Etherton v. Rivard, No. 14-1373 (6th Cir. 2015)
Annotate this CaseIn 2007, a jury convicted Etherton of possession with intent to deliver cocaine. After exhausting both direct and collateral appellate review procedures in Michigan, Etherton timely filed a federal petition for habeas corpus. The district court denied Etherton’s petition. The Sixth Circuit reversed in part and ordered issuance of a writ. Certain claims had been procedurally defaulted: that the anonymous tip presented at trial denied Etherton’s right to confrontation under the Sixth Amendment; that the prosecutor improperly vouched for the credibility of a witness during closing argument; and that Etherton’s counsel’s failure to object to the anonymous tip, as well as other alleged shortcomings, amounted to prejudicially ineffective assistance of counsel. Etherton is entitled to review based on ineffective appellate counsel. Appellate counsel failed to argue that failing to object to the anonymous tip constituted ineffective assistance of trial counsel. Because there was a Confrontation Clause violation that resulted in substantial prejudice, there is a reasonable probability that Michigan appellate courts would have found trial counsel constitutionally ineffective. The failure to include that argument was, therefore, prejudicial, and amounted to deficient performance of appellate counsel. It was an unreasonable application of federal law to hold otherwise.
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