Fisher v. Smith , 126 F. App'x 275 ( 2005 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 05a0212n.06
Filed: March 24, 2005
No. 04-1575
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
WADDELL LEO FISHER,
Petitioner-Appellant,
v. ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
DAVID SMITH, WARDEN, EASTERN DISTRICT OF MICHIGAN
Defendant-Appellee.
/
BEFORE: BOGGS, Chief Judge; CLAY, Circuit Judge; and WALTER, District Judge.*
CLAY, Circuit Judge. Petitioner, Waddell Leo Fisher (“Fisher”), appeals from the opinion
and order of the district court denying his petition, pursuant to 28 U.S.C. § 2254, for writ of habeas
corpus. Fisher was convicted in Michigan state court for assault with intent to murder, in violation
of M.C.L. § 750.83, second degree murder, in violation of M.C.L. § 750.317, and possession of a
firearm during the commission of a felony, in violation of M.C.L. § 750.227(b). Fisher contends
that his trial counsel was ineffective for failing to pursue an insanity defense, and that he should be
excused for procedurally defaulting that claim during state court proceedings because his appellate
*
The Honorable Donald E. Walter, United States District Judge for the Western District of
Louisiana, sitting by designation.
No. 04-1575
counsel was also ineffective. Respondent, David Smith, Warden, argues in turn that the one-year
statute of limitations for filing a habeas petition had expired before Fisher did so and that the district
court should have denied relief under 28 U.S.C. § 2244(d).
We agree with Fisher that the statute of limitations period had not expired. However,
regardless of whether the performance of Fisher’s trial counsel was deficient, he cannot demonstrate
prejudice as a result. Therefore, he cannot establish cause and prejudice to excuse his procedural
default of his ineffective assistance of counsel claim, and we must AFFIRM the district court’s
denial of Fisher’s petition for writ of habeas corpus.
BACKGROUND
I. Procedural History
Fisher was charged in the Recorder’s Court for the City of Detroit with first-degree murder
in the death of his eight-year old son, assault with intent to murder his wife, and possession of a
firearm during the commission of a felony. On June 27, 1988, following a jury trial, Fisher was
convicted of assault with intent to murder and the firearm charge. The jury was unable to reach a
verdict on the first-degree murder charge, and Fisher subsequently pleaded guilty to second-degree
murder.
On July 15, 1988, Fisher was sentenced to 100 to 150 years imprisonment for the second-
degree murder conviction and 80 to 150 years imprisonment for the assault conviction to be
followed by a mandatory two-year consecutive sentence for the firearm conviction. Fisher appealed
his convictions and sentences to the Michigan Court of Appeals, which affirmed his convictions but
remanded for re-sentencing. Fisher was re-sentenced, this time receiving twenty-eight to forty-two
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years for the second-degree murder conviction, life imprisonment for the assault conviction, and two
years for the firearm conviction. Fisher’s new sentence was affirmed by the Michigan Court of
Appeals on July 12, 1993. Fisher filed an application for leave to appeal to the Michigan Supreme
Court on September 14, 1993; it was denied on February 15, 1994.
On April 23, 1997, Fisher filed a motion for relief from judgment in the Recorder’s Court
for the City of Detroit, asserting that his trial counsel was ineffective for failing to pursue a possible
insanity defense, and that his appellate counsel was ineffective for failing to raise trial counsel’s
ineffectiveness on direct appeal. The motion for relief from judgment was denied on January 16,
1998. Fisher filed for leave to appeal in the Michigan Court of Appeals; he was denied on March
25, 1999. He then sought leave to appeal in the Michigan Supreme Court, which was denied on
March 21, 2000. Both state appeals courts determined that Fisher had “failed to meet the burden
of establishing entitlement to relief under M.C.R. [Michigan Court Rule] 6.508(D),” which will be
discussed in more detail below.
Fisher filed this petition for writ of habeas corpus under 28 U.S.C. § 2254 in the district court
on June 2, 2000. Respondent filed a motion to dismiss the petition for failure to comply with the
statute of limitations set forth in 28 U.S.C. § 2244(d). The district court referred this issue to
Magistrate Judge Virginia Morgan, who on November 7, 2001 filed a report and recommendation
that the petition be dismissed for the reasons advocated by Respondent. The district court declined
to adopt the magistrate’s report and recommendation and denied the motion to dismiss Fisher’s
petition, on the ground that Fisher was entitled to have equitable tolling applied in his case.
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Respondent then filed a supplemental answer to Fisher’s petition for writ of habeas corpus,
which contended that the district court was barred from reviewing Fisher’s petition because he had
procedurally defaulted his claim of ineffective assistance of counsel by failing to raise it during his
appeal as of right. The matter was reassigned to Magistrate Judge Steven Whalen, before whom an
evidentiary hearing on Fisher’s ineffective assistance of counsel claim was held on August 28, 2003.
On November 3, 2003, Magistrate Judge Whalen filed a report and recommendation that a
conditional writ of habeas corpus be granted with respect to Fisher’s conviction for assault with
intent to murder, but that a writ of habeas corpus be denied as to his conviction for second-degree
murder.
The district court entered an order and opinion on March 31, 2004, denying Fisher’s petition
for a writ of habeas corpus. Fisher filed a notice of appeal to this Court on April 23, 2004.
II. Substantive Facts
A. Facts related to the offenses for which Fisher was convicted
The facts of the crimes for which Fisher was convicted are relevant here only insofar as they
relate to his claim that his attorney was ineffective for failing to pursue an insanity defense, and will
be discussed only briefly.
Fisher and his wife, Pansy Hairston, separated in May 1987, at least in part because Hairston
was concerned about Fisher’s drug abuse problem. When they separated, Hairston moved with their
eight-year old son, Waddell Fisher III, to a house on Wilshire Street in Detroit. On the morning of
October 12, 1987, Fisher knocked on the door of Hairston’s home. Hairston was upstairs with her
son, and told him to be quiet and ignore the knocks. Fisher entered the apartment on his own, and
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confronted Hairston when she came downstairs. She asked Fisher to leave, and he told her that he
had seen a man leaving her house at 5:30 that morning. He then told her he was going to kill her,
their son, and himself, because if he could not have her, no one could. He pulled a gun out, and a
struggle ensued in which the gun went off but did not hit anyone. Fisher then beat Hairston with the
gun. Hairston testified that the next thing she remembered was lying in a neighbor’s driveway.
When Detroit police entered Hairston’s home, they found Fisher in a bedroom with his son,
who was lying on a bed covered with a blanket. Fisher told police that he had killed Waddell III,
who was stabbed to death. Fisher was still holding the knife. Over the course of a two-and-a-half
hour conversation with police, Fisher, who was very emotional, stated that his plan was to kill his
wife, son, and himself so that they could all be “together in the hereafter.” Upon learning that his
wife was still alive, Fisher said that his plan was ruined. Fisher stabbed himself in the chest several
times during the conversation, and attempted to stab himself in the throat. After the arrival of
Fisher’s sister, police were able to convince him to put the knife down and to arrest him.
B. Facts Related to Petitioner’s Claim of Ineffective Assistance of Counsel
Jeffrey Edison (“Edison”), Fisher’s trial counsel, testified at the evidentiary hearing held
before the magistrate judge. Edison stated that he began practicing law in 1976, and that ninety-
eight percent of his practice leading up to the time of Fisher’s trial consisted of criminal defense trial
work. He explained that he believed “something was at issue regarding [Fisher’s] mental state”
because of the circumstances surrounding the crime and the self-inflicted injuries, as well as the
history of Fisher’s marriage, his military service, and his substance abuse. Edison testified that on
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the basis of conversations with Fisher, he determined that there was a possibility that an insanity
defense could be viable in this case.
Edison also testified that he received a letter from Dr. Kliger, a psychologist who had treated
Fisher on two occasions just weeks before the crime. Dr. Kliger indicated that Fisher had a history
of substance abuse, depression, and hospitalization for alcohol and drug abuse, and diagnosed Fisher
with cocaine use disorder, depressive neurosis, and histrionic personality disorder. Edison testified
that the letter from Dr. Kliger led him to believe than an insanity defense was “something to at least
pursue.” Edison did file a notice of insanity defense, as required by Michigan statute.
Consequent to the filing of the notice of insanity defense, Fisher was twice examined by the
Recorder Court’s Psychiatric Clinic, once for criminal responsibility, and again for diminished
capacity. The Recorder Court Clinic’s Report on Criminal Responsibility found “no indication that
Mr. Fisher was either mentally retarded or mentally ill as defined by statute at the time of the offense
. . . he was capable of conforming his conduct to the requirements of the law and cognizant of the
wrongfulness of his behavior.” The Report on Diminished Capacity stated that “the clinical findings
do not suggest that defendant Fisher’s cognitive capacity was so diminished that he could not
formulate the intent to commit the crimes in question.”
Edison knew that the Recorder Court Clinic rarely found defendants not to be criminally
responsible, particularly in homicide cases. Edison did not seek an independent evaluation on the
question of insanity, although he knew that Fisher was entitled to one by statute. Edison initially
testified that he was unable to recall why he did not get an independent evaluation of Fisher’s mental
state, but agreed that to adequately investigate the question of insanity he needed an independent
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evaluation. He also noted that he would not have been able to present a valid insanity defense
without his own expert. Subsequently, he stated that his failure to obtain an independent
examination was not a matter of trial strategy. However, on cross-examination, he conceded that
it was possible, given that he could not recall his thought process, that he had made a professional
judgment to pursue a different defense.
Fisher’s appellate attorney, Susan Meinberg (“Meinberg”), also testified. She stated that she
reviewed the Recorder Court’s Clinic reports in preparing the appeal, but did not pursue any other
mental health information and did not seek an independent evaluation. She also knew that in the
vast majority of cases, the Recorder Court’s Clinic finds defendants criminally responsible, and that
therefore a lawyer would need to seek an independent examination in order to assert an insanity
defense. Meinberg stated that her failure to obtain an independent evaluation was not a matter of
strategy, as far as she could recall. She had not decided that the issue had no merit.
Finally, the testimony of Dr. Steven Miller (“Dr. Miller”) was presented. Dr. Miller is a
forensic psychologist, licensed in the state of Michigan and formerly employed by the Recorder
Court’s Clinic. Dr. Miller conducted a criminal responsibility evaluation of Fisher at the request of
his post-conviction counsel. He interviewed Fisher for about three and a half hours. Additionally,
he reviewed the trial transcripts, the Recorder Court’s Clinic reports, the letter from Dr. Kliger,
Fisher’s hospital records, Fisher’s employment records, and Fisher’s military records. Based upon
his conversation with Fisher and his review of those records, Dr. Miller concluded that Fisher was
legally insane at the time of the crime. He opined that Fisher met the definition of legal insanity
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because he was mentally ill, he was unable to appreciate the wrongfulness of his conduct, and he
was unable to conform his conduct to the requirements of the law.
More specifically, Dr. Miller testified that Fisher suffered a brief reactive psychosis at the
time of the offense, which he described as a psychotic break due to extreme stress. He diagnosed
Fisher with post traumatic stress disorder and borderline personality disorder. Dr. Miller further
stated that he found the Recorder Court’s Clinic reports contradictory, because they labeled Fisher’s
mental state as one of extreme emotion and described him as “out of control,” which Dr. Miller
testified were “hallmarks of legal insanity.”
On cross-examination, however, Dr. Miller acknowledged that Fisher did not meet one of
the diagnostic criteria for a “brief psychotic disorder”: that the disorder last for at least one day. Dr.
Miller also conceded that he had not reconciled significant facts with his opinion in this case:
specifically, that Fisher armed himself before going to his wife’s home and that he chose not to
shoot his wife when he had an opportunity.
DISCUSSION
I. The statute of limitations period did not expire prior to Fisher’s filing of his petition
for a writ of habeas corpus, and the district court’s application of the doctrine of
equitable tolling was therefore unnecessary.
We review de novo a district court’s determination that a statute of limitations for filing a
petition for a writ of habeas corpus has expired. Cook v. Stegall, 295 F.3d 517, 519 (6th Cir. 2002).
The district court found that the one-year statute of limitations set forth at 28 U.S.C. §
2244(d) and applicable in this case had expired before Fisher’s petition was filed, for reasons that
will be briefly summarized here. First, the district court noted that this Circuit has held that with
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respect to convictions that became final prior to April 24, 1996, the effective date of the
Antiterrorism and Effective Death Penalty Act (“AEDPA”), which set forth the one-year statute of
limitations, the statute of limitations began to run on that effective date. Thus, Fisher’s statute of
limitations began to run on April 24, 1996. Austin v. Mitchell, 200 F.3d 391, 393 (6th Cir. 1999).
That statute of limitations is tolled during the pendency of a “properly filed application for State
post-conviction or other collateral review with respect to the pertinent judgment.” 28 U.S.C. §
2244(d)(2). In this case, then, it was tolled when Fisher filed his motion for relief from judgment
in state trial court, on April 23, 1997, one day before the statute of limitations would have expired.
The district court concluded that the pendency of that state post-conviction application ended
when the Michigan Supreme Court denied petitioner’s application for leave to appeal on March 21,
2000, and that he therefore should have filed his petition before the district court the following day
in order to comply with the statute of limitations. His petition was not filed until June 2, 2000. The
district court then went on to find that although the statute of limitations had expired, the doctrine
of equitable tolling applied in this case.
This Court’s en banc decision in Abela v. Martin, 348 F.3d 164 (6th Cir. 2003) compels us
to find that the district court’s determination that Fisher’s statute of limitations had expired, reached
prior to the issuance of our opinion in Abela, was in error. In Abela, this Court determined that the
statute of limitations under § 2244(d)(2) is tolled until the time for seeking review in the United
States Supreme Court is expired, regardless of whether a petitioner has actually petitioned for
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Supreme Court review.1 Id. at 171-73. Therefore, the statute of limitations in Fisher’s case did not
actually expire until ninety days after the Michigan Supreme Court denied him relief on March 21,
2000. His filing of his petition in the district court on June 2, 2000, was well within that ninety-day
period, and was therefore timely. Because the district court did not need to reach the issue of
whether the equitable tolling doctrine applied, we decline to consider whether the district court
correctly invoked that doctrine in this case.
II. Fisher’s claim of ineffectiveness of trial counsel is procedurally defaulted.
We review de novo a district court’s determination that a claim has been procedurally
defaulted in state court. Lucas v. O’Dea, 179 F.3d 412, 416 (6th Cir. 1998) (citing Lusk v.
Singletary, 112 F.3d 1103, 1105 (11th Cir. 1997)).
A. Background
Fisher contends that his trial counsel was ineffective for failing to pursue an insanity defense.
Fisher did not raise this issue in his appeal of right before the state courts. When Fisher did raise
this issue on collateral attack, the state appellate courts denied relief on the basis of Michigan Court
1
The government argues that we are not bound by Abela because, in the government’s view,
the rule of Abela is dicta as applied to petitioners who did not seek review in the Supreme Court
because the petitioner in Abela did seek review in the Supreme Court. We reject the government’s
position. This Court, en banc, explicitly rejected the distinction that the government attempts to
draw between petitioners who did and did not seek review before the Supreme Court, and quite
clearly held “that under section 2244(d), the statute of limitations is tolled from the filing of an
application for state post-conviction or other collateral relief until the conclusion of the time for
seeking Supreme Court review of the state’s final judgment on that application independent of
whether the petitioner actually petitions the Supreme Court to review the case.” Abela, 348 F.3d
at172-173 (emphasis added).
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Rule 6.508(D), which prohibits a court from granting relief if certain procedural bars apply,
including that the defendant “alleges grounds for relief, other than jurisdictional defects, which
could have been raised on appeal from the conviction and sentence.” This Court has previously held
that application of M.C.R. 6.508(D) constitutes an independent and adequate state ground and
results in procedural default, unless a petitioner can establish cause and prejudice to excuse the
default. McFarland v. Yukins, 356 F.3d 688, 697-98 (6th Cir. 2004). The Supreme Court has
explained that “cause for the default, and actual prejudice as a result of the alleged violation of
federal law” suffice to excuse a procedural default. Coleman v. Thompson, 501 U.S. 722, 750
(1991).
Fisher argues that his appellate counsel’s failure to raise a claim of ineffectiveness by trial
counsel constitutes cause for the procedural default of his claim of ineffective assistance of trial
counsel. “Attorney error may constitute cause if it rises to the level of constitutionally ineffective
assistance of counsel.” Willis v. Smith, 351 F.3d 741, 745 (6th Cir. 2003) (citing Gravely v. Mills,
87 F.3d 779, 785 (6th Cir. 1996)); see also Murray v. Carrier, 477 U.S. 478, 488 (1986).
In Willis, we also addressed a petitioner’s claim that his appellate counsel’s failure to raise
ineffectiveness of trial counsel was, itself, ineffective assistance of counsel which constituted cause
to excuse the procedural default of the trial counsel ineffectiveness claim. We explained that
appellate counsel can only be found ineffective for failing to raise a meritorious claim. Willis, 351
F.3d at 745 (quoting Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir. 2001). Therefore, we concluded
that “in order to determine whether cause exists for the procedural default of [the petitioner’s]
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ineffective assistance of trial counsel claim, we must, ironically, consider the merits of that claim.”
Id.B. Fisher’s ineffectiveness of trial counsel claim
i. Standards for ineffective assistance of counsel
The standard for assessing claims of ineffective assistance of counsel was set forth in
Strickland v. Washington, 466 U.S. 668 (1984). The Strickland test is two-pronged: first, a
defendant must show that his attorney’s performance was deficient, and second, he must show that
he was prejudiced by his counsel’s deficient performance. Id. at 687-88.
An attorney’s performance is not deficient unless it falls “below an objective standard of
reasonableness.” Id. at 688. This Court’s review of an attorney’s performance must be highly
deferential; Strickland requires reviewing courts to “indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance.” Id. at 689. Where an
attorney has made a strategic decision to pursue or not pursue a particular trial tactic “after thorough
investigation of law and facts,” that decision is “virtually unchallengeable.” However, “strategic
choices made after less than complete investigation are reasonable precisely to the extent that
reasonable professional judgments support the limitations on investigation.” Id. at 690-91.
A defendant seeking to prove prejudice under the second prong of Strickland must show
“that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694. This standard does not require a defendant to
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show that it is more likely than not that the proceeding would have been different, but simply a
“probability sufficient to undermine confidence in the outcome.” Id.ii. Regardless of whether his trial counsel’s performance was deficient,
Fisher cannot demonstrate prejudice.
We agree with the district court that Fisher cannot demonstrate prejudice as a result of the
alleged deficiency of his trial counsel’s performance. Consequently, there is no need for us to
determine whether trial counsel’s performance was deficient. See id. at 697 (“a court need not
determine whether counsel's performance was deficient before examining the prejudice suffered by
the defendant as a result of the alleged deficiencies . . . If it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice . . . that course should be followed”).
However, before reaching a discussion of prejudice in this case, we pause to note that we
specifically reject the government’s argument that it would have been a reasonable trial strategy for
Fisher’s trial counsel not to pursue an insanity defense because the odds are so great that such a
defense will fail. The government’s generalized argument is tantamount to suggesting a per se rule
that trial counsel’s failure to pursue an insanity defense can never be deemed ineffective. Whatever
the challenges of presenting a certain defense, when trial counsel is on notice that it is potentially
viable, Strickland demands that he sufficiently investigate so as to make a reasoned decision about
whether to present that defense to the jury. See id. at 690-91. If it is the government’s position that
such an investigation would not have yielded information supporting an insanity defense, that
argument is appropriately directed to the prejudice prong of the Strickland inquiry.
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With regard to the prejudice inquiry, we conclude that Fisher cannot show that there is a
reasonable probability that the outcome of his trial would have been different if trial counsel had
pursued an investigation on the issue of his sanity and obtained an independent evaluation of him.
The testimony of Dr. Miller is insufficient to make this showing.
Dr. Miller’s affidavit stated that Fisher experienced “a temporary brief reactive psychosis
which rendered [him] unable to conform his actions to the requirements of the law.” However, as
the district court points out, on cross-examination Dr. Miller conceded that Fisher did not actually
meet all of the criteria for a brief reactive psychosis, as defined in the Diagnostic and Statistical
Manual of Mental Disorders. Dr. Miller also conceded that he did not factor into his opinion aspects
of Fisher’s behavior at and around the time of the crime that suggest he was not legally insane,
including Fisher’s having armed himself before going to his estranged wife’s home, choosing not
to shoot his wife when he had the opportunity, and waiting outside the home for some time before
entering.
The district court appropriately concluded that “Dr. Miller’s testimony is equivocal at best.
On cross-examination, the foundation of his opinion proved to be unsound; there were significant
facts omitted from his analysis which undermine his conclusion; and, it is not at all clear whether
his apparent theory that Petitioner moved in and out of legal insanity during the ordeal has any
objective merit.” Dr. Miller’s testimony was insufficient to establish a reasonable probability that,
but for trial counsel’s deficient performance, the outcome of the trial might have been different.
C. Procedural default
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As previously explained, Fisher’s argument that his procedural default should be excused
is dependent on his demonstrating that he would have prevailed on his underlying ineffective
assistance of trial counsel claim if his appellate counsel had presented that claim to the Michigan
appeals courts. Because we disagree with Fisher’s contention, on the ground that Fisher has not
demonstrated that he was prejudiced by his trial attorney’s allegedly deficient performance, we must
also conclude that Fisher’s ineffective assistance of counsel claim is procedurally defaulted.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s denial of Fisher’s petition for
writ of habeas corpus.
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