Willie Wimberly v. Jack Kowalski

W
                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 20a0719n.06

                                       Case No. 19-2121

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                      FILED
                                                                                Dec 28, 2020
                                                                            DEBORAH S. HUNT, Clerk
WILLIE WIMBERLY,                                      )
                                                      )
       Petitioner-Appellant,                          )        ON APPEAL FROM THE
                                                      )        UNITED STATES DISTRICT
v.                                                    )        COURT FOR THE EASTERN
                                                      )        DISTRICT OF MICHIGAN
JACK KOWALSKI, Warden,                                )
                                                      )        OPINION
       Respondent-Appellee.                           )


BEFORE: DAUGHTREY, NALBANDIAN, and MURPHY, Circuit Judges

       NALBANDIAN, Circuit Judge. A jury convicted Willie Wimberly of two counts of assault

with intent to commit murder after the passengers in a vehicle he was driving shot several rounds

into another vehicle. He sought habeas relief from that conviction in district court, claiming his

attorney’s performance was constitutionally deficient. The district court denied his petition.

We AFFIRM.

                                                I.

       Early in the morning of January 1, 2013, Brandon Charles and Seylon Dudley left Detroit’s

MGM Grand Casino in a black Range Rover. Around the same time, Willie Wimberly also left

the casino driving a black Ford Expedition with two passengers. As Charles and Seylon were

leaving, the Ford cut them off at an intersection just outside the casino. Charles swerved around

the Ford and turned onto the northbound onramp of M-10. The Ford followed. When the Ford
No. 19-2121, Wimberly v. Kowalski


caught up, Charles rolled down a window, made faces at the other vehicle, and displayed a wad of

cash.

        Charles then turned onto I-94. And once again, the Ford followed and pulled up alongside

the Range Rover. But this time, the passengers in the Ford peppered the side of the Range Rover

with multiple gunshots, injuring Charles and Dudley. Charles and Dudley both survived, but that

is not the end of the story.

        Following the shooting, police arrested Wimberly. Charles was slated to testify at a

preliminary examination. Wimberly did not want Charles to testify, so he reached out to Avantis

Parker, a mutual acquaintance, to see if Charles would accept a bribe. People v. Wimberly, No.

322923, 

2016 WL 1673091

, at *1 (Mich. Ct. App. Apr. 26, 2016). But when that did not work

out, Wimberly arranged to have Charles killed.

Id. And the night

before the preliminary

examination, Avantis Parker, Terrence Parker, and Lawrence Matthews met Charles at his

residence, where Terrence Parker shot him. Avantis Parker later pled guilty to second-degree

murder for his involvement in Charles’s death. And the state charged Wimberly with murder and

related crimes in separate criminal proceedings that are not the subject of this appeal. See

id. Before Wimberly’s trial

arising out of the road-rage incident, which is at issue here, the

trial court ruled that Avantis Parker could testify about Wimberly’s attempt to bribe Charles, but

not about Wimberly’s involvement in Charles’s murder. In his opening statement, however,

Wimberly’s attorney opened the door to evidence of Wimberly’s involvement in the murder. This

allowed the prosecution to present evidence showing that Charles’s murder was motivated by a

desire to prevent him from testifying. The attorney did so by trying to argue that Avantis Parker,

not Wimberly, should have been the suspect in the road-rage shooting because Avantis Parker had

an ongoing “drug dealing relationship” with Charles and was “the man who killed Brandon



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No. 19-2121, Wimberly v. Kowalski


Charles.” (R. 5-9, PageID 751.) In short, he claimed that the “prosecutor would not be able to

prove that the gunshots were fired from the same vehicle that cut off the Range Rover outside the

casino.” People v. Wimberly, No. 321490, 

2015 WL 6161545

, *9 (Mich. Ct. App. Oct. 20, 2015).

And in the alternative, he argued that the prosecution could not “show that [the] defendant did

anything more than drive the vehicle.”

Id. Against the advice

of counsel, Wimberly chose to testify at trial. Unhappy with his

attorney’s trial strategy, he felt “compelled to admit that what his attorney had said in opening

statement was not true.” (Appellant Br. at 38.) And he admitted that he was driving the vehicle

involved in the shooting, undermining his attorney’s suggestion that the prosecution could not

prove that the shots came from the Ford beyond a reasonable doubt.

       Given Wimberly’s concession, his attorney pivoted away from the initial strategy and made

a closing argument that aligned with Wimberly’s testimony. There, he explained that Wimberly

could have declined to testify and held the prosecution to the burden of proof. But he argued that

Wimberly was uncomfortable withholding the truth from the jury.

       The jury convicted Wimberly of aiding or abetting in the assaults of Charles and Dudley.

The Michigan Court of Appeals affirmed, and the Michigan Supreme Court denied leave to

appeal. Wimberly then filed a habeas petition in federal district court. The district court denied

his request for habeas relief but granted a certificate of appealability on two ineffective-assistance

claims—whether Wimberly’s attorney was ineffective for failing to investigate the case and confer

with him about strategy, and whether the attorney’s decision to open the door to testimony about

Wimberly’s involvement in Charles’s murder was constitutionally deficient.




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                                                II.

       To prevail on a claim for ineffective assistance, “the defendant must show that counsel’s

performance was deficient” and that “the deficient performance prejudiced the defense.”

Strickland v. Washington, 

466 U.S. 668

, 687 (1984). “Surmounting Strickland’s high bar is never

an easy task” though, Padilla v. Kentucky, 

559 U.S. 356

, 371 (2010), because courts’ review of

counsel’s performance is “highly deferential,” 

Strickland, 466 U.S. at 689

. And courts “indulge a

strong presumption that counsel’s conduct falls within the wide range of reasonable professional

assistance.”

Id. Although Strickland is

a lofty hurdle in isolation, defendants face an even higher bar when

raising Strickland in the 28 U.S.C. § 2254 context. “The question ‘is not whether a federal court

believes the state court’s determination’ under the Strickland standard ‘was incorrect but whether

that determination was unreasonable—a substantially higher threshold.’” Knowles v. Mirzayance,

556 U.S. 111

, 123 (2009) (citation omitted). Further, “because the Strickland standard is a general

standard, a state court has even more latitude to reasonably determine that a defendant has not

satisfied that standard.”

Id. In sum, a

“doubly deferential” standard applies.

Id. And both of

Wimberly’s claims fail under this “doubly deferential” standard.

       Wimberly first asserts that his attorney’s performance was deficient because he failed to

investigate the facts of the case and consult with Wimberly about trial strategy. In support of this

assertion, he claims that “counsel made an opening statement wholly at odds with the easily

discoverable facts.” (Appellant Br. at 24.) And he claims that the opening statement shows that

his attorney was unaware of a favorable pretrial ruling and deprived him of the benefit of that

ruling. He also points to his statement in court claiming he had not seen his attorney to plan his

defense. And he finally says that “at sentencing [his] attorney . . . admitted that there had been a



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No. 19-2121, Wimberly v. Kowalski


total breakdown between himself and [Wimberly] as to strategy.” (Id. at 38.) But because there

is ample record evidence contradicting his arguments, he fails to show that the Michigan Court of

Appeals’ rejection of his claim was unreasonable.

       Of course, Wimberly is correct that an attorney has a duty to “consult with the defendant

on important decisions and to keep the defendant informed of important developments.”

Strickland, 466 U.S. at 688

. But Wimberly admitted that his attorney had consulted with him when

he sought to substitute in a different attorney, telling the court that his attorney “[n]ever let[s] me

talk when he . . . comes to visit me. Bad listening skills. He wants to be the client and the attorney,

basically the pilot and the co-pilot.” (R. 5-7, PageID 497.) So the problem was not lack of

consultation; it was that Wimberly disagreed with his attorney’s strategy and felt he was not being

allowed to control his case. His attorney’s statement at sentencing confirms this conclusion, when

the attorney voiced his frustration with his client and admitted they “ha[d] not agreed on strategy.”

(R. 5-16, PageID 1452.) And although Wimberly’s frustration with his attorney’s decision to

pursue a different strategy is perhaps understandable, most matters of strategy are entrusted to

counsel, not the defendant. See Gonzalez v. United States, 

553 U.S. 242

, 248 (2008) (“[D]ecisions

by counsel are generally given effect as to what arguments to pursue . . . .” (citation omitted)). So

the mere fact that the attorney pursued a strategy other than the one Wimberly thought was best

does not show ineffective assistance. And it certainly fails to show that the Michigan court’s

decision to deny the ineffective-assistance claim was unreasonable.

       Moreover, the attorney’s opening statement does not reveal that he misunderstood the facts

of the case. Wimberly claims that his attorney’s argument—that the prosecution could not prove

that Wimberly was driving the car involved in the shooting—reveals that the attorney was ignorant

of evidence showing that Wimberly was driving the Ford. But in his opening statement, the



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attorney did not claim that Wimberly was not driving the Ford that cut off Charles and Dudley

outside the casino; he admitted it. He just argued that there was no evidence to prove that the Ford

was the car involved in the shooting. He also argued that “[e]ven if the government were able to

establish that the vehicle from which these bullets were shot was the same vehicle that had this

confrontation at the [casino], the one that was driven by Willie Wimberly,” the government would

still need to prove that Wimberly “did something more than just drive that vehicle.” (R. 5-9,

PageID 743.) That Wimberly later undermined the former argument when he admitted presence

at the shooting does not establish that Wimberly’s counsel was unaware of the facts of the case or

pursued an unreasonable trial strategy. Indeed, Wimberly admits that it is ordinarily a valid trial

strategy to argue that the prosecution will not be able to carry its burden of proof.

       Wimberly also claims that the opening statement revealed that his attorney did not know

about the court’s ruling that evidence of Wimberly’s involvement in Charles’s murder was not

admissible. But the prosecutor stated that she informed him of the ruling when he was retained

and “[a]t that time, he indicated . . . that he wanted to bring in the fact that [Parker] was charged

with the murder.” (R. 5-10, PageID 814.) And the colloquy about whether the opening statement

opened the door supports this statement. There, the attorney did not say that he was unaware of

the ruling. Rather, he explained that he was not the attorney at the time of the ruling, but then

began to explain his “understanding” of that ruling before the court cut him off. (R 5-9, PageID

755.) He then voiced his opinion that he should be allowed to bring out the “tremendous bias” of

Avantis Parker in his case but disputed whether this had opened the door to evidence of

Wimberly’s involvement in the murder. (Id. at 756.) He did, however, acknowledge that if he

asked Parker about the murder on cross, then the door would be open. So Wimberly’s assertion

that his attorney did not know about the prior ruling fails.



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         Wimberly also asks us to second-guess the Michigan Court of Appeals’ conclusion that his

attorney’s decision to open the door to testimony about Wimberly’s involvement in Charles’s

murder was not constitutionally deficient. As that court explained, Wimberly argued that opening

the door to Charles’s murder was ineffective because it led “to the consciousness-of-guilt

instruction.” Wimberly, 

2015 WL 6161545

, at *10.1 But that court rejected his claim because “the

record discloses that regardless of defense counsel’s opening statement, the prosecutor intended to

use Parker’s testimony to establish, at a minimum, defendant’s involvement in trying to bribe

Charles to keep him from testifying against defendant.”

Id. And “[t]hat evidence

alone would

have supported a consciousness-of-guilt instruction.”

Id. It also noted

that “it is apparent from

defense counsel’s opening statement that he wanted to show Parker’s involvement in Charles’s

murder to further attack his credibility.”

Id. And it held

that the decision to open the door “was

clearly a matter of trial strategy” and Wimberly had failed to show that decision was unreasonable.

Id. Wimberly does not

directly attack the Michigan appellate court’s reasoning. Rather, he

claims that the only types of “strategic” decisions that are “entitled to deference” are those that

“have been preceded by reasonable consultation with the client and reasonable investigation of the

facts of the case.” (Appellant Br. at 52.) And he concedes that “had [his] attorney . . . properly

consulted with [him], and investigated the basic predicate facts of the events at the Casino, [the

attorney’s] decisions regarding opening statements might be ‘virtually unchallengeable.’” (Id. at

51.) So as briefed, his second claim hinges on whether his attorney failed to consult with him and

investigate the basic facts of the case. But even if Wimberly is correct that consultation and



         1 In Michigan, a jury is entitled to infer “consciousness of guilt from evidence that a defendant threatened or

bribed a witness.”

Id. at *4

(citing People v. Sholl, 

556 N.W.2d 851

, 856 (Mich. 1996); People v. Mock, 

310 N.W.2d 390

, 392 (Mich. App. 1981)).

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investigation are prerequisite to deferring to counsel’s decisions as “strategic,” there is ample

record evidence undercutting his assertions about consultation and investigation. So his argument

fails on its own terms. And because he does not otherwise directly attack the Michigan appellate

court’s reasoning, he has failed to show that court’s decision was unreasonable.

        Because Wimberly has failed to undermine the Michigan Court of Appeals’ decision under

the “doubly deferential” standard of review that applies, we AFFIRM the denial of his habeas

petition.




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