Habeas Claim Denied For Defendant Convicted Of Providing Drugs That Caused Woman’s Death
The 6th U.S. Circuit Court of Appeals has denied a Michigan defendant’s petition for habeas corpus, finding that his attorneys were effective at his criminal trial, even though they did not investigate an “acetaminophen-based defense” and did not call an expert witness.
The defendant, Scott DeBruyn, was convicted by an Ottawa County jury of delivering oxycodone to a woman, causing her death. Afterward, he filed a motion for a new trial, claiming his attorneys provided ineffective assistance. Specifically, he asserted that his lawyers failed to present an acetaminophen-based defense and did not call an expert to show that oxycodone was not a substantial cause of the victim’s death. In the meantime, the defendant appealed his conviction to the Michigan Court of Appeals, seeking remand for an evidentiary hearing on whether he was entitled to a new trial. The Michigan Court of Appeals sent the case back for a hearing and, on remand, the trial court denied the defendant’s new trial motion, finding that he was not denied effective assistance of counsel.
The defendant again appealed, challenging the trial court’s order denying his motion for a new trial. The Michigan Court of Appeals (Docket No. 352274) affirmed, finding that “counsel’s performance did not fall below an objective standard of reasonableness.” The Michigan Supreme Court subsequently denied the defendant’s application for leave to appeal (Docket No. 164437).
Thereafter, the defendant petitioned a Michigan federal court for a writ of habeas corpus, renewing the same ineffective assistance claims. The U.S. District Court for the Eastern District of Michigan denied the defendant’s petition (Case No. 23-10219).
The defendant then appealed that denial to the federal 6th Circuit.
“DeBruyn renews the same ineffective assistance claims here: His lawyers wrongly failed to investigate an acetaminophen-based defense before trial, and wrongly failed to call an expert witness at trial,” the 6th Circuit wrote in DeBruyn v Douglas (Docket No. 24-1905).
Among other things, because the defendant “cannot surmount the requirements in the Antiterrorism and Effective Death Penalty Act of 1996, we affirm,” the 6th Circuit said. “In sum, the state court of appeals reasonably determined that DeBruyn’s lawyers performed competently in presenting their defense through cross-examination of the prosecution’s experts.”
6th Circuit Judges Amul R. Thapar, Chad A. Readler and Rachel S. Bloomekatz were on the panel that issued the 22-page published opinion.
‘A Steep Climb’
At the outset of its decision, the 6th Circuit noted that, to prevail, the defendant “faces a steep climb” in proving a Sixth Amendment violation.
Citing Strickland v Washington, 466 U.S. 668 (1984), the 6th Circuit said the defendant had to show that his attorneys “made objectively unreasonable decisions, considered under all the circumstances. … This is a high standard. We start with ‘a strong presumption’ that his lawyers gave ‘reasonable professional assistance.’ … We then engage in a ‘highly deferential’ review of their actual performance, asking only whether they made objectively reasonable decisions. … If DeBruyn can satisfy the performance element, he must also show that he suffered prejudice as a result of his lawyers’ performance. To do so, he must prove a ‘substantial,’ (not ‘just [a] conceivable,’) likelihood that, but for his lawyers’ performance, he would not have been convicted at trial. … In short, Strickland demands that DeBruyn show that he suffered prejudice as a result of his counsel’s deficient performance.”
In addition, the defendant’s burden “is increased further still, for he must satisfy these Strickland elements against the backdrop of” the AEDPA, the 6th Circuit observed. “AEDPA constrains our review of ‘any claim that was adjudicated on the merits in state court.’ 28 U.S.C. § 2254(d). Here, the state courts denied DeBruyn’s claims on the merits, so AEDPA applies. As a result, to surmount AEDPA, DeBruyn must fit his claims into one of the statute’s narrow paths to federal habeas relief. He can try to show that the state court’s adjudication of the relevant claim ‘resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.’ … Or he can try to show that the state court’s decision was ‘based on an unreasonable determination of the facts.’”
Turning to the merits of the case, the 6th Circuit examined the defendant’s claim that his lawyers performed ineffectively by not investigating an acetaminophen-based defense. “The state court of appeals denied this claim both for lack of deficient performance and prejudice, so AEDPA’s highly deferential standard of review applies. … And DeBruyn’s claim fails under AEDPA, as he has not shown that the state court decision unreasonably applied Supreme Court precedent or turned on an unreasonable determination of the facts.”
The Michigan Court of Appeals found the defendant’s attorneys “were not constitutionally ineffective in foregoing any investigation into an acetaminophen-based defense before trial,” the 6th Circuit noted. “The [state] court reasoned that counsel’s ‘determination of trial strategy’ – including ‘decisions about which defenses and arguments to present’ at trial – ‘did not fall below an objective standard of reasonableness.’”
Looking at the record, the 6th Circuit found the defendant’s argument “fail[ed],” for several reasons. “A fairminded jurist could conclude that his trial attorneys … pursued a reasonable defense strategy, one that made any investigation into an acetaminophen-based defense unnecessary. That defense would have challenged a key premise of the State’s case, namely, that [the victim] took oxycodone in the form of Percocet. [The victim], the theory goes, could not have consumed Percocet because she had no acetaminophen in her blood. Yet DeBruyn’s lawyers had good reason to presume that [she] consumed Percocet. The uncontradicted facts show why. … She had oxycodone in her blood and acetaminophen in her urine – Percocet’s two ingredients. On this record, a fairminded jurist could conclude that DeBruyn’s lawyers made a ‘reasonable []calculation’ about ‘how the trial would proceed’: The jury would find that [the victim] consumed oxycodone in the form of Percocet before her death. … In light of the strong evidence that [she] took Percocet, a fairminded jurist could conclude that DeBruyn’s lawyers ‘ma[de] a reasonable decision’ about how to defend their client.”
As a result, “a fairminded jurist could conclude that DeBruyn’s lawyers chose to pursue a reasonable defense strategy that made any investigation into an acetaminophen-based defense unnecessary,” the 6th Circuit stated. “Thus, DeBruyn cannot show that the state court’s performance ruling amounted to an unreasonable application of clearly established Supreme Court precedent.”
Next, the 6th Circuit turned to the prejudice element. “Even if DeBruyn could show that the state court of appeals unreasonably applied Strickland’s performance element, he also must demonstrate that the court made a similarly egregious application of Strickland’s prejudice element,” the federal appeals court explained. “The state court of appeals held that DeBruyn suffered no prejudice from his lawyers’ failure to investigate an acetaminophen-based defense, … so AEDPA applies. … Recognizing as much, DeBruyn paints the state court’s decision as an unreasonable determination of the facts and an unreasonable application of clearly established federal law. … We disagree.”
The Michigan Court of Appeals determination “was not unreasonable,” the 6th Circuit stated. “…When a person consumes Percocet, oxycodone and acetaminophen enter the blood and then begin to ‘metabolize.’ … Through this process, the two are excreted ‘by the kidney into the urine.’ … But acetaminophen metabolizes faster than oxycodone, even up to twice as fast in some individuals. Against this backdrop, one of the State’s experts testified that the State’s theory of the case – [the victim] consumed oxycodone in the form of Percocet – was ‘absolutely’ ‘consistent’ with the fact that [she] had no acetaminophen in her blood because her body could have excreted the acetaminophen into her urine by the time of her death. … In adopting the expert’s conclusion, the state court did not unreasonably interpret the evidence.”
Therefore, “a fairminded jurist could conclude that no juror would have been swayed by DeBruyn’s acetaminophen-based defense,” the 6th Circuit stated. “The prosecution, as the state court of appeals concluded, had a strong case that [the victim] consumed Percocet. … A few days later, [the victim] overdosed and had Percocet’s two ingredients in her blood and urine. Based on these facts, it was reasonable for the state court to conclude that it was not substantially likely that the jury would have been moved by the argument that [she] did not take Percocet. All in all, DeBruyn’s failure-to-investigate claim comes up short.”
‘Theoretical Possibilities’ Rejected
The 6th Circuit continued by addressing the defendant’s claim that his attorneys were ineffective because they did not call an expert to support a defense that oxycodone was not a substantial factor in the victim’s death.
The Michigan Court of Appeals “denied this claim for lack of both deficient performance and prejudice, so AEDPA’s highly deferential standards (again) apply,” the 6th Circuit said. “And DeBruyn’s claim (again) fails under AEDPA, because he has not shown that the state court decision unreasonably applied Supreme Court precedent or turned on an unreasonable determination of the facts.”
Regarding performance, the Michigan Court of Appeals “found no deficiency in DeBruyn’s lawyers’ decision to not call an expert witness at trial,” the 6th Circuit pointed out. “Counsel’s ‘strategy to present the defense theories through cross-examination of the prosecution’s experts,’ the [state] court explained, was not ‘objectively unreasonable.’ … DeBruyn’s claim fails twice over. First, a fairminded jurist could conclude that at least one competent lawyer would have chosen to present DeBruyn’s defense through cross examination of the State’s experts. … Second, a fairminded jurist could conclude that DeBruyn’s lawyers did not perform deficiently in presenting their defense through cross-examination of the State’s experts. … In fact, as the state court of appeals explained, the record ‘supports’ that DeBruyn’s lawyers conducted ‘a thorough and knowledgeable cross-examination of the [State’s] experts.’”
Meanwhile, the defendant argued that under Hinton v Alabama, 571 U.S. 263 (2014), “‘the introduction of expert evidence’ is essential when the state’s case turn[s] on … expert testimony.’” However, Hinton’s holding “is not so sweeping,” the 6th Circuit said. “There, the Supreme Court deemed it unreasonable for an attorney not to seek funding for an expert witness where that failure was based not on a strategic choice but on a mistaken belief about the availability of funds. … But unlike Hinton, DeBruyn’s lawyers made a strategic decision to present their defense through cross examination of the State’s experts. … Even then, says DeBruyn, defense attorneys perform incompetently whenever they use cross-examination to ‘affirmatively present[] defense theories.’ … No Supreme Court precedent clearly establishes this rule, however. In fact, as already explained, the Supreme Court’s holdings cut the other way.”
Regarding prejudice, the defendant claimed that expert testimony would have “enhanced” his arguments at trial, which “would have strengthened his defense that oxycodone did not play a substantial role in [the victim’s] death,” the 6th Circuit observed. The Michigan Court of Appeals, however, found the jury “likely would not have been swayed, meaning no prejudice occurred. … DeBruyn paints the state court’s decision as both an unreasonable determination of the facts as well as an unreasonable application of clearly established law. Again, we disagree.”
According to the 6th Circuit, the Michigan Court of Appeals “did not commit an unreasonable mistake in finding that ‘[the victim’s] potential for opioid tolerance was not’ adequately ‘supported.’” The federal appeals court pointed out the record did not show that the victim “had developed a tolerance to that amount of oxycodone over the five days between her release from jail and her death. Based on this finding, it was reasonable for the state court to conclude that it was not substantially likely that testimony about opioid residual tolerance and re-tolerance would have changed the jury’s verdict. A fairminded jurist could conclude that the ‘theoretical possibility’ that [the victim] had been tolerant enough to the 180 nanograms of oxycodone in her blood would not convince any juror that oxycodone was not a substantial factor in her death.”
Turning to the defendant’s claim that expert testimony would have “enhanced his trial defense that [the victim] died from serotonin syndrome,” the 6th Circuit said a “fairminded jurist could conclude that expert testimony about serotonin syndrome would not have likely changed the outcome of his trial, as it would have been cumulative of evidence already presented by his lawyers. … What more information could DeBruyn’s expert witness have told the jury about serotonin syndrome? … All in all, because DeBruyn’s proposed expert testimony on serotonin syndrome would have been cumulative, a fairminded jurist could conclude it would not have likely changed the outcome of his trial.”
The defendant also contended that an expert witness would have “enhanced” his argument that the victim died from difluoroethane. “DeBruyn presented evidence that 5.3 micrograms per milliliter of difluoroethane can cause someone to die from a lethal heart problem,” the 6th Circuit observed. “This evidence, DeBruyn argues, ‘would have made it significantly more plausible that’ [the victim] ‘died from huffing [difluoroethane] alone.’ … Maybe so. But DeBruyn’s argument fails under AEDPA. At trial, the State’s experts said that it is impossible to know with certainty how much difluoroethane [the victim] had in her blood when she died. … Thus, because DeBruyn cannot show that [she] had more than 5.3 micrograms of difluoroethane in her blood when she died, the amount he presented as potentially lethal, a fairminded jurist could find that his new evidence would not have moved the jury. After all, it established nothing more than a ‘theoretical possibility’ that [she] died from difluoroethane.”
Lastly, the defendant emphasized testimony from experts that the victim could have died from a seizure. “Because [the victim] ‘abruptly stopp[ed]’ taking anti-seizure medication, and because she had a seizure condition, DeBruyn says, she had an ‘increased risk of a fatal seizure,’ allowing the jury to find that she died from a seizure, not oxycodone,” the 6th Circuit said. “A fairminded jurist, however, could find that DeBruyn’s testimony about anti-seizure medication established ‘nothing more than a theoretical possibility’ that [the victim] died from a seizure.”
Therefore, based on the foregoing, “a fairminded jurist could conclude that the expert medical testimony DeBruyn offered … would not have likely moved his jury,” the 6th Circuit held. “Thus, he cannot show that the state court of appeals unreasonably applied Strickland’s prejudice prong. We affirm the district court’s judgment and deny the writ of habeas corpus.”
