recorder. Spencer accompanied Mirza. Brown gave Mirza two ounces, which Mirza later gave to Spencer. Afterwards, Dare searched the car, patted Mirza down, and retrieved the recorder.

         Sergeant Pete Simerly offered "support surveillance, " for the four buys from a nearby vehicle.

         On January 10, 2006, Mirza conducted a "buy bust" of Brown. Mirza and Spencer went to Brown's apartment. Brown got into Mirza's car and Spencer got out, but waited within arm's length of the car during the transaction. As Mirza was about to weigh the drugs, the take-down team arrested Brown. Dare searched Mirza and the vehicle prior to the bust.

         The police took Brown to the Oakland County Jail, where he was interviewed by Dare and another officer. Dare gave Brown his Miranda warnings using a standard form. Brown signed the form and waived those rights. Brown also admitted in a written statement that he sold cocaine to Mirza four times. Brown identified his supplier, "Gerald Jackson."[2] Brown was then released from custody.

         On January 27, 2006, the State issued a criminal complaint against Brown, and secured an arrest warrant on February 27, 2006.[3] Brown was unaware of these developments until he was arrested on September 24, 2007, pursuant to an unrelated bench warrant concerning a child-support dispute. On that date, Brown was arraigned on the charges that he sold cocaine to Mirza on four occasions.

         Brown was tried on the drug charges on February 15-16, 2008. Mirza, Dare, Spencer, and Simerly testified for the prosecution; the defense did not call any witnesses. Mirza's defense theory was that he did not sell the cocaine to Mirza, but simply permitted Mirza to use his scale to weigh cocaine that Mirza already possessed. The audio recordings of Mirza's transactions with Brown were unavailable at trial. Dare testified that he lost the tapes in the course of several moves. Brown was convicted of all four offenses: two counts of delivering between 50 and 450 grams of cocaine (Counts 1 and 2) and two counts of delivering less than 50 grams of cocaine (Counts 3 and 4). Brown was sentenced to between 15 and 40 years' imprisonment on Counts 1 and 2, and between 2 ½ and 40 years' imprisonment on Counts 3 and 4, all to run concurrently.

         Brown appealed to the Michigan Court of Appeals, raising two issues: (1) that trial counsel was ineffective for failing to request separate trials on each of the charged offenses, and (2) that the trial court erred in finding that his written confession was voluntary. The Michigan Court of Appeals affirmed. See People v. Brown, 2009 WL 1883978, at *2. The Michigan Supreme Court denied Brown's application for leave to appeal. See People v. Brown, 777 N.W.2d 166 (Mich. 2010) (table).

         Brown filed a motion for relief from judgment in the state trial court. He sought relief on the following grounds: (1) that he was denied due process when exculpatory audio recordings were lost during the twenty-month delay between Defendant's arrest and trial and that counsel was ineffective for failing to move for dismissal on such grounds; (2) that he was denied effective assistance of counsel when trial counsel failed to investigate, and when appellate counsel failed to raise, the foregoing issue on direct appeal; (3) that trial counsel was ineffective for failing to uncover evidence that his confession was involuntarily made after he was threatened by police; and (4) that appellate counsel was ineffective for failing to raise this issue on direct appeal. Brown later filed a motion to amend his motion for relief from judgment, adding three grounds for relief. Of relevance here was Brown's claim that "[t]he state violated the VI & XIV Amendment rights to a speedy trial and due process by conducting the trial more than two years after Brown's arrest which caused actual prejudice according to Barker v. Wingo" and that trial counsel was ineffective for failing to assert his speedy-trial rights and appellate counsel was ineffective for failing to raise these issues on direct appeal. Id. The trial court denied the motion for relief from judgment, holding that Brown had not met his burden of establishing a right to relief under MCR 6.508(D)(3) because he had not demonstrated good cause for failure to raise the issues on direct appeal. In that ruling, the court addressed all of the issues raised in the motion for relief from judgment and none of the issues raised in the amended motion and did not otherwise refer to the amended motion. Id. Brown sought appellate review, but the Michigan Court of Appeals and Michigan Supreme Court each denied review because Brown "failed to meet the burden of establishing entitlement to relief under MCR 6.508(D)."

         Brown filed a federal habeas petition in 2013. The district court rejected all of Brown's claims, but granted a certificate of appealability on two grounds: (1) that Brown's due-process rights were violated by the twenty-month delay between the commission of his offenses in late 2005 and early 2006 and his second arrest in September 2007 (Offenses-to-Second-Arrest Delay); and (2) Brown's Sixth Amendment speedy-trial right was violated by the delay between his first arrest in January 2006 and his trial in February 2008 (First-Arrest-to-Trial Delay).

         Applying the Barker v. Wingo, 407 U.S. 514 (1972) factors, the district court determined that no speedy-trial violation had occurred. The court found that although the delay exceeded a year, the State was at most negligent, Brown failed to assert the right after he became aware of the charges, and, given the overwhelming evidence against him, Brown had not shown prejudice.

         This appeal follows.

         II.

         The district court entered final judgment on July 1, 2015, and granted a certificate of appealability on two issues. Brown filed a timely notice of appeal on July 14, 2015. This court has jurisdiction under 28 U.S.C. §§ 1291 and 2253(c), limited to the claims that were certified for appeal. Id. § 2253(c)(1).

         III.

         This court reviews the district court's denial of habeas relief de novo. Keys v. Booker, 798 F.3d 442, 449 (6th Cir. 2015). The scheme set forth in the Antiterrorism and Effective Death Penalty Act (AEDPA) sharply curtails the scope of a federal habeas court's review if a claim has been "adjudicated on the merits in State court." Johnson v. Williams, 133 S.Ct. 1088, 1094 (2013). If an "on the merits" decision was made, then a federal habeas court may only grant relief to a prisoner if that decision (1) "was contrary to, or involved an unreasonable application of, clearly established Federal law, " or (2) "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented." 28 U.S.C. ยง 2254(d). In this case, the district court held, and both parties agree on ...


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