Fargo v. Phillips

58 F. App'x 603
CourtCourt of Appeals for the Sixth Circuit
DecidedJanuary 7, 2003
DocketNo. 01-1357
StatusPublished
Cited by8 cases

This text of 58 F. App'x 603 (Fargo v. Phillips) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fargo v. Phillips, 58 F. App'x 603 (6th Cir. 2003).

Opinions

SILER, Circuit Judge.

The government appeals the issuance of a provisional writ of habeas corpus pursuant to 28 U.S.C. § 2254 for Petitioner Brian Keith Fargo, based on his claim of ineffective assistance of counsel at trial. We reverse.

I.

After a jury trial, Fargo was convicted of third degree criminal sexual conduct, in violation of M.C.L. § 750.520d. The district court held that the state courts that considered Fargo’s post-conviction claim of ineffective assistance of counsel based their decisions on an unreasonable determination of fact and an unreasonable application of clearly established federal law.

Fargo was found guilty of the sexual penetration of Sheila Ruggero, a 15-year old, in Ludington, Michigan on April 23, 1992, sometime between 9:30 and 10:00 p.m. Fargo did not testify at trial, and the defense presented no witnesses. Henry Dongvillo, Fargo’s appointed counsel, argued that Fargo had always maintained his innocence and told the police the same, there was no medical evidence showing that Ruggero had been sexually penetrated, and, accordingly, the jury should apply the facts to the law and find Fargo not guilty. After Fargo was found guilty, he pled guilty to being a fourth felony offender and was sentenced to 15-30 years in prison.

Fargo’s appellate counsel filed a motion for a new trial, requesting a remand for an [605]*605evidentiary hearing on his claim that he received ineffective assistance of counsel. Fargo contended before the trial court during the ensuing evidentiary hearing that Dongvillo had rendered ineffective assistance by failing to adequately investigate, prepare and present an alibi defense. Fargo testified at the hearing that he was not with Ruggero at the time of the alleged assault. He testified that he saw Mary Quinn and Gina Johnson at the beach that evening, around 7:00 p.m., and invited them back to his apartment for drinks. He claimed that the three of them hung out at his apartment until about 9:50 p.m., when they all left together. Fargo testified that he went directly to Dan Wilby’s house, where he stayed until 11:05 or 11:10 p.m. Fargo testified that he told Dongvillo of his alibi for the night in question and gave him the witnesses’ names and contact information.

Dongvillo testified at the evidentiary hearing that Fargo had told him about some alibi witnesses and had furnished him with a list of at least three names and telephone numbers. Dongvillo admitted that he did not contact every person on the list, but recalled speaking with a male and a female at the same number, presumably Wilby and Quinn, who did not have a phone but could be reached through Wilby. Dongvillo testified that he felt that the witnesses would not be helpful because they did not have independent recollections of the dates involved. He testified that he told Fargo they were not good alibi witnesses and did nothing further regarding the alleged alibi defense Dongvillo also testified that he remembered hearing from the prosecutor in the case that Fargo was suggesting to people that they provide untruthful testimony in his favor.

At the end of the evidentiary hearing, the state trial court denied Fargo’s motion for a new trial. The Michigan Court of Appeals affirmed the trial court, and the Michigan Supreme Court denied review.

Fargo filed a petition for habeas corpus. The district court granted Fargo a provisional writ, finding the state court’s decision was an unreasonable factual determination that the witnesses did not provide Fargo with an alibi and an unreasonable legal determination that Dongvillo provided effective assistance in that he admittedly failed to call the third potential alibi witness.

II.

In determining whether to issue a habeas writ, the district court’s review of a state court decision is governed by the standards set forth in the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2241 et seq. (“AEDPA”). Id. The AEDPA only provides habeas relief for a state prisoner in certain limited circumstances, where the adjudication: “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was 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).

III.

This is an AEDPA case. In this case, AEDPA mandates not just the standard that we apply, but also the result that we reach. AEDPA requires that we accord strong deference to state courts’ application of federal law.

In this case, the government has conceded that the trial court made an unreasonable factual determination in assessing the potential alibi provided by the witnesses that Fargo proffered in his post-[606]*606conviction hearing. The trial court assessed the time line of the proffered witnesses accounting for Fargo’s whereabouts on the night in question based on the unreasonable determination that nightfall occurred “about 7 or 8 p.m.” Nature, as recorded by the Naval Observatory, is not in accord with that assumption. Nightfall did not occur till after 9 p.m. The trial court’s entire assessment of the potential helpfulness of the alibi witnesses depended upon that assumption. A careful examination of the trial court’s holding, however, reveals that recognizing the trial court’s error does not end our analysis.

The claim before the trial court, as here, was the ineffective assistance of Fargo’s trial counsel in not presenting these alibi witnesses. The trial court did not find that based on the above factual determinations that no prejudice inured to Fargo, and, therefore, counsel did not provide ineffective assistance. The trial court held as follows:

The Court puts weight on Attorney Dongvillo’s statement that when he did call the witnesses that he did reach, that their sharing of information would not have provided an alibi defense and certainly that recollection, even though it’s no longer specific as to what they said, would be consistent with the ... scenario that the Court has just recited based upon what two of these witnesses are even saying here today.
The court does not find that Attorney Dongvillo failed to properly investigate and the Court does not find that the, so to speak, new witnesses are in fact new witnesses. The Court [denies] the Motion for New Trial.

Thus, in determining that counsel conducted a reasonable investigation of the potential alibi defense, the trial court actually credited counsel’s testimony that he contacted two of the three witnesses and determined that they did not provide a viable alibi defense for Fargo. In his testimony, counsel did not state for the record the reasoning that the trial court suggested for his decision, ie., the scenario regarding the time differential in the alibi’s accounts that would have created a window of opportunity for the crime to be committed. Rather, counsel stated that the witnesses could provide no specifies.

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Bluebook (online)
58 F. App'x 603, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fargo-v-phillips-ca6-2003.