Garry Jones v. Thomas Bell , 801 F.3d 556 ( 2015 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0572n.06
Case No. 14-1014
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Aug 13, 2015
GARRY JONES, ) DEBORAH S. HUNT, Clerk
)
Petitioner-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE EASTERN DISTRICT OF
THOMAS K. BELL, Warden, ) MICHIGAN
)
Respondent-Appellant. )
)
)
OPINION
*
BEFORE: BOGGS and McKEAGUE, Circuit Judges; and PEARSON, District Judge.
McKEAGUE, Circuit Judge. As in our most recent en banc case, Hill v. Curtin, — F.3d
—, 2015 WL 4114658 (6th Cir. July 9, 2015), we review a Michigan habeas petitioner’s claim
based on Faretta v. California, 422 U.S. 806 (1975). The petitioner, like the one in Hill, argues
that the state courts’ denial of his day-of-trial request to represent himself is an unreasonable
application of Faretta. But unlike the petitioner in Hill, the one here did not raise this claim on
direct appeal. He cannot get around this procedural default—nor, even if he could, would he
prevail on the merits. The district court seeing things differently, we reverse.
*
The Honorable Benita Y. Pearson, United States District Judge for the Northern District
of Ohio, sitting by designation.
Case No. 14-1014, Jones v. Bell
I
Garry Jones, the petitioner here, committed two armed robberies in Michigan. The first
one started with his seemingly innocent request to borrow a hundred dollars from an
acquaintance. When the acquaintance tried to give Jones the money, Jones pulled out a semi-
automatic handgun and said, “Give me all your sh*t.” People v. Jones, No. 281464, 2008 WL
5382926, at *1 (Mich. Ct. App. Dec. 23, 2008). The acquaintance complied, and a man in a ski
mask gathered his belongings. Jones and the masked man took the belongings, stole the Lexus
the acquaintance was driving, and drove away. The second robbery came eighteen days later—
and it involved the same victim. Jones lay in wait in front of the acquaintance’s home and
pointed a gun at him when he got home from work, demanding all of his money. The
acquaintance again complied. Id. The police later found and arrested Jones.
The State of Michigan charged Jones with two counts of armed robbery and two counts
relating to using a firearm. Michigan appointed Luther Glenn to represent Jones. After the final
pretrial conference, the judge ordered Jones to remain at the local jail “to prepare for trial” with
Glenn. R. 8-4 at 6–7. But Jones did not think Glenn was prepared. See R. 8-1 at 22–23. In a
grievance and letter against Glenn, Jones asked the court to appoint a different attorney to his
case—but he never requested to represent himself at trial.
On the morning of the first day of trial, Jones immediately objected, explaining that he
was unhappy with his attorney. He said:
I explained to [Glenn] that I didn’t want him to represent me because he’s not
prepared for my case. And I have an attorney grievance against him that I have
filed. And this case is my personal copy, if you would like to read it. Because
you writted me down here last week and [Glenn] hasn’t discussed anything
pertaining to any of my issues on both of my cases. And he’s trying to walk me
in here right now and he’s not prepared.
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R. 8-5 at 3. But the court disagreed and expressed concern about delaying the impending trial. It
said:
I think [Glenn] is prepared. And I talked to him extensively beforehand about
these issues. And he’s an excellent lawyer . . . . Your case has been adjourned
before. It’s an old case. And I’m not going to adjourn it again . . . . [I]t’s a very
old case on my docket. It’s over ninety-one days, which is beyond the statistics . .
. . [W]e’re going to go forward and going to go forward with this lawyer [Glenn].
So, have a seat now and try to be respectful.
Id. at 3–5.
Having denied Jones’s request for a new attorney, the court asked Jones whether he
wanted “to accept [the previously read plea] or go to trial.” The following colloquy occurred:
THE DEFENDANT: I would like to represent myself at trial, your Honor.
THE COURT: Well, I don’t think you can handle that. So, I’m going to deny it.
THE DEFENDANT: Can you place that on the record?
THE COURT: And I take that as a no [about accepting the plea offer]. He wants
to go to trial. It’s on the record. All right. We’re going to bring the jury in now
and get started.
Id. at 7–8.
Trial began. And Jones did not raise the self-representation issue again. A Wayne
County Circuit Court jury found him guilty on all counts, and the trial judge sentenced him.
Jones appealed with representation of counsel. He raised claims relating to ineffective
assistance of counsel (for his trial counsel’s failure to call certain witnesses), sufficiency of the
evidence (because the victim’s trial testimony was allegedly not credible), and cruel and unusual
punishment (for his allegedly disproportionate punishment). But he did not raise the self-
representation issue. The state appellate court affirmed his conviction. People v. Jones, Nos.
281464, 281465, 2008 WL 5382926 (Mich. Ct. App. Dec. 23, 2008). And it denied his motion
for a remand for a hearing on his ineffective-assistance-of-counsel claim. The Michigan
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Supreme Court denied him leave to appeal the same issues. People v. Jones, 764 N.W.2d 257(Mich. Apr. 28, 2009) (unpublished table decision). His conviction became final.
Jones then filed a motion for relief from judgment before the state trial court. He argued
that he was deprived of (a) the right to represent himself; (b) effective assistance of trial and
appellate counsel; and (c) due process at trial. The trial court denied Jones’s motion under
Michigan Court Rule 6.508(D)(3). In doing so, it found that Jones’s self-representation claim
lacked merit, which triggers our deferential AEDPA standard. R. 8-11 at 3, 5; accord Appellee
Br. 3, 12–13 (agreeing that this standard applies). And it found that Jones could not establish
“actual prejudice” to excuse his procedural default because he could not show that “but for the
alleged error, [he] would have had a reasonably likely chance of acquittal” or that the error was
“so offensive to the maintenance of a sound judicial process” that the conviction should not
stand. Id. (quoting Mich. Ct. R. 6.508(D)(3)(b)(i), (iii)). Jones filed a delayed application for
leave to appeal and a motion for remand in the Michigan Court of Appeals. The court denied
both “for failure to meet the burden of establishing entitlement to relief under M.C.R. 6.508(D).”
R. 8-11. The Michigan Supreme Court did the same thing. People v. Jones, 789 N.W.2d 471(Mich. Oct. 26, 2010) (unpublished table decision).
Having exhausted all his state-court routes, Jones took his case to federal court. He filed
a petition for writ of habeas corpus in the Eastern District of Michigan, arguing that his
conviction was obtained in violation of his Sixth Amendment right to self-representation and that
ineffective assistance of appellate counsel excused his failure to raise the issue on direct appeal.
The district court agreed. Jones v. Bell, No. 2:10–CV–14476, 2013 WL 6729891 (E.D. Mich.
Dec. 19, 2013). It held that the trial court’s denial of Jones’s request to represent himself
satisfied 28 U.S.C. § 2254(d) because it was an unreasonable application of Faretta. Id. at *3–
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*6. And it held that Jones’s appellate counsel’s failure to raise the Faretta issue gave Jones the
“cause” and “prejudice” to excuse his procedural default. Id. at *6–*7. The court therefore
conditionally granted Jones’s petition on December 19, 2013. Id. at *8.
The State appealed. We review the district court’s grant of habeas relief de novo.
Matthews v. Ishee, 486 F.3d 883, 889 (6th Cir. 2007).
II
On habeas review, we ask whether a state-court merits determination “resulted in a
decision that was contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1); accord Appellee Br.
3. But where the state court relies on a state procedural rule to deny a claim, federal courts lack
jurisdiction to reach the merits. Coleman v. Thompson, 501 U.S. 722, 729–30, 753 (1991). The
State argues that Jones procedurally defaulted his self-representation claim and that, in any
event, the claim does not meet the deferential AEDPA standard. We agree with both arguments.
A. Procedural Default
All agree that Jones procedurally defaulted his self-representation claim. Appellant Br.
18–19; Appellee Br. 26; Jones, 2013 WL 6729891, at *6–*7. Jones failed to raise the claim on
direct review. And he failed to meet the requirements of Michigan Rule 6.508(D)(3) because he
could not show actual prejudice. R. 8-11 at 3, 5. That default—an adequate and independent
state ground barring review of Jones’s conviction—typically removes our jurisdiction to hear the
case. Coleman, 501 U.S. at 750–51, 753. We respect sovereign state courts by not interfering
with judgments based on state procedural rules, id.—like this one, based on Michigan’s rule that
all claims must be raised on direct review or meet 6.508(D)(3). Amos v. Renico, 683 F.3d 720,
733 (6th Cir. 2012); Ivory v. Jackson, 509 F.3d 284, 292–93 (6th Cir. 2007).
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Our review is thus barred unless Jones can excuse this procedural default. That is no
easy task. He may do so by showing (1) “cause” for the default and (2) “actual prejudice”
resulting from the alleged constitutional violation, Wainwright v. Sykes, 433 U.S. 72, 84
(1977)—which the Michigan courts already found that he failed to do. Because Jones cannot
excuse his procedural default, we lack jurisdiction to hear his habeas claims on the merits.
1. Cause
Jones argues that his appellate attorney’s ineffective assistance serves as the cause to
excuse his default. Ineffective assistance of counsel constitutes “cause” to excuse a default only
if it is “so ineffective as to violate the Federal Constitution,” Edwards v. Carpenter, 529 U.S.
446, 451 (2000)—i.e., it meets Strickland’s ineffectiveness standard. Byrd v. Collins, 209 F.3d
486, 519 (6th Cir. 2000). Under that standard, Jones must show (i) that his appellate counsel’s
“performance was deficient” and (ii) that “the deficient performance prejudiced the defense.”
Strickland v. Washington, 466 U.S. 668, 687 (1984). This is “a high burden” to meet. Davis v.
Lafler, 658 F.3d 525, 536 (6th Cir. 2011) (en banc). And only if Jones meets the high burden do
we ask whether there was “actual prejudice” to excuse the procedural default.
(i) Constitutionally Deficient Performance. Jones can show constitutionally deficient
performance if his counsel committed an error “so serious that counsel was not functioning as
the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687.
Jones argues that the failure to raise the self-representation claim alone meets that standard. But
it is not deficient performance to leave some “colorable issue[s]” out; indeed, it may even be the
best type of performance. Jones v. Barnes, 463 U.S. 745, 753–54 (1983). And a “[c]ounsel’s
performance is strongly presumed to be effective.” Scott v. Mitchell, 209 F.3d 854, 880 (6th Cir.
2000). The State thus argues that the decision not to raise the self-representation claim was
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“strategic.” Appellant Br. 21. To resolve the issue, we consider a number of factors, including
whether “the omitted issues [were] ‘significant and obvious’” and whether they were “clearly
stronger than those presented” in the actual appeal. McFarland v. Yukins, 356 F.3d 688, 710–11
(6th Cir. 2004). The answer mostly turns on whether Jones “would likely have prevailed on [his]
appeal” had the self-representation claim been raised. Id. at 710.
It is not clear that Jones would have prevailed on his day-of-trial request to represent
himself—even on direct review. Michigan recognizes that day-of-trial requests may be validly
rejected as untimely because they disrupt the administration of justice. People v. Hill,
773 N.W.2d 257, 257 (Mich. 2009); People v. Russell, 684 N.W.2d 745, 757 (Mich. 2004). And
the Michigan courts may well have upheld this denial as untimely and disruptive. Cf. Hill,
773 N.W.2d at 257. However, Jones had a much better chance to prevail on that claim than, say,
his sufficiency claim, where his counsel raised credibility issues that are irrelevant to the actual
sufficiency of the evidence. R. 8-8; see United States v. Barnett, 398 F.3d 516, 522 (6th Cir.
2005). This question is close. We will assume without deciding or taking a position either way
that Jones can show deficient performance.
(ii) Strickland Prejudice. Even if Jones is able to show deficient performance, he still
must also show Strickland prejudice. He can do so by establishing “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. For Jones’s allegation of ineffective assistance of
appellate counsel, there must be a reasonable probability that the result of the appeal would have
been different. Smith v. Robbins, 528 U.S. 259, 285 (2000).
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Case No. 14-1014, Jones v. Bell
Assuming deficient performance, there was Strickland prejudice as well. The Supreme
Court has held that “denial [of the right to self-representation] is not amenable to ‘harmless
error’ analysis”; it is structural error. McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984). So if
Jones’s Faretta claim had been meritorious on direct review, it would have resulted in an
automatic new trial—a different result than on his actual direct appeals, which resulted in
affirmance of his conviction. Jones, 2008 WL 5382926. Because there is at least a reasonable
probability of success of direct review, and because the outcome would have been different,
there would be enough for Strickland prejudice, assuming there was deficient performance.
2. Actual Prejudice
But that doesn’t end this part of the analysis: Habeas petitioners must additionally show
“actual prejudice” to excuse their default—even if the error that served as the “cause” is a
structural one that would require a new trial. Ambrose v. Booker, 684 F.3d 638, 649 (6th Cir.
2012); see Francis v. Henderson, 425 U.S. 536, 542 (1976). Contrary to Jones’s contentions, see
Appellee Br. 28–29, actual prejudice to excuse a habeas petitioner’s procedural default requires
more than the prejudice prong under Strickland. See Ambrose, 684 F.3d at 652. In fact, we do
not presume actual prejudice even when the counsel’s error resulted in Strickland prejudice. Id.
at 649. To do so, we would “ignore[] fundamental differences between direct and collateral
review in our system of dual sovereigns.” Keith v. Mitchell, 455 F.3d 662, 675 (6th Cir. 2006).
We rather look to the record to determine if the outcome of the trial would have been different.
Ambrose, 684 F.3d at 652; see also Hollis v. Davis, 941 F.2d 1471, 1480–83 (11th Cir. 1991),
adopted in Ambrose, 684 F.3d at 652. The “most important aspect to the inquiry is the strength
of the case against the defendant” and whether a trial without errors would still have resulted in
conviction. Ambrose, 684 F.3d at 652.
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Case No. 14-1014, Jones v. Bell
The Ambrose case explains the actual-prejudice rule with respect to structural errors. A
computer glitch systematically excluded African Americans from jury pools. But the
defendant’s counsel did not object to the then-unknown glitch at trial or on appeal, causing the
claim to become procedurally defaulted. The defendant learned of the glitch after exhausting his
appeals and filed for habeas relief based on the Sixth Amendment’s fair cross-section
requirement. The district court held that because the glitch was unknown, it constituted “cause”
to excuse the default. And the district court held that since the claim would have required
automatic reversal and retrial, actual prejudice should be presumed from the merit of the Sixth
Amendment claim. We disagreed with the actual-prejudice conclusion, explaining that even
when errors that constitute “cause” would result in automatic reversal on appeal, courts must
still look for something more: actual prejudice. Ambrose, 684 F.3d at 649–52; see also Keith,
455 F.3d at 673–74. Because of comity and federalism, the petitioner must show that “the
outcome would have been different” “regardless of the nature of the underlying constitutional
claim.” Ambrose, 684 F.3d at 650–51. And that “outcome” refers to the actual and eventual
outcome of the trial. See id.
Neither Jones nor the district court attempted to show that the outcome at trial would
have been different had Jones represented himself. Nor is there any indication in the record that
it would have been. They instead conflate Strickland prejudice with procedural-default “actual
prejudice.” They are distinct. And as Ambrose makes clear, a meritorious structural claim does
not necessarily lead to actual prejudice to excuse procedural default. Lacking any evidence of
actual prejudice, Jones has not made the requisite showing to excuse his procedural default, even
if Strickland were met.
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Case No. 14-1014, Jones v. Bell
B. Merits
Yet even if Jones were able to excuse his procedural default, his claim fails on the merits.
Jones has two ways to obtain habeas relief, since both parties agree that AEDPA review is
proper. The state-court determination must have either (1) “resulted in a decision that was
contrary to . . . clearly established Federal law, as determined by the Supreme Court”; or (2)
involved an “unreasonable application of” the same. 28 U.S.C. § 2254(d)(1). This standard “is
difficult to meet”—as the Supreme Court has repeatedly and “recently reminded the Sixth
Circuit.” White v. Woodall, 134 S. Ct. 1697, 1702 (2014) (internal quotation marks omitted).
The state-court error must amount to an obvious and extreme constitutional malfunction. The
district court held that this one did. But under this highly deferential standard, it did not.
First, the state courts’ decisions were not contrary to Faretta. A state-court decision is
“contrary to” federal law only “if the state court arrives at a conclusion opposite to that reached
by [the Supreme] Court on a question of law or if the state court decides a case differently than
[the] Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362,
412–13 (2000). Federal law is clearly established “only when it is embodied in a holding” of the
Supreme Court; dicta does not count. Thaler v. Haynes, 559 U.S. 43, 47 (2010).
Jones relies on Faretta, which holds that a trial court violates the Sixth Amendment when
it denies a defendant’s voluntary and intelligent self-representation request. 422 U.S. at 835–36.
But that’s not all. As we recently explained sitting en banc, Faretta’s holding contains a
timeliness component. Hill, 2015 WL 4114658, at *4; see Martinez v. Court of Appeal of Cal.,
Fourth Appellate Dist., 528 U.S. 152, 161–62 (2000). “[A]s a matter of clearly established
law[,] [Faretta] can only be read to require a court to grant a self-representation request when the
request occurs weeks before trial”—not on the morning of trial. Hill, 2015 WL 4114658, at *5
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(emphasis added). The trial court’s decision here was therefore not “contrary to” Faretta’s
holding, because Jones’s request was made on the first day of trial, as opposed to weeks before
trial. Accord id. at *4–*5.
Second, the state courts did not unreasonably apply Faretta. A state court unreasonably
applies federal law when its decision is “so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fairminded
disagreement.” White, 134 S. Ct. at 1702 (internal quotation marks and citations omitted). This
is an extremely high bar because habeas relief is an “extraordinary remedy,” Bousley v. United
States, 523 U.S. 614, 621 (1998), and “state-court decisions [are] given the benefit of the doubt.”
Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (internal quotation marks omitted).
Habeas review serves only as “a guard against extreme malfunctions” and not as “a substitute for
ordinary error correction through appeal.” Harrington v. Richter, 562 U.S. 86, 102–03 (2011)
(internal quotation marks omitted).
The trial court’s denial of Jones’s morning-of-trial request to represent himself was not
an extreme constitutional malfunction; fairminded jurists could disagree on whether the Sixth
Amendment right to self-representation—as currently defined by the Supreme Court—covers it.
“[T]he right to self-representation is not absolute”; it can be outweighed by other concerns like
the timing of the request. Martinez, 528 U.S. at 161; see Hill, 2015 WL 4114658, at *4. No
Supreme Court case has filled the gap between requests made weeks before trial and the day of
trial, so courts have “leeway” “in reaching outcomes in case-by-case determinations.”
Harrington, 562 U.S. at 106; see Hill, 2015 WL 4114658, at *5–*6. The Michigan courts did
not have to extend Faretta’s holding to apply to the morning-of-trial factual scenario—in this
case or in Hill. Just as in Hill, then, the Michigan courts did not unreasonably apply Faretta.
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Jones disagrees. He argues that this case is different than Hill because no state-court
decision here explicitly denied his request as “untimely.” True enough; no state court used those
words. But context matters. And the record—at least from our highly deferential vantage point,
see Holland v. Jackson, 542 U.S. 649, 655 (2004) (per curiam)—shows that the trial court in fact
acted because of the untimeliness of Jones’s request. Right before Jones made his self-
representation request, he requested new counsel. And the court responded to this request by
expressing several timeliness concerns. It commented that Jones’s “case has been adjourned
before” and is “an old case[,] . . . over ninety-one days, which is beyond the statistics.” R. 8-5 at
3–5. It knew that granting any self-representation request would require another adjournment—
delay—and it was “not going to adjourn [the case] again.” Id. And it knew that the jurors were
waiting just outside the courtroom.
With all that looming, Jones only then made his self-representation request. In light of
this context, the trial court’s apparent conclusory denial (“I don’t think you can handle that”)—
when read deferentially—isn’t conclusory at all: The court meant that Jones could not handle
self-representation at that time, exactly what the trial court in Hill said. It incorporated its
timeliness concerns, articulated in its previous ruling, into this denial. Plus, even if the record is
ambiguous on the point, the state court gets “the benefit of the doubt”: We read the record to
favor the state court’s decision because States are “presum[ed]” to “know and follow the law.”
Visciotti, 537 U.S. at 24. The court didn’t need to announce certain magical words. At least on
habeas review, it denied Jones’s request for a legitimate reason: the timing of the request and the
further delay it would cause the impending trial.
That’s not legitimate, Jones responds, because Michigan did not have a clearly
established self-representation timing rule before applying it Jones. Timing questions are
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“question[s] of state procedural law,” Jones argues, and when a state court does not “actually
enforce[] [the] procedural rule,” federal courts should ignore the State’s post-hoc justification.
Appellee Br. 17 (quoting Lovins v. Parker, 712 F.3d 283, 296 (6th Cir. 2013)).
Jones’s counsel made this same argument in an amicus brief in Hill, and the en-banc
court rejected it. We held it was forfeited, but we went on to say that the argument is “without
merit” “[i]n any event.” Hill, 2015 WL 4114658, at *7 n.2. We reasoned that “Michigan law
does not recognize a per se rule precluding a day-of-trial assertion of the right to self-
representation.” Id. Like that case, “no per se procedural bar was invoked in this case”; the
Michigan courts instead considered the facts and circumstances—that granting the request at
such a late stage would cause delay and disrupt the proceeding—and it denied the request within
the limits of Faretta. Id.We add to the en banc court’s reasoning here: Jones’s response misunderstands the
timing element at play. It is not a state-court procedural rule regarding the timing to invoke
one’s right of self-representation; it is a federal-law substantive rule—part of Faretta’s
holding—about the limits of the self-representation right. Analyzing a state court’s application
of Faretta, then, necessarily includes analyzing its holding with respect to timing, for timing is
part of a court’s substantive analysis under Faretta. See id. at *4. The cases Jones cites are
different in that they involve constitutional rights that do not include timing as part of their
substantive analysis but rather where state courts created timing rules to enforce substantive
rights. Appellee Br. 18–19. Contrary to these holdings, Faretta’s holding itself has a timing
element. Hill, 2015 WL 4114658, at *4. So denying a self-representation request because of
timing can be based on the nature of the federal right, not on the state procedure. These
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Michigan courts accordingly did not need a previously announced state procedure to deny
Jones’s right; they permissibly could base their denial on the scope of the federal right itself.
Moving on, Jones, like Hill before him, also relies on Moore v. Haviland, 531 F.3d 393(6th Cir. 2008), but it does not help him. There, we held that a mid-trial invocation of the right
to self-representation was timely. Id. at 402–04. Jones says that Moore alone “requires a grant
of relief here.” Appellee Br. 23; see id. at 23–26. And the district court agreed. Jones, 2013
WL 6729891, at *6. But Moore is “readily distinguishable.” Hill, 2015 WL 4114658, at *7.
The defendant in Moore raised his self-representation request as soon as his “grounds for
dissatisfaction with counsel’s representation arose—and he then acted swiftly.” Moore, 531 F.3d
at 403. Jones did not. His dissatisfaction arose well before he made his self-representation
request, as evidenced by the grievances he filed against his trial counsel in the weeks leading up
to trial. See R. 8-1 at 22–23. Jones then, unlike Moore, did not “act[] swiftly” in making his
request after his dissatisfaction with counsel arose. Moore, 531 F.3d at 403. And thus his claim,
unlike Moore’s, fails on timeliness grounds.
Nor, finally, must we grant habeas relief “on the ground that the trial court did not inquire
into the basis of Hill’s self-representation request.” Hill, 2015 WL 4114658, at *4. Simply put,
“[i]t is not clearly established that a trial court must conduct a Faretta-compliant inquiry” when
denying a self-representation request on the morning of trial. Id. at *5.
The Michigan courts decisions neither contradicted nor unreasonably applied clearly
established federal law.
III
For these reasons, we reverse the district court’s grant of habeas relief.
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