Washington v. Renico ( 2006 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 06a0263p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Petitioner-Appellant, -
JAMES WASHINGTON,
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No. 05-1185
v.
,
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PAUL RENICO, Warden, -
Respondent-Appellee. -
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Appeal from the United States District Court
for the Eastern District of Michigan at Flint.
No. 03-40287—Paul V. Gadola, District Judge.
Argued: June 8, 2006
Decided and Filed: July 27, 2006
Before: SILER, DAUGHTREY, and ROGERS, Circuit Judges.
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COUNSEL
ARGUED: James Sterling Lawrence, Royal Oak, Michigan, for Appellant. Brad H. Beaver,
OFFICE OF THE ATTORNEY GENERAL, Lansing, Michigan, for Appellee. ON BRIEF: James
Sterling Lawrence, Royal Oak, Michigan, for Appellant. Brad H. Beaver, OFFICE OF THE
ATTORNEY GENERAL, Lansing, Michigan, for Appellee.
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OPINION
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ROGERS, Circuit Judge. Petitioner James Washington appeals the district court’s order
denying his habeas petition. A Michigan jury found Washington guilty of first-degree murder and
possession of a firearm during the commission of a felony. He was sentenced to life in prison. On
direct appeal, the Michigan Court of Appeals affirmed his convictions. Although Washington
moved for and was denied an evidentiary hearing, the state appellate court denied his ineffective-
assistance-of-counsel and defense-participation claims “[b]ecause defendant failed to move for an
evidentiary hearing” and because the record, as it stood, did not support his claims. The federal
district court denied his habeas petition. The district court did not consider Washington’s requests
for an evidentiary hearing.
Washington now brings four challenges that the district court certified for appeal. He argues
(1) that he was denied his constitutional right to confront a testifying witness with impeaching
evidence; (2) that he was denied effective assistance of counsel because counsel did not inform him
that a confession barred by Miranda could be used to impeach his testimony; (3) that he could not
1
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participate in his defense when defense counsel refused Washington’s request for copies of witness
and police statements; and (4) that his trial was rendered fundamentally unfair when the trial court
excluded certain evidence. For the following reasons, we affirm.
I.
A. Testimony and Evidence at Trial
Three witnesses testified that they saw Washington shoot and kill James Kinville on July 27,
1999, when Kinville brought Washington a radio to repay a debt. One witness also testified that
Washington told him that Washington had killed Kinville. Washington testified at trial that he did
not kill Kinville. Washington’s main contention on appeal is that he was unable to present evidence
that one of the three eye witnesses, Robert Corcoran, was the murderer.
Two of the eye witnesses, James Gidron and Corey Barkley, both of whom were thirteen at
the time of the murder, spent the night at Washington’s apartment and testified to the following.
They woke up in the early morning of June 27, and Washington asked the boys whether they wanted
to see someone get shot. They went outside. A man later identified as Robert Corcoran was
standing outside. He left and returned a few minutes later with Kinville. After Washington,
Corcoran, and Kinville talked for a moment, Washington pulled a gun from his waist and pointed
it at Kinville. Washington fired the gun, but the gun misfired twice. The third shot, however,
caused Kinville to fall. Washington then walked up to the fallen Kinville and shot him twice in the
head. Washington told Gidron that he shot Kinville because Kinville owed Washington $2500.
Washington told Corcoran to take care of the body. Corcoran took the body by the legs and placed
it in the bushes.
The third eye witness, Robert Corcoran, testified that he purchased cocaine from Washington
twice that night. On one of the occasions when Corcoran was at Washington’s residence,
Washington pointed two guns at Corcoran and Dwayne Lapere’s heads. He told them that their
friend Todd needed to repay his debt or that Washington would shoot them. After Washington put
his gun down, Corcoran and Lapere returned to Steven Smith’s house, where Corcoran and Lapere
were staying. Kinville, who was at Smith’s house, asked for something to sell. Lapere gave him
a radio. They placed the radio into a gray plastic bag. Kinville asked Corcoran to accompany him
across the street, and they met Washington at his driveway.
Corcoran continued by testifying that Washington asked Kinville and Corcoran to go behind
a nearby gate, and they did. After the gun misfired, Washington shot Kinville, and Kinville fell to
the ground. Washington then placed the gun on Kinville’s head and shot the gun once. Washington
ordered Corcoran to move the body, and Corcoran did so. Washington then told Corcoran to hand
over his ID, and Washington told Corcoran that he knew where Corcoran lived.
Corcoran then testified that he returned to Smith’s residence and told Smith that Washington
had killed Kinville. Smith then went to speak with Washington. Smith later returned to his house
to collect some blankets, and he took them to Washington’s residence. Corcoran testified that a car
backed up near the fence at Washington’s residence. After Smith and the driver of the car returned
from the backyard, Corcoran saw from across the street the trunk sink “as if something was dropped
inside.” Corcoran ended his testimony by stating that he contacted the Saginaw Police Department
that day.
The State called Officer Donald Zinz without the jury present. Zinz testified that, when he
spoke with Corcoran over the telephone, Corcoran repeated his questions to a woman. The woman,
in turn, gave Corcoran answers to Zinz’ questions, and Corcoran repeated those answers back to
Zinz. Corcoran, when recalled to the witness stand by the defense, denied having a woman answer
Zinz’ questions. The defense was permitted to read into evidence Zinz’ prior testimony to the
No. 05-1185 Washington v. Renico Page 3
contrary. The defense also called Officer Tony Eno of the Rose City Police Department and
attempted to have Eno testify that Corcoran had a reputation for not being truthful.
Smith corroborated the three eye witnesses’ testimony. Smith testified that Washington told
him that Washington “capped” Kinville. Smith also testified that he helped dispose of the body.
Smith testified that he took the police to Kinville’s body in a remote area of Gladwin County.
There was also physical evidence against Washington. The police searched Washington’s
residence pursuant to a valid search warrant, and they discovered, among other things, a pair of
shorts, a gray shopping bag, and a pair of tennis shoes. Forensic scientist Kyle Hoskins testified that
she found human blood on all of these items.
Washington’s testimony was substantially different from that of the other witnesses. He
testified that he did not shoot Kinville and that he did not know who did. He admitted to selling
drugs to Corcoran and Smith. He testified that he took Corcoran’s ID as collateral for a debt.
Washington testified that he arose early in the morning to clean his front yard and that his neighbor
was also outside. He testified that the first that he learned of Kinville’s death was when neighbor
Dennis Guchen, who testified earlier at trial, pointed out the body to him that was lying in the yard
as the two were making casual conversation about sports and the weather. He testified that he
looked across the street and saw Corcoran looking “crazy.” Washington told Guchen that Corcoran
probably killed Kinville. Washington then talked with Smith, who said that he would take care of
it. Washington went back to bed because he did not want anything to do with the dead body.
Despite Washington’s testimony, in January 2000, a Michigan jury found Washington guilty
of first-degree murder and possession of a firearm during the commission of a felony. For the
murder conviction, he received life imprisonment without the opportunity for parole; for the firearm
conviction, he received two years of imprisonment.
B. Events Concerning Specific Challenges in Washington’s Habeas Petition
There were three events at trial that assume a prominent role in Washington’s habeas
petition:
First, Washington argues that the trial court improperly excluded evidence that witness
Corcoran (the witness who moved the body) was biased. The defense sought to demonstrate that
Corcoran was biased because charges against him were dismissed in a neighboring county. The
charges were for being a felon in possession of a firearm, making a false report of a felony to the
police, and being in possession of a firearm while under the influence of liquor. The defense argued
that it was suspicious that the charges were all dismissed by an assistant prosecutor who was a
retired Saginaw City police officer. The trial court held that an inquiry concerning these charges
would be legitimate. The judge said that defense counsel could explore the matter outside of the
jury’s presence to determine whether there was a relationship between Washington’s trial and
Corcoran’s dismissed charges. Defense counsel asked the trial court for permission to telephone the
prosecutor in the other county that had dismissed the charges against Corcoran. The trial court
agreed to defense counsel’s request.
The State called Corcoran to the stand outside the jury’s presence. Corcoran testified that
he was not told why the charges were dismissed and that he told the county prosecutor that he was
testifying in a murder case in Saginaw County. Corcoran testified that the prosecutor told Corcoran
that the charges were dropped because the charges were “fluffed up.”
The court then took a recess. When the court returned from recess, the court stated,
No. 05-1185 Washington v. Renico Page 4
It appears from telephone calls to an assistant prosecutor in Ogemaw County
as well as defense counsel that at a—as of this time, with the information available
to both the prosecutor and the defense, that there was no tie-in between the testimony
Mr. Corcoran is going to give in this case and the dismissal of the charges.
However, since it is late—the information has been very recent, I’m going
to afford defense counsel a full opportunity to explore any avenues, and therefore,
I will not allow the impeachment, if any, of Mr. Corcoran today on—to explore the
tie-in, if any.
But I will allow the defense counsel ample opportunity so that he can
continue any discussions he may have with the prosecutor in Ogemaw County,
defense counsel, and any other person. And we’ll leave Mr. Corcoran under
subpoena subject to recall by either the prosecutor or the defense.
Washington’s counsel first stated that he was agreeable to the court’s handling of the matter, and
then he stated,
I think probably the record should reflect also that we took a break, I
telephoned Mr. Theunick, who is the assistant prosecutor in Ogemaw County, and
talked to him.
I then talked to Jon MacDonald, an attorney from Ogemaw County, regarding
the case for Mr. Corcoran. And that [the prosecutor in Washington’s case] spoke
with Mr. MacDonald by phone and also the court spoke to Mr. MacDonald by phone.
That was all done in chambers.1
Second, Washington challenges his trial counsel’s failure to tell him that statements made
without a Miranda warning are admissible as impeaching evidence. The trial court excluded
statements Washington made in police custody because the police did not give Washington Miranda
warnings. The State relied on the inadmissible statements, however, to impeach various parts of
Washington’s testimony. First, the State used the prior statements to challenge the amount of debt
that Corcoran owed Washington. Second, the State also used these statements to reveal that
Washington had lied to the police when he said that no one from “up North” was at his house.
Third, the State also noted that Washington never mentioned to the police that he found a body face-
down in his yard.
Finally, Washington challenges the trial court’s decision not to admit into evidence a
statement Corcoran made to unidentified others in an unrelated case that if they talked to the police
about an unrelated matter, they would “wind up in the trunk and never be found.” Counsel stated
that he wanted to use the evidence to demonstrate that Corcoran had possibly murdered Kinville.
The trial court held that the alleged statement was “hearsay on hearsay” and irrelevant because it
concerned another case that never went to trial.
1
Washington has moved this court to take judicial notice that the former prosecutor in Ogemaw county (Gary
Theunick) has been indicted for fraud and making false statements. He also notes that the police chief of Rose City,
where Corcoran lives, was also involved. See 5/15/06 Motion to Supplement Record. We deny the motion. This
indictment is collateral to the issue of whether Theunick (and all of the other lawyers involved) lied about there being
no secret deal between Corcoran and the various prosecutors.
No. 05-1185 Washington v. Renico Page 5
C. Appellate and Habeas Review
Washington brought six issues to the Michigan Court of Appeals on direct appeal:
(1) his inability to impeach Corcoran with evidence of his dismissed charges in another
county;
(2) his counsel’s failure to inform him that his prior statements to the police could be used
to impeach him even though those statements, taken without Miranda warnings, could not
be used as substantive evidence;
(3) his inability to participate in his own defense because defense counsel did not provide
him with requested copies of witness statements and police reports;
(4) his ability to offer into evidence Corcoran’s out-of-court statement threatening another
to pay or else end up in a trunk of a car;
(5) irregularities in replacing an ill juror; and
(6) prosecutorial misconduct.
Before the state court decided his appeal, Washington filed a motion to remand so that the
trial court could hold an evidentiary hearing. See J.A. 81-85. In that motion, he sought an
evidentiary hearing to develop the facts concerning, among other claims, his ineffective-assistance-
of-counsel claim and his claim that he was not able to participate in his own defense. He attached
an affidavit in which he declared that he had not received from his trial counsel documents that he
requested and that he would have altered the questions posed on direct examination if he had known
that his testimony could have been impeached by his otherwise inadmissible statements to the police.
The appellate court denied his motion for remand. See J.A. 79.
The Michigan Court of Appeals affirmed his conviction in May 2002. See People v.
Washington, No. 225605, 2002 WL 1010040 (Mich. Ct. App. May 17, 2002) (per curiam). The
court of appeals held the following:
(1) that the trial court did not abuse its discretion in excluding evidence of Corcoran’s
dismissed charges for impeachment purposes;
(2) that Washington failed to move for an evidentiary hearing concerning his ineffective-
assistance-of-counsel claim and that the record, as it stood, did not support this
claim;
(3) that Washington also failed to move for an evidentiary hearing concerning his
defense-participation claim and that the record, as it stood, did not support this claim;
(4) that the district court did not abuse its discretion in excluding evidence of Corcoran’s
earlier statement concerning putting another in a trunk;
(5) that Washington intentionally relinquished his right to challenge the replacement of
the ill juror; and
(6) that Washington failed to make a timely objection to prosecutorial misconduct and
that no miscarriage of justice occurred.
No. 05-1185 Washington v. Renico Page 6
See id. at *1-*2. The Supreme Court of Michigan denied his motion for leave to appeal in December
2002. See People v. Washington, 655 N.W.2d 557 (Mich. 2002) (Table).
Washington then filed his habeas petition with the federal district court in October 2004. He
brought the same six claims that he brought on direct appeal. The district court held that the juror-
selection and prosecutorial misconduct claims were procedurally defaulted. The district court held
that the Michigan Court of Appeals had not acted contrary to, or unreasonably applied, federal law
in handling the other claims. The district court also held that the exclusion of Corcoran’s statements
for impeachment and substantive purposes was harmless even if there was constitutional error. The
district court did not discuss how the Michigan Court of Appeals first denied Washington’s motion
for an evidentiary hearing and then stated that Washington had not requested an evidentiary hearing.
The district court (and the state appellate court) treated Washington’s claim that he was not
permitted to participate in his defense as an ineffective-assistance-of-counsel claim, not a claim
concerning a defendant’s right to self-representation.
The district court subsequently granted a certificate of appealability on Washington’s claims
concerning the four issues raised here. See Washington v. Renico, No. Civ.A. 03CV40287FL, 2005
WL 1027994, at *1 (E.D. Mich. Apr. 20, 2005). The district court refused to certify Washington’s
juror-selection and prosecutorial misconduct claims. See id. This court refused to extend the
certificate of appealability in September 2005.
II.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132,
110 Stat. 1214 (1996), governs review of Washington’s petition, filed in October 2004, because
Washington filed it after the statute’s effective date of April 24, 1996. See Woodford v. Garceau,
538 U.S. 202, 210 (2003). The district court may grant Washington’s petition only if the state
court’s decision was (1) “contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States; or (2) . . . based on an
unreasonable determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d).
Applying AEDPA’s highly deferential standard, we affirm. First, the Michigan Court of
Appeals did not unreasonably apply federal law in deciding that the trial court’s exclusion of
impeaching evidence did not violate Washington’s right to confront witnesses. Second, even though
the Michigan Court of Appeals’ reasoning concerning Washington’s ineffective-assistance-of-
counsel and defense-participation claims was based on a clearly erroneous determination that
Washington had not moved for remand, Washington was properly denied an evidentiary hearing on
both of these claims. He has not alleged sufficient grounds entitling him to relief. Finally, the
Michigan Court of Appeals did not unreasonably apply federal law in deciding that the trial court’s
exclusion of substantive evidence did not violate Washington’s right to due process.
A. Confrontation Claim
The Michigan Court of Appeals’ decision affirming the exclusion of impeachment evidence
was not an unreasonable application of Supreme Court precedent for three reasons. Washington
argues that the dismissal of Corcoran’s charges in another jurisdiction weeks before trial could
indicate, despite the statements of all of the lawyers involved, that Corcoran agreed to testify in
Washington’s case only if the prosecutors in the other jurisdiction would dismiss his charges. But,
first, the trial court did not infringe upon Washington’s constitutional right to confront witnesses
against him when excluding the proffered impeachment evidence because the evidence was
cumulative and only marginally relevant. Second, even if the evidence were relevant and not
cumulative, the admission of the proffered evidence would not have significantly altered the jury’s
No. 05-1185 Washington v. Renico Page 7
impression of Corcoran’s credibility because Washington was able to impeach Corcoran in several
other, effective ways. And finally, even if it were unreasonable to deny counsel the opportunity to
pursue the line of cross-examination at issue, the error did not affect the jury’s verdict.2
First, the trial court’s decision to exclude inquiry into Corcoran’s dismissed charges in
another county was a reasonable limit on cross-examination. In Delaware v. Van Arsdall, the
Supreme Court held that “the exposure of a witness’ motivation in testifying is a proper and
important function of the constitutionally protected right of cross-examination,” 475 U.S. 673, 678-
79 (1986) (quoting Davis v. Alaska, 415 U.S. 308, 316-17 (1974)), but “trial judges retain wide
latitude . . . to impose reasonable limits on such cross-examination based on concerns about, among
other things, . . . prejudice, confusion of the issues, . . . or interrogation that is repetitive or only
marginally relevant,” id. at 679. The Michigan Court of Appeals held that the trial court did not
abuse its discretion in excluding the evidence because Washington had not demonstrated a sufficient
causal connection between the charges that were dismissed in another county by a prosecutor not
involved in the case and Washington’s trial. To support an inference that some form of immunity
or agreement existed, which would in turn support another permissible inference that Corcoran was
biased, Washington would have had to demonstrate that Corcoran, the prosecutor in Washington’s
case, and the attorneys in the other county were all lying about the nonexistence of any quid pro quo.
Without making such a demonstration, the evidence was only “marginally relevant,” see id. at 679,
because the mere fact alone that Corcoran’s charges had been dismissed would only make it slightly
more, if at all, probable that he would have reason to slant his testimony. The state courts did not
act unreasonably in determining that the impeaching evidence was of limited relevance.
Moreover, the evidence of bias would have been merely cumulative considering that
Washington impeached Corcoran in several other ways. Washington’s counsel impeached Corcoran
by delving into his extensive criminal record, relying on Corcoran’s prior inconsistent statements
in a preliminary hearing and in a police interview, noting his use of drugs, and pointing to other
felonies, for which Corcoran had not been charged, that Corcoran had committed. The defense also
(rather unsuccessfully) attempted to establish that Corcoran had a reputation for not being truthful.
The court also permitted the defense to read Officer Zinz’ testimony that Corcoran had a woman on
Corcoran’s end of the telephone answer the questions that Officer Zinz posed to Corcoran. Finally,
the jury learned that Corcoran was involved in the murder by moving the body. The defense,
therefore, had extensively impeached Corcoran and demonstrated that Corcoran, as a witness to the
murder, had reason to blame another individual. The trial court did not act unreasonably in limiting
marginally relevant evidence in light of the many ways in which the defense impeached Corcoran.
The cumulative nature of the impeaching evidence supports the second reason that the state
court’s decision is not unreasonable: admission of the impeachment evidence would not have given
the jury a “significantly different impression” of Corcoran’s credibility. The Supreme Court in Van
Arsdall stated that, even if the trial court abuses its discretion in excluding the evidence, there is a
constitutional violation only if a “reasonable jury might have received a significantly different
impression of [the witness’s] credibility had [defense] counsel been permitted to pursue the proposed
line of cross-examination.” Id. at 680. Because Washington impeached Corcoran’s testimony in
several ways, the jury would not have had a significantly different impression of Corcoran’s
credibility.
2
Although the warden argues that Washington’s trial counsel agreed that there was no relationship between
Corcoran’s testimony in Washington’s case and the dismissal of unrelated charges in another county, this claim is not
procedurally defaulted. In Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986), this court held the state court must
actually enforce the procedural bar for there to be an independent and adequate state ground precluding federal review.
The warden points to nothing in the record to indicate that the state courts relied upon a procedural bar when rejecting
Washington’s claim concerning his ability to impeach Corcoran. Therefore, we review the merits of this claim.
No. 05-1185 Washington v. Renico Page 8
A comparison between the facts of Van Arsdall and this case reveals that there was no
constitutional violation in this case. In Van Arsdall, the witness that the defendant sought to
impeach had a drunkenness charge dropped after he agreed to speak with the prosecutor about Van
Arsdall’s case. Van Arsdall, 475 U.S. at 676. The Supreme Court held that the trial court violated
Van Arsdall’s right to confront witnesses against him by not permitting the defense to mention the
dropped charges and the witness’s promise to speak to prosecutors regarding the murder allegedly
committed by Van Arsdall. Id. at 680. Assuming, without deciding, that there are no material
differences between the lines of questioning in Van Arsdall and this case, Washington still has not
been able to demonstrate that the jurors in his case would have had a significantly different
impression of Corcoran’s credibility had Washington been able to discuss Corcoran’s charges that
were dismissed in another county. The defense in Van Arsdall was not able to impeach the witness
in any way, and thus there was prejudice. Id. at 676-77. In contrast and as previously mentioned,
defense counsel in this case had extensively impeached Corcoran’s testimony. Washington does not
explain why the excluded impeaching3 evidence would have had a significant impact on the jury’s
impression of Corcoran’s credibility.
Finally, even if it were unreasonable for the state trial court to determine that Washington’s
right to confront witnesses against him was not violated, this error did not have a substantial and
injurious effect on the jury’s verdict. In Brecht v. Abrahamson, the Supreme Court held that, if this
court determines on collateral review that the defendant’s confrontation right was violated, this court
must ask whether the error “had substantial and injurious effect or influence in determining the
jury’s verdict.” 507 U.S. 619, 637 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776
(1946)). In Washington’s case, Corcoran’s testimony was important but corroborated on material
points by two other witnesses who stated that Washington was the shooter, and Smith testified that
Washington admitted to being the shooter. Finally, the prosecution’s case was strengthened by
Washington’s unbelievable testimony that he knew nothing of the dead body in his yard until a
neighbor pointed it out and that he went to bed right after learning of it. Thus, any constitutional
error here does not warrant habeas relief.
For these reasons, the Michigan Court of Appeals reasonably held that the trial court did not
violate Washington’s right to confront witnesses against him.
B. Ineffective-assistance-of-counsel claim for counsel’s failure to warn Washington that his
excluded confession could be used for impeachment purposes
Although the state court and district court’s opinions concerning Washington’s ineffective-
assistance-of-counsel claim did not fairly consider Washington’s requests for an evidentiary hearing,
Washington is not entitled to habeas relief on this claim. The determinative issue in this case is
whether evidence may exist that would entitle Washington to release, such that the district court
should have granted him an evidentiary hearing. Washington, however, has failed to demonstrate
that he would be entitled to release because he has not shown that the jury would have returned a
different verdict if his counsel had not erred. Because Washington cannot make his required
showing, we do not remand for an evidentiary hearing.4
3
Moreover, Alford v. United States, 282 U.S. 687, 693 (1931), does not require a different result. Although
the Supreme Court stated in Alford that a defendant must be able to demonstrate that the witness’ “testimony was biased
because given under promise or expectation of immunity,” Van Arsdall made it clear over fifty years later that a
constitutional violation occurs only when the reviewing court determines that the impeaching evidence would
significantly change a reasonable jury’s impression of a witness’s credibility.
4
Washington was diligent in seeking an evidentiary hearing in state court, and the heightened “cause” and
“innocence” requirements for an evidentiary hearing, therefore, do not apply. A petitioner is diligent when he requests,
but is denied, an evidentiary hearing in state court, and such diligence renders the heightened requirements under
No. 05-1185 Washington v. Renico Page 9
Washington cannot demonstrate that his alleged grounds, if proven, warrant his release
because he cannot show that his counsel’s alleged error—failing to inform him that statements made
without a required Miranda warning could be used for impeachment despite their inadmissibility
as substantive evidence—prejudiced him. Whether Washington has alleged grounds sufficient for
his release depends upon whether Washington can demonstrate that he received ineffective
assistance of counsel under the well-known test provided in Strickland v. Washington, 466 U.S. 668(1984). Under Strickland, “a defendant’s right to effective assistance of counsel is violated where
counsel’s representation fell below an objective standard of reasonableness, and where there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” McFarland, 356 F.3d at 709-10 (internal quotation marks and citations
to Strickland, 466 U.S. at 688, 694, omitted). Our de novo review of these claims convinces us that,
even if Washington is able after an evidentiary hearing to demonstrate that his counsel’s
representation fell below a reasonable level,5 Washington has not demonstrated that there is a
reasonable probability that the jury would have returned a different verdict in the absence of defense
counsel’s error.
Washington can demonstrate no prejudice because only one of the three statements used to
impeach him was material, and those statements (material or otherwise) could not have affected the
jury’s verdict in the face of Washington’s implausible testimony. First, only one of the statements
used to impeach Washington referred to Kinville’s death—namely, when the State pointed out that
Washington never mentioned to the police finding a body in his yard. The other statements dealt
with collateral matters: the amount of a debt and whether people from “the North” were at his
house. The jury almost certainly would not have attached much significance to these two
discrepancies.
Second, Washington’s story was so implausible that the impeachment concerning the prior
statements could not have made a significant difference to the jury. Washington testified that he did
not learn of the dead body until he was cleaning his yard at five o’clock in the morning. He said he
§ 2254(e)(2) inapplicable. See McFarland v. Yukins, 356 F.3d 688, 712 (6th Cir. 2004). Washington’s motion for the
state court of appeals to remand his case to the trial court for an evidentiary hearing was a sufficient request. See People
v. Bero, 425 N.W.2d 138, 142 (Mich. Ct. App. 1988) (per curiam). The Michigan Court of Appeals, nevertheless, denied
the request. The state court then, mistakenly, limited its review of Washington’s claim to the record as presented on
appeal “[b]ecause [Washington] failed to move for an evidentiary hearing or a new trial.” Washington, 2002 WL
1010040, at *1. The state court’s reliance on Washington’s failure to move for an evidentiary hearing is clearly
erroneous. Because Washington was diligent in requesting an evidentiary hearing, this court need not consider the
heightened standards of § 2254(e)(2).
But even when a petitioner is diligent in requesting an evidentiary hearing, the district court abuses its discretion
in denying an evidentiary hearing only if the petitioner can demonstrate that (1) the grounds he alleges are sufficient to
secure his release from custody, (2) relevant facts are in dispute, and (3) the state court did not provide a full and fair
evidentiary hearing. See Bowling v. Parker, 344 F.3d 487, 512 (6th Cir. 2003). The only factor disputed in this case
is whether Washington alleges sufficient grounds to secure his release.
5
We assume, without deciding, that it would be unreasonable for defense counsel to ignore the potential
impeaching use of statements, taken in violation of Miranda v. Arizona, 384 U.S. 436 (1966), that are not admissible
as substantive evidence. The Supreme Court squarely held more than thirty years ago that statements rendered
inadmissible because of the government’s failure to provide Miranda warnings may be used for impeachment. Harris
v. New York, 401 U.S. 222 (1971). Simply ignoring the impeaching use of the statements is probably not reasonable
because of the damage that may come from the otherwise inadmissible statements. Counsel instead has many ways of
addressing this potential (and common) problem. For example, defense counsel can (1) advise his client of the
statements’ potential use, (2) frame questions in a way that seeks to prevent the matters subject to impeachment from
arising, or (3) deflate the power of the State’s impeachment by confronting on direct the potentially inconsistent
statements. We assume that if a defendant shows that defense counsel did not know or consider that these statements
could be used for impeachment, a defendant could demonstrate that counsel’s representation fell below a reasonable level
of representation. See Johnson v. Lockhart, 921 F.2d 796 (8th Cir. 1990); People v. Sclafani, 347 N.W.2d 30, 32 (Mich.
Ct. App. 1984).
No. 05-1185 Washington v. Renico Page 10
talked with Smith, who said he would take care of it, and he went back to bed. He did not call the
police. Although he stated that he did not go up right by the body (which he also said was not
bleeding, despite at least two gun shots), Washington’s shorts and shoes had blood on them.
Washington never attempted to explain why he had blood on his shoes or shorts. In other words,
even if the evidence did not squarely indicate that Washington was the shooter, it demonstrated that
he was almost certainly at the scene when the murder occurred and knew what happened, which
contradicted his version of events. Because it is highly unlikely that the three impeaching incidents
challenged in this habeas petition had a substantial impact on the jury’s verdict considering all of
the evidence presented at trial, Washington cannot demonstrate that he received ineffective
assistance of counsel.
Washington was therefore properly denied an evidentiary hearing on this matter.
C. Washington’s participation in his defense
Washington is also not entitled to an evidentiary hearing on his claim that he was not
permitted to assist in his defense because he has not alleged sufficient grounds for release. As with
Washington’s ineffective-assistance-of-counsel claim, he moved for, and was denied, an evidentiary
hearing to determine whether his counsel refused to provide him upon his request with police reports
and witness statements. The question again is whether the district court, which did not address the
state court’s denial of his request, abused its discretion in denying him an evidentiary hearing. As
with Washington’s claim concerning the impeaching statements, the issue here is whether
Washington has alleged sufficient grounds entitling him to relief. Washington is not entitled to an
evidentiary hearing because he is unable to demonstrate prejudice from his counsel’s alleged error
to provide him documents.
Even assuming that the evidence reveals that Washington’s trial counsel acted unreasonably
in refusing to show him requested documents, Washington has failed to demonstrate any prejudice.
To receive an evidentiary hearing, “bald assertions and conclusory allegations do not provide
sufficient ground to warrant requiring . . . an evidentiary hearing.” E.g., Stanford v. Parker, 266
F.3d 442, 460 (6th Cir. 2001). Washington argues that he cannot demonstrate prejudice because he
has not received an evidentiary hearing to determine what prejudice exists. This court has already
held that Washington’s reasoning is “circular” and “would entitle every habeas defendant to an
evidentiary hearing on any issue.” Bowling, 344 F.3d at 512. Although Washington averred in his
affidavit that he still had not reviewed the documents he requested, he offers no reason why his
current counsel could not show him those documents and permit him to identify which inquiries, if
any, he would have pursued or which statements, if any, he could have used to his benefit. Because
Washington has not demonstrated any prejudice from his counsel’s alleged refusal to permit
Washington to review documents, he was properly denied an evidentiary hearing on his defense-
participation claim.
To avoid our consideration of prejudice, Washington frames his claim as one concerning his
ability to provide self-representation. This contention is without merit. Washington argues that the
Supreme Court recognized his right to participate in his defense in Faretta v. California, 422 U.S.
806 (1975), the case in which the Supreme Court recognized that defendants have a constitutional
right to represent themselves. He relies on language in Faretta that mentions the “assistance” of
counsel in the context of determining that the right to put on a defense is the right of the defendant.
See Washington’s Br. at 41-42. It appears that his argument is that the greater right to represent
one’s self necessarily includes the lesser right to participate in one’s own defense by demanding that
his counsel comply with his requests. The better Supreme Court case for Washington’s claim,
however, is Strickland because the Supreme Court expressly discussed, albeit in dicta, counsel’s
duty to assist clients:
No. 05-1185 Washington v. Renico Page 11
Representation of a criminal defendant entails certain basic duties. Counsel’s
function is to assist the defendant. . . . From counsel’s function as assistant to the
defendant derive the overarching duty to advocate the defendant’s cause and the
more particular duties to consult with the defendant on important decisions and to
keep the defendant informed of important developments in the course of the
prosecution.
466 U.S. at 688. Strickland’s language is more on point, and, thus, Washington’s claim sounds in
ineffective assistance of counsel, not self-representation.
Treating Washington’s claim as one concerning ineffective assistance of counsel also makes
practical sense because Strickland requires Washington to demonstrate prejudice. Washington relies
on the right of self-representation, rather than ineffective assistance of counsel, because denial of
the Faretta right is a structural error for which Washington need not show any prejudice. See
McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984). Ineffective assistance of counsel, in contrast,
requires that the defendant demonstrate that his counsel’s error was prejudicial. See Strickland, 466
U.S. at 691. Requiring defendants to demonstrate prejudice makes sense for participation claims
because, unlike self-representation claims, the participation errors come in various degrees and will
usually not be on the record. “The right [to self-representation] is either respected or denied,”
McKaskle, 465 U.S. at 177 n.8, and a waiver of counsel can occur only if made knowingly and
voluntarily on the record, see Faretta, 422 U.S. at 835. In contrast, the right to participate may be
marginally infringed or irrelevant to the merits of the case, and the error will almost never appear
in the record.6 These considerations support treating a defense-participation claim as an ineffective-
assistance-of-counsel claim and thus determining whether defense counsel’s error prejudiced the
defendant.
Because Washington has not demonstrated prejudice as to his defense-participation claim,
Washington was properly denied an evidentiary hearing on this claim.
D. Exclusion-of-Evidence Claim
The Michigan Court of Appeals did not unreasonably apply federal law in determining that
the exclusion of evidence (that Corcoran stated that two people would end up in a trunk if they told
the police about a different criminal matter) did not violate Washington’s right to present his
defense. Washington relies primarily upon Chambers v. Mississippi, 410 U.S. 284 (1973), in which
the Supreme Court held that the defendant’s combined inability to impeach his own witness and to
present trustworthy out-of-court statements that his witness had admitted to the murder at issue
violated the Due Process Clause by rendering the defendant’s trial fundamentally unfair. The state
courts’ determination that the exclusion of Corcoran’s out-of-court statement did not render
Washington’s trial fundamentally unfair was not an unreasonable application of or contrary to
Chambers because the evidence in Washington’s case (1) did not qualify for the catch-all hearsay
exception, (2) was, at most, marginally relevant, and (3) could have been admitted as impeachment
evidence.
First, the statement at issue was not so reliable as to be admitted under the catch-all hearsay
exception. The Supreme Court in Chambers held that the hearsay testimony of a declarant’s
admission to the murder at issue should have been allowed because the out-of-court statement had
sufficient indicia of reliability. Chambers, 410 U.S. at 300. Washington argues that Corcoran’s
statement concerning putting others in the trunk also had indicia of reliability and thus was
6
For instance, defense counsel could refuse to give his client the statements of a victim’s character witness who
dies before trial and whose testimony is never used at trial. Not only would the error not be on the record, but it would
have absolutely no effect on the proceedings and certainly not “infect the entire trial process.” Brecht, 507 U.S. at 630.
No. 05-1185 Washington v. Renico Page 12
admissible under the catch-all hearsay exception in Michigan Rule of Evidence 803(24).7 This
statement, however, unlike the one in Chambers, does not demonstrate indicia of reliability.
Although Corcoran was available for cross-examination, which is relevant in determining the
reliability of a hearsay statement, Washington has not described, at any stage of the proceedings,
when the statements were made or specifically to whom. See Chambers, 410 U.S. at 300-01.
Moreover, this statement, unlike the three confessions in Chambers, was not as clearly self-
incriminating because Corcoran did not state that he had murdered Kinville. See id. at 301. This
statement does not have indicia of reliability equivalent those of the statements in Chambers.
Second, Washington’s proffered evidence was not nearly as relevant to his defense as the
confessions in Chambers. In Chambers, the evidence at issue was highly relevant and strongly
exculpatory because another person had allegedly admitted to committing the crime for which
Chambers was found guilty. Chambers, 410 U.S. 300-01. Washington argues that it is more likely
that Corcoran was the shooter because, in an unrelated case, he threatened to put others in a trunk
if they talked to the police. But the statement does not demonstrate, at least to any significant
degree, that Corcoran was as or more likely than Washington to have been the shooter in this case.
Instead, the out-of-court statement, if assumed true, makes it more likely only that Corcoran, as he
testified, was at the scene of and participated in Kinville’s murder. The out-of-court statement in
this case is neither as probative nor as exculpatory (from Washington’s standpoint) as the
confessions in Chambers.8
Finally, unlike the defendant in Chambers, Washington has not argued on appeal that he was
unable to use this information for purposes of impeachment. The Supreme Court in Chambers
grounded its holding in the fact that, under Mississippi law, the defendant could neither proffer
reliable hearsay evidence nor call the alleged murderer (the declarant) as a witness and then impeach
him. If one assumes that the statement was relevant, Washington, unlike Chambers, presumably
could have asked Corcoran whether he ever threatened to put another in a trunk. If Corcoran denied
doing so, Washington’s counsel could have impeached Corcoran’s testimony with Corcoran’s out-
of-court statement.9 The jury in Washington’s case, unlike the jury in Chambers, most likely could
have considered the out-of-court statements in some manner had counsel used the statements to
impeach.
The Michigan Court of Appeals, therefore, did not act unreasonably by determining that the
trial court’s exclusion of evidence did not render Washington’s trial fundamentally unfair.
7
Washington does not argue that the statements should have been admitted under other hearsay exceptions.
8
Whether the exclusion of the evidence is contrary to traditional evidence law is a different question than
whether the exclusion of the evidence rendered the trial fundamentally unfair. Although Washington cites McCormick
on Evidence for the proposition that his evidence is admissible as merely one metaphorical link of a chain, the exclusion
of this evidence, even if relevant, does not necessarily render the trial fundamentally unfair. Washington points to no
other links of a chain that support an inference that Corcoran was the shooter, and the evidence, by itself, is not
compelling. Therefore, even if this court were to disagree with the Michigan courts’ determination that this piece of
evidence was completely irrelevant, Washington, 2002 WL 1010040, at *1, this court is not compelled to hold that the
trial was fundamentally unfair simply because the trial court excluded a weak piece of evidence for which the record
offered no other support.
9
It appears that defense counsel did not move to impeach Corcoran on January 7, 2000, during his cross-
examination with Corcoran’s statement concerning placing others in a trunk. See J.A. 235-48. Defense counsel, instead,
appears only to have sought the admission of the statement as substantive evidence on January 11, 2000, when the
defense was presenting its case. See J.A. 343-44.
No. 05-1185 Washington v. Renico Page 13
III.
For the foregoing reasons, we affirm. We also deny Washington’s motion asking us to take
judicial notice of new facts, collateral to the facts of the underlying case.