Larry D. Smith v. Gerald Hofbauer

312 F.3d 809, 2002 U.S. App. LEXIS 25130, 2002 WL 31748076
CourtCourt of Appeals for the Sixth Circuit
DecidedDecember 10, 2002
Docket01-1169
StatusPublished
Cited by66 cases

This text of 312 F.3d 809 (Larry D. Smith v. Gerald Hofbauer) 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
Larry D. Smith v. Gerald Hofbauer, 312 F.3d 809, 2002 U.S. App. LEXIS 25130, 2002 WL 31748076 (6th Cir. 2002).

Opinions

OPINION

CLAY, Circuit Judge.

Petitioner, Larry Donnell Smith, appeals from the district court’s order denying Petitioner’s application for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. On appeal, Petitioner argues that because of his trial counsel’s conflict of interest, a structural defect in Petitioner’s trial occurred such that Petitioner was denied his Sixth Amendment right to the effective assistance of counsel under the auspices of Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980).

Petitioner’s claim seeks to extend Sullivan’s lessened standard of proof necessary for a defendant to succeed on a claim of ineffective assistance counsel based on a conflict of interest involving joint representation to other types of attorney conflicts of interest. Because the rule sought to be invoked by Petitioner in order to succeed on his claim is a new rule that was not in effect at the time of conviction and, indeed, is still not in effect under Supreme Court precedent at this time, Petitioner’s claim fails inasmuch as it is not based upon “clearly established federal law” for purposes of satisfying § 2254 of the Antiter-rorism and Effective Death Penalty Act (“AEDPA”). 28 U.S.C. § 2254(d)(1). We therefore AFFIRM the district court’s denial of Petitioner’s application for the writ, albeit for reasons other than those of the district court.

[811]*811BACKGROUND

Petitioner, a body builder who was thirty-one years old at the time, was arrested in late January of 1991, following an allegation that he performed fellatio on a sixteen-year-old boy by force. Petitioner was charged with first-degree criminal sexual conduct in violation of Mich. Comp. Laws Ann. § 450.502b(l)(e) in Kent County Circuit Court, Kent County, Michigan, and with being a fourth felony offender in violation of Mich. Comp. Laws Ann. § 769.12. Shortly thereafter, Petitioner fired his court-appointed counsel and retained attorney Jeffrey Balgooyen. On April 26, 1991, Petitioner was arraigned as a fourth felony offender on the first-degree criminal sexual conduct charge, which carried a maximum sentence of life imprisonment.

Three weeks later, on May 16, 1991, another assistant prosecuting attorney from Kent County obtained an indictment against Balgooyen, charging him with one count of possession with the intent to deliver cocaine, which carried a mandatory minimum sentence of one year’s imprisonment, and a maximum sentence of twenty years’ imprisonment.

On the eve of Petitioner’s jury trial, Balgooyen moved to withdraw as Petitioner’s attorney, claiming that difficulties in establishing contact with Petitioner deprived Balgooyen of sufficient time to prepare his defense and to complete his financial arrangements with Petitioner. The trial court denied Balgooyen’s motion, and reminded Petitioner of the prosecution’s earlier plea offer of assault with intent to commit criminal sexual conduct, for which the maximum sentence would have been ten years’ imprisonment, instead of life imprisonment which Petitioner faced if he proceeded to trial. Petitioner indicated that he continued to reject the prosecution’s plea offer, and that he desired to go to trial. Following a three-day jury trial, Petitioner was found guilty of first-degree criminal - sexual conduct on August 15, 1991.

About one month later, on September 13, 1991, Balgooyen appeared in Kent County Circuit Court, but before a judge different from the judge before whom Petitioner had appeared, on the charge of intent to distribute cocaine. The prosecuting attorney assigned to Balgooyen’s case, who was not the prosecuting attorney assigned to Petitioner’s case, made a plea offer to reduce the charge to attempted possession with the intent to deliver cocaine. Balgooyen accepted the offer, pleaded guilty to the lesser charge, and was sentenced to five months’ imprisonment plus probation. ,

Prior to Petitioner’s sentencing on October 14, 1991, a court-appointed attorney replaced Balgooyen as Petitioner’s counsel, possibly because Balgooyen’s license to practice law may have been suspended as of his date of conviction under Michigan Court Rule 9.120. Yet another prosecuting attorney from Kent County represented the State of Michigan at Petitioner’s sentencing. Petitioner pleaded guilty to being a second felony offender in exchange for the dismissal of the information charging him as being a fourth felony offender, and was sentenced to a term of twenty-five to forty years’ imprisonment.

Petitioner appealed his conviction to the Michigan Court of Appeals raising, among other things, a claim that Balgooyen’s pending drug charge in the same county in which Petitioner was tried and convicted created a conflict of interest which denied Petitioner his right to the effective assistance of counsel per se. As far as the record indicates, this was the first time that Petitioner raised this issue. At the same time Petitioner filed his appeal with the Michigan Court of Appeals, he also filed a motion to remand for an evidentia-[812]*812ry hearing in the trial court, requesting further factual development regarding his ineffective assistance of counsel claims. Although Petitioner alleged six claims of ineffective assistance by Balgooyen for which further factual development was necessary, only one allegation involved Balgooyen’s potential conflict of interest. And even that allegation was made in reference to Petitioner’s allegation that Bal-gooyen was ineffective for failing to challenge the composition of the jury pool. Specifically, Petitioner alleged as follows:

6. Mr. Smith, who is black, also wishes to claim on appeal that counsel was ineffective because he failed to challenge the composition of the jury based on the underrepresentation [sic] of blacks. (This Court can take judicial notice that the under-representation of blacks on Kent County Circuit Court juries is a subject of ongoing concern in Kent County.) Counsel’s failure to raise this claim may have been the result of a conflict of interest created by a felony drug charge pending against him in the Kent County Circuit Court. (Kent County Circuit Court No. 91-54842-FH.) (Alternatively, Mr. Smith wishes to claim that he was denied his federal and state constitutional right to a trial by jury because the jury members did not represent a fair cross-section of the community. See Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979).)

(J.A. at 90; Petitioner’s Motion to Remand.)

The Michigan Court of Appeals affirmed Petitioner’s conviction and sentence in an unpublished per curiam opinion, opining that “[b]ecause the judge and prosecutor involved in counsel’s [Balgooyeris] case were not the same as defendant’s, no actual conflict of interest has been shown.” People v. Smith, No. 148757, slip op. at 1 (Mich.Ct.App. July 11, 1995) (unpublished per curiam) (citing People v. Pickens, 446 Mich. 298, 521 N.W.2d 797 (1994)). Apparently, in light of the court’s decision, Petitioner’s motion to remand for an evi-dentiary hearing was denied.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Pitts v. Braman
E.D. Michigan, 2025
Curtis v. Christianson
E.D. Michigan, 2024
Evans v. Vashaw
E.D. Michigan, 2022
Soler-Norona v. Nagy
E.D. Michigan, 2022
Willis v. Trierweiler
E.D. Michigan, 2021
Cano v. Williams
D. Colorado, 2021
United States v. Hale
Navy-Marine Corps Court of Criminal Appeals, 2017
John Stockman v. Mary Berghuis
627 F. App'x 470 (Sixth Circuit, 2015)
Terry Norris v. Jerry Lester
545 F. App'x 320 (Sixth Circuit, 2013)
Manuel Sandoval, Jr. v. Toledo Correctional Institution
409 F. App'x 847 (Sixth Circuit, 2010)
Freeman v. Trombley
744 F. Supp. 2d 697 (E.D. Michigan, 2010)
McElrath v. Simpson
Sixth Circuit, 2010
Young v. Renico
346 F. App'x 53 (Sixth Circuit, 2009)
Mark Ryder v. Phillip Kerns
335 F. App'x 529 (Sixth Circuit, 2009)
Irick v. Bell
Sixth Circuit, 2009
Robinson v. Lafler
643 F. Supp. 2d 934 (W.D. Michigan, 2009)
Torres v. Donnelly
Second Circuit, 2009
Hawkins v. Coyle
Sixth Circuit, 2008
Bies v. Bagley
Sixth Circuit, 2008

Cite This Page — Counsel Stack

Bluebook (online)
312 F.3d 809, 2002 U.S. App. LEXIS 25130, 2002 WL 31748076, Counsel Stack Legal Research, https://law.counselstack.com/opinion/larry-d-smith-v-gerald-hofbauer-ca6-2002.