Woods v. Etherton
Woods v. Etherton
Opinion
In the fall of 2006, Michigan law enforcement received an anonymous tip that two white males were traveling on I-96 between Detroit and Grand Rapids in a white Audi, possibly carrying cocaine. Officers spotted a vehicle matching that description and pulled it over for speeding. Respondent Timothy Etherton was driving; Ryan Pollie was in the passenger seat. A search of the car uncovered 125.2 grams of cocaine in a compartment at the bottom of the driver side door. Both Etherton and Pollie were arrested.
Etherton was tried in state court on a single count of possession with intent to deliver cocaine. At trial the facts reflected in the tip were not contested. The central point of contention was instead whether the cocaine belonged to Etherton or Pollie. Pollie testified for the prosecution pursuant to a plea agreement. He claimed that he had accompanied Etherton from Grand Rapids to Detroit, not knowing that Etherton intended to obtain cocaine there. According to Pollie, once the pair arrived in Detroit, Etherton left him alone at a restaurant and drove off, returning some 45 minutes later. It was only after they were headed back to Grand Rapids that Etherton revealed he had obtained the drugs.
The prosecution also called several police officers to testify. Three of the officers described the content of the anonymous tip leading to Etherton's arrest. On the third recounting of the tip, Etherton's counsel objected on hearsay grounds, but the objection was not resolved when the prosecutor agreed to move on. At closing, the prosecutor also described the tip. The court instructed the jury that "the tip was not evidence," but was admitted "only to show why the police did what they did." App. to Pet. for Cert. 88a. The jury convicted Etherton, and his conviction was affirmed on direct appeal. The Michigan Supreme Court denied leave to appeal.
People v. Etherton,
Etherton sought postconviction relief in state court on six grounds. Three are relevant here: First, he claimed that the admission of the anonymous tip violated his rights under the Confrontation Clause of the Sixth Amendment. Second, that his trial counsel was ineffective for failing to object to the tip on that ground. And third, that his counsel on direct appeal was ineffective for failing to raise the Confrontation Clause and the ineffective assistance of trial counsel claims.
The state habeas court rejected the first two claims on procedural grounds and the third on the merits. To prevail on a claim for ineffective assistance of appellate counsel, the state court explained, Etherton had to demonstrate that "appellate counsel's *1151 decision not to pursue an issue on appeal fell below an objective standard of reasonableness and that the representation so prejudiced [him] as to deprive him of a fair trial." App. to Pet. for Cert. 87a-88a. The state court concluded that Etherton failed on both counts.
First, the court reasoned, appellate counsel may have reasonably forgone any Confrontation Clause claim after concluding that trial counsel's failure to object was the product not of ineffectiveness but of strategy. While Etherton's current counsel argues that trial counsel should have objected because the tip's reference to "two men" suggested involvement by Etherton from the outset, Brief in Opposition 20-21, the reference also suggested Pollie's prior involvement, contrary to his testimony that he was not with Etherton when he picked up the cocaine and had nothing to do with it. As the state court explained, not objecting would have been consistent with trial counsel's "strategy to show defendant's non-involvement and possible responsibility of the passenger (who was also charged)." App. to Pet. for Cert. 88a.
Second, the court determined, Etherton had not been prejudiced by counsel's choice: there was "ample evidence" of his guilt and "the complained of errors, even if true, would not have changed the outcome" of the case.
Etherton next sought federal habeas relief. Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), federal habeas relief was available to him only if the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States."
When the claim at issue is one for ineffective assistance of counsel, moreover, AEDPA review is "doubly deferential,"
Cullen v. Pinholster,
The District Court denied relief, but the Court of Appeals for the Sixth Circuit reversed in relevant part, over the dissent of Judge Kethledge. The majority concluded that Etherton's appellate counsel had been constitutionally ineffective, and
*1152
that no fairminded jurist could conclude otherwise.
Etherton v. Rivard,
In finding counsel ineffective, the majority first concluded that Etherton's right to confrontation had been violated. The Confrontation Clause prohibits an out-of-court statement only if it is admitted for its truth.
Crawford v. Washington,
The majority next found that Etherton had been prejudiced by the violation, a showing Etherton's state court counsel would have had to make on appeal to obtain relief either on the forfeited Confrontation Clause objection, see
People v. Carines,
In reaching these conclusions, the Sixth Circuit did not apply the appropriate standard of review under AEDPA. A "fairminded jurist" could conclude that repetition of the tip did not establish that the uncontested facts it conveyed were submitted for their truth. Such a jurist might reach that conclusion by placing weight on the fact that the truth of the facts was not disputed. No precedent of this Court clearly forecloses that view. It is also not beyond the realm of possibility that a fairminded jurist could conclude that Etherton was not prejudiced when the tip and Pollie's testimony corresponded on uncontested facts. After all, Pollie himself was privy to all the information contained in the tip. A reasonable judge might accordingly regard the fact that the tip and Pollie's testimony corresponded to be unremarkable and not pertinent to Pollie's credibility. (In fact, the only point of Pollie's testimony actually reflected in the tip was that he and Etherton were traveling between Detroit and Grand Rapids.)
Etherton's underlying complaint is that his appellate lawyer's ineffectiveness meant he had "no prior opportunity to cross-examine the anonymous tipster." Brief in Opposition 11. But it would not be objectively unreasonable for a fairminded judge to conclude-especially in light of the deference afforded
trial
counsel under
Strickland
-that the failure to raise such a claim was not due to incompetence but
*1153
because the facts in the tip were uncontested and in any event consistent with Etherton's defense. See
Harrington,
Given AEDPA, both Etherton's appellate counsel and the state habeas court were to be afforded the benefit of the doubt.
Burt,
It is so ordered.
Reference
- Full Case Name
- Jeffrey WOODS, Warden v. Timothy ETHERTON.
- Cited By
- 454 cases
- Status
- Published