Daniel Couch v. Raymond Booker ( 2011 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0031p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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DANIEL BARRY COUCH,
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Petitioner-Appellee,
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No. 09-2230
v.
,
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Respondent-Appellant. -
RAYMOND BOOKER,
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Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 06-15119—Arthur J. Tarnow, District Judge.
Argued: October 20, 2010
Decided and Filed: February 3, 2011
Before: MOORE, SUTTON and FRIEDMAN,* Circuit Judges.
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COUNSEL
ARGUED: Brian O. Neill, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,
Lansing, Michigan, for Appellant. Carole M. Stanyar, Plymouth, Michigan, for
Appellee. ON BRIEF: Brian O. Neill, OFFICE OF THE MICHIGAN ATTORNEY
GENERAL, Lansing, Michigan, for Appellant. Carole M. Stanyar, Plymouth, Michigan,
for Appellee.
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OPINION
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SUTTON, Circuit Judge. A Michigan jury convicted Daniel Couch of second-
degree murder, for which he is serving a 19-to-40 year sentence. The district court
granted Couch’s petition for a writ of habeas corpus. Because Couch’s counsel rendered
*
The Honorable Daniel M. Friedman, Senior Circuit Judge of the United States Court of Appeals
for the Federal Circuit, sitting by designation.
1
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ineffective assistance by failing to investigate a causation defense, and because the state
courts’ contrary conclusion violated the standards of the Anti-Terrorism and Effective
Death Penalty Act, we affirm.
I.
“This case arises from an incident that occurred when a party went awry.”
People v. Collar, Nos. 233161, 233176, 2003 WL 21465335, at *1 (Mich. Ct. App. June
24, 2003). On June 16, 2000, Jack Thompson joined a party at his friend Susan’s house.
He had been drinking beer and smoking marijuana, and he had just gone to get some
cocaine. “[T]he line of cocaine that [Jack] did was extremely large,” and he used still
more cocaine after that, eventually getting “a little out of control.” R.14 at 51–53. He
made “really, really bizarre grunting noises . . . and [was] crawling around on his knees.”
Id. at 53.
Two of the women there snuck out of the apartment and one of them, Allison,
called her friends Matt and Kevin, saying, “I have a situation, can you just [come] up
here and help us?” Id. at 62–63. Both men soon arrived with others in tow, including
Daniel Couch. At the time, Couch lived with his nephew in the same house where
Allison and Kevin rented rooms. When Kevin received Allison’s call, Couch agreed to
come along. At the door, they met Rick Collar, Susan’s neighbor, and when they all
entered the apartment, Susan was “on the floor with her dress wrapped up around her
waist and no underwear on, on her knees crying,” and Jack was “directly behind her on
his knees as well.” Id. at 72, 77. Susan was “telling Jack to leave her alone and . . .
yelling, ‘get off of me, stay away from me, leave me alone, help me.’” Id. at 76–77.
Allison entered first and pushed Jack to the ground. Collar and Couch grabbed
Jack and pulled him away, and Collar punched him repeatedly. Couch also hit Jack
during the scuffle. Jack fought back, but he was unable to resist the two men as they
pulled him out of the apartment and onto the lawn. Collar “kept hitting [Jack] in the
face, telling him that he would f—ing kill him if he ever touched [Susan] again.” Id. at
95. During the melee, Couch punched Jack “[a]bout five to seven times,” R.15-2 at 288,
and kicked him once. People yelled, “he’s had enough, leave him alone,” and a neighbor
No. 09-2230 Couch v. Booker Page 3
shouted from a nearby balcony that she had called the police. R.14 at 95–97. Couch got
into a car with Allison, Shannon and two of the other guys, and they drove away. The
police arrived, and Collar “raise[d] his hands and [said], ‘I’m the one who did it, I’m the
one who kicked the sh— out of Jack.’” R.15-2 at 300. Further investigation led the
police to Couch as well.
Medics took Jack by ambulance to the hospital, where Dr. Robert Aranosian
received him, but “basically he was dead when he got there.” R.15 at 10. Jack’s heart
showed evidence of a “chronic” “[t]hickening of the heart muscle,” which was “possibly
[the] result of some pathogenic or affect of some drugs.” Id. at 147–48. The toxicology
report showed a .17 blood-alcohol level, noticeable levels of “cannabinoids” from
marijuana use and significant levels of cocaine and cocaethlyne, “a compound of cocaine
and alcohol created by the cells of the liver [that] has [a] more prolonged affect on [the]
human body . . . than cocaine in the sense of duration of the effect.” Id. at 149–50.
There was also blood in Jack’s lung tissue, which led Dr. Ljubisa Dragovic, who
performed the autopsy, to conclude that the cause of death was “asphyxia from inhaled
blood that resulted from blunt-force injury to the face.” Id. at 176.
The State charged Collar and Couch with second-degree murder and tried them
together. On the second day of deliberations, the jury found Couch and Collar guilty.
On direct appeal, Couch argued that his trial counsel was constitutionally
ineffective and that the trial court violated his constitutional right to the counsel of his
choice. The court of appeals affirmed his conviction, rejecting both claims on the merits,
and the Michigan Supreme Court denied review. Couch filed a motion for post-
conviction relief under Mich. Ct. R. 6.500, but the state court denied the motion, noting
it would not revisit the issues addressed on direct appeal. The Michigan Court of
Appeals denied leave to appeal, and so did the Michigan Supreme Court.
Couch filed a habeas petition in the United States District Court for the Eastern
District of Michigan, claiming he was denied his counsel of choice and that he received
ineffective assistance of counsel. After a two-day evidentiary hearing, the court granted
the writ on both grounds.
No. 09-2230 Couch v. Booker Page 4
II.
Under the Antiterrorism and Effective Death Penalty Act, a federal court ruling
on a habeas petition must give deference to the state court’s resolution of each claim.
It may not grant relief with respect to “any claim that was adjudicated on the merits in
state court” unless the state court’s resolution was “contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States.” 28 U.S.C. § 2254(d). We give fresh review to
claims not “adjudicated on the merits in state court,” id., though we still defer to any
relevant state court findings of fact, see Williams v. Coyle, 260 F.3d 684, 706 (6th Cir.
2001); 28 U.S.C. § 2254(e). To the extent “new, substantial evidence supporting a
habeas claim [has] come[] to light during the proceedings in federal district court,” we
have not applied the deference described in § 2254(d) “to an earlier, state-court . . .
adjudication involving a different mix of [relevant] evidence.” Brown v. Smith, 551 F.3d
424, 429 (6th Cir. 2008).
In Harrington v. Richter, — U.S. —, 131 S. Ct. 770 (2011), the Supreme Court
recently emphasized that under § 2254(d) a petitioner must establish that “there was no
reasonable basis for the state court to deny relief,” even where the state courts have not
issued any opinion explaining why relief was denied. Id. at 784. The decision may raise
questions about the scope of § 2254(d)’s strictures, but we need not address these
questions today, as we conclude that the Michigan courts’ rejection of Couch’s
ineffective-assistance claim “involved an unreasonable application of[] clearly
established Federal law, as determined by the Supreme Court,” § 2254(d)(1).
A.
Evidentiary hearing. The State argues that the district court should not have
granted an evidentiary hearing to Couch, but the objection comes too late. When Couch
filed his motion for an evidentiary hearing, the State did not respond. As required by
Rule 8(a) of the Rules Governing § 2254 Cases, the district court “review[ed] the
answer, . . . transcripts and records of state-court proceedings, and . . . materials
submitted under Rule 7 to determine whether an evidentiary hearing [was] warranted.”
No. 09-2230 Couch v. Booker Page 5
Noting that the State had “not disputed” Couch’s account of the facts, but ensuring that
his assertions were “consistent with the record,” R.43 at 2, the court concluded that
Couch had diligently pursued his claims in state court and granted the hearing. On this
record, the district court did not abuse its discretion in granting an evidentiary hearing.
See White v. Mitchell, 431 F.3d 517, 533 (6th Cir. 2005).
Even if for the sake of argument we had discretion to revisit the issue, see
Williams v. Norris, 576 F.3d 850, 860 (8th Cir. 2009); but see Williams v. Hobbs, 131
S. Ct. 558 (2010) (Sotomayor, J., dissenting from denial of certiorari), we would not do
so here, for it is by no means clear that a timely objection by the government would have
succeeded. Section 2254(e)(2) says:
If the applicant has failed to develop the factual basis of a claim in State
court proceedings, the court shall not hold an evidentiary hearing on the
claim unless the applicant can show that—
(A) the claim relies on—
(i) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
previously unavailable; or
(ii) a factual predicate that could not have been
previously discovered through the exercise of due
diligence; and
(B) the facts underlying the claim would be sufficient to
establish by clear and convincing evidence that but for
constitutional error, no reasonable factfinder would have
found the applicant guilty of the underlying offense.
The requirements of Subsections (A) and (B) apply only if the petitioner “has failed to
develop the factual basis of a claim,” § 2254(e)(2), only if in other words “there is a lack
of diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel,”
Williams v. Taylor, 529 U.S. 420, 432 (2000).
Couch diligently presented these claims to the state courts. When Couch
received a Ginther hearing—the Michigan process for developing facts to support an
ineffective-assistance claim, see People v. Ginther, 212 N.W.2d 922 (Mich. 1973)—he
No. 09-2230 Couch v. Booker Page 6
objected to the way his appellate counsel proceeded, then filed a pro se motion for a new
hearing so that he could introduce the evidence that he later introduced before the district
court. See Sawyer v. Hofbauer, 299 F.3d 605, 610 (6th Cir. 2002). He retained new
counsel and continued to seek a new hearing while requesting permission to submit new
briefs on appeal. The state court agreed to strike his prior counsel’s briefs and to allow
him to file new briefs, but it did not give him a new Ginther hearing. Even after the
Michigan Court of Appeals affirmed his conviction, he moved the court to reconsider
and continued to press his ineffective assistance of counsel claim. In the collateral state
court proceedings, Couch once again sought to introduce the evidence presented below,
but again to no avail. See Greer v. Mitchell, 264 F.3d 664, 681 (6th Cir. 2001). All of
these efforts considered, Couch appears to have diligently presented his claims to the
state courts, making it difficult to maintain that the district court abused its discretion in
granting the hearing.
B.
Ineffective assistance of counsel. “In all criminal prosecutions,” the Sixth
Amendment says, “the accused shall enjoy the right . . . to Assistance of Counsel for his
defence,” U.S. Const. amend. VI, a requirement that applies to the States through the
Fourteenth Amendment, Gideon v. Wainwright, 372 U.S. 335, 342–43 (1963). A right
to the assistance of someone with a law degree does not by itself suffice. Only a right
to “effective assistance of counsel” serves the guarantee. McMann v. Richardson, 397
U.S. 759, 771 n.14 (1970). To establish a claim of ineffective assistance of counsel, a
defendant must show that “counsel’s representation fell below an objective standard of
reasonableness,” Strickland v. Washington, 466 U.S. 668, 688 (1984), and 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.
Counsel’s Representation Fell Below an Objective Standard of Reasonableness.
The state courts unreasonably rejected Couch’s argument that his counsel should have
investigated his causation defense. Competent counsel can be expected to undertake a
“thorough investigation of law and facts relevant to plausible options” for the defense.
No. 09-2230 Couch v. Booker Page 7
Id. at 690. And while this does not require counsel to investigate every conceivable
defense, any limitation on counsel’s investigation must be supported by a “reasonable
professional judgment[].” Id. at 691. Couch’s counsel, Raymond Correll, knew several
facts that made a causation defense a “plausible” option: that the victim had a heart
condition, that his blood showed high levels of alcohol, marijuana and cocaine and that
the medics had to restrain him. Making matters worse, Couch not only told Correll to
pursue the defense but also told him how to do so: by obtaining the fire department
report about the incident. That the report was readily accessible makes Correll’s
reluctance to ask for it all the more inexcusable and all the more removed from a
“reasonable professional judgment[].” To make a reasoned judgment about whether
evidence is worth presenting, one must know what it says. While the point of the Sixth
Amendment is not to allow Monday-morning quarterbacking of defense counsel’s
strategic decisions, a lawyer cannot make a protected strategic decision without
investigating the potential bases for it. See id. at 690–91; see also Bigelow v. Harviland,
576 F.3d 284, 288 (6th Cir. 2009). It is particularly unreasonable to fail to track down
readily available and likely useful evidence that a client himself asks his counsel to
obtain. See Bigelow, 576 F.3d at 287–88.
In rejecting Couch’s claim, the Michigan Court of Appeals credited Correll’s
concern that introducing the report “would emphasize the decedent’s fear and the effect
of the attack” on him and concluded that these considerations sufficed to cut short further
investigation of this causation defense. Collar, 2003 WL 21465335 at *5. But the State
already had presented considerable evidence about the effect of the beating on Jack,
which cast a far worse light on the defendants than the fire department report would
have. Even if this kind of fear might justify omitting the evidence at trial in some
circumstances, that is no reason not to read the report. How can one exercise reasonable
professional judgment about whether to stop a causation-based investigation before
reading the key report that might support it?
The State responds that a defense lawyer may rely on its expert witnesses to
gather information like this. It notes that the defendant’s medical expert, Dr. Spitz,
No. 09-2230 Couch v. Booker Page 8
agreed with Dr. Dragovic’s determination that the cause of death was asphyxiation
resulting from the beating, and that Dr. Spitz never asked Correll for any additional
information. But Dr. Spitz never saw the fire department report in making this
assessment, and he never spoke with Correll about this or any other evidence. An
attorney cannot hire an expert, give him whatever evidence he happens to have on hand
(but not the evidence the client pointed to) and accept the report without further
discussion. Trial counsel may rely on an expert’s opinion on a matter within his
expertise when counsel is formulating a trial strategy. See, e.g., Campbell v. Coyle, 260
F.3d 531, 555 (6th Cir. 2001); Lewis v. Alexander, 11 F.3d 1349, 1353 (6th Cir. 1993).
But this common-sense principle does not give trial counsel a free ride when it comes
to the obligation to undertake a “thorough investigation of law and facts relevant to
plausible options” for a defense. Strickland, 466 U.S. at 690; see Bigelow, 576 F.3d at
287–88.
Correll had no way of knowing, without first looking at the fire department
report, whether he might (or might not) need an expert’s assistance to understand how
the report could support an alternative causation theory. Hiring a medical expert to
review an autopsy report does not amount to the outsourcing of all investigation into
plausible causation theories, including a theory that may have nothing to do with the
autopsy report. What if the fire department report had shown that someone else was the
assailant? That would just as readily support a causation defense, and it would be just
as irrelevant to Dr. Spitz’s evaluation of the autopsy report. So too here: Couch could
have benefitted from the fire department report even without an expert to explain its
significance. At the very least, the report, which indicates that Jack was conscious when
emergency services arrived and that his mouth and nose were not flooded with blood,
could have rebutted the State’s repeated assertion at trial that Jack “drowned in his own
blood.” R.16 at 24; see also id. at 25–26, 95–97. The hiring of Dr. Spitz does not
exonerate Correll from the duty to take these simple steps. On this record, the state
courts unreasonably concluded that Correll provided adequate counsel.
No. 09-2230 Couch v. Booker Page 9
Couch Was Prejudiced by Counsel’s Ineffective Representation. In rejecting
Couch’s claim, the Michigan Court of Appeals considered the alternative causation
theory that Couch pursued in his Ginther hearing—“restraint-related asphyxia”—and
concluded that “the evidence failed to show a reasonable probability that such a theory
would have been successful.” Collar, 2003 WL 21465335 at *5. But in the district
court, Couch pursued a different theory of causation: that Jack died from a pulmonary
edema caused by a cocaine overdose, not from asphyxiation. Couch also presented
expert testimony refuting the State’s theory that Jack “drowned in his own aspirated
blood.” Habeas Hearing at 32. In the light cast by this evidence, “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694. Indeed, “[t]he likelihood of
a different result [is] substantial,” Richter, 131 S. Ct. at 792, confirming that the state
court’s contrary conclusion unreasonably applied Strickland.
Rompilla v. Beard, 545 U.S. 374 (2005), supports Couch’s claim of prejudice.
After holding that counsel’s failure to obtain and investigate court files about Rompilla’s
prior conviction amounted to ineffective assistance, id. at 383, the Court found prejudice.
“If the defense lawyers had looked in the file,” the Court reasoned, “they would have
found a range of mitigation leads that no other source had opened up.” Id. at 390. “With
this information,” the Court added, “counsel would have become skeptical of the
impression given by” their cursory investigation “and would unquestionably have gone
further to build a mitigation case. Further effort would presumably have unearthed much
of the material postconviction counsel found, including testimony from several [potential
witnesses], whom trial counsel did not interview.” Id. at 391. “This evidence,” the
Court concluded, “adds up to a mitigation case that bears no relation to the [minimal
mitigation evidence] actually put before the jury, and although we suppose it is possible
that a jury could have heard it all and still have decided [as it did], that is not the test.”
Id. at 393.
Couch faced a similar situation. The fire department report alone would have
aided his defense, as it contained information rebutting the drowned-in-his-blood theory
No. 09-2230 Couch v. Booker Page 10
of causation. But that is not all. The report, as in Rompilla, would have led reasonable
counsel to the same evidence that Couch’s postconviction counsel found, which was
“easy to get” and which reasonably diligent trial counsel “would presumably ha[ve]
unearthed.” Id. at 391, 393. The fire department report showed that Jack was conscious
when emergency services arrived, that he fought back when they tried to put him into the
ambulance and that “there was no return of blood or food” in Jack’s upper airway when
he was taken into the ambulance. Habeas Hearing at 22. When shown the fire
department report along with the other medical evidence available before trial, Dr. John
Butt, Couch’s medical expert at the district court’s evidentiary hearing, did not believe
that Jack “drowned in his own aspirated blood.” Id. at 32. He testified that the evidence
did not show a “significant quantity of aspirated blood” that would be “sufficient to have
caused a severely compromised situation to the point of killing the individual.” Id. at
32–33. This fact, combined with the circumstances of the incident and other medical
evidence, including signs of pulmonary edema, led Dr. Butt to believe that Jack died of
“cardio respiratory failure due to primary pulmonary [h]emorrhage from cocaine
toxicity,” or in other words an “accidental” cocaine overdose, not from asphyxia caused
by the beating. R.4 at 8–9.
The fire department report also led Couch’s new counsel to interview two EMTs
from the Independence Township Fire Department, including the author of the report.
In their testimony, they remembered that “the patient respond[ed] by speaking,” Habeas
Hearing at 150, that they “could hear him breathing” while he was being “wheeled to the
ambulance,” id. at 176; see also id. at 154, and that he was never “visibly choking or
choking up blood,” id. at 156. This evidence too would have rebutted the notion that
Jack “drowned in his own blood,” R.16 at 24, paving the way for an alternative theory
of causation.
Even Correll’s testimony supports this conclusion. Had he seen “the first
responders’ report or reports,” which said “that there was no fluids in the airway,” and
had he been able to obtain “an independent” witness who could “corroborate that and
No. 09-2230 Couch v. Booker Page 11
say, Dragovic, you’re wrong,” he acknowledged that he “would [have] raise[d] it at that
point.” Habeas Hearing at 253–54.
Dr. Dragovic’s testimony at the evidentiary hearing comes to the same end. He
agreed that Jack’s lung tissue “show[ed] signs of pulmonary edema”—Couch’s
alternative theory of causation. Habeas Hearing at 98. He testified that he “did not find
any blood in the stomach,” and that if someone were conscious and gurgling blood,
“[i]t’s more likely that they will swallow” some blood. Id. at 103. He also backed down
from the drowning analogy for asphyxiation by blood, saying it “is a completely
different thing.” Id. at 99. He had meant to suggest, he now says, only that “the
mechanism of inhalation is the same.” Id. at 100. It is otherwise “impossib[le],” he
explained, “to compare blood that is inhaled with water that is inhaled.” Id.
Taken as a whole, “[t]his evidence adds up to a [causation defense] that bears
no relation to the [evidence] actually put before the jury.” Rompilla, 545 U.S. at 393.
To get a flavor of why this is so, consider the prosecution’s opening and closing
statements. In opening, the prosecution hints at the drowned-in-his-blood theory:
And Dr. Dragovic then performs an internal examination. He knows that
there’s a significant amount of blood in Jack’s nose and in his mouth and
he also notes now that Jack has inhaled some of his own blood. It’s in
the upper airways, it’s also in the lower airways. And the effect of this,
of course, is to diminish his ability to breathe.
R.13 at 138–39. But by the closing argument, after the unrebutted testimony of Dr.
Dragovic’s and his analogy to drowning, here is what the jury hears:
Jack Thompson drowned in his own blood. He drowned in his own
blood.
They beat him so hard that his nose was bleeding, his mouth was full of
blood, his upper airways are full of blood, the lower airways are full of
blood, the little air sacs, the sacs that are suppose[d] to carry the life-
giving oxygen, instead they are filled with blood.
R.16 at 24. More:
No. 09-2230 Couch v. Booker Page 12
He caused the death—both of these men caused the death because they
hit him in the face. The blood is from the nose. It goes into the mouth.
He drowned on his own blood. That’s the cause of death. That’s why
this man died. He drowned on his own blood.
R.16 at 95–96; see also id. at 25–26, 96–97.
What seemed to be a simple explanation for the State’s theory of causation was
not so simple and, if the jury had believed the new evidence, it was not even true. The
fire department report and the evidence that came with it cast considerable doubt on the
drowned-in-his-blood theory of causation. As shown, moreover, another theory of
causation existed. Jack had a “chronic” “[t]hickening of the heart muscle” “possibly
[the] result of some pathogenic or affect of some drugs,” R.15 at 148, and he had a .17
blood-alcohol level, signs of marijuana use and significant levels of cocaine and
cocaethlyne. Id. at 149–50. If someone had explained to them, as Dr. Butt would have,
that death caused by these factors was not only consistent with the autopsy results, but
that this was the most likely cause of death, “at least one juror [might] have struck a
different balance.” Wiggins, 539 U.S. 510, 537 (2003).
This is particularly true in view of “the lack of overwhelming evidence of guilt”
with respect to Couch. English v. Romanowski, 602 F.3d 714, 730 (6th Cir. 2010). The
trial record shows that the State’s case against Couch—as opposed to Couch’s co-
defendant, Collar—was not strong. Reading the inferences in favor of the prosecution,
the most that can be said in favor of this second-degree murder conviction is that a
neighbor watching from a balcony saw Couch kick Jack “hard enough to move his
body,” R.14-2 at 267, and another partygoer saw him hit Jack “[a]bout five to seven
times,” R.15-2 at 288; see also R.14 at 185. Others, however, testified that Couch
merely “slapped him open handed” and “kicked his hands away” when Jack tried to grab
Couch’s legs. R.15 at 83. Several witnesses had imperfect recollections of events or
could not identify Couch in person. There was no evidence of premeditation or anything
else suggesting he meant to kill the victim.
Contrast this with the evidence against Collar, his co-defendant. Collar told his
date that “he was going to kick Jack’s a—” before he landed the first blow. R.14 at 140.
No. 09-2230 Couch v. Booker Page 13
He then “punch[ed Jack] repeatedly in the face” “at least 25 times,” R.15-2 at 268, and,
when the police arrived, he acknowledged, “I’m the one who did it, I’m the one who
kicked the sh— out of Jack,” R.15-2 at 300. Just as the difference in the degree of
culpability between two defendants may raise the risk of prejudice to the least culpable
individual, cf. Zafiro v. United States, 506 U.S. 534, 539 (1993), so it is true that the
least-culpable defendant is most likely to be prejudiced by a flawed presentation of a
theory of causation. Had Couch presented his alternative causation theory at trial, there
is a reasonable probability, at least for him, that the jury would not have found beyond
a reasonable doubt that he was responsible for Jack’s death. In the last analysis, “had
the jury been confronted with this . . . evidence, there is a reasonable probability that it
would have returned with a different [verdict].” Wiggins, 539 U.S. at 536. In reaching
a contrary conclusion, the state courts unreasonably applied Strickland.
C.
Counsel of Choice. The district court also held that the state trial court violated
Couch’s right to counsel of choice when it denied his motion for a continuance on the
eve of trial, a motion designed to give him time to find new counsel after his initial
choice backed out. Because the district court properly issued the writ on the ineffective
assistance of counsel claim, we need not address this alternative ground for relief.
III.
For these reasons, we affirm.