Jack Parker, Jr. v. Sherry Burt

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0004n.06
Case No. 11-2615
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Jan 05, 2015
JACK PARKER, JR., ) DEBORAH S. HUNT, Clerk
)
Petitioner-Appellant, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
SHERRY BURT, ) DISTRICT OF MICHIGAN
)
Respondent-Appellee. )
)
____________________________________/ )
Before: KEITH, MOORE, and STRANCH, Circuit Judges
DAMON J. KEITH, Circuit Judge.
Petitioner-Appellant Jack Parker, Jr. was convicted in Michigan state court of murdering
Sandra Brady. Parker appealed to the Michigan Court of Appeals, which upheld his conviction.
Parker filed a petition for a writ of habeas corpus in federal court. The district court denied the
petition but granted a certificate of appealability. For the following reasons, we AFFIRM the
judgment of the district court.
I. BACKGROUND
On late August 9, 2000 or early August 10, 2000, someone from an apartment complex in
Royal Oak, Michigan reported an emergency. When the police arrived, they found Brady
unconscious in Parker’s apartment. Earlier, Parker had grabbed Brady, slammed her to the floor
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or bed, and had anal sex with her. See R. at 1171;1 Appellant’s Br. at 10 n.3. Sometime after
Parker had sex with Brady, he noticed that she was unresponsive. Parker left the apartment and
asked his neighbors to call 911.
That night, the police arrested Parker for domestic assault. The State maintains that it
held Parker on a charge of parole violation for assaulting Brady. Although the State arrested
Parker for the assault in August 2000, it did not charge him by criminal complaint until October
28, 2002. See R. at 197–98.
On November 8, 2002, the trial court began a preliminary examination, but continued the
hearing until November 26, 2002. On that date, the prosecutor filed an amended complaint
against Parker that included counts for open murder,2 voluntary manslaughter, and involuntary
manslaughter. R. at 197–98, 320. The preliminary examination was again continued until
January 16, 2003. R. 440. In agreeing to that continuance, Parker’s then-counsel, Lawrence
Kaluzny, waived “any speedy trial argument . . . or 180 day violation.” Id.
Parker filed a motion for new counsel on July 7, 2003. See R. at 157. The trial judge
granted the motion, appointing William Cataldo as Parker’s new counsel on or around July 10,
2003. See R. at 157. The court held a pretrial hearing on September 26, 2003. At this hearing,
Cataldo stated that his hectic workload had prevented him from filing certain motions that Parker
wanted him to file. See R. at 477. Parker asserted at this hearing that the State was violating his
right to a speedy trial. R. at 479–80.
1
“R.” designates citations to the paginated record of the proceedings below. Thus, “R. at 1168” refers to
PageID 1168, “R. at 1172” refers to PageID 1172, and so on.
2
“[A] charge of open murder gives notice to the defendant that he must defend against first-degree
murder and second-degree murder.” People v. Turner, No. 229934, 2002 WL 31956937, at *2 (Mich. Ct.
App. Dec. 20, 2002) (per curiam) (citing cases).
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Evidently, the trial had been rescheduled for February 25, 2004. See R. at 490. On
February 9, 2004, the trial court held a hearing on Parker’s motion to replace Cataldo. See R. at
486. Cataldo stated that he was “admitting to ineffectiveness . . . up to [that] point.” R. at 489.
Cataldo attributed his ineffectiveness to a “breakdown in communication” based on his belief
that certain motions Parker wanted him to file were not “valid.” See R. at 489. Apparently, some
of the motions sought to exclude evidence of Parker’s prior assaults on two women and to have
the court appoint an investigator to interview potentially favorable witnesses. Parker asserted his
speedy trial rights at this hearing as well. R. at 486, 490–91.
The trial court held a motions hearing on August 10, 2004. Cataldo asked the court to
allot funding for an investigator. The investigator was supposed to preliminarily interview
potentially favorable witnesses whom the police had allegedly failed to interview. The trial court
approved the request and earmarked $500 for this purpose. See R. at 500–01.
Sometime after this hearing and before September 1, 2004, Howard Arnkoff replaced
Cataldo as Parker’s counsel. Arnkoff met with Parker after his appointment but did not
communicate with him for several months thereafter. See R. at 578–79. Later, as the trial
approached, Arnkoff met with Parker twice. In the time between his appointment and the trial,
Arnkoff read Parker’s correspondence, visited the prosecutor’s office, and reviewed boxes of
evidence that Cataldo left for him. See R. at 578–80, 583.
Parker asserts that the trial court later held four pretrial hearings at which he was present
but unrepresented by counsel. These dates are September 13, 2004; October 4, 2004; November
1, 2004; and November 8, 2004. R. at 2018. At the November 8 hearing, the State asked the
court to postpone the November 30, 2004 trial date to “mid to late February.” R. at 529. The trial
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court approved the State’s request. Parker stated at the November 8 hearing that he had mailed
three motions to the trial judge after the November 1 hearing. See R. at 532.
The trial eventually began on April 15, 2005. Parker sought a continuance. Purportedly,
Parker based this request on Arnkoff’s failure to (1) pursue the motions Parker wanted him to file
and (2) obtain an investigator. Yet Arnkoff successfully argued certain motions on Parker’s
behalf at the outset of the trial. For instance, Arnkoff prevailed on a motion in limine to exclude
evidence of Parker’s prior assaults on two other women. R. at 574–75. Furthermore, Arnkoff
persuaded the prosecution not to present the testimony of two inmates to whom Parker allegedly
confessed that he had beaten Brady. See R. at 582. Ultimately, the trial judge refused to continue
the trial, finding that Parker had “everything the Prosecutor [had].” R. at 586.
At the trial, medical professionals testified regarding the extent of Brady’s injuries and
the cause of death. Andrew Korcek, the emergency room (“ER”) physician who attended to
Brady, testified that she had swelling around her face, bruises on her chest and abdomen, nasal
fractures, and a fractured humerus. See R. at 2140, 2144, 2146–47, 2155. Bernardino Pacris, the
State’s medical examiner, testified that Brady had old and new bruises to the chest and
abdominal area; blunt force head trauma; bruising on the upper-right arm area; fractures to the
upper and lower ribs; and a fractured arm. R. at 2189–90, 2192, 2203. Pacris also testified that
Brady’s injuries were consistent with an assault and that the head and chest trauma contributed to
her death. See R. at 2274–75, 2281.
Other witnesses testified that Parker assaulted Brady. Bonnie Flowers, Parker’s neighbor,
testified that: (1) she heard Parker and Brady arguing on the night in question; (2) Parker was
ordering Brady to leave; (3) Parker dragged Brady back into the apartment by her neck; and
(4) Parker pushed Brady with such force that she fell down. See R. at 881–82, 885, 886–87.
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Terry Johnson, Parker’s fellow inmate, testified that Parker admitted to throwing Brady to the
ground, picking her up and slamming her onto the bed, and having anal sex with her. R. at 1168–
72. George Baker, Parker’s former friend/employer, testified that Parker had (1) assaulted Brady
on prior occasions and (2) stated that he wanted to kill her because he wanted her to leave his
apartment. R. at 784, 787–89, 795.
The jury convicted Parker of second-degree murder. R. at 1468. The trial judge sentenced
Parker as a fourth habitual offender to 50 to 100 years in prison. R. at 1500–01.
In June 2005, Parker appealed to the Michigan Court of Appeals. Parker argued that the
State’s delay in charging and trying him violated his right to a speedy trial. Parker also argued
that he was denied counsel at critical stages of the proceedings and effective assistance of
counsel. Regarding the ineffective-assistance claim, Parker argued that Arnkoff deficiently failed
to (1) request an instruction for involuntary manslaughter based on gross negligence and
(2) locate his former neighbors, the Nazarkoses. As to argument (2), Parker asserted that the
Nazarkoses’ testimony would have contradicted the testimony that he fought with Brady. Parker
bases this assertion on the testimony of Richard Babecki, the lead investigator in the case.
Babecki testified that the Nazarkoses did not report hearing a fight in Parker’s apartment on the
night in question. See R. at 2412, 2450.
On February 15, 2007, the Michigan Court of Appeals (“the Court”) affirmed the trial
court’s judgment. People v. Parker, No. 263276, 2007 WL 486485 (Mich. Ct. App. Feb. 15,
2007) (per curiam). As to Parker’s speedy trial claim, the Court held that Parker failed to show
that the delay in charging and trying him was prejudicial even though there appeared to be no
justification for the preindictment delay. Id. at *2. Further, the Court held that the hearings at
which counsel did not represent Parker were not critical stages, reasoning that the trial court
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addressed only minor procedural matters. Id. at *3. Additionally, the Court rejected Parker’s
claim that his counsel deficiently failed to investigate various matters. In so holding, the Court
reasoned that Parker failed to sufficiently proffer that the matters he wanted his attorney to
investigate would have “yielded favorable evidence.” Id. at *4. The Court also concluded that the
failure to locate the Nazarkoses was nonprejudicial. In reaching this conclusion, the Court noted
that Babecki testified that the Nazarkoses reported that they did not hear a fight and concluded
that this testimony was substantially similar to the Nazarkoses’ anticipated testimony. See id. at
*2.
In April 2009, pursuant to 28 U.S.C. § 2254, Parker filed an amended petition for writ of
habeas corpus in the Eastern District of Michigan. Parker raised four claims in this petition:
(1) the State violated his right to a speedy trial; (2) he was denied counsel at critical stages of the
proceedings; (3) his counsel was ineffective for failing to investigate his case; and (4) his counsel
was ineffective for failing to request a jury instruction on grossly negligent involuntary
manslaughter.
On November 30, 2011, the district court denied Parker’s amended petition, relying on
reasoning substantially similar to that of the Michigan Court of Appeals. See R. at 2701–22.
However, the district court granted a certificate of appealability with respect to claims (1) and
(2). R. at 2272–73. Later, the certificate of appealability was expanded to include all of Parker’s
claims. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 28 U.S.C. § 2253.
II. STANDARD OF REVIEW
Parker’s habeas corpus petition is governed by 28 U.S.C. § 2254, as amended by the
Antiterrorism and Effective Death Penalty Act (“AEDPA”) of 1996. See generally 28 U.S.C.
§ 2254 (2012); see also Lindh v. Murphy, 521 U.S. 320, 326 (1997) (holding that the AEDPA
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generally applies only to cases that were filed after its enactment). In part, § 2254 provides as
follows:
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court proceedings unless the
adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d)(1)-(2) (2012).
Under § 2254(d)(1)’s “contrary to” clause, courts may grant the writ if the state court:
(1) reaches a conclusion on a question of law opposite to that reached by the Supreme Court; or
(2) decides a case differently than the Supreme Court has on materially indistinguishable facts.
Williams v. Taylor, 529 U.S. 362, 412–13 (2000). Under § 2254(d)(2)’s “unreasonable
application” clause, courts may grant the writ if the state court identifies the correct governing
legal principle from the Supreme Court’s decisions but unreasonably applies that principle to the
facts of the case. Id. at 413.
An unreasonable application of federal law differs from an incorrect application of
federal law. Renico v. Lett, 559 U.S. 766, 773 (2010) (citation omitted). For § 2254(d)(1)
purposes, the application must be “objectively unreasonable.” Id. (citation omitted) (internal
quotation marks omitted). “This distinction creates a substantially higher threshold for obtaining
relief than de novo review.” Id. (citation omitted) (internal quotation marks omitted).
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III. ANALYSIS
A. Speedy Trial
Parker asserts that the State violated his right to a speedy trial in two ways. First, he
argues that the State’s two-year delay in charging him violated his right to be free from excessive
preindictment delay. Second, he argues that the approximately 2.5-year delay between charging
him and trying him violated his right to be free from excessive postindictment delay. We analyze
these questions separately. The Fifth Amendment’s Due Process Clause protects against
excessive preindictment delay. However, the Sixth Amendment’s Speedy Trial Clause protects
against excessive postindictment delay. See, e.g., United States v. Brown, 959 F.2d 63, 66 (6th
Cir. 1992).3
1. Preindictment Delay
Parker argues that the State’s two-year delay in charging him violated due process. Parker
asserts that the delay was unnecessarily long and that the State had no justification for it. Further,
Parker asserts that the delay prevented him from presenting favorable witnesses. Although
Parker invokes the Supreme Court’s decision in United States v. Lovasco, 431 U.S. 783 (1977),
Parker also relies on Monzo v. Edwards, 281 F.3d 568 (6th Cir. 2002). In Parker’s assessment,
Monzo holds that delay in commencing prosecution is unjustifiable when, through negligence or
error, the state ceases to investigate, and later, without new evidence, decides to prosecute. The
3
Both of these rights apply to the states. Generally, the Fourteenth Amendment’s Due Process Clause
restricts the activities of the states, whereas the Fifth Amendment’s Due Process Clause restricts the
actions of the federal government. Scott v. Clay Cnty., Tenn., 205 F.3d 867, 873 n.8 (6th Cir. 2000)
(citations omitted). Thus, technically, the Fourteenth Amendment’s Due Process Clause applies to
Parker’s claim for excessive preindictment delay. However, the Fifth Amendment’s Due Process Clause
is “analogous” to the Fourteenth Amendment’s Due Process Clause. Therefore, cases interpreting the
Fifth Amendment’s Due Process Clause in the context of claims for excessive preindictment delay are
equally applicable here. As to the claim for excessive postindictment delay, the Sixth Amendment’s
Speedy Trial Clause applies in state criminal proceedings via the Fourteenth Amendment’s Due Process
Clause. See Redd v. Sowders, 809 F.2d 1266, 1268 (6th Cir. 1987) (citations omitted).
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State responds that (1) Parker caused much of the delay; (2) the delay failed to prejudice him;
and (3) Parker’s citation to Monzo is inapposite.
In certain cases, the Due Process Clause protects against preindictment delay. The Due
Process Clause “requires the dismissal of an indictment . . . if the defendant can prove that the
Government’s delay in bringing the indictment was a deliberate device to gain an advantage over
him and that it caused him actual prejudice in presenting his defense.” United States v. Gouveia,
467 U.S. 180, 192 (1984) (citing United State v. Lovasco, 431 U.S. 783, 789 (1977); United
States v. Marion, 404 U.S. 307, 324 (1971)). In accordance with the Supreme Court’s rule, we
have consistently held that “[d]ismissal for pre-indictment delay is warranted only when the
defendant shows [1] substantial prejudice to his right to a fair trial and [2] that the delay was an
intentional device by the government to gain a tactical advantage.” Brown, 959 F.2d at 66
(alteration in original) (citations omitted) (internal quotation marks omitted).
In this case, the Michigan Court of Appeals reasonably concluded that Parker failed to
show that the State’s delay in charging him was an intentional device to gain a tactical
advantage. Although there appears to be no justification for the delay, Parker has presented
inadequate evidence of improper intent. Parker argues that one can infer improper intent because
the State allegedly had all of the evidence it needed to prosecute him within the first few weeks
of his arrest yet waited to charge him. While this alleged fact may support an inference of
negligence or recklessness, these mental states are insufficient to show improper intent.4 All the
same, Parker cites our decision in Monzo for the proposition that preindictment delay is
4
See United States v. Banks, 27 F. App’x 354, 357 (6th Cir. 2001) (citation omitted) (“[W]here delay is
due to simple negligence and not a concerted effort by the government to gain an advantage, no due
process violation exists.”); United States v. Jackson, 22 F. App’x 396, 398–99 (6th Cir. 2001) (citation
omitted) (stating that “the delay must be purposeful and that allegations of reckless or negligent delay are
insufficient”); United States v. Rogers, 118 F.3d 466, 476 (1997); United States v. Miller, No. 95-5298,
1996 WL 426135, at *2 (6th Cir. July 29, 1996) (suggesting that “negligence” is insufficient to show
“that the government engaged in use of the pre-indictment delay for tactical reasons . . . .”).
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unjustifiable where the state negligently stops investigating a case and later decides to prosecute
without new evidence. But the Monzo court did not so hold. When the Monzo court wrote that
preindictment delay is unjustifiable if the state negligently stops investigating a case and later
decides to prosecute without new evidence, it was merely mentioning a rule that the Ohio
Supreme Court enunciated in State v. Luck, 472 N.E.2d 1097 (Ohio 1984). See Monzo, 281 F.3d
at 581. Furthermore, even had the Monzo court so held, the holding would be inconsistent with
the long line of federal authority cited above. Therefore, the conclusion of the Michigan Court of
Appeals that Parker failed to show that the State’s delay in charging him was an intentional
device to gain a tactical advantage was reasonable.
It was also reasonable for the Michigan Court of Appeals to conclude that the delay was
not substantially prejudicial. Preindictment delay of two years, while not insignificant, is
generally insufficient to presume substantial prejudice.5 Parker contends that the delay enabled
the Nazarkoses to disappear, thereby substantially prejudicing him. However, Babecki’s
testimony was similar to the testimony that Parker assumes that the Nazarkoses would have
given. To some extent, this similarity counteracts the prejudice that the Nazarkoses’ absence
allegedly caused. Parker responds that the Nazarkoses’ testimony would have benefited him
more than Babecki’s. This assertion is speculative. Parker has not shown that the Nazarkoses
“would have testified, that [their] testimony would have withstood cross-examination, and that
the jury would have found [them] . . . credible witness[es].” United States v. Rogers, 118 F.3d
5
See United States v. King, 22 F. App’x 567, 568 (6th Cir. 2001) (citing cases) (stating that a 26-month
delay “was not presumptively prejudicial”); United States v. Cooper, No. 99-3356, 2000 WL 1562791, at
*2 (6th Cir. Oct. 10, 2000) (per curiam) (citing cases) (holding that a 25-month delay was not
presumptively prejudicial and noting that the Sixth Circuit has upheld longer pre-indictment delays);
United States v. Cook, No. 98-5457, 1999 WL 357788, at *3 (6th Cir. May 20, 1999) (citations omitted)
(holding that a 22-month delay was not presumptively prejudicial and noting that this delay “was
substantially shorter than the delay in several cases in which this court has found no due process
violation”).
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466, 475 (6th Cir. 1997) (citation omitted). Thus, it is unclear that the Nazarkoses’ testimony
“would have affected the outcome of the trial.” Id. at 476. Therefore, the Michigan Court of
Appeals reasonably concluded that the preindictment delay did not substantially prejudice
Parker. Accordingly, Parker’s Fifth and Fourteenth Amendment challenge lacks merit.
2. Postindictment Delay
Parker argues that the approximately 2.5-year delay between his charge and trial violated
his speedy trial rights under the Sixth Amendment. The State responds that (1) Parker’s attorney
waived his right to a speedy trial and (2) Parker cannot show prejudice from the delay. The
Michigan Court of Appeals relied entirely on its conclusion that Parker’s attorney waived all
speedy trial rights at Parker’s preliminary examination.
Courts employ a balancing test to determine whether postindictment delay violates the
Sixth Amendment. The Supreme Court has identified four nonexhaustive factors for courts to
consider when making this determination: “Length of delay, the reason for the delay, the
defendant’s assertion of his right, and prejudice to the defendant.” Barker v. Wingo, 407 U.S.
514, 530 (1972). “The length of the delay is to some extent a triggering mechanism.” Id. at 531.
“Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry
into the other factors that go into the balance.” Id. Postindictment delay of one year or more is
presumptively prejudicial. See Doggett v. United States, 505 U.S. 647, 652 n.1 (1992) (internal
quotation marks omitted). However, “none of the four factors identified above [is] either a
necessary or sufficient condition to the finding of a deprivation of the right of speedy trial.”
Barker, 407 U.S. at 533. “Rather, they are related factors and must be considered together with
such other circumstances as may be relevant.” Id. As the 2.5-year delay at issue is presumptively
prejudicial, we proceed to analyze factors two through four.
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Here, under factor two, each side bears some responsibility for a significant share of the
postindictment delay. Kaluzny waived Parker’s right to a speedy trial with regard to continuation
of the preliminary examination. This waiver constitutes a reasonable justification for only some
of the postindictment delay. See Barker, 407 U.S. at 519 (stating that “there is a societal interest
in providing a speedy trial which exists separate from, and at times in opposition to, the interests
of the accused”); cf. United States v. White, 985 F.2d 271, 275 n.1 (6th Cir. 1993) (citation
omitted) (stating that the defendant could not prevail on a Speedy Trial Act argument because
“his attorney consented to the delays”). Also, the record reflects that each side sought
adjournments, and court congestion caused part of the delay. Parker attributes some delay to his
attorneys’ alleged ineffectiveness for failing to file his motions and seek the appointment of an
investigator, stressing that Cataldo stated that he was ineffective. But some of these motions
lacked merit and Arnkoff successfully argued similar matters at the outset of trial. Therefore,
while the prosecution might have caused some of the delay, Parker also caused some of it.
Therefore, factor two does not strongly favor either party.
By contrast, the third Barker factor favors Parker. The State does not dispute that Parker
asserted his speedy trial rights in July 2003 and Parker states that he asserted them as early as
May 2003. See R. at 157, 490–91. Parker also asserted his rights on four later occasions. Supra p.
3. We have held that the third Barker factor favors the defendant based on fewer assertions than
the five or six at issue. See, e.g., White, 985 F.2d at 276. Therefore, while some of these
assertions could be calculating, the third factor tips in Parker’s favor.
The fourth factor, prejudice, favors the State. Parker has not disputed the district court’s
finding that he was imprisoned on a parole violation during the 2.5-year postindictment period.
Therefore, it is arguable that the delay did not involve “oppressive pretrial incarceration” as
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much as it would have had Parker been incarcerated for only the charged offense. Cf. Barker,
407 U.S. at 532. Likewise, Parker’s preexisting incarceration reasonably could have mitigated
some of the “anxiety and concern” he might have felt while awaiting trial. Cf. id. Although
Parker counters that the delay enabled the Nazarkoses to disappear, his belief that they would
have provided helpful testimony is speculative. Thus, the prejudice factor favors the State.
In sum, the balance of the Barker factors swings in the State’s favor. Although the
postindictment delay was not insignificant, Parker caused some of it. Furthermore, the
postindictment delay did not meaningfully prejudice Parker’s defense. Therefore, we conclude
that habeas relief is unavailable on the claim that the postindictment delay violated the Sixth
Amendment.
B. Ineffective Assistance of Counsel—Critical Stages of Proceedings
Parker argues that he was denied counsel at critical stages of the proceedings in violation
of the Sixth Amendment. Parker notes that the trial court held four pretrial hearings at which he
was present but unrepresented by counsel. Parker argues that, in at least one of these hearings,
there was a reasonable probability that he could suffer significant consequences from his denial
of counsel. The State generally responds that the hearings were not critical stages of the
proceedings.
The complete absence of counsel at a critical stage of a criminal proceeding is a per se
Sixth Amendment violation. Van v. Jones, 475 F.3d 292, 312 (6th Cir. 2007) (citing Supreme
Court cases). For a stage to be critical, there must be “a reasonable probability that [the
defendant’s] case could suffer significant consequences from his total denial of counsel at the
stage.” Id. at 313. In making this determination, courts may consider whether the defendant had
an opportunity to recover or exercise whatever privilege he lost at the hearing in which counsel
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failed to represent him. Id. It follows that critical stages do not include proceedings where there
is no likelihood of prejudice from the attorney’s absence. See id. (citation omitted).
In this case, the conclusion of the Michigan Court of Appeals that Parker was not denied
counsel at critical stages of the proceedings was not unreasonable. The Michigan Court of
Appeals held that “none of the four hearings at which counsel was absent involved a critical
stage,” Parker, 2007 WL 486485, at *3, relying on the Supreme Court’s language in Bell v.
Cone, 535 U.S. 685, 696 (2002), stating that a critical stage involves “a step of a criminal
proceeding, such as arraignment, that held significant consequences for the accused.” In light of
Supreme Court precedent including and following United States v. Cronic, 466 U.S. 648 (1984),
we cannot hold that the state court’s conclusion was unreasonable.
C. Ineffective Assistance of Counsel—Failure to Investigate
Parker argues that his attorneys were ineffective because they failed to investigate
Brady’s cause of death and interview potential witnesses. Specifically, Parker faults his
attorneys’ failure to (1) review Brady’s medical records; (2) seek the appointment of an
independent medical examiner; and (3) interview potential witnesses at Parker’s apartment
complex. Parker suggests that taking these steps likely would have: (1) uncovered evidence
rebutting the prosecution’s portrait of him as an abuser; (2) undercut testimony that he fought
with Brady on the night in question; and (3) shown that Brady’s death was caused by her
alcoholism and other factors. The State responds that Parker’s attorneys’ performance was
objectively reasonable and that, to the extent their performance was deficient, Parker cannot
show prejudice.
We must review Parker’s claim for ineffective assistance of counsel under the two-prong
standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). To establish a claim of
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ineffective assistance of counsel, Parker must show that his counsel’s performance was deficient
and that the deficient performance prejudiced his defense. Id. at 687. To prove deficiency, Parker
must show that his counsel’s performance “fell below an objective standard of reasonableness”
as measured by prevailing professional norms. Id. at 688. Under the prejudice prong, Parker
“must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. at 694. The Strickland standard
contemplates courts’ indulgence in a “strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.” See id. at 689; see also Premo v. Moore,
131 S. Ct. 733, 739–40 (2011) (citations omitted) (internal quotation marks omitted)
(“Surmounting Strickland’s high bar is never an easy task . . . . The question is whether an
attorney’s representation amounted to incompetence under prevailing professional norms, not
whether it deviated from best practices or most common custom.”).
It is “all the more difficult” to prevail on a Strickland claim under § 2254(d). Harrington
v. Richter, 131 S. Ct. 770, 788 (2011). As the standards that Strickland and § 2254(d) create are
both “‘highly deferential,’” review is “‘doubly’” so when the two apply in tandem. Id. (quoting
Knowles v. Mirzayance, 129 S. Ct. 1411, 1420 (2009)). Thus, “[w]hen § 2254(d) applies, the
question is not whether counsel’s actions were reasonable.” Id. Rather, “[t]he question is whether
there is any reasonable argument that counsel satisfied Strickland’s deferential standard.” Id.
The Michigan Court of Appeals rejected Parker’s claim because Parker “never provided
any offer of proof to factually support his claim that an investigation [by counsel] would have
yielded favorable evidence.” Parker, 2007 WL 486485, at *4. We cannot say that this conclusion
was an unreasonable application of Supreme Court precedent.
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D. Ineffective Assistance of Counsel—Failure to Request Jury Instruction
Parker argues that Arnkoff was ineffective because he failed to request a jury instruction
for involuntary manslaughter based on gross negligence. The trial judge instructed the jury on
the intent-to-injure form of involuntary manslaughter. However, Arnkoff did not ask the judge to
instruct the jury that it could convict Parker of involuntary manslaughter based on gross
negligence if it found that he caused Brady’s death due to a willful failure to exercise ordinary
care to avoid injuring her. Parker argues that Arnkoff should have requested this instruction
because “[t]here was evidence that the position of Ms. Brady’s neck while she and Mr. Parker
were having sex and her intoxication level could have explained her asphyxiation and
demonstrated that Ms. Brady’s death was an accident.” Appellant’s Br. at 54. However, Parker
does not specify the source of federal law that Arnkoff’s failure allegedly violates. According to
the State, a rational view of the evidence would not have permitted such an instruction because
of overwhelming evidence that Brady died due to an assault by Parker. At oral argument, the
State alternatively argued that, in noncapital cases, due process does not require courts to instruct
the jury on a lesser-included offense rationally supported by the evidence.
The right to an instruction on a lesser-included offense in a noncapital case is not clearly
established federal law. As we recently recognized, “[t]he Supreme Court . . . has never held that
the Due Process Clause requires instructing the jury on a lesser included offense in a non-capital
case.” McMullan v. Booker, 761 F.3d 662, 667 (6th Cir. 2014); see also Campbell v. Coyle,
260 F.3d 531, 541 (6th Cir. 2001) (“[T]he Constitution does not require a lesser-included offense
instruction in non-capital cases.” (citing Bagby v. Sowders, 894 F.2d 792, 795–97 (6th Cir. 1990)
(en banc))). Here, Parker was not charged with a capital offense. See R. at 197–98. Thus, the
Michigan courts did not apply federal law unreasonably.
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Case No. 11-2615
Jack Parker, Jr. v. Sherry Burt
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s judgment.
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