PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
Kennedy, Thomas, Ginsburg, Breyer, Alito, Sotomayor, Kagan.
S.Ct. 1150] [194 L.Ed.2d 334] PER CURIAM.
fall of 2006, Michigan law enforcement received an anonymous
tip that two white males were traveling on I-96 between
Detroit and Grand Rapids in a white Audi, possibly carrying
cocaine. Officers spotted a vehicle matching that description
and pulled it over for speeding. Respondent [194 L.Ed.2d 335]
Timothy Etherton was driving; Ryan Pollie was in the
passenger seat. A search of the car uncovered 125.2 grams of
cocaine in a compartment at the bottom of the driver side
door. Both Etherton and Pollie were arrested.
was tried in state court on a single count of possession with
intent to deliver cocaine. At trial the facts reflected in
the tip were not contested. The central point of contention
was instead whether the cocaine belonged to Etherton or
Pollie. Pollie testified for the prosecution pursuant to a
plea agreement. He claimed that he had accompanied Etherton
from Grand Rapids to Detroit, not knowing that Etherton
intended to obtain cocaine there. According to Pollie, once
the pair arrived in Detroit, Etherton left him alone at a
restaurant and drove off, returning some 45 minutes later. It
was only after they were headed back to Grand Rapids that
Etherton revealed he had obtained the drugs.
prosecution also called several police officers to testify.
Three of the officers described the content of the anonymous
tip leading to Etherton's arrest. On the third recounting
of the tip, Etherton's counsel objected on hearsay
grounds, but the objection was not resolved when the
prosecutor agreed to move on. At closing, the prosecutor also
described the tip. The court instructed the jury that "
the tip was not evidence," but was admitted " only
to show why the police did what they did." App. to Pet.
for Cert. 88a. The jury convicted Etherton, and his
conviction was affirmed on direct appeal. The Michigan
Supreme Court denied leave to appeal. People v.
Etherton, 483 Mich. 896, 760 N.W.2d 472 (2009).
sought postconviction relief in state court on six grounds.
Three are relevant here: First, he claimed that the admission
of the anonymous tip violated his rights under the
Confrontation Clause of the Sixth Amendment. Second, that his
trial counsel was ineffective for failing to object to the
tip on that ground. And third, that his counsel on direct
appeal was ineffective for failing to raise the Confrontation
Clause and the ineffective assistance of trial counsel
state habeas court rejected the first two claims on
procedural grounds and the third on the merits. To prevail on
a claim for ineffective assistance of appellate counsel, the
state court explained, Etherton had to demonstrate that
" appellate counsel's [136 S.Ct. 1151] decision not
to pursue an issue on appeal fell below an objective standard
of reasonableness and that the representation so prejudiced
[him] as to deprive him of a fair trial." App. to Pet.
for Cert. 87a-88a. The state court concluded that Etherton
failed on both counts.
the court reasoned, appellate counsel may have reasonably
forgone any Confrontation Clause claim after concluding that
trial counsel's failure to object was the product not of
ineffectiveness but of strategy. While Etherton's current
counsel argues that trial counsel should have objected
because the tip's reference to " two men"
suggested involvement by Etherton from the outset, Brief in
Opposition 20-21, the reference also suggested
Pollie's prior involvement, [194 L.Ed.2d 336]
contrary to his testimony that he was not with Etherton when
he picked up the cocaine and had nothing to do with it. As
the state court explained, not objecting would have been
consistent with trial counsel's " strategy to show
defendant's non-involvement and possible responsibility
of the passenger (who was also charged)." App. to Pet.
for Cert. 88a.
the court determined, Etherton had not been prejudiced by
counsel's choice: there was " ample evidence"
of his guilt and " the complained of errors, even if
true, would not have changed the outcome" of the case.
Id., at 89a. Etherton's allegations, the court
concluded, ultimately failed to overcome the presumption that
his appellate counsel functioned reasonably in not pursuing
the Confrontation Clause or ineffectiveness claims.
Ibid. Both the Michigan Court of Appeals and the
Michigan Supreme Court denied leave to appeal.
next sought federal habeas relief. Under the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA), federal
habeas relief was available to him only if the state
court's decision " 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)(1). " A state
court's determination that a claim lacks merit precludes
federal habeas relief so long as 'fairminded jurists
could disagree' on the correctness of the state
court's decision." Harrington v.
Richter, 562 U.S. 86, 101, 131 S.Ct. 770, 178
L.Ed.2d 624 (2011) (quoting Yarborough v.
Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158
L.Ed.2d 938 (2004)). The state court decision must be "
so lacking in justification that there was an error well
understood and comprehended in existing law beyond any
possibility for fairminded disagreement." White
v. Woodall, 572 U.S. ___, ___, 134 S.Ct. 1697, 1702,
188 L.Ed.2d 698, 704 (2014) (internal quotation marks
the claim at issue is one for ineffective assistance of
counsel, moreover, AEDPA review is " doubly
deferential," Cullen v. Pinholster,
563 U.S. 170, 190, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011),
because counsel is " strongly presumed to have rendered
adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment,"
Burt v. Titlow, 571 U.S. ___, ___, 134
S.Ct. 10, 17, 187 L.Ed.2d 348, 358 (2013) (quoting
Strickland v. Washington, 466 U.S. 668,
690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); internal
quotation marks omitted). In such circumstances, federal
courts are to afford " both the state court and the
defense attorney the benefit of the doubt." Burt,
supra, at ___, 134 S.Ct. 10, 187 L.Ed.2d 348).
District Court denied relief, but the Court of Appeals for
the Sixth Circuit reversed in relevant part, over the dissent
of Judge Kethledge. The majority concluded that
Etherton's appellate counsel had been constitutionally
ineffective, and [136 S.Ct. 1152] that no fairminded jurist
could conclude otherwise. Etherton v.
Rivard, 800 F.3d 737 (2015). Without ruling on the
merits of the court's holding that counsel had been
ineffective, we disagree with the determination that no
fairminded jurist could reach a contrary conclusion, and
finding counsel ineffective, the [194 L.Ed.2d 337] majority
first concluded that Etherton's right to confrontation
had been violated. The Confrontation Clause prohibits an
out-of-court statement only if it is admitted for its truth.
Crawford v. Washington, 541 U.S. 36, 60, n.
9, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The Sixth Circuit
determined that the contents of the tip were admitted for
their truth because the tip was referenced by three different
witnesses and mentioned in closing argument. These "
repeated references both to the existence and the details of
the content of the tip went far beyond what ...