Steven Moss v. Gary Miniard ( 2023 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 23a0044p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
STEVEN LEE MOSS,
│
Petitioner-Appellee, │
> No. 21-1655
│
v. │
│
GARY MINIARD, Warden, │
Respondent-Appellant. │
┘
Appeal from the United States District Court for the Eastern District of Michigan at Flint.
No. 4:18-cv-11697—Linda V. Parker, District Judge.
Argued: October 20, 2022
Decided and Filed: March 17, 2023
Before: COLE, GIBBONS, and BUSH, Circuit Judges.
_________________
COUNSEL
ARGUED: Scott R. Shimkus, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,
Lansing, Michigan, for Appellant. Esthena Barlow, GEORGETOWN UNIVERSITY,
Washington, D.C., for Appellee. ON BRIEF: Scott R. Shimkus, OFFICE OF THE
MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellant. Hannah Mullen,
Brian Wolfman, Madeline Meth, Radiance Campbell, Caleb Thompson, Lois Zhang,
GEORGETOWN UNIVERSITY, Washington, D.C., for Appellee.
GIBBONS, J., delivered the opinion of the court in which BUSH, J., joined. COLE, J.
(pp. 17–37), delivered a separate dissenting opinion.
No. 21-1655 Moss v. Miniard Page 2
_________________
OPINION
_________________
JULIA SMITH GIBBONS, Circuit Judge. The Warden appeals the district court’s grant
of petitioner Steven Moss’s habeas petition based on ineffective assistance of counsel analyzed
under United States v. Cronic, 466 U.S. 648 (1984). The Warden argues that the district court
erred in three ways: (1) finding that Moss’s untimely petition was entitled to equitable tolling;
(2) excusing the procedural default of Moss’s ineffective assistance of trial counsel claim based
on the ineffective assistance of appellate counsel; and (3) granting Moss habeas relief on his
claims, rather than deferring to the state court’s adjudication of the issues under Strickland v.
Washington, 466 U.S. 668 (1984).
Because the state court’s denial of Moss’s ineffective assistance claims under Strickland
was not contrary to nor an unreasonable application of clearly established federal law, we defer
to its decision that Moss is not entitled to habeas relief. We therefore hold that the district court
erred in granting Moss relief and reverse and remand with instructions to deny the petition with
prejudice.
I.
This case arises from an encounter between Steven Moss and “Diego,” a paid informant
for the Drug Enforcement Agency (“DEA”).1 On November 6, 2012, Moss first met Diego and
agreed to purchase ten kilograms of cocaine from him. People v. Moss, No. 319954, 2015 WL
3604582, at *1. Two days later, Moss and Diego agreed to meet to complete the deal. Id. Thus,
on November 9, Moss (accompanied by another man) and Diego (accompanied by an undercover
officer driving the van containing the cocaine) met in the parking lot of a Home Depot store. Id.After Moss showed the purchase money to Diego, “the men walked to the undercover van where
[Moss] was again shown the [drugs].” Id. Moss then “took possession of the van keys, got in
1
We primarily rely on the facts in the Oakland County Circuit Court opinion denying Moss’s appeal as of
right as well as the transcripts from Moss’s entrapment hearing and bench trial. People v. Moss, No. 319954, 2015
WL 3604582, at *1 (Mich. Ct. App. June 9, 2015). Under AEDPA, the state court’s factual findings are entitled to a
presumption of correctness. 28 U.S.C. § 2254(e)(1); see also Phillips v. White, 851 F.3d 567, 571 (6th Cir. 2017).
No. 21-1655 Moss v. Miniard Page 3
the driver’s seat, and turned on the ignition before the police remotely disabled the van.” Id.Moss was arrested and charged with possession with intent to deliver 1,000 or more grams of
cocaine and possession of a firearm during the commission of a felony in violation of Michigan
law. Id.Moss’s first attorney moved to conduct an entrapment hearing. On September 6, 2013,
David Steingold began representing Moss.
When the entrapment hearing began ten days later, Steingold attested to minimal pre-trial
preparation. Steingold complained to the court about his difficulty obtaining discovery before
the hearing and stated that he was unable to consult with Moss’s previous counsel or interview or
solicit any witnesses. Steingold’s pre-hearing actions consisted of meeting with Moss for two
hours before the hearing, reviewing Moss’s protected record, and persuading him to proceed
with a bench trial on the day of the hearing.
Moss was the only witness presented by defense counsel. In his direct examination,
conducted by Steingold’s stand-in counsel, Lisa Dwyer, Moss testified that he was introduced to
Diego through a friend, Bennett. Moss explained that Bennett threatened Moss to induce him to
loan Bennett money for selling drugs. The plan was that, using Diego as a middleman, Bennett
would sell the drugs, in return for which Moss would receive his original sum plus profit. When
Moss met Diego at Home Depot to give him the money to complete the transaction, Diego asked
Moss to drive his van across the parking lot to Moss’s car, where Diego would collect the
money. Moss testified that, after he entered the van and tried to start the ignition, Diego and the
van’s driver left the scene, and Moss was arrested after he jumped out of the van. The
prosecution cross-examined Moss, using video footage and audio recordings of Moss’s meetings
and conversations with Diego to challenge his testimony. Steingold conducted Moss’s redirect.
Steingold then requested a continuance to contact four witnesses. He explained that he
only learned about three of the four during Moss’s direct and cross-examination. The court
permitted Steingold to contact one witness but denied a continuance, noting that Steingold could
have accessed the other three before trial because Moss’s previous counsel made a record of their
No. 21-1655 Moss v. Miniard Page 4
names. Ultimately, Steingold declined to call the witness and acknowledged that he had no
others to call without a continuance.
The prosecution presented five witnesses and multiple exhibits. The first witness,
Anthony Rodriguez, testified that Moss had invested in Rodriguez’s business but then threatened
Rodriguez to convince him to buy cocaine with the money Moss gave him, after which
Rodriguez reported to a federal agent that Moss had money to buy drugs. Steingold cross-
examined Rodriguez. The testimony of the next four witnesses—all DEA agents—detailed that
Moss knew about the cocaine located in the van before taking the keys and that the informant
Diego was instructed not to pressure Moss into completing the transaction. Steingold cross-
examined three of the four agents and objected to portions of their direct testimony.
In closing, Steingold argued that Bennett and Diego entrapped Moss into completing the
transaction. The prosecution responded that Moss did not establish entrapment because, even
taking Moss’s testimony as true, he only demonstrated that he was presented with an opportunity
to make money that he wanted or needed—not that Diego, the government informant, forced him
to make the deal.
The court denied Moss’s motion to dismiss the charges against him based on entrapment.
According to the court, even if it believed Moss’s testimony, “nothing . . . would make [it]
conclude that [Moss] was entrapped” because “[t]here was nothing to show that Diego forced
[Moss] to participate.” DE 5-5, Tr., Page ID 654-55. After denial of the motion and upon
Steingold’s admission that he “was not prepared to go to trial,” the court granted Steingold a
sixteen-day continuance to prepare for trial. Id. at Page ID 657.
During the bench trial, Steingold waived his opening argument and presented no
witnesses. He stipulated to the admission of the transcript from the entrapment hearing as
substantive evidence. For one of the government’s two witnesses, DEA Detective Douglas
Stewart, Steingold did not object during his testimony or conduct any cross-examination.
Although Steingold cross-examined DEA Special Agent John Hill, Steingold also conceded that
Hill’s testimony at the entrapment hearing had been admitted as part of the stipulated transcript.
Steingold waived his closing argument.
No. 21-1655 Moss v. Miniard Page 5
The next day of trial, Steingold failed to appear. Dwyer, appearing in Steingold’s place,
introduced herself and requested to reduce Moss’s bond, which was denied. The court found
Moss guilty. Moss was sentenced to consecutive sentences of fifteen to forty-five years in prison
on the possession count and two years on the felony firearm count.
1. State Court Direct Appeal
Proceeding with Suzanna Kostovski as his appellate counsel, Moss moved to remand his
case for a Ginther2 hearing based on ineffective assistance of trial counsel. Kostovski argued
that Steingold provided constitutionally ineffective assistance to Moss under Strickland by
waiving Moss’s right to a jury trial and stipulating to the admission of the evidence from the
entrapment hearing for use in the bench trial. The Michigan Court of Appeals granted
Kostovski’s motion to remand, but the trial court ultimately denied Moss’s motion for a new trial
because Kostovski did not establish that Steingold’s performance was constitutionally ineffective
under Strickland.
On June 9, 2015, the Michigan Court of Appeals affirmed Moss’s conviction and
sentence. The Michigan Supreme Court denied him leave to appeal that decision on December
22, 2015. Moss did not file a petition for a writ of certiorari at the United States Supreme Court.
2. State Collateral Appeal
Nearly two years later, represented by different counsel, Moss filed a state collateral
motion for relief from judgment in a Michigan trial court. He requested a new trial and argued
that, under Cronic, Steingold had constructively abandoned Moss both in the pre-trial
proceedings and during trial. The Michigan trial court denied the motion. It held that Moss
failed to show that his claim for ineffective assistance of counsel was governed by Cronic
because, given “the overwhelming evidence against [Moss],” trial counsel’s strategy to use a
stipulated-fact bench trial to expedite an appeal of the court’s denial of the motion to dismiss on
entrapment grounds did not “fail[] to subject the prosecutor’s case to meaningful adversarial
testing[.]” DE 5-11, Op. & Order, Page ID 914. Reviewing his ineffective assistance claim
2
In Michigan, a Ginther hearing is an evidentiary hearing regarding an ineffective assistance of counsel
claim. See People v. Ginther, 390 Mich. 436 (1973).
No. 21-1655 Moss v. Miniard Page 6
instead under Strickland, the court concluded that Moss failed to satisfy both the cause and
prejudice prongs of the test.
Moss applied but was denied leave to appeal to the Michigan Court of Appeals and was
denied leave to appeal to the Michigan Supreme Court.
3. Federal Habeas Proceedings
While his state collateral proceedings were still pending, Moss filed a federal habeas
petition in the Eastern District of Michigan. The petition raised two claims under Cronic: that
Steingold abandoned Moss (1) before trial by failing to conduct pre-trial interviews and (2) at
trial by failing to subject the prosecution’s case to meaningful adversarial testing. Moss argued
that his appellate counsel was ineffective for failing to raise these claims on direct appeal, which
would excuse their procedural default.
The government moved to dismiss the petition on the grounds that it was barred by the
one-year limitations period ending on March 21, 2017. Moss disagreed, contending that the last
day of the limitations period was March 22, 2017, the day on which he moved for collateral
relief and tolled his deadline to file a habeas petition.
The district court concluded that Moss’s petition was untimely but that he was entitled to
equitable tolling because he diligently pursued the litigation and understandably relied on
confusing case law. However, the district court denied Moss’s petition for habeas relief because
it determined that the state court’s decision was not contrary to nor an unreasonable application
of Strickland. Moss moved for reconsideration, arguing that the district court erred by
(1) misidentifying Strickland’s ineffective-assistance framework as the correct legal standard
instead of Cronic’s constructive-denial-of-counsel framework, and (2) misapplying Cronic and
ignoring binding precedent.
On reconsideration, the district court agreed with Moss.3 It excused Moss’s procedural
default of his Cronic claims because it found that Kostovski was constitutionally ineffective in
3
The district court concluded that Moss was entitled to habeas relief on his first and third claims, so it
declined to reconsider its decision that he was not entitled to habeas relief on his second claim. The Warden only
appealed the district court’s order on reconsideration. Thus, the district court’s earlier denial of relief on the second
No. 21-1655 Moss v. Miniard Page 7
failing to raise them on direct appeal. Next, the district court reviewed the merits of Moss’s
Cronic claims and found that Steingold constructively abandoned him. Holding that the “state
court unreasonably applied the Strickland standard where Petitioner clearly was constructively
denied the assistance of trial counsel [under Cronic],” the district court granted Moss habeas
relief based on his Cronic claims. DE 33, Mem. Op. & Order, Page ID 1845. This appeal
followed.
II.
We review de novo the district court’s legal conclusions in a habeas corpus proceeding.
DeLisle v. Rivers, 161 F.3d 370, 380 (6th Cir. 1998) (en banc). “Factual determinations are
generally reviewed for clear error, except where the district court has made factual
determinations based on its review of trial transcripts and other court records. In such cases,
because no credibility determination or findings of fact are required, factual conclusions are
reviewed de novo.” Dando v. Yukins, 461 F.3d 791, 796 (6th Cir. 2006) (internal quotation and
citations omitted). Further, whether a claim is barred by a statute of limitations is a question of
law subject to de novo review. Sierra Club v. Slater, 120 F.3d 623, 630 (6th Cir. 1997).
By contrast, we apply a deferential review to state court habeas determinations under the
standard set out by the Antiterrorism and Effective Death Penalty Act (“AEDPA”). Id.;
28 U.S.C. § 2254(d). Under AEDPA, federal courts may grant habeas relief to a petitioner in
state custody only if the state court adjudicated the claim(s) on the merits and either:
(1) the state court’s decision was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court . . . or (2) the state court’s decision was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceedings.
28 U.S.C. § 2254(b), (d)(1)–(2); see Dando, 461 F.3d at 796.
claim—that Moss was “deprived of his Sixth Amendment right to counsel of choice . . . when he was represented by
nonretained Attorney Dwyer without authorization[]”—is not at issue here. See DE 18, Op. & Order, Page ID 1677.
No. 21-1655 Moss v. Miniard Page 8
III.
On appeal, the Warden argues that Moss’s habeas petition is barred by AEDPA’s statute
of limitations and is not entitled to equitable tolling; that Moss’s procedurally defaulted
ineffective assistance claims are not excused by ineffective assistance of appellate counsel; and
that Moss is not entitled to habeas relief on the merits of his claims. We begin with timeliness.
1. Statute of Limitations
AEDPA created a one-year statute of limitations for federal habeas petitions. See
28 U.S.C. § 2244(d)(1). The statute of limitations begins to run from the latest of four
circumstances; the relevant one in this case is the “date on which the judgment became final by
the conclusion of direct review or the expiration of the time for seeking such review.” Id.§ 2244(d)(1)(A). This limitations period can be tolled for the amount of time in which “a
properly filed application for State post-conviction or other collateral review with respect to the
pertinent judgment or claim is pending.” Id. § 2244(d)(2).
The parties agree that Moss’s conviction became final on March 21, 2016, when his
opportunity to petition the Supreme Court expired. CA6 R. 29, Corr. Appellee Br., at 15; see 28
U.S.C. § 2244(d)(1)(A). That day is considered the “day of finality.” The Warden argues that
Moss’s motion was filed the day after AEDPA’s one-year limitations period expired, barring his
later-filed petition, but Moss maintains that he moved for collateral relief on the last day of the
AEDPA limitations period and tolled his deadline to petition for habeas relief. In the alternative,
Moss argues that, even if his motion for collateral relief was filed after the limitations period
ended, the district court did not err in holding that equitable tolling should apply.
Whether Moss’s habeas petition can be tolled by his motion for collateral relief depends
on the duration of the § 2244(d) statute of limitations period. To determine the start of a
limitations period, we apply “Federal Rule of Civil Procedure 6(a)’s standards for computing
periods of time to § 2244(d)’s one-year statute of limitations.” Bronaugh v. Ohio, 235 F.3d 280,
284 (6th Cir. 2000) (internal citations omitted). Rule 6(a) provides that one must “exclude the
day of the event that triggers the period” and “include the last day of the period[.]” Fed. R. Civ.
P. 6(a)(1)(A), (C). The rule instructs that, “in computing the applicable period, the day of the
No. 21-1655 Moss v. Miniard Page 9
relevant event is the zero point from which days are to be counted.” Merriweather v. City of
Memphis, 107 F.3d 396, 399 (6th Cir. 1997) (emphasis omitted). Thus, our precedent and
Federal Rule 6(a) confirm that, although the AEDPA limitations period is triggered on the day of
finality, the clock begins to run the following day.
Bronaugh illustrates this principle in practice. The last day on which the Bronaugh
petitioner could have filed a petition for a writ of certiorari was September 9, 1996. The court
considered the language of AEDPA and Rule 6(a) before finding that the day of finality was
September 9, 1996, and, pursuant to Rule 6(a), “Bronaugh’s one-year statute of limitations began
to run on September 10, 1996.” Id. at 285. Thus, the triggering day of finality was excluded in
this computation.
Bronaugh also informs how we define the limitations deadline. There, we calculated the
deadline for the petitioner to file his habeas petition as September 9, 2017—the anniversary of
the date of finality. 235 F.3d at 285. Expressed in days, the limitations period thus ran from and
including September 10, 2016 (“day one,” the day following the day of finality) to and including
September 9, 2017 (day 365). Expressed in years, the limitations period would therefore end on
the anniversary of the finality date. Using the anniversary method of Rule 6(a) to compute the
limitations period “has the advantage of being easier for petitioners, their attorneys and the
courts to remember and apply.” Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001).
Here, Moss’s one-year statute of limitations was triggered on March 21, 2016, the day of
finality, and began to run on March 22, 2016, the following day. So the limitations period ended
on March 21, 2017, the anniversary of the day of finality.4 Because Moss moved for collateral
4
As Moss indicates, this Circuit has made computation errors in unpublished decisions. See, e.g., Williams
v. Wilson, 149 F. App’x 342, 345 (6th Cir. 2005) (incorrectly extending limitations period by one day); Liggins v.
Vashaw, No. 20-1037, 2020 WL 3866872, at *1 (6th Cir. Apr. 29, 2020), cert. denied, 141 S. Ct. 1274 (2021), reh’g
denied, 141 S. Ct. 2750 (2021) (same); Carlyle v. Campbell, No. 18-1631, 2018 WL 11301139, at *1 (6th Cir. Sept.
26, 2018) (same); Kirchoff v. Warden, Chillicothe Corr. Inst., No. 16-4186, 2017 WL 4863119, at *2 (6th Cir. May
25, 2017) (same). But “an unpublished decision of this Court . . . is not binding authority.” In re Blasingame, 986
F.3d 633, 637 n.2 (6th Cir. 2021). Further, the one-day miscalculation was harmless and not dispositive in these
cases, as each petitioner had longer filing delays. See Wilson, 149 F. App’x at 346 (petition months late); Liggins,
2020 WL 3866872, at *1 (petition almost two decades late); Carlyle, 2018 WL 11301139, at *1 (petition over five
years late); Kirchoff, 2017 WL 4863119, at *2 (petition months late).
No. 21-1655 Moss v. Miniard Page 10
relief on March 22, 2017, his habeas limitations period had already expired. Moss’s petition,
ultimately filed in May 2018, was therefore untimely.
2. Equitable Tolling
AEDPA’s limitations period “is subject to equitable tolling in appropriate cases.”
Holland v. Fla., 560 U.S. 631, 645 (2010). We grant equitable tolling “sparingly.” Robertson v.
Simpson, 624 F.3d 781, 784 (6th Cir. 2010). Here, however, because the statute of limitations
does not present a jurisdictional bar to habeas review, and because we hold that Moss is not
entitled to habeas relief for the reasons discussed below, we decline to determine on appeal
whether the district court properly tolled Moss’s petition. See Smith v. Ohio Dep’t of Rehab. and
Corr., 463 F.3d 426, 429, n.2 (6th Cir. 2006) (declining to address statute-of-limitations defense
on appeal in part because AEDPA's statute of limitations is not jurisdictional); see also Trussell
v. Bowersox, 447 F.3d 588, 590 (8th Cir. 2006) (holding that, despite probable untimeliness,
“because neither the statute of limitations nor procedural default constitutes a jurisdictional bar
to our review,” the court would, “in the interest of judicial economy, proceed to the merits of
[the] petition”). We instead proceed to the merits and the question of procedural default.
3. Procedural Default
The Warden argues that the district court erred by excusing Moss’s procedural default of
his ineffective assistance of trial counsel (“IATC”) claim because Moss’s appellate counsel was
not ineffective on direct appeal. However, Moss maintains that his appellate counsel’s failure to
raise his meritorious IATC claims under Cronic excuses his procedural default.5
Because Moss’s IATC claims are procedurally defaulted, we may only consider them if
Moss shows cause for failing to raise them on direct appeal and demonstrates that he would be
prejudiced if they are not considered. Coleman v. Thompson, 501 U.S. 722, 750 (1991).
“Ineffective assistance of counsel can supply the cause that, together with prejudice, would
excuse a procedural default.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (quoting
5
Both parties agree that Moss procedurally defaulted his IATC claims under Cronic by failing to raise them
on direct appeal, as required by Michigan Court Rule 6.508(D)(3). And Moss could not procedurally default his
ineffective assistance of appellate counsel claim because his first opportunity to raise that claim was on post-
conviction review. See Guilmette v. Howes, 624 F.3d 286, 291 (6th Cir. 2010).
No. 21-1655 Moss v. Miniard Page 11
Murray v. Carrier, 477 U.S. 478, 488 (1986)). The state court concluded that Moss’s underlying
IATC claims were not meritorious under Strickland and that he therefore did not establish the
requisite cause and prejudice to excuse his procedural default. We now evaluate whether the
state court’s adjudication of Moss’s IATC claims warrants AEDPA deference.
For AEDPA’s deferential standard to apply, the state-court adjudication must have been
“on the merits.” 28 U.S.C. § 2254(d). A judgment is typically considered to be “on the merits”
if it is “delivered after the court . . . heard and evaluated the evidence and the parties’ substantive
arguments.” Johnson v. Williams, 568 U.S. 289, 302 (2013) (quoting Black’s Law Dictionary
1199 (9th ed. 2009)). To determine whether the state courts decided an issue on the merits, we
review the opinion of “the last state court to issue a reasoned opinion on the issue.” Hoffner v.
Bradshaw, 622 F.3d 487, 505 (6th Cir. 2010) (quoting Payne v. Bell, 418 F.3d 644, 660 (6th Cir.
2005)). Accordingly, we follow the district court in reviewing the Oakland County Circuit Court
opinion denying the motion for relief from judgment as the last state court to issue a reasoned
opinion. Because the post-conviction court acknowledged and engaged with both the Strickland
and Cronic tests for ineffective assistance of trial counsel, AEDPA’s deferential standard of
review applies.
A state court’s decision is “contrary to” clearly established federal law if the state court
“applies a rule that contradicts the governing law” as determined by Supreme Court precedent or
“the state court confronts a set of facts that are materially indistinguishable from a decision of
[the Supreme Court] and nevertheless arrives at a result different from” the Supreme Court’s
precedent. Williams v. Taylor, 529 U.S. 362, 405-06 (2000); see also White v. Woodall, 572 U.S.
415, 419 (2014). A state court’s decision is an “unreasonable application” of federal law if
“there is no possibility fairminded jurists could disagree that the state court’s decision conflicts
with [the Supreme Court’s] precedents.” Harrington v. Richter, 562 U.S. 86, 102 (2011). Moss
argues that the state court’s application of Strickland was contrary to and an unreasonable
application of the clearly established law of Cronic. The Warden responds that the state court
properly applied the governing law of Strickland when rejecting Moss’s claims. As discussed
below, we agree with the state court that Strickland governs Moss’s claims.
No. 21-1655 Moss v. Miniard Page 12
Ineffective assistance claims may be reviewed under Strickland or under Cronic. See
Bell v. Cone, 535 U.S. 685 (2002). While claims reviewed under Strickland demand a showing
of both deficient performance and prejudice, Cronic claims arise when a defendant establishes a
level of performance by trial counsel that is “so likely to prejudice the accused that the cost of
litigating their effect in a particular case is unjustified.” Id. at 695 (citing Cronic, 466 U.S. at
658). In other words, prejudice may be presumed when a trial counsel’s performance is so
grossly deficient that it amounts to an effective denial of counsel. Id. Cronic’s presumption-of-
prejudice analysis is warranted in two scenarios: (1) when the defendant “is denied the presence
of counsel at ‘a critical stage” and suffers “the complete denial of counsel,” and (2) when
“‘counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing.’” Id.
at 695-96 (quoting Cronic, 466 U.S. at 659).
Moss argues that his claims warrant review under Cronic under both scenarios because
Steingold constructively abandoned him during pre-trial proceedings and failed to meaningfully
test the prosecution’s case at trial. However, the complete-denial scenario does not apply to
Moss’s claims because there is no evidence that Moss’s counsel was physically absent
throughout an entire phase of the litigation or that a state actor prevented Moss’s counsel from
adequately representing him. See Maslonka v. Hoffner, 900 F.3d 269, 280 (6th Cir. 2018) (“We
therefore decline to extend the Cronic complete-denial exception to cases where a counsel is
physically absent due to the counsel's own failure to be present, without any denial by the
state.”); see also Mitchell v. Mason, 325 F.3d 732 (6th Cir. 2003) (finding that, “[w]hen counsel
is appointed but never consults with his client and is suspended from practicing law for the
month preceding trial, and the court acquiesces in the constructive denial of counsel by ignoring
the defendant's repeated requests for assistance, Cronic governs.”) (emphasis added).
As for the second scenario, Moss’s argument still fails because Steingold did not entirely
fail to subject the prosecution’s case to meaningful adversarial testing. See Bell, 535 U.S. at 697.
Steingold prepared for the entrapment hearing by consulting with Moss for two hours before it
began and by reviewing Moss’s “private restricted record.” DE 5-2, Tr., Page ID 104. That
consultation distinguishes Moss’s representation from that rendered by defense counsel in
Mitchell, where defense counsel spent only six minutes consulting with his client pre-trial and
No. 21-1655 Moss v. Miniard Page 13
failed to conduct any pre-trial investigation. 325 F.3d at 748. Steingold also objected to and
cross-examined the government’s witnesses during the entrapment hearing, and requested a
continuance to subpoena needed witnesses—a request the court denied—although he ultimately
declined to call other witnesses. Further, although Moss’s retained counsel, Steingold, did not
conduct the entire entrapment hearing, Moss was still represented by Lisa Dwyer in those
instances without Moss’s objection. See, e.g., United States v. Dykes, 460 F. 2d 324, 325 (9th
Cir. 1972) (defendant was not deprived of effective representation of counsel because substitute
defense attorney was present during jury instructions and defendant did not object to substitute
attorney’s presence and participation).6 Ultimately, an “attorney’s failure must be complete”
rather than failing to act “at specific points,” so it cannot be said that Steingold and Dwyer failed
to meaningfully challenge the prosecution’s case through their actions. Bell, 535 U.S. at 697.
But Moss still argues that the prosecution’s case was not meaningfully tested at trial
because Steingold “waived his opening and closing arguments, failed to subpoena, interview, or
produce any witnesses, and did not cross-examine or raise objections to one of the government’s
two witnesses.” CA6 R. 29, Corr. Appellee Br., at 38. The Warden responds that Steingold only
acted in a limited capacity during trial because the trial court had already denied the motion to
dismiss based on entrapment, and Steingold strategically focused on its appeal to the Michigan
appellate courts—Moss’s only available recourse at that time.
We agree with the Warden. An artificial distinction between Steingold’s pre-trial and
trial actions overlooks his strategic focus on an entrapment defense. After the court denied the
entrapment motion, Steingold chose to focus on the appeal of its denial rather than conduct a
protracted trial. The stipulated nature of the bench trial and the lack of further investigation,
examination, or cross-examination of witnesses would not have happened but for this strategy
crafted in the earlier stages of the litigation. See Strickland, 466 U.S. at 691 (“counsel has a duty
to make reasonable investigations or to make a reasonable decision that makes particular
investigations unnecessary”) (emphasis added). Steingold’s focus on this defense confirms his
6
As noted supra at p.9 n.3, any choice-of-counsel challenge to Ms. Dwyer’s representation of Moss during
this litigation is not at issue in this appeal.
No. 21-1655 Moss v. Miniard Page 14
strategic perspective of the limited value of trial, but it does not demonstrate that he never
meaningfully challenged the prosecution’s case.
Moss advances one last reason that Cronic should govern: even if Steingold’s trial
behavior was a strategic choice, his inaction at trial was “inexcusable” because Moss had an
“almost certainly” viable defense left. CA6 R. 29, Corr. Appellee Br., at 40. Moss argues that
he could have testified at trial to challenge his intent to possess the cocaine or his knowledge of
it, leaving his testimony subject to a credibility assessment, or that Steingold could have argued
for the application of a lesser offense. In support, Moss points to Martin v. Rose, 744 F.2d 1245(6th Cir. 1984), a case in which trial counsel refused to participate during the trial based on his
belief that his participation would render his pretrial motions, the denial of which he hoped to
appeal, harmless error. 744 F.2d at 1249. Yet Martin’s counsel was aware that the only direct
evidence against Martin was the testimony of his stepdaughters. The court assessed that Martin
was willing to testify before the jury—entitled to make its own credibility determination—that
the girls were encouraged to falsify the incident. Id. at 1250. Thus, the court held that the
counsel’s “strategic reasoning, while superficially persuasive,” was an “unreasonable tactic since
the attorney was aware of a strong defense that he could present without compromising his
earlier motions.” Id.Unlike Martin, Steingold’s approach at trial did not deprive Moss of the opportunity to
present a defense because no defense was viable or available to him. Unlike the sole direct
evidence confronting the defendant in Martin, stipulated evidence at Moss’s trial included video
and audio recordings of his meetings and telephone conversations with Diego, the informant; his
own testimony delivered at the entrapment hearing; and witness testimony of the transaction that
occurred in the Home Depot parking lot. People v. Moss, No. 319954, 2015 WL 3604582, at *1
(Mich. Ct. App. June 9, 2015). Further, the credibility of Moss’s testimony at trial would not
have been assessed by a jury, like in Martin, because Moss had a bench trial. So the same judge
who heard Moss’s testimony at the entrapment hearing and still denied the motion would assess
his credibility again at trial. Additionally, Moss has not established that he wanted to testify but
Steingold prevented him from doing so, nor has he provided evidence showing that Steingold
could have argued for a lesser offense.
No. 21-1655 Moss v. Miniard Page 15
Strickland, not Cronic, governs Moss’s ineffective assistance claims. The state court’s
application of this clearly established governing law to deny Moss’s claims was reasonable and
subject to fair-minded disagreement, so AEDPA deference applies. And in this case, the state
court’s conclusion that Moss failed to establish the prejudice prong of Strickland on his IATC
claim is dispositive. See Dekeyzer v. Harry, 603 F. App'x 399, 404 (6th Cir. 2015) (“If it is
easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that
course should be followed.”) (quoting Strickland, 466 U.S. at 670). Moss does not argue nor
establish that Steingold’s behavior prejudiced the outcome of Moss’s case. See Williams v. Burt,
949 F.3d 966, 975 (6th Cir. 2020) (citing Strickland, 466 U.S. at 687) (noting the requirement of
a “cause-and-effect relationship between the deficient performance and any prejudice suffered by
the defendant.”). Fairminded jurists would therefore not disagree that Moss failed to establish
ineffective assistance of trial counsel under Strickland.
Without a meritorious ineffective assistance of trial counsel claim, the state court
reasonably concluded that Moss failed to show cause excusing his procedural default. See, e.g.,
Boyd v. Yukins, 99 F. App'x 699, 705 (6th Cir. 2004) (failure of appellate counsel to raise
unmeritorious ineffective assistance of trial claim cannot excuse procedural default); see also
Shaneberger v. Jones, 615 F.3d 448, 452 (6th Cir. 2010) (“[A]ppellate counsel cannot be found
to be ineffective for ‘failure to raise an issue that lacks merit.’”) (quoting Greer v. Mitchell, 264
F.3d 663, 676 (6th Cir. 2001)). There is not a reasonable probability that including an
unmeritorious Cronic claim would have changed the result of Moss’s appeal. See Hale v. Burt,
645 F. App’x 409, 415 n.1 (6th Cir. 2016) (“A counsel’s ‘failure to raise an issue on appeal’ does
not amount to ineffective assistance unless ‘there is a reasonable probability that inclusion of the
issue would have changed the result of the appeal.’” (citing McFarland, 356 F.3d at 699)). That
decision was not contrary to nor an unreasonable application of Strickland.
Because the state court’s denial of Moss’s ineffective assistance claims under Strickland
was not contrary to nor an unreasonable application of clearly established federal law, we defer
to its decision that Moss is not entitled to habeas relief. The district court erred in concluding
otherwise.
No. 21-1655 Moss v. Miniard Page 16
IV.
For the foregoing reasons, we reverse and remand with instructions to deny the petition
with prejudice.
No. 21-1655 Moss v. Miniard Page 17
_________________
DISSENT
_________________
COLE, Circuit Judge, dissenting. Steven Moss was sentenced to 15–45 years in prison
after an entrapment hearing for which his attorney, David Steingold, arrived entirely unprepared,
and a bench trial that lasted only 20 minutes. At every step along the way, from his failure to
investigate and interview witnesses to his failure to meaningfully test the prosecution’s case,
Steingold failed to conduct himself in the manner consistent with effective representation.
Because Moss was constructively denied the assistance of counsel in the critical pre-trial and
trial phases of his criminal proceedings, I would grant Moss’s habeas petition. For that reason, I
respectfully dissent.
I. BACKGROUND
A. State Proceedings
1. Initial Proceedings
Moss was convicted of possession with intent to deliver 10 or more kilograms of cocaine
and possession of a firearm during the commission of a felony. People v. Moss, No. 319954,
2015 WL 3604582, at *1 (Mich. Ct. App. June 9, 2015) (per curiam); Mich. Comp. Laws
§§ 333.7401(2)(a)(i) (drug charge), 750.227b (firearm charge). He was arrested after purchasing
10 kilograms of cocaine from a Drug Enforcement Agency (“DEA”) informant, known as
“Diego.” Moss, 2015 WL 3604582 at *1–3.
Moss’s first attorney, Paul Curtis, who was disbarred during the pendency of Moss’s
proceedings, filed a “Motion to Conduct an Entrapment Hearing.” (Pet., R. 1, PageID 5.) The
entrapment defense rested on the premise that Moss’s friend Michael Bennett introduced Moss to
Diego and pressured Moss into giving Diego money for drug trafficking. Moss, 2015 WL
3604582, at *2. Ten days before the entrapment hearing, Steingold began representing Moss.
As of the commencement of his representation, Steingold knew that an entrapment hearing was
scheduled and that the trial date had been set.
No. 21-1655 Moss v. Miniard Page 18
Steingold’s deficient representation of Moss started the moment he entered the
courtroom. He began by admitting that he was not prepared to conduct the entrapment hearing
because “[t]here is a lack of investigation that was done.” (Evidentiary Hr’g Tr., R. 5-2, PageID
103.) He asked the court for an additional adjournment because there were “a number of
questions that remain[ed] unanswered” after he met with Moss immediately preceding the
hearing, and that the one known witness was not present. (Id. at PageID 103–04.) Having
previously granted Steingold more time, the court denied the request. When Steingold insisted
that his lack of preparation was a result of difficulty accessing discovery due to a protection
order, and that he “didn’t know what [he was] walking into,” the court responded that he
“shouldn’t have taken the case.” (Id. at PageID 105–06.)
So, despite believing entrapment was Moss’s best and only defense, Steingold’s hearing
preparation consisted solely of one conversation with Moss immediately prior to the start of the
hearing during which time he convinced Moss to waive his right to a jury trial and proceed with
a bench trial instead. In the ten days before the hearing, Steingold did not speak with Moss until
they were both at the courthouse before the hearing, did not conduct any investigation, did not
interview any witnesses, did not speak with Moss’s previous attorneys, and did not conduct
pertinent legal research. All of this substantiates Steingold’s own admission that he was not
prepared for the hearing.
The hearing nonetheless proceeded. Moss first testified on direct and cross-examination.
After Moss’s testimony concluded the next day, the judge asked if Steingold had additional
witnesses. Steingold again asked for a continuance because there were four other witnesses he
could call from “those people referred to in . . . my client’s direct and cross-examination,” but
that he needed to subpoena them to attend the hearing. (Evidentiary Hr’g Tr., R. 5-3, PageID
340.) The judge was incredulous: “[W]hat do you mean subpoena them? If you were intending
to call them as witnesses, why didn’t you subpoena them already?” (Id.) Further interrogating
Steingold’s preparation, the judge reminded Steingold that he had only mentioned one individual
the day before, whereas he now mentioned three additional individuals. In response to the
judge’s inquiry as to “when . . . [he] discover[ed] all of these witnesses[,]” Steingold responded,
No. 21-1655 Moss v. Miniard Page 19
“Yesterday during the testimony, your Honor.” (Id. at PageID 342, 346.) To be precise,
Steingold discovered the witnesses during the government’s cross-examination of Moss.
Recognizing that Steingold had not prepared for the hearing, nor had he apparently
discussed Moss’s anticipated testimony in any detail before Moss took the stand, the judge
questioned Steingold regarding a potential attempt “to put an ineffective assistance of counsel
with respect to [his] conduct of this on the Record also for appellate purposes[.]” (Id. at PageID
342.) Explaining her disbelief, she continued: “Those names were brought up to this court with
his first attorney[.] With respect to the fact that they were witnesses to conversations between
the defendant and Mr. Bennett. That, I remember, specifically from back then. So, evidently
those names were known from the inception.” (Id. at PageID 348.) Speaking directly to
Steingold, she finished, “And now, here we are, they’re news to you. How is that possible, I
guess, is my first question?” (Id.) The judge made clear that Moss’s first attorney “didn’t get
those names out of a hat,” and instead “must have gotten them from [Moss],” to which
Steingold’s only response was that he had not spoken with Moss enough to obtain that
information. (Id. at PageID 348–49.) Beyond Steingold’s complete failure to investigate the
case and call witnesses whose names would have been known from even a cursory investigation,
he also failed to subpoena the one witness he did know about prior to the hearing. And after
asking the court for a continuance twice specifically to have that witness testify, Steingold told
the court that he “determined not to call him,” without further explanation. (Id. at PageID 351.)
By contrast, the government called five witnesses during the hearing.
The trial judge denied Moss’s motion to dismiss on November 1, finding that Moss had
not been entrapped. After the ruling, Steingold eventually moved to reinstate the jury trial he
had previously counseled Moss to waive. But when the court denied the request, Steingold
instead went to the opposite extreme: agreeing to a stipulated bench trial that conceded Moss’s
guilt. When the court then indicated that trial would begin immediately, on November 1,
Steingold responded that he “frankly was not prepared to go to trial today,” even though he had
been told on September 6 that trial was scheduled for September 17. (Id. at PageID 657.) The
judge nevertheless continued trial again until November 18.
No. 21-1655 Moss v. Miniard Page 20
Despite the continuance, Steingold remained as unprepared for trial as he had been for
the entrapment hearing. The trial took only 20 minutes. During those 20 minutes, Steingold
constructively abandoned Moss. He waived both his opening statement and closing argument,
and called no witnesses to the stand. He also stipulated to several incriminating facts, including
that Moss had purchased 10 kilograms of cocaine, that such amount was inconsistent with
personal drug use, as well as to many other facts and exhibits from the entrapment hearing,
essentially conceding Moss’s guilt. Moss’s own version of the events was not mentioned, and he
did not take the stand.
At trial, the government presented two witnesses. Steingold did not cross-examine the
first witness, nor did he raise any objections during the government’s direct examination.
Steingold cross-examined the government’s second witness, Agent John Hill. But Steingold
questioned Hill only as to his experience and qualifications to serve as an expert witness, and
ultimately argued that Hill’s testimony was unnecessary because Steingold had already stipulated
to the facts that Hill was called to prove. Thus, Steingold’s sole action during the 20-minute trial
was to concede the central point of guilt—that Moss had purchased the alleged quantity of
cocaine with intent to sell it. Even though the government provided closing argument, Steingold
did not, simply saying “I have nothing, your Honor.” (Id. at PageID 694.)
The court found Moss guilty. Steingold did not appear at sentencing, and instead Lisa
Dwyer—an attorney who at the time did not work at Steingold’s firm, and whom Moss never
hired but had been present at portions of the entrapment hearing—appeared in his place. Dwyer
spoke only to request the court reduce Moss’s bond, which the court denied. The court
ultimately sentenced Moss to 15-45 years of imprisonment.
2. State Direct Appeal
Moss, acting pro se, appealed his conviction to the Michigan Court of Appeals, though he
later hired Suzanna Kostovski as appellate counsel. The court granted his motion to remand so
that he could file a motion for a new trial based on ineffective assistance of trial counsel
(“IATC”). On remand, the trial court conducted a Ginther evidentiary hearing to document
No. 21-1655 Moss v. Miniard Page 21
Moss’s ineffective assistance of counsel claim pursuant to People v. Ginther, 212 N.W.2d 922(Mich. 1973).
Both Moss and Steingold testified at the Ginther hearing. In addition to indicating his
awareness of the trial date, Steingold said that he moved for a stipulated fact bench trial to
expedite the entrapment-defense appeal. He maintained that Moss had asked him, after the
entrapment hearing, to seek a jury trial. Moss’s appellate counsel, Kostavski, asked why
Steingold had not filed an interlocutory appeal in light of Steingold’s continued belief in Moss’s
innocence and knowledge that Moss would be convicted after the stipulated bench trial.
Steingold blamed this on the fact that he was not paid his entire fee.
Moss then took the stand. He testified that when he first retained Steingold, he told
Steingold about the hearing and trial dates, and thought that Steingold did not seem “concerned
that . . . he didn’t have enough time or it’s such short notice,” claiming that Steingold “was pretty
much gung-ho with it at first.” (Ginther Hr’g Tr., R. 5-9, PageID 810.) But that quickly
changed. Even though Moss attempted to schedule meetings with Steingold in the short time
between the start of the representation and the entrapment hearing, and then before the trial, they
never met outside of the courthouse. As a result, Moss lacked information about, and was
unprepared for, the entrapment hearing: He did not know that he would have to testify as to his
actions and involvement in the underlying charges until the day of the hearing itself. Moss met
with Steingold once “about 30 minutes before” the entrapment hearing began, at which point
Steingold presented “a thick packet of maybe 40 or 50 pages that had questions that he wanted
me [(Moss)] to answer . . . and he told me make sure you answer these right because we’re going
to be calling you onto the stand.” (Id. at PageID 818.)
Moss also discussed how the jury waiver came about. Before the entrapment hearing, the
trial judge indicated that she had a jury waiting, presumably because trial was set to start the next
day. The court took a short recess, during which, according to Moss, “Steingold pulled [Moss]
into the hall” and explained that “Judge Anderson is going to rush [them,]” so Steingold was
“going to get a bench trial” to “buy [him] more time because [he was] not ready at th[at] time”
for trial. (Id. at PageID 812.) When asked whether he understood the consequences of waiving a
jury trial—including that the same judge from the entrapment hearing would conduct the bench
No. 21-1655 Moss v. Miniard Page 22
trial—Moss definitively responded, “No. [Steingold] was just saying that this would be the best
course of action because, other than that, he wasn’t prepared.” (Id. at PageID 812–13.) Moss
further testified that had he understood this point, he would not have waived a jury trial. But
once Moss “found out” that “the judge [who] was going to hear [him] admit the things [he]
admitted during the entrapment hearing” would “be the same judge who would decide [his] guilt
or innocence,” he wanted a jury trial. (Id. at PageID 819–20.)
Additionally, Moss disputed why Steingold asked the court to reinstate a jury trial,
testifying that it was Steingold who suggested the change. Moss stated that, after the trial judge
denied the entrapment defense, Steingold told him they “better have a jury trial[.]” (Id. at
PageID 813.) As to the stipulations entered during the bench trial, Moss said that he never
discussed the trial with Steingold and so did not know about or understand the stipulations.
Moss also testified that his previous attorney had spoken with Moss’s witnesses and that Moss
explicitly told Steingold about the witnesses, though Steingold never spoke with them.
Last, Moss asserted that Steingold had spoken with another attorney, and that Steingold
told Moss both attorneys agreed that “the best way to do it would be an interlocutory appeal.”
(Id. at PageID 816.) But Steingold indicated he would not pursue this course of action unless he
received full payment for his services.
After the Ginther hearing, the trial court denied Moss’s motion for a new trial. Moss
appealed, and the Michigan Court of Appeals affirmed Moss’s conviction and sentence. On
December 22, 2015, the Michigan Supreme Court denied Moss leave to appeal his conviction.
Moss did not petition for a writ of certiorari at the Supreme Court, and so his conviction became
final on March 21, 2016, 90 days after the Michigan Supreme Court’s denial of leave to appeal.
See Sup. Ct. R. 13(1).
3. State Collateral Review
A year and a day later, on March 22, 2017, Moss filed a motion for relief from judgment
in a state trial court, thereby pursuing state collateral relief. He argued that he was entitled to a
new trial because Steingold had constructively abandoned him, and so provided ineffective
assistance of counsel under United States v. Cronic, 466 U.S. 648 (1984). The court denied his
No. 21-1655 Moss v. Miniard Page 23
motion. Moss sought, but was denied, leave to appeal to both the Michigan Court of Appeals
and the Michigan Supreme Court.
B. Federal Proceedings
In May 2018, while his state collateral appeal was pending, Moss filed a petition for a
writ of habeas corpus in the Eastern District of Michigan. Despite finding that Moss was entitled
to equitable tolling for his otherwise untimely petition, the district court denied the habeas
petition on the merits. Moss filed a motion for reconsideration. The district court partially
reversed its decision, conditionally granting Moss’s habeas petition on two grounds—IATC
under Cronic during both the pre-trial and trial phases of his criminal proceedings. Moss was
released on bond on January 24, 2022. Miniard, the warden at the prison where Moss was
incarcerated, appeals the district court’s grant of Moss’s habeas petition.
II. ANALYSIS
Miniard appeals the district court’s decision on three grounds: (1) that the petition was
untimely and is not entitled to equitable tolling; (2) that the claims were procedurally defaulted
and cannot be excused; and (3) that both claims fail on the merits. I take each in turn.
A. Timeliness
AEDPA contains a one-year statute of limitations, which runs from the latest of four
possible dates. 28 U.S.C. § 2244(d)(1). AEDPA also has a tolling provision, such that “[t]he
time during which a properly filed application for State post-conviction or other collateral review
with respect to the pertinent judgment or claim is pending shall not be counted toward any period
of limitation under this subsection.” Id. § 2244(d)(2); see also Holbrook v. Curtin, 833 F.3d 612,
615 (6th Cir. 2016). The statute of limitations is subject to equitable tolling. Holland v. Florida,
560 U.S. 631, 649 (2010). Where, as here, the facts are not disputed, we review a district court’s
grant of equitable tolling to excuse the petition’s untimeliness de novo. Robertson v. Simpson,
624 F.3d 781, 784 (6th Cir. 2010).
I agree with the majority that Moss’s federal habeas petition was untimely. But we may
nevertheless consider untimely petitions in certain circumstances, such as where the AEDPA
No. 21-1655 Moss v. Miniard Page 24
statute of limitations is subject to equitable tolling. Holland, 560 U.S. at 649. And as I diverge
from the majority on the merits of Moss’s petition, I necessarily diverge as to the importance of
the tolling issue.
Equitable tolling applies if Moss can show “(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely
filing.” Id. (quotation marks omitted); Hall v. Lebanon Corr. Inst., 662 F.3d 745, 749–50 (6th
Cir. 2011). Equitable tolling is applied “sparingly.” Robertson, 624 F.3d at 784.
Moss undeniably meets the first prong, as he has been “diligently” pursuing his rights on
appeal. He has taken every appeal available to him, including all direct appeals by right, state
post-conviction review, and federal post-conviction review. In all the filings involved in these
various appeals, he has not missed a single additional deadline. And in the one instance he was
untimely—his state collateral relief petition at issue for the tolling argument—he was only one
day late. Miniard’s sole argument to the contrary is that “Moss could have avoided the entire
question of timeliness by being more diligent in the state courts, specifically by filing his motion
for relief from judgment sooner.” (Reply Br. 7.) The fact that “filing even one day sooner
would have made the difference . . . exemplifies a lack of diligence.” (Id.) But this argument
fails to take into account that we apply equitable tolling only when the filing at issue was
untimely. If Miniard’s argument were meritorious, the equitable tolling doctrine would be
rendered useless.
Finding that Moss meets the first of the two equitable tolling requirements, I move to
consider whether an “extraordinary circumstance” excuses the untimely filing. Moss argues that
this court’s “confusing and contradictory legal landscape” regarding the statute of limitations
calculations “created an extraordinary circumstance.” (Appellee Br. 27.) Specifically, Moss
highlights two points of confusion: (1) that this court sometimes ends the limitations period on
the anniversary of the date of finality and at other times on the anniversary of the day after the
date of finality, and (2) leap-year ambiguities in our caselaw.
Our caselaw regarding the statute of limitations computation is not a model of clarity. In
Bronaugh v. Ohio, we stated that the limitations period ended on the anniversary of the date of
No. 21-1655 Moss v. Miniard Page 25
finality. 235 F.3d 280, 285 (6th Cir. 2000). But several of our panels have misapplied this
statute of limitations standard, instead finding that the statute of limitations ends on the
anniversary of the day after the date of finality, thereby extending the statute of limitations by a
single day—precisely the amount of time at issue here. See, e.g., Liggins v. Vashaw, No. 20-
1037, 2020 WL 3866872, at *1 (6th Cir. Apr. 29, 2020), cert denied, 141 S. Ct. 1274 (2021),
reh’g denied, 141 S. Ct. 2750 (2021) (finding the statute of limitations ended on May 27, 2000,
when the conviction became final on May 26, 1999); Carlyle v. Campbell, No. 18-1631, 2018
WL 11301139, at *1 (6th Cir. Sept. 26, 2018) (finding the statute of limitations ended on August
23, 2012, when the conviction became final on August 22, 2011); Kirchoff v. Warden,
Chillicothe Corr. Inst., No. 16-4186, 2017 WL 4863119, at *2 (6th Cir. May 25, 2017) (finding
the statute of limitations ended on November 5, 2012, when the conviction became final on
November 4, 2011); Williams v. Wilson, 149 F. App’x 342, 345 (6th Cir. 2005) (finding the
statute of limitations ended on February 11, 2002, when the conviction became final on February
10, 2001).
Not only do various cases contradict each other, but we also calculated timeliness in two
different ways in Bronaugh itself. There, the direct appeal’s date of finality was September 9,
1996. 235 F.3d at 284. Properly applying the rule we had announced earlier in the opinion, we
began counting the day after finality as day 1, such that “[a] total of 209 days passed from
September 10, 1996 to April 7, 1997,” at which point Bronaugh filed an application to reopen his
direct appeal and tolled the statute of limitations. Id. at 286. The state supreme court dismissed
the appeal on January 28, 1998, and so “[o]n January 29, 1998, the one-year period of limitations
began to run again.” Id. Bronaugh filed his federal habeas petition on June 30, 1998. Id. We
stated that “a total of 153 days passed,” and then combining the 209 days and 153 days, found
that only 362 days had passed and the petition was timely. Id. at 286–87. We did not, however,
calculate the 153 days the same way we did the 209 days. Following the opinion’s earlier
pronouncement, we would begin counting the day after finality, which would be January 29—
but 153 days from January 29 is actually July 1, not June 30 as we found.
In the cases cited in this discussion, the one-day difference between the two approaches
was not dispositive because there was more than a one-day difference between the expiration of
No. 21-1655 Moss v. Miniard Page 26
the statute of limitations and the filing of the habeas petition. See, e.g., id. at 286 (calculating
that the petition was filed three days prior to the expiration of the statute of limitations, even with
the miscalculation); Liggins, 2020 WL 3866872, at *1 (petition filed 21 years after the date of
finality); Kirchoff, 2017 WL 4863119, at *2 (petition filed roughly five months late). So this
court has not faced a case where there is a one-day margin of error in calculating the statute of
limitations the way there is in the case before us now.
To further complicate the landscape, we have inconsistently applied the calculation in
cases where the statute of limitations inquiry falls on a leap year. See Fortson v. Carter, 79 F.
App’x 121, 123 (6th Cir. 2003) (“Fortson arguably had one additional day . . . in which to file his
petition because 2000 was a leap year.”); see also Brown v. Brewer, No. 2:15-cv-10638, 2016
WL 28988, at *3 (E.D. Mich. Jan 4, 2016) (providing that the limitations period had 366 days
rather than 365 days because of the leap year); Leon v. Parris, No. 3:15-cv-0094, 2015 WL
4394327, at *2 n.2 (M.D. Tenn. July 16, 2015) (same).
Miniard argues that neither the inconsistent application of the anniversary method nor the
leap-year ambiguity presents an extraordinary circumstance warranting the application of
equitable tolling. What this untimeliness comes down to, Miniard claims, is attorney error in
miscalculating the deadline, and equitable tolling is not a proper remedy for “a garden variety
claim of excusable neglect such as simple miscalculation that leads a lawyer to miss a filing
deadline[.]” Holland, 560 U.S. at 651–52 (cleaned up).
But our confused caselaw is an extraordinary circumstance, and Moss’s counsel’s
reliance on the unclear landscape resulted in only a one-day delay. Moss therefore satisfies both
factors and I would hold that equitable tolling applies to excuse Moss’s untimely petition.
Having cleared the first of Moss’s two procedural hurdles in the case, I move on to
procedural default.
No. 21-1655 Moss v. Miniard Page 27
B. Procedural Default
Procedural default is a “critical failure” that occurs when the petitioner “fail[s] to comply
with state procedural law.” Gibbs v. Huss, 12 F.4th 544, 550 (6th Cir. 2021) (quoting Trest v.
Cain, 522 U.S. 87, 89 (1997)). It occurs when:
(1) the petitioner failed to comply with a state procedural rule that is applicable to
the petitioner’s claim; (2) the state courts actually enforced the procedural rule in
the petitioner’s case; and (3) the procedural forfeiture is an ‘adequate and
independent’ state ground foreclosing review of a federal constitutional claim.
Willis v. Smith, 351 F.3d 741, 744 (6th Cir. 2003) (quoting Maupin v. Smith, 785 F.2d 135, 138
(6th Cir. 1986)).
Michigan Court Rule 6.508(D)(3) requires a petitioner to raise an IATC claim on direct
appeal. Both parties agree that Moss procedurally defaulted his IATC claims because he raised
an IATC claim under Strickland and not under Cronic. See Amos v. Renico, 683 F.3d 720, 733
(6th Cir. 2012) (holding that Michigan Court Rule 6.508(D)(3) “is an independent and adequate
state ground sufficient for procedural default that required [petitioner] to raise these claims [of
IATC] during his direct appeal”).
But we can review a procedurally defaulted claim if “the [petitioner] can demonstrate
cause for the default and actual prejudice as a result of the alleged violation of federal law[.]”
Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Sutton v. Carpenter, 745 F.3d 787,
789–90 (6th Cir. 2014). The ineffective assistance of appellate counsel in failing to raise the
defaulted issue is a recognized “cause” that can excuse procedural default.1 Edwards v.
Carpenter, 529 U.S. 446, 451–52 (2000).2 Therefore, if Moss can show that he received
ineffective assistance of appellate counsel because his appellate counsel, Kostovski, failed to
raise the IATC Cronic claims, then Moss’s procedural default is excused. Seymour v. Walker,
1
“A separate finding of actual prejudice beyond Strickland prejudice is not required.” Avery v.
Wainwright, No. 20-3530, 2022 WL 1498431, at *12 (6th Cir. May 12, 2022) (first citing Joseph, 469 F.3d at 432–
63; then citing Hall v. Vasbinder, 563 F.3d 222, 237 (6th Cir. 2009); and then citing Ege v. Yukins, 485 F.3d 364,
379 (6th Cir. 2007)).
2
Moss could not have procedurally defaulted his ineffective assistance of appellate counsel claim because it
could not have been raised on direct appeal, as state post-conviction review was the first opportunity to review
appellate counsel’s performance. See Guilmette v. Howes, 624 F.3d 286, 291 (6th Cir. 2010).
No. 21-1655 Moss v. Miniard Page 28
224 F.3d 542, 550 (6th Cir. 2000). We review the district court’s decision to excuse Moss’s
procedural default de novo. See Hall v. Vasbinder, 563 F.3d 222, 236 (6th Cir. 2009);
McFarland v. Yukins, 356 F.3d 688, 699 (6th Cir. 2004).
As a threshold matter, the Sixth Amendment right to counsel guarantees Moss the
effective assistance of counsel on his first appeal as of right. Evitts v. Lucey, 469 U.S. 387, 396–
97 (1985). Ineffective assistance of appellate counsel is reviewed under the familiar Strickland
standard: whether appellate counsel (1) performed deficiently such that (2) “there is a reasonable
probability that, but for counsel’s” deficient performance, “the result of the proceeding would
have been different.” Strickland v. Washington, 466 U.S. 668, 687, 694 (1984); see also Whiting
v. Burt, 395 F.3d 602, 617 (6th Cir. 2005) (applying the Strickland standard to a claim of
ineffective assistance of appellate counsel).
Finally, while typically AEDPA only authorizes habeas relief where “the state court’s
decision 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), a lower standard applies to
analyzing an ineffective assistance of appellate counsel claim for purposes of establishing cause
to excuse a procedural default, Joseph v. Coyle, 469 F.3d 441, 459 (6th Cir. 2006). Rather than
meeting the AEDPA standard, or reviewing whether the state court’s decision regarding the
procedural default was reasonable, we instead—solely for the purposes of establishing “cause”
under Coleman—determine whether there was an independent Sixth Amendment violation under
Strickland. See id. That means that our “level of scrutiny of the ineffective assistance of counsel
claim is the same as would be applied in direct review,” rather than under AEDPA deference.
(Reconsideration Op. and Order, R. 33, PageID 1835 (citing Joseph, 469 F.3d at 459).)
Appellate counsel performs deficiently when they fail “to find arguable issues to
appeal—that is, that counsel unreasonably failed to discover nonfrivolous issues and to file a
merits brief raising them.” Smith v. Robbins, 528 U.S. 259, 285 (2000). This occurs when the
issue appellate counsel fails to raise is “clearly stronger than issues that counsel did present.”
Caver v. Straub, 349 F.3d 340, 348 (6th Cir. 2003) (quoting Smith, 528 U.S. at 289); see also
Monzo v. Edwards, 281 F.3d 568, 579 (6th Cir. 2002).
No. 21-1655 Moss v. Miniard Page 29
Prejudice results when there is a reasonable probability that if the unraised claim had
been properly raised, petitioner would have succeeded in court. See Howard v. Bouchard,
405 F.3d 459, 485 (6th Cir. 2005). “[A] reasonable probability is a probability sufficient to
undermine confidence in the outcome” of the case; petitioner “need not show that counsel’s
deficient conduct more likely than not altered the outcome in the case.” Joseph, 469 F.3d at459–60 (quotation marks and citations omitted). When appellate counsel fails to raise a claim
that is a “dead-bang winner” and would have changed the result of the appeal, they have
provided ineffective assistance of counsel. See Meade v. Lavigne, 265 F. Supp. 2d 849, 870
(E.D. Mich. 2003), aff’d, 104 F. App’x 461 (6th Cir. 2004).
I would excuse Moss’s procedural default because the unraised Cronic claims were
“clearly stronger” than the Strickland claims that Kostovski raised on appeal. “While both
Cronic and Strickland concern Sixth Amendment violations, they are distinct legal claims and
the difference between the two ‘is not of degree but of kind.’” Fusi v. O’Brien, 621 F.3d 1, 6
(1st Cir. 2010) (citation omitted). Strickland carries the traditional two-pronged analysis of
deficient performance and prejudice, and it applies to specific alleged errors committed
throughout counsel’s representation. Strickland, 466 U.S. at 687, 694. Cronic, on the other
hand, examines the actual or constructive absence of counsel “at a critical stage” of one’s
criminal proceeding.3 Cronic, 466 U.S. at 659; see also Van v. Jones, 475 F.3d 292, 311–312
(6th Cir. 2007). Rather than examining specific points of allegedly ineffective representation,
under Cronic we must consider “counsel’s overall representation of” the client during the critical
stage, “as opposed to any specific error or omission counsel may have made.” Cronic, 466 U.S.
at 657 n.20. Unlike in Strickland, courts do not conduct a prejudice analysis when evaluating
Cronic claims, because Cronic involves “circumstances ‘so likely to prejudice the accused that
the cost of litigating their effect in a particular case is unjustified.’” Bell v. Cone, 535 U.S. 685,
695, 697 (2002) (quoting Cronic, 466 U.S. at 658–69).
There are three circumstances in which an IATC claim is analyzed under Cronic instead
of Strickland: (1) where there is “the complete denial of counsel;” (2) where defense counsel
3
Both the pre-trial and trial phases are deemed critical stages to which Cronic applies. See Cronic,
466 U.S. at 659 (trial phase); Mitchell v. Mason, 325 F.3d 732, 741–42 (6th Cir. 2003) (pre-trial phase).
No. 21-1655 Moss v. Miniard Page 30
“entirely fails to subject the prosecution’s case to meaningful adversarial testing;” and (3) where
“the likelihood that any lawyer, even a fully competent one, could provide effective assistance is
so small that a presumption of prejudice is appropriate[.]” Cronic, 466 U.S. at 659–60.
Here, the unraised Cronic claims were “clearly stronger” than the Strickland claims. As
the district court correctly explained, both IATC claims were “clearly dead-bang winners,”
because Steingold’s “errors were obvious from the record and leaped out upon even a casual
reading of the transcript.” (Reconsideration Op. and Order, R. 33, PageID 1836 (citing Matire v.
Wainwright, 811 F.2d 1430, 1438 (11th Cir. 1987)).) But rather than illustrate how Steingold
constructively abandoned Moss during both critical stages, Kostovski “neglected the central
issue in [Moss’s] case” by identifying two specific instances of ineffectiveness—waiving Moss’s
right to a jury trial and stipulating to the admission of the evidence from the entrapment hearing
at the bench trial. See Joseph, 469 F.3d at 460 (quoting Smith v. Dretke, 417 F.3d 438, 442–43
(5th Cir. 2005)). These claims sound in Strickland instead of Cronic and fail to account for the
various other clear defects in Steingold’s representation.
As I discuss below, I agree with the district court that Moss’s ineffective assistance of
appellate counsel claim is meritorious and excuses the procedural default. Kostovski performed
deficiently in failing to raise a Cronic claim “considering the facts she was clearly aware of when
she reviewed the trial court record.” (Reconsideration Op. and Order, R. 33, PageID 1837.)
Since the Cronic claims are “clearly stronger” than the Strickland “issues that counsel did
present,” this deficiency was prejudicial. Caver, 349 F.3d at 348 (6th Cir. 2003) (quoting Smith,
528 U.S. at 289).
Having cleared the second, and last, procedural hurdle in the case, I now proceed to the
merits of the underlying claim, which prove that Moss’s Cronic claims were meritorious even
under AEDPA’s heightened deference.
No. 21-1655 Moss v. Miniard Page 31
C. Merits
1. Standard of Review
We review a district court’s decision regarding a writ of habeas corpus de novo. Foust v.
Houk, 655 F.3d 524, 533 (6th Cir. 2011). We also review the district court’s determination that
counsel was constitutionally ineffective de novo. Burton v. Renico, 391 F.3d 764, 770 (6th Cir.
2004). But under AEDPA, an additional deferential standard applies “with respect to any claim
that was adjudicated on the merits in State court proceedings[.]” 28 U.S.C. § 2254(d). When
there is an adjudication on the merits, we can only grant habeas relief if the state court decision
“was contrary to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States,” or “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding.” Id.;
see also Chase v. MaCauley, 971 F.3d 582, 590 (6th Cir. 2020). Our question on habeas review
“is not whether a federal court believes the state court’s determination was incorrect but whether
that determination was unreasonable—a substantially higher threshold.” Schriro v. Landrigan,
550 U.S. 465, 473 (2007).
To determine whether the court adjudicated the issues on the merits, we review the
decision from “the last state court to issue a reasoned opinion on the issue[.]” Hoffner v.
Bradshaw, 622 F.3d 487, 505 (6th Cir. 2010) (quoting Payne v. Bell, 418 F.3d 644, 660 (6th Cir.
2005)). Here, the last state court to issue a reasoned opinion was the Oakland County Circuit
Court opinion denying the motion for relief from judgment after the Ginther hearing, because
both the Michigan Court of Appeals and Michigan Supreme Court denied Moss’s motion for
leave to appeal the decision in unexplained one-sentence orders. These one-sentence,
unexplained orders cannot be considered reasoned decisions because, put simply, they contain no
reasoning. See Ylst v. Nunnemaker, 501 U.S. 797, 804 (“The essence of unexplained orders is
that they say nothing.”). But the reasoned opinion from the trial court adjudicated the claims on
the merits. Though it ultimately applied Strickland to the two IATC claims, it discussed the
differences between Cronic and Strickland and concluded that “the record in this case does not
reflect a ‘complete’ failure of counsel.” (Op. and Order, R. 5-11, PageID 914.) This is a
No. 21-1655 Moss v. Miniard Page 32
decision on the merits, so the state court’s decision is entitled to AEDPA deference unless its
decision is contrary to clearly established federal law. See 28 U.S.C. § 2254(d).
A state court decision is contrary to clearly established law if “the state court applies a
rule that contradicts the governing law set forth” in Supreme Court caselaw or “if the state court
confronts a set of facts that are materially indistinguishable from a decision of [the Supreme
Court] and nevertheless arrives at a result different from [the Court’s] precedent.” Williams v.
Taylor, 529 U.S. 362, 405–06 (2000). And while “courts of appeals’ decisions do not establish
new rules, the court may look to such decisions to inform its analysis of whether a legal principle
had been clearly established by the Supreme Court.” Avery v. Prelesnik, 548 F.3d 434, 436–37
(6th Cir. 2008).
2. Pre-Trial IATC Claim
As the Supreme Court has unequivocally stated, the pre-trial period is “perhaps the most
critical period of the proceedings . . . when consultation, thorough-going investigation and
preparation [are] vitally important” to aid defendants. Powell v. Alabama, 287 U.S. 45, 57
(1932). “The pre-trial period constitutes a ‘critical period’ because it encompasses counsel’s
constitutionally imposed duty to investigate the case,” and without meaningful “pre-trial
consultation with the defendant, trial counsel cannot fulfill his or her duty to investigate.”
Mitchell v. Mason, 325 F.3d 732, 743 (6th Cir. 2003) (citing Strickland, 466 U.S. at 691). So
when counsel does not investigate the case or does not consult with the client before trial,
counsel “cease[s] functioning as counsel under the Sixth Amendment,” and they are ineffective
under Cronic. Phillips v. White, 851 F.3d 567, 579–80 (6th Cir. 2017).
Steingold constructively abandoned Moss during the pre-trial phase and so provided
ineffective assistance of counsel under Cronic. Steingold entirely failed to meet his
“constitutionally imposed duty to investigate the case.” Mitchell, 325 F.3d at 743. He did not
meet with Moss until the day of the entrapment hearing despite Moss’s numerous attempts to
schedule a meeting. When they finally did meet, it was only for a brief period immediately
before the entrapment hearing.
No. 21-1655 Moss v. Miniard Page 33
Steingold did not conduct any investigation prior to the day of the hearing, did not speak
to Moss’s previous attorneys, did not attempt to find previously known witnesses, and did not
subpoena the one witness he was aware of. It is no wonder that Steingold still had “a number of
questions that remain unanswered” when the hearing began. (Evidentiary Hr’g Tr., R. 5-2,
PageID 104.) The fact that Steingold only learned of three witnesses during the government’s
cross-examination of Moss—witnesses that Moss and Moss’s previous attorney knew about and
would thus be easily uncovered during the pre-hearing investigation—shows precisely what
Steingold did to represent Moss prior to the day of the entrapment hearing: virtually nothing.
Indeed, Steingold himself admitted to the court that he did not conduct appropriate investigation
for the entrapment hearing.
On top of Steingold’s failure to advance Moss’s defense before the entrapment hearing,
he continued to do nothing—no investigation, no additional meetings with Moss—before the
trial, a trial that he requested a continuance for because he was unprepared and needed additional
time.
All Steingold did in preparation for Moss’s case was meet with Moss once before the
entrapment hearing. But even the length of this meeting is disputed. While Steingold claims he
spent two hours with Moss, Moss indicates that they spent only about 30 minutes together.
Regardless of the length, during this meeting Steingold gave Moss 40 to 50 pages with questions
for the entrapment hearing, and rather than appropriately prepare Moss to testify for what
Steingold believed was Moss’s best defense, Steingold simply told Moss that he needed to
answer the questions properly while on the stand.
Steingold therefore constructively abandoned Moss during the pre-trial phase. The state
court erred when, rather than applying Cronic to Steingold’s wholesale denial of effective
counsel, it instead applied Strickland, examining only Steingold’s decision not to interview
witnesses before trial. In failing to apply the correct standard of this clearly established Supreme
Court precedent, the state court opinion is contrary to, or an unreasonable application of, clearly
established law. See Strickland, 466 U.S. at 691 (stating that “[c]ounsel has a duty to make
reasonable investigations”); Mitchell, 325 F.3d at 744 (“Because the Supreme Court has
repeatedly made clear that there is a duty incumbent on trial counsel to conduct pre-trial
No. 21-1655 Moss v. Miniard Page 34
investigation, it necessarily follows that trial counsel cannot discharge this duty if he or she fails
to consult with his or her client.”).
Both Miniard and the majority rely on Maslonka v. Hoffner, 900 F.3d 269, 279 (6th Cir.
2018), to argue that Cronic cannot apply to either of Moss’s IATC claims. But Cronic does not
require that counsel be “physically absent throughout an entire phase of the litigation or that a
state actor prevented Moss’s counsel from adequately representing him.” (Maj. Op. 12.) “The
deprivation can be literal, as when counsel fails to appear, or it can be constructive, as when
counsel’s performance is so defective that he may as well have been absent.” Phillips, 851 F.3d
at 580. While physically present during the pre-trial phase, Steingold’s performance was so
defective that he may as well have missed the entire proceeding.
The majority also argues that Moss’s pre-trial claim is distinct from Mitchell v. Mason,
325 F.3d 732 (6th Cir. 2003), because the Mitchell court granted habeas relief on the defendant’s
Cronic claim where counsel only spoke with the defendant for six minutes before the trial and
did not conduct any pre-trial investigation. But these are in fact nearly identical cases. Just as
counsel did not conduct any pre-trial investigation in Mitchell, Steingold did not conduct any
pre-trial investigation for Moss. Regardless of how long Steingold spoke with Moss, it was
clearly not a substantive conversation, as Steingold did not uncover witness names that would
have been known from a perfunctory investigation or conversation with Moss. Speaking once
with the client, whether for 30 minutes or two hours, without doing more at any point prior to the
entrapment hearing and trial, constitutes constructive abandonment of a client during the critical
pre-trial phase.
I would therefore conclude that the state court’s decision is contrary to, or involved an
unreasonable application of, clearly established law, and I would grant Moss’s habeas motion on
the pre-trial IATC claim.
3. Trial IATC Claim
Moss also argues that the state court should have applied Cronic to his trial IATC claim.
Where “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing,”
No. 21-1655 Moss v. Miniard Page 35
the client has been constructively denied counsel. Moss v. Hofbauer, 286 F.3d 851, 860 (6th Cir.
2002) (quoting Cronic, 466 U.S. at 659).
Here, Steingold constructively abandoned Moss when he “entirely fail[ed]” to subject the
government’s case to meaningful adversarial testing during trial. Id. The bench trial lasted only
20 minutes. During those 20 minutes, Steingold waived his opening statement, did not put any
witnesses on the stand, did not cross-examine one of the government’s witness or object during
the government’s direct examination, and waived his closing argument by saying “I have
nothing, your Honor.” (Bench Trial Tr., R. 5-6, PageID 694.) Steingold also stipulated to the
main facts and elements of the offense, effectively conceding Moss’s guilt.
It is true that Steingold did one thing at trial: he asked some questions of the
government’s second witness. A closer look at his examination of this witness, Hill, however,
reveals that it was no examination at all because it did not subject the government’s case to any
meaningful adversarial testing. Hill was called as an expert to present evidence that the amount
of cocaine at issue was inconsistent with personal use and instead indicated an intent to sell the
drugs. But as Steingold insisted, the court did not need an expert to testify to these matters
because Steingold had willingly stipulated to the amount of drugs Moss possessed and that the
intent to sell that quantity of drugs was apparent. And Steingold only asked questions about
Hill’s qualifications as an expert. Cronic does not ask whether counsel took any action
whatsoever. It asks whether counsel took action that “subject[s] the prosecution’s case to
meaningful adversarial testing.” Hofbauer, 286 F.3d at 860 (emphasis added) (citing Cronic,
466 U.S. at 659). The few questions Steingold asked Hill during trial clearly did not test the
government’s case; it was a cross-examination in name only.
“We presume prejudice in this case because [Steingold’s] performance amounted to
nonperformance; he essentially ceded the [trial] to the [government.]” Phillips, 851 F.3d at 581.
And Steingold’s insistence that the court continue the trial date so that he could properly prepare
for the trial makes what happened—or did not happen—at trial all the more incredulous.
Miniard argues, and the majority agrees, that “Steingold only acted in a limited capacity
during trial because the trial court had already denied the motion to dismiss based on entrapment,
No. 21-1655 Moss v. Miniard Page 36
and Steingold strategically focused on its appeal to the Michigan appellate courts—Moss’s only
available recourse at that time.” (Maj. Op. 13.) But there are several problems with this
argument. For one, it ignores the fact that Steingold did not conduct any investigation prior to
the entrapment hearing, and so he was not meaningfully focused on this defense in the first place.
For another, he insisted that he was not prepared for trial, and so the judge granted him a 16-day
continuance. Telling the court that he “frankly was not prepared to go to trial today” was
directly against his interest if he was strategically focused on appealing the court’s denial of the
motion to dismiss as quickly as possible. (Mot. to Dismiss Tr., R. 5-5, PageID 657.)
“[T]he point is this: Constitutionally effective counsel must develop trial strategy in the
true sense—not what bears a false label of ‘strategy[.]’” Ramonez v. Berghuis, 490 F.3d 482,
489 (6th Cir. 2007). And calling Steingold’s approach a strategy or “‘a tactical decision’ . . . is
nonsensical because ‘counsel did not even take the first step of interviewing witnesses or
requesting records.’” Foust, 655 F.3d at 536 (first citation omitted) (quoting Porter v.
McCollum, 558 U.S. 30, 39 (2009)); accord Florida v. Nixon, 543 U.S. 175, 182–84, 191–92
(2004) (holding that counsel provided effective assistance when he conceded the defendant’s
guilt during a capital murder trial while maintaining the right to cross-examine the prosecution’s
witnesses, because this was acceptable strategy to focus his preparation on finding and
presenting mitigating evidence during the penalty phase in an attempt to ward off the death
penalty). Steingold’s choices therefore fell “outside the wide range of professionally competent
assistance.” Martin v. Rose, 744 F.2d 1245, 1249 (6th Cir. 1984) (quoting Strickland, 466 U.S.
at 690). Ultimately, Steingold’s “total lack of participation deprived [Moss] of effective
assistance of counsel at trial as thoroughly as if he had been absent. This was constitutional error
even without any showing of prejudice.” Id. at 1250–51.
Moss “is entitled to habeas relief because the state court unreasonably applied the
Strickland standard where Petitioner clearly was constructively denied the assistance of trial
counsel.” (Reconsideration Op. and Order, R. 33, PageID 1845.) I agree with the district court
that the state court opinion was contrary to, or involved an unreasonable application of, clearly
established federal law. The state court should have applied Cronic to both of Moss’s IATC
No. 21-1655 Moss v. Miniard Page 37
claims rather than Strickland, and both Cronic claims are meritorious. Indeed, I would be hard
pressed to find a worse dereliction of duty than that of Steingold’s representation of Moss.
III. CONCLUSION
Because I would affirm the district court’s decision and grant Moss’s habeas petition,
I respectfully dissent.