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Richardson v. Palmer

United States Court of Appeals, Sixth Circuit

October 24, 2019

Thomas David Richardson, Petitioner-Appellant,
v.
Carmen Denise Palmer, Warden, Respondent-Appellee.

          Argued: August 7, 2019

          Appeal from the United States District Court for the Western District of Michigan at Grand Rapids. No. 1:14-cv-01250-Paul Lewis Maloney, District Judge.

         ARGUED:

          David L. Moffitt, LAW OFFICES OF DAVID L. MOFFITT & ASSOCIATES, Bingham Farms, Michigan, for Appellant.

          Linus Banghart-Linn, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee.

         ON BRIEF:

          David L. Moffitt, LAW OFFICES OF DAVID L. MOFFITT & ASSOCIATES, Bingham Farms, Michigan, for Appellant.

          Andrea M. Christensen-Brown, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee.

          Before: SUHRHEINRICH, CLAY, and DONALD, Circuit Judges.

          OPINION

          BERNICE BOUIE DONALD, Circuit Judge.

         In May 2008, a Michigan jury convicted Thomas Richardson of first-degree murder for killing his wife, Juanita Richardson, by causing her to fall from a cliff in Pictured Rocks National Park. After exhausting his state remedies, Richardson filed a habeas petition with the United States District Court for the Western District of Michigan. Pursuant to the magistrate judge's recommendation, the district court denied the petition but granted a certificate of appealability ("COA") on Richardson's claim of prosecutorial misconduct. This court subsequently granted an additional COA on Richardson's claims of ineffective assistance of trial and appellate counsel for failing to argue that a witness's testimony was obtained as a result of an illegal, warrantless search.

         We affirm the district court's denial of Richardson's petition. Richardson has failed to demonstrate that the Michigan Court of Appeals' rejection of his claims of prosecutorial misconduct was objectively unreasonable based on Supreme Court precedent. Additionally, Richardson has failed to demonstrate that the state court misapplied Supreme Court precedent in finding that neither his trial nor appellate counsel was ineffective.

         I.

         Both Richardson and the government have adopted the underlying facts as set forth by the Michigan Court of Appeals:

[Richardson] was convicted of killing his wife, Juanita Richardson, by causing her to fall from a cliff in Pictured Rocks National Park on June 22, 2006. Defendant initially told a park employee that the victim was missing from their "honeymoon spot" at the cliff when he returned from a visit to the restroom. After the victim's body was recovered from the rocks below the cliff, defendant gave different accounts of the event to law enforcement officers, during which he reported both that he observed the victim intentionally jump from the cliff and that he observed her accidentally fall from the cliff. After the incident, defendant also gave conflicting accounts of the event to various relatives, former and current coworkers, and other acquaintances. The medical examiner concluded that the victim's fatal injuries were equally consistent with an accidental, suicidal, or homicidal fall from the cliff. The prosecutor's theory at trial was that defendant may have choked the victim to the point of unconsciousness and then dropped her over the edge, or used some implement to knock her over the edge. The defense theory was that the victim accidentally fell from the cliff.

People v. Richardson, No. 287857, 2010 WL 4320392, at *1 (Mich. Ct. App. Nov. 2, 2010). Because our analysis will involve whether Richardson was actually prejudiced by the admission of certain evidence that he alleges was the result of a Fourth Amendment violation, however, a more in-depth summary is necessary.

         Richardson was charged with first-degree murder and manslaughter.[1] The prosecution's theory was that Richardson was a womanizer, who had previously separated from his wife, Juanita, to be with another woman. He treated his wife poorly, openly insulting her, committing acts of domestic violence, giving her a black eye, and threatening to kill her. He was, at the time of his wife's death, actively pursuing at least one other woman, Keli Brophy, whom he had asked to "wait for him" and told he could "take care of." Brophy, however, had told Richardson that if he wanted to be together, then his "ex-wife couldn't be alive." Richardson told Brophy that his wife had breast cancer, which she did not, and that she would be dead by Christmas, which she was.

         Shortly before their fateful trip to their "honeymoon spot," Juanita reported that her husband had "been ragging on" her to "get a will." Richardson requested weekend appointments to meet with attorneys to draft a will the weekend before their trip. As soon as Richardson learned that a will was not necessary to avoid probate in the event of one of their deaths because they owned their property jointly, Richardson's insistence on having the wills drafted "completely dissipated."

         On June 22, 2006, Richardson and his wife, Juanita, travelled to their "honeymoon spot" at Pictured Rocks National Lakeshore on the Upper Peninsula in Michigan. In the time after Juanita's death, Richardson described a variety of possible scenarios that could have led to her fall. In one, he went to the restroom, only to come back and see her body on the rocks below. In another, he returned from the restroom to find her standing on the cliff. "[A]s he approached the cliff site, their eyes met, she said something about - about God, and turned and jumped off of the cliff." In yet another version, he returned to find his wife "standing at the edge of the cliff" before she "just kind of fell over." In additional variations of these accounts, Richardson sometimes passed or blacked out after seeing Juanita at the bottom of the cliff. In explaining these inconsistent stories, Richardson claimed to suffer from memory loss due to a work-place injury. Many witnesses had never observed any other evidence of memory loss, nor heard Richardson mention it before Juanita's death. In discussing Richardson's inconsistent stories, the prosecution's expert witness stated that, based on her review of the research, "in reports of dissociative amnesia, typically once the memory returns, it's there, it's returned." That witness found that it led to "a conclusion that telling different stories at different times is a matter of choice, not a matter of memory suddenly disappearing again."

         After Juanita's death, Richardson began pursuing other women more aggressively. According to testimony from Brophy and her daughter, Richardson appeared uninvited at Brophy's residence. As a gift, he even brought a plant from Juanita's funeral. An intelligence analyst testified that there were fifty-two calls between Richardson and Brophy in the weeks following Juanita's death. Also, according to testimony from Tammy Sian, she and Richardson became involved in August 2006, two months after his wife's death. Additionally, "several weeks after Juanita Richardson's death," Richardson approached the branch manager of his bank to discuss "negotiating memorial fund checks that he had received." Apparently, he had told other employees at the bank that he "wanted to cash" the memorial checks and was told that they "couldn't just be cashed, they needed to go into a memorial fund set up specific[ally] for that." Still, Richardson asked a bank employee if he could take her out to dinner, within months of his wife's death. When his offer was rejected, he sent the employee a card with his phone number. Finally, two months after Juanita's death, Richardson unknowingly met an undercover agent when getting dinner with a larger group. Four months after Juanita's death, after exhibiting a "high" level of interest in the undercover agent and "regularly" suggesting that the two meet, Richardson met with the agent alone.

         After being charged, Richardson was housed in a cell with two witnesses, both of whom testified that he had said that the prosecuting attorney would "be the next bitch to go off a cliff."[2]

          The defense, meanwhile, argued that Juanita had accidentally fallen off the cliff. Defense witnesses testified that Richardson and Juanita had a good marriage and "liked to argue, but they loved to make up." Richardson was active in a bible study group. Juanita had allegedly confided in a friend from church that she had previously had an affair.

         The magistrate judge's thorough and well-reasoned explanation of the case contains countless other examples of the kinds of evidence discussed above. Still, such a summary is appropriate for the necessary consideration of whether Richardson was prejudiced by his allegedly ineffective counsel.

         In the end, the jury found Richardson guilty of first-degree murder. He was sentenced to life in prison without the possibility of parole. The Michigan Court of Appeals affirmed his conviction, as did the Michigan Supreme Court. Richardson subsequently moved for relief from judgment. The trial court denied the motion. Both the Michigan Court of Appeals and Michigan Supreme Court denied Petitioner leave to appeal, finding that he "fail[ed] to meet the burden of establishing entitlement to relief under MCR 6.508(D)."[3] People v. Richardson, No. 316802, Order (Mich. Ct. App. Dec. 27, 2013); People v. Richardson, 856 N.W.2d 12 (Mich. 2014).

         Richardson sought a writ of habeas corpus in the Western District of Michigan pursuant to 28 U.S.C. § 2254, asserting fourteen claims of relief that he had previously raised. The magistrate judge recommended denying relief, and the district court adopted the magistrate's report over Richardson's objections. In doing so, however, the court granted a COA on Richardson's allegation of prosecutorial misconduct. This Court subsequently expanded that COA to include the additional issue of whether trial and appellate counsel were ineffective for failing to argue that some testimony described above was obtained as a result of an illegal, warrantless search.

         This panel is therefore considering two discrete claims: (1) Whether the Michigan court's rejection of Richardson's claim of prosecutorial misconduct was objectively unreasonable; and (2) whether Richardson's trial and appellate counsel performed ineffectively by failing to argue that Tammy Sian's testimony was obtained as a result of an illegal, warrantless search.

         Like the state trial, appellate, and supreme courts, as well as the federal magistrate and district judges before us, we find that Richardson's claims of prosecutorial misconduct are meritless and that the state appellate court was not objectively unreasonable to reject the argument. Further, we find that trial and appellate counsel were not ineffective for failing to argue that Tammy Sian's testimony was obtained through a warrantless search, and even if counsel had been ineffective, Richardson was not prejudiced.

         II.

         As a preliminary matter, both the government and Richardson claim that the other party is now attempting to make arguments that have been procedurally defaulted or waived. The government argues that several of Richardson's claims of prosecutorial misconduct, as well as his claim of ineffective assistance of counsel, have been procedurally defaulted and should not be considered by this panel. Richardson, meanwhile, argues that the government has waived the argument of procedural default by failing to object to the magistrate judge's recommendation, which explicitly declined to consider procedural default.

         In the context of a habeas petition, procedural default bars federal review when a state court has declined to address a federal claim due to the petitioner's noncompliance with a state procedural requirement. Wainwright v. Sykes, 433 U.S. 72, 87 (1977). The default is an adequate and independent state ground upon which the state decision rests. Davila v. Davis, 137 S.Ct. 2058, 2064 (2017). If a petitioner fails to raise a federal claim on direct appeal, the claim is procedurally defaulted in federal court. Coleman v. Thompson, 501 U.S. 722, 731-32 (1991). If a claim has been procedurally defaulted, then habeas review is only available if a "petitioner can demonstrate (1) cause for the default and actual prejudice [resulting therefrom], or (2) that the [court's] failure to consider the [defaulted argument would] result in a fundamental miscarriage of justice." Williams v. Bagley, 380 F.3d 932, 966 (6th Cir. 2004) (citing Coleman, 501 U.S. at 749-50).

         Though the Michigan Court of Appeals determined that some of Richardson's arguments had been defaulted due to his failure to assert the issue during the trial, the court still considered the issues. Richardson, 2010 WL 4320392, at *8-15. The magistrate judge decided that "[r]ather than attempt to navigate these questions of procedural default," the court would "simply address Petitioner's claim on the merits." Richardson, 2017 WL 9605116, at *58. Faced with the conflicting state appellate record, we agree with the magistrate judge that "[a]n analysis of the merits of the petitioner's substantive claims presents a more straightforward ground for decision." Id. (quoting McLemore v. Bell, 503 Fed.Appx. ...


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