Willis v. Smith

• Court: Court of Appeals for the Sixth Circuit
• Decided: December 16, 2003
• Docket: 02-2445
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Willis v. Smith No. 02-2445 ELECTRONIC CITATION: 2003 FED App. 0444P (6th Cir.) File Name: 03a0444p.06 _________________ UNITED STATES COURT OF APPEALS OPINION _________________ FOR THE SIXTH CIRCUIT _________________ BOYCE F. MARTIN, JR., Circuit Judge. Barry Anthony Willis, a pro se Michigan prisoner, appeals a district court judgment dismissing his petition for a writ of habeas corpus BARRY ANTHONY WILLIS, X filed under 28 U.S.C. § 2254. This case has been referred to Petitioner-Appellant, - a panel of the court pursuant to Sixth Circuit Rule 34(j)(1). - Upon examination, this panel unanimously agrees that oral - No. 02-2445 argument is not needed. FED . R. APP . P. 34(a). v. - > , I. DAVID SMITH, - Respondent-Appellee. - Following a bench trial in 1995, Willis was found guilty of N conspiring to distribute six hundred fifty grams or more of Appeal from the United States District Court cocaine. The court sentenced Willis to life imprisonment for the Eastern District of Michigan at Detroit. without the possibility of parole and subsequently denied No. 02-70028—Bernard A. Friedman, District Judge. Willis’s motion for a new trial. On direct appeal, the Michigan Court of Appeals denied Willis’s motion for a Submitted: December 2, 2003 remand and affirmed his conviction and sentence. The Michigan Supreme Court denied leave to appeal. Decided and Filed: December 16, 2003 Thereafter, Willis filed a petition for post-conviction relief that asserted several claims. The trial court denied Willis Before: MARTIN and MOORE, Circuit Judges; relief on his ineffective assistance of counsel claims, but McKEAGUE, District Judge.* granted relief on his sentencing claim, making him eligible _________________ for parole after serving seventeen and one-half years of his sentence. Willis filed a motion to amend his post-conviction COUNSEL petition in order to assert a new claim alleging ineffective assistance of trial counsel, which the trial court denied ON BRIEF: Janet A. Van Cleve, OFFICE OF THE because Willis had failed to demonstrate “good cause” under ATTORNEY GENERAL, Lansing, Michigan, for Appellee. Michigan Court Rule 6.508(D)(3)(a) for failing to assert that Barry Anthony Willis, New Haven, Michigan, pro se. claim in his appeal as of right. The Michigan Court of Appeals entered an order dismissing Willis’s appeal for lack of jurisdiction, which the Michigan Supreme Court vacated. * On remand, the Michigan Court of Appeals considered The Ho norable D avid W . McKeague, United States District Judge Willis’s application but denied it because Willis had “failed for the Western District of Michigan, sitting by designation.

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to meet the burden of establishing entitlement to relief under of the evidence presented to the state courts. 28 U.S.C. [Rule] 6.508)(D).” The Michigan Supreme Court also denied § 2254(d). leave to appeal for the same reason. Upon review, we conclude that the district court properly Willis then filed the instant section 2254 petition, held that Willis has procedurally defaulted his ineffective essentially arguing that: 1) his trial counsel rendered assistance of trial counsel claim and that his ineffective ineffective assistance by advising him to accept a bench trial assistance of appellate counsel claim lacks merit. “When a before a judge who, while presiding over the trial of Willis’s habeas petitioner fails to obtain consideration of a claim by a brother and co-defendant, Antawn Willis, commented that “I state court, either due to the petitioner’s failure to raise that agree with some of what defense counsel[’s] theory is going claim before the state courts while state-court remedies are to be – that Barry [Willis] is the big guy – may be the big guy. still available or due to a state procedural rule that prevents It sure looks like it from talking to these witnesses;” the state courts from reaching the merits of the petitioner’s 2) appellate counsel rendered ineffective assistance by failing claim, that claim is procedurally defaulted and may not be to challenge trial counsel’s ineffectiveness in his appeal as of considered by the federal court on habeas review.” Seymour right; 3) the Michigan courts improperly failed to allow v. Walker, 224 F.3d 542, 549-50 (6th Cir.), cert. denied, 532 expansion of the record by way of an evidentiary hearing U.S. 989 (2001) (citing Wainwright v. Sykes, 433 U.S. 72, 80, under Michigan law; and 4) the Michigan Supreme Court 84-87 (1977); Picard v. Connor, 404 U.S. 270, 275-80 violated the Michigan Constitution by failing to give facts and (1971)); see also Maupin v. Smith, 785 F.2d 135, 138 (6th reasons as to why an evidentiary remand was unwarranted. Cir. 1986). We have previously explained that procedural The district court concluded that Willis had procedurally default results where three elements are satisfied: (1) the defaulted his first claim and that his remaining claims lacked petitioner failed to comply with a state procedural rule that is merit. However, the district court granted Willis a certificate applicable to the petitioner’s claim; (2) the state courts of appealability as to his first and second claims. This court actually enforced the procedural rule in the petitioner’s case; denied him a certificate of appealability on his third and and (3) the procedural forfeiture is an “adequate and fourth claims. Willis timely filed the instant appeal, independent” state ground foreclosing review of a federal reasserting his claims that his trial and appellate counsel constitutional claim. Maupin, 785 F.2d at 138. rendered ineffective assistance. The first element is satisfied here because Willis failed to II. comply with Michigan Court Rule 6.508(D)(3), a state procedural rule applicable to his case. Rule 6.508(D) This court reviews de novo a district court’s disposition of provides, in pertinent part: a habeas corpus petition. Harris v. Stovall, 212 F.3d 940, 942 (6th Cir. 2000). The district court shall not grant a habeas (D) Entitlement to Relief. The defendant has the burden petition with respect to any claim that was adjudicated on the of establishing entitlement to the relief requested. The merits in the state courts unless the adjudication resulted in a court may not grant relief to the defendant if the motion decision that: (1) was contrary to, or involved an ... unreasonable application of, clearly established federal law as determined by the United States Supreme Court; or (2) was (3) alleges grounds for relief, other than jurisdictional based upon an unreasonable determination of the facts in light defects, which could have been raised on appeal from No. 02-2445 Willis v. Smith 5 6 Willis v. Smith No. 02-2445

the conviction and sentence or in a prior motion under below an objective standard of reasonableness” and that there this subchapter, unless the defendant demonstrates is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have (a) good cause for failure to raise such grounds on been different.” Strickland v. Washington, 466 U.S. 668, 688, appeal or in the prior motion, and 694 (1984); see also McMeans v. Brigano, 228 F.3d 674, 682 (6th Cir. 2000). We have held that “appellate counsel cannot (b) actual prejudice from the alleged irregularities be ineffective for a failure to raise an issue that lacks merit.” that support the claim for relief. See Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir. 2001). Thus, in order to determine whether cause exists for the The second element is also satisfied because the state courts procedural default of Willis’s ineffective assistance of trial enforced Rule 6.508(D)(3) in Willis’s case. Willis first raised counsel claim, we must, ironically, consider the merits of that his ineffective assistance of trial counsel claim in his motion claim. to amend his post-conviction petition. The state trial court denied that motion on the ground that Willis had failed to We agree with the district court’s conclusion that Willis’s demonstrate entitlement to relief under Rule 6.508(D), and trial counsel did not render ineffective assistance and, the Michigan Court of Appeals and Michigan Supreme Court therefore, that his appellate counsel’s failure to raise that issue each denied Willis’s motion for leave to appeal for the same does not constitute cause for the procedural default. Willis reason. Finally, Willis’s failure to comply with Rule argues that the judge’s comments during Antawn Willis’s trial 6.508(D) constitutes an adequate and independent state – i.e.,“I agree with some of what the defense counsel[‘s] ground on which to foreclose habeas review because the rule theory is going to be – that Barry [Willis] is the big – may be was “firmly established and regularly followed” at the time it the big guy. It sure looks like it from talking to these was applied in Willis’s case. Rogers v. Howes, 144 F.3d 990, witnesses” – reveal that the judge had formed a preconceived 992 (6th Cir. 1998). Because all three elements are satisfied, notion of Willis’s guilt. Willis argues that in those Willis has procedurally defaulted his ineffective assistance of circumstances, it was objectively unreasonable for his trial trial counsel claim. counsel to advise him to accept a bench trial before that judge rather than exercise his right to a jury trial, particularly A procedural default may be excused, however, if the without conducting a pre-trial investigation to determine petitioner demonstrates “that there was cause for the default whether the judge had “predetermined the verdict.” and prejudice resulting from the default, or that a miscarriage of justice will result from enforcing the procedural default in We cannot accept Willis’s assertion that the trial judge’s the petitioner’s case.” Seymour, 224 F.3d at 550; see also comments reveal a preconceived notion of Willis’s guilt such Coleman v. Thompson, 501 U.S. 722, 749-50 (1991). Willis that it was objectively unreasonable for Willis’s counsel to apparently relies on his appellate counsel’s failure to raise this recommend a bench trial. The Supreme Court has explained claim on direct appeal as cause to excuse the default. that “opinions held by judges as a result of what they learned Attorney error may constitute cause if it rises to the level of in earlier proceedings” cannot alone establish “bias” or constitutionally ineffective assistance of counsel. Gravley v. “prejudice” against an individual or his case. Liteky v. United Mills, 87 F.3d 779, 785 (6th Cir. 1996). In order to succeed States, 510 U.S. 540, 551 (1994); see also Paradis v. Arave, on a claim of ineffective assistance of appellate counsel, a 20 F.3d 950, 958 (9th Cir. 1994) (explaining that a trial petitioner must show that his “counsel’s representation fell judge’s exposure to evidence, standing alone, does not No. 02-2445 Willis v. Smith 7 8 Willis v. Smith No. 02-2445

demonstrate bias). Despite the judge’s comments, Willis’s excuse a procedural default, a court does not need to address attorney could have reasonably believed that it was better the issue of prejudice.”) (citing Smith v. Murray, 477 U.S. strategy for Willis to be tried by the judge rather than a jury, 527, 533 (1986); Long v. McKeen, 722 F.2d 286, 289 (6th and Willis has failed to offer any evidence to the contrary. Cir. 1983)). Moreover, the record illustrates that at the beginning of Nor has Willis demonstrated that, notwithstanding the Willis’s trial, the judge discussed the situation with Willis to procedural default, we should review his ineffective ensure that his decision to waive his right to a jury trial in assistance of trial counsel claim to avoid a miscarriage of favor of a bench trial was made knowingly and voluntarily. justice. To secure review of his procedurally defaulted claim During this discussion, the judge candidly acknowledged that for that reason, Willis must submit new and reliable evidence he had made comments about Willis during his brother’s trial, of his actual innocence. See Schlup v. Delo, 513 U.S. 298 but assured Willis that despite those comments he had no (1995). Willis has submitted no such evidence. feelings for or against Willis and that he would disqualify himself if he had such feelings. Willis then confirmed that he For the foregoing reasons, we hold that Willis is barred by wished to be tried by the judge instead of a jury, stating that reason of procedural default from obtaining adjudication of “it’s my will” and “I decided this.” his ineffective assistance of trial counsel claim, and that his ineffective assistance of appellate counsel claim lacks merit. Even if Willis’s counsel performed in an objectively Accordingly, we AFFIRM the district court’s judgment unreasonable manner, Willis cannot show “a reasonable denying Willis’s petition for a writ of habeas corpus. probability” that “the result of the proceeding would have been different” but for his counsel’s errors. Strickland, 466 U.S. at 694. Willis has presented no evidence that the judge’s rulings were biased in any way or that the trial was otherwise unfair. Moreover, Willis’s conviction was fully supported by the overwhelming evidence presented by the government. Because Willis’s claim of ineffective assistance of trial counsel lacks merit, his appellate counsel’s failure to raise that claim on direct appeal cannot be deemed constitutionally deficient performance. See Greer, 264 F.3d at 676; see also Seymour, 224 F.3d at 551 (reasoning that counsel need not raise every conceivable colorable claim on appeal in order to fulfill his or her duty to a client). Therefore, Willis cannot rely upon ineffective assistance of appellate counsel as cause to excuse for the procedural default. In light of our conclusion that no cause exists for the procedural default, we decline to consider whether Willis has demonstrated the requisite prejudice. Simpson v. Jones, 238 F.3d 399, 408 (6th Cir. 2000) (“When a petitioner fails to establish cause to