Jimmie Gordon v. Blaine Lafler

710 F. App'x 654
Court of Appeals for the Sixth Circuit·Decided September 26, 2017·No. 15-1494·Unpublished·Cited by 3 cases

Opinion

AMENDED OPINION

BERNICE BOUIE DONALD, Circuit Judge.

After a fight that led Jimmie Gordon to shoot and kill Francois Todd, a state jury convicted Gordon of first-degree murder, felonious assault, and felony firearm. During the trial, defense counsel and the trial judge bickered back and forth about various issues, including the judge’s rulings and defense counsel’s behavior. Gordon filed a habeas petition, alleging, as relevant here, (1) that he was denied a fair trial under the Due Process Clause of the Fourteenth Amendment because of the trial judge’s bias against defense counsel; and (2) that he was deprived of his Sixth Amendment right to effective assistance of counsel by defense counsel’s failure to raise this issue in a motion for new trial. The district court denied his petition. Gordon renews these arguments on appeal. For the reasons discussed below, we AFFIRM the district court’s judgment.

I.

Gordon was charged with first-degree murder, felony firearm, and two counts of assault-with intent to commit murder. The charges arose out of a shooting outside of Gordon’s home in 2004. After an argument between Fallon Walker, Todd’s sister, and Gordon’s girlfriend, Ebony Jackson, Todd, Walker, and his mother, Latrell Todd (“Ms. Todd”), went to Gordon’s home. Upon arriving, Todd demanded to know where Gordon’s girlfriend was, after which Gordon ran into his house to get a rifle and -fired six shots, one of which killed Todd. In 2005, the jury convicted Gordon of one count of first-degree murder, two counts of felonious assault, and one count of felony firearm. The court sentenced him to life imprisonment for the murder conviction, a concurrent term of seventeen months to four years for the assault convictions, and a consecutive term of two years for the firearm conviction.

On direct appeal, Gordon raised a variety of claims for relief, none of which is the subject of the instant appeal. The Michigan Court of Appeals affirmed his conviction and the Michigan Supreme Court denied leave to appeal.

In 2008, Gordon filed a federal habeas petition, but the district court granted him a stay while he moved for post-conviction remedies in state court. Gordon then initiated state collateral proceedings, arguing, as pertinent here, that the trial judge exhibited unconstitutional bias and that his trial counsel was constitutionally ineffective for failing to file a motion for new trial regarding the alleged judicial misconduct. The state trial court conducted an eviden-tiary hearing on the issue, and then denied Gordon’s post-conviction motion. The Michigan Court of Appeals and the Michigan Supreme Court denied leave to appeal.

In 2012, Gordon filed a supplemental habeas petition arguing, as relevant to the instant appeal, that (1) he was denied a fair trial under the Due Process Clause of the Fourteenth Amendment because the trial judge engaged in judicial bias; and (2) he was deprived of his Sixth Amendment rights to the effective assistance of counsel because trial counsel failed to file a motion for new trial raising the judicial bias claim.

The district court denied Gordon’s petition. It held that the general allegations that the trial judge picked arguments with counsel, treated counsel’s objections with contempt, and engaged in other similar conduct were not supported by the record. In fact, the district court asserted, the trial judge recognized counsel’s absolute right to object for the record, sustained a number of counsel’s objections, overruled many of the prosecution’s objections to counsel’s questions and tactics, allowed counsel to proceed even when the judge seemed to think counsel was violating evidentiary rules, allowed defense counsel to recall any witnesses that he wanted, and granted most of defense counsel’s requests for specific jury instructions. Turning to Gordon’s more specific allegations that the trial judge took actions such as telling counsel to sit down and shut up and stepping in after defense counsel asked a question five or six times, the district court determined that these actions did not reflect judicial bias. Although a few of the comments were somewhat sarcastic and some actions, including questioning defense counsel’s legal education and holding him in contempt, were “troubling,” viewing the record as a whole, the district court reasoned that the judge was just fulfilling his role as the moderator of the trial. Therefore, the district court denied relief, but failed to address Gordon’s ineffective assistance of counsel claim.

The district court granted a certificate of appealability on Gordon’s judicial bias claim. This court later expanded that certificate of appealability to include Gordon’s claim that counsel was ineffective for failing to file a motion for new trial on the basis of judicial bias.

II.

Habeas relief is governed by the deferential standard stated in the Antiterrorism and Effective Death Penalty Act (AED-PA). AEDPA provides that:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—
(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). A state court’s factual determinations are presumed to be correct absent clear and convincing evidence to the contrary. Id. § 2254(e)(1). A state court’s decision is “contrary to” clearly established federal law if it “applies a rule different from the governing law set forth in [Supreme Court] cases, or if it decides a case differently than [the Supreme Court has] done on a set of materially indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002), The decision is an “unreasonable application of’ clearly established federal law “if the state court correctly identifies the governing legal principle from [Supreme Court] decisions but unreasonably applies it to the facts of the particular case.” Id. The Supreme Court has emphasized that “an unreasonable application of federal law is different from an incorrect application of federal law,” Renico v. Lett, 559 U.S. 766, 773, 130 S.Ct. 1855, 176 L.Ed.2d 678 (2010) (quoting Williams v. Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)), and even a strong case for relief does not render a state court’s contrary decision unreasonable. Harrington v. Richter, 562 U.S. 86, 101-02, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). AEDPA, therefore, “erects a formidable barrier to federal habeas relief.” Burt v. Titlow, — U.S. -, 134 S.Ct. 10, 16, 187 L.Ed.2d 348 (2013).

III.

A.

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Jimmie Gordon v. Blaine Lafler, 710 F. App'x 654 (6th Cir. 2017).

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