Jarrhod Williams v. DeWayne Burton

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0620n.06
No. 16-1687
UNITED STATES COURT OF APPEALS
FILED
Nov 09, 2017
FOR THE SIXTH CIRCUIT
DEBORAH S. HUNT, Clerk
JARRHOD S. WILLIAMS, )
)
Petitioner-Appellant, )
)
v. )
ON APPEAL FROM THE
)
UNITED STATES DISTRICT
DEWAYNE BURTON, )
COURT FOR THE EASTERN
)
DISTRICT OF MICHIGAN
Respondent-Appellee. )
)
)
)
)
BEFORE: KEITH, ROGERS, and McKEAGUE, Circuit Judges.
DAMON J. KEITH, Circuit Judge. Jarrhod Williams (“Williams”), a Michigan
prisoner proceeding through counsel, appeals a district court judgment denying his petition for a
writ of habeas corpus filed pursuant 28 U.S.C. § 2254. In his petition, Williams primarily raised
claims of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984),
and also requested an evidentiary hearing. The district court denied the petition on the merits,
but granted a Certificate of Appealability on the issue of whether an evidentiary hearing should
be granted. The Certificate of Appealability was later expanded by this court to include three of
petitioner’s substantive claims. Because the district court did not abuse its discretion in failing to
grant an evidentiary hearing, nor otherwise err in its decision to deny Williams’ petition on the
merits, we affirm.
No. 16-1687, Williams v. Burton
I. BACKGROUND
A. Underlying State Court Proceedings
In 2007, D’Anglo Savage and Tommy Haney were shot to death while sitting in a parked
vehicle in Detroit. People v. Williams, No. 292909, 2010 WL 4026077, at *1 (Mich. Ct. App.
Oct. 14, 2010). The Detroit Police arrested Williams shortly after their deaths. Id. During
questioning following his arrest, Williams confessed to shooting multiple rounds from an AK-47
assault rifle into Savage’s vehicle in order to avenge the deaths of Williams’ cousins, who were
killed two days earlier. Id. On July 10, 2007, Williams was arraigned before Wayne County
Circuit Court Judge David Allen on two counts of first-degree premeditated murder, and one
count of possession of a firearm during the commission of a felony (“felony firearm”). Judge
Allen thereafter presided over a bench trial in the matter, which began on March 26, 2008.
During the bench trial, the prosecutor presented evidence that Williams was the only
shooter (hereafter referred to as the “one-shooter theory”). This theory was based on a Detroit
Police Department investigation and related forensic testing. However, experts from the
Michigan State Police testified that shell casings recovered from the crime scene actually showed
the presence of two guns, as opposed to one. This expert testimony raised serious questions
about the accuracy of the forensic testing underlying the prosecution’s theory of the case. Judge
Allen eventually declared a mistrial and subsequently recused himself. The case was then
reassigned to Judge Timothy Kenny.
Before the re-trial, the prosecution offered a plea deal to drop the two first-degree murder
charges if Williams pled no contest to a new charge of second-degree murder and to the felony-
firearm charge. Under that agreement, Williams would be sentenced to twelve to thirty years in
prison for second-degree murder, and a consecutive two-year term for felony firearm. Williams
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accepted the plea and sentencing was scheduled; however, prior to sentencing, Williams moved
to withdraw his plea and the trial court granted his motion.
On March 5, 2009, at a hearing before the second trial was commenced, Williams’ trial
counsel Marvin Barnett (“Barnett”) appeared before Judge Kenny to argue various pretrial
motions. During a soliloquy, Barnett stated on the record that he never negotiates with the
prosecutor’s office. Barnett further stated that the deal for his client, Williams, was
inappropriate and that he was not willing to trade two deaths for ten years, noting that “[t]he
bodies of these persons were worth more than 10 to 12 years and it was wrong . . . . I’m fighting
for everybody here today and the family.”
Later in the hearing, Barnett asserted that the prosecution should not be permitted to
deviate from the one-shooter theory at the second trial and should not be able to argue that
Williams was guilty under the theory that he aided and abetted a second shooter. Barnett
acknowledged that his argument was a “stretch,” and that he only brought it up because of
something the prosecutor said “during this [h]earing.” Judge Kenny rejected this argument.
After Williams’ second trial, a jury convicted him on all counts, and he was sentenced to two life
terms in prison without the possibility of parole, and to a consecutive two-year term for the
felony-firearm conviction.
Williams’ convictions and sentence were affirmed on appeal, and the Michigan Supreme
Court denied leave to appeal. People v. Williams, 795 N.W.2d 24 (Mich. 2011). Williams then
filed a Motion for Relief from Judgment pursuant to Michigan Court Rule 6.500, which the trial
court denied. The court of appeals and the Michigan Supreme Court subsequently denied leave
to appeal.
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B. Procedural History
On June 14, 2014, Williams filed a petition for a writ of habeas corpus under 28 U.S.C.
§ 2254, raising the following claims: (1) denial of due process when the trial court, in its decision
denying his Rule 6.500 motion, erroneously deemed procedurally barred his claim that trial
counsel performed ineffectively by wrongly advising him about the one-shooter theory, which
led to his plea withdrawal; (2) trial counsel performed ineffectively by wrongly advising him
about the one-shooter theory at his second trial and because counsel also had conflicts of interest;
and (3) appellate counsel performed ineffectively by failing to raise the above claims regarding
his trial counsel’s performance. Williams also moved for an evidentiary hearing.
The district court denied Williams’ motion for an evidentiary hearing and denied the
petition, but granted a Certificate of Appealability on the issue of whether the district court
should have granted an evidentiary hearing. Williams filed a timely notice of appeal on May 24,
2016, and this Court subsequently expanded the Certificate of Appealability to add the following
claims: (1) whether Williams was denied due process when the district court concluded that
Williams’ ineffective assistance of counsel claim, related to the prosecution’s one-shooter
theory, had been addressed in state court; (2) the underlying substantive claim concerning
counsel’s advice on the one-shooter theory at trial, and whether such advice amounted to
ineffective assistance of counsel; and, (3) Williams’ ineffective assistance of appellate counsel
argument concerning trial counsel’s performance with regard to the one-shooter theory.
II. DISCUSSION
A. Standard of Review
In an appeal from a district court’s denial of a § 2254 petition, we review the district
court’s legal conclusions de novo and its factual findings for clear error. Dando v. Yukins,
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461 F.3d 791, 795-96 (6th Cir. 2006). Under the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”), a federal court may not grant habeas relief with respect to a claim
adjudicated on the merits in state court unless the state court’s adjudication “resulted in a
decision that was contrary to, or involved an unreasonable application of, clearly established
Federal law,” or “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). “A state court’s decision is contrary to clearly established federal law where ‘the state court
arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if
the state court decides a case differently than [the Supreme Court] has on a set of materially
indistinguishable facts.’” Muniz v. Smith, 647 F.3d 619, 623 (6th Cir. 2011) (quoting Terry
Williams v. Taylor, 529 U.S. 362, 412-13 (2000)). “A state court’s decision is an unreasonable
application of clearly established federal law 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 prisoner’s case.’” Muniz, 647 F.3d at 623 (quoting Terry Williams, 592 U.S. at
413).
On habeas review, the “proper inquiry” is “whether the state court decision was
objectively unreasonable and not simply erroneous or incorrect.” Keith v. Mitchell, 455 F.3d
662, 669 (6th Cir. 2006) (citing Terry Williams, 529 U.S. at 409-11). When “applying the
‘unreasonable application’ clause, a reviewing court must be careful not to substitute its own
judgment for that of the state court . . . .” Harris v. Haeberlin, 526 F.3d 903, 910 (6th Cir.
2008). Under AEDPA, “a state prisoner must show that the state court’s ruling on the claim
being presented in federal court was so lacking in justification that there was an error . . . beyond
any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).
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B. Analysis
1. The District Court Did Not Abuse Its Discretion In Denying Williams an
Evidentiary Hearing
Williams argues that the district court erred by failing to grant an evidentiary hearing or
by failing to remand to the state court for such a hearing. “We review a district court’s denial of
a habeas evidentiary hearing for an abuse of discretion.” Muniz, 647 F.3d at 625 (citation
omitted). “Under 28 U.S.C. § 2254(e)(2), if [a petitioner] for habeas relief ‘has failed to develop
the factual basis of a claim in State court proceedings,’ a district court may not grant an
evidentiary hearing on the claim unless the [petitioner] shows that:
(A) the claim relies on –
(i) a new rule of constitutional law, made
retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been
previously discovered through the exercise of due
diligence; and
(B) the facts underlying the claim would be sufficient to establish
by clear and convincing evidence that but for constitutional error,
no reasonable factfinder would have found the [petitioner] guilty
of the underlying offense.”
Robinson v. Howes, 663 F.3d 819, 823-24 (6th Cir. 2011) (quoting 28 U.S.C. § 2254(e)(2)(A)-
(B)).
“The strictures of § 2254(e)(2)(A)-(B) do not apply, however, where [a petitioner] has
not failed to develop – i.e., has been diligent in developing – the factual basis of his claim in state
court.” Robinson, 663 F.3d at 824 (citing Michael Williams v. Taylor, 529 U.S. 420, 432
(2000)). “Diligence . . . depends upon whether the prisoner made a reasonable attempt, in light
of the information available at the time, to investigate and pursue claims in state court.” Michael
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Williams, 529 U.S. at 435. “A petitioner whose efforts to develop his claims were rebuffed by
the state court may still be deemed ‘diligent.’” Richey v. Bradshaw, 498 F.3d 344, 351 (6th Cir.
2007) (quoting Michael Williams, 529 U.S. at 435). “Where an applicant has been diligent, the
decision to grant an evidentiary hearing is left to the district court’s sound discretion.” Robinson,
663 F.3d at 824 (citing Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (noting that AEDPA did
not change the “basic rule” that the decision to grant an evidentiary hearing is left to the
discretion of the district courts, though AEDPA deference should guide the decision)).
As a preliminary matter, the district court did not rule on whether 28 U.S.C. § 2254(e)(2)
precluded an evidentiary hearing because the district court concluded that “even if the statute did
not bar an evidentiary hearing, the [c]ourt would exercise its discretion not to hold a hearing.”
We hold that 28 U.S.C. § 2254(e)(2) does not bar an evidentiary hearing here because Williams
met the requirement that a defendant make “a reasonable attempt, in light of the information
available at the time, to investigate and pursue claims in state court . . . .” Michael Williams,
529 U.S. at 435.    Indeed, prior to requesting an evidentiary hearing before the district court,
Williams sought an evidentiary hearing in his Motion for Relief from Judgment pursuant to
Michigan Court Rule 6.500 before Judge Kenny in state court.
Judge Kenny did not deny Williams an evidentiary hearing because he “failed to develop
. . . the factual basis of his claim . . . .” Robinson, 663 F.3d at 824 (citing Michael Williams,
529 U.S. at 432). Williams was sufficiently diligent in trying to develop the factual basis of his
ineffective assistance of counsel claim in state court, even though he was ultimately unsuccessful
in doing so. Accordingly, 28 U.S.C. § 2254(e)(2) does not categorically bar Williams’ request
for an evidentiary hearing.
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With respect to the issue of whether the district court then abused its discretion in
denying Williams’ request for an evidentiary hearing, the district court did not do so. “[I]f the
record refutes the applicant’s factual allegations or otherwise precludes habeas relief, a district
court is not required to hold an evidentiary hearing.” Schriro, 550 U.S. at 474. “[N]o hearing is
required if the petitioner’s allegations cannot be accepted as true because they are contradicted
by the record [or] inherently incredible.” Arredondo v. United States, 178 F.3d 778, 782 (6th
Cir. 1999).
Here, the district court determined that an evidentiary hearing was unnecessary because it
found implausible “Williams’ argument that he withdrew his plea[] based upon Barnett’s bad
advice about the Prosecution’s [o]ne-[s]hooter Theory.” The district court highlighted two parts
of the record that made Williams’ claim implausible. First, Williams previously explained to the
state courts, on direct appeal, why he withdrew from his plea agreement; this explanation did not
mention erroneous advice regarding the prosecutor’s inability to put forth a “one-shooter”
theory. Second, when Williams’ trial counsel raised the theory during a motions hearing prior to
the commencement of the second trial, counsel told the judge that he was “making it up,” and
that he wouldn’t even “bother to brief it.”
The district court’s decision, bolstered by the aforementioned points, does not amount to
an abuse of discretion. Williams’ ineffective assistance of trial counsel claim is indeed
contradicted by the record in numerous ways. As previously mentioned, Williams earlier
provided an explanation of his plea withdrawal that is at odds with his current argument
premised on bad advice about the one-shooter theory. The district court stated: “If, as petitioner
now claims, his trial counsel had actually advised [Williams] that he should withdraw his pleas
because the prosecution would be stuck with the Prosecution’s [o]ne-[s]hooter Theory at his re-
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trial, [Williams] surely would have pointed that fact out to the state appellate court in his pro se
brief.” Moreover, Barnett’s representations to the trial court suggest that he himself found little
veracity in the advice that he purportedly gave to Williams regarding the one-shooter theory. If
Barnett did not believe this theory had merit, it is unlikely that he would have encouraged
Williams to withdraw from his plea agreement on the basis of it. Taken together, these points
thoroughly support the district court’s determination that William’s claim of ineffective
assistance of counsel, as it relates to purported erroneous advice given by Barnett, was
implausible. Accordingly, we affirm the district court’s decision to deny Williams’ request for
an evidentiary hearing because it was not an abuse of discretion.
2. Williams Was Not Denied Due Process
Williams argues that he was denied due process when the state trial court erroneously
stated that it was procedurally barred from considering his ineffective assistance of counsel claim
related to advice about the prosecution’s mandatory adherence to the one-shooter theory.  For the
reasons that follow, this argument misses the mark.
In rejecting Williams’ ineffective assistance of counsel claim based on trial counsel’s
alleged erroneous advice that the prosecution would be limited to the one-shooter theory at a
second trial, the district court concluded that the state trial court, in denying Williams Rule 6.500
motion, addressed the claim on the merits. The district court further noted that “Judge Kenny did
not unreasonably apply Strickland when he declined to grant relief based on [Williams’] claim
that he withdrew his plea because his trial counsel provided him erroneous advice concerning the
Prosecution’s one-shooter theory.” The district court then proceeded to address the merits, and
in applying AEDPA deference, found that Williams made no offer of proof that he withdrew his
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plea because of counsel’s erroneous advice regarding the one-shooter theory, and thus the trial
court was justified in denying relief on this claim.
Under Sixth Circuit precedent, the district court erred by applying AEDPA deference to
Williams’ claim of ineffective assistance of counsel with respect to trial counsel’s advice
pertaining to the one-shooter theory. See Maples v. Stegall, 340 F.3d 433, 437 (6th Cir. 2003)
(holding that, to the extent no state court had decided the claim in question, the claim would be
subject to de novo review). AEDPA deference was deemed inappropriate in Maples because the
Michigan courts declined to evaluate the merits of the petitioner’s federal ineffective assistance
of counsel claims. Id. at 435-36; see also People v. Maples, No. 196975, 1997 WL 33339368, at
*1 (Mich. Ct. App. Nov. 4, 1997), aff’d, People v. Maples, 584 N.W.2d 738 (1998). Here, Judge
Kenny’s statement regarding the absence of evidence was premised on, and made within the
context of, an ineffective assistance of counsel claim pertaining to a strategy of attacking the
Detroit Police Department’s investigation, not an ineffective assistance of counsel claim
regarding the advice trial counsel gave on the prosecution being limited to the one-shooter
theory. The district court’s holding on this issue was therefore incorrect, and thus, the district
court erred in concluding that Williams’ new ineffective assistance of counsel claim had been
addressed on the merits. When “the state court [does] not assess the merits of a claim properly
raised in a habeas petition, the deference due under AEDPA does not apply.” Maples, 340 F.3d
at 436 (citing Williams v. Coyle, 260 F.3d 684, 706 (6th Cir. 2001)).
However, the consequence of that error is that the claim may be reviewed de novo by this
court – the error does not constitute a denial of due process. As the State correctly notes in its
brief, no authority supports the argument that a procedural mistake by a state court that is later
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erroneously endorsed by the district court amounts to a denial of due process. Therefore, we
affirm the district court’s decision with respect Williams’ due process claim.
3. Williams Was Not Denied Effective Assistance Of Trial Counsel
Williams also maintains that the district court erred in concluding that the state court’s
denial of his ineffective assistance of counsel claims was not an unreasonable application of
Strickland. The Supreme Court has held that defendants have a Sixth Amendment right to
counsel that extends to the plea-bargaining process. Lafler v. Cooper, 566 U.S. 156, 162 (2012).
“During plea negotiations defendants are ‘entitled to the effective assistance of competent
counsel.’” Id. (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). In Hill v. Lockhart,
the Supreme Court held that “the two-part Strickland v. Washington test applies to challenges to
guilty pleas based on ineffective assistance of counsel.” 474 U.S. 52, 58 (1985). The
performance prong of Strickland requires a defendant to show “‘that counsel’s representation fell
below an objective standard of reasonableness.’” Strickland v. Washington, 466 U.S. 668, 688
(1984). To establish Strickland prejudice, a defendant 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. “In the context of pleas a defendant must show the outcome of the
plea process would have been different with competent advice.” Lafler, 566 U.S. at 163 (citation
omitted); see also Hill, 474 U.S. at 59 (“The . . . ‘prejudice,’ requirement . . . focuses on whether
counsel’s constitutionally ineffective performance affected the outcome of the plea process.”).
In Lafler, the Supreme Court further qualified the standard for ineffective assistance of
counsel claims with respect to a defendant’s rejection of a plea, when “[h]aving to stand trial, not
choosing to waive it, is the prejudice alleged.” Lafler, 566 U.S. at 163-64. The Court noted as
follows:
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In these circumstances a defendant must show that but for the ineffective
advice of counsel there is a reasonable probability that the plea offer would
have been presented to the court (i.e., that the defendant would have accepted
the plea and the prosecution would not have withdrawn it in light of
intervening circumstances), that the court would have accepted its terms, and
that the conviction or sentence, or both, under the offer’s terms would have
been less severe than under the judgment and sentence that in fact were
imposed.
Id. at 164.
Applying de novo review, and for the reasons mentioned in Section 1 of this opinion,
Williams has failed to demonstrate that trial counsel was ineffective for advice leading to the
plea withdrawal. The record lacks any evidence that Barnett ever believed the prosecution
would be estopped from pursuing an aiding-and-abetting theory. Furthermore, nothing in the
record suggests that Barnett thought of this argument early enough to advise Williams on it.
Lastly, Williams signed a pleading in state court explaining why he withdrew his plea, and this
pleading wholly fails to mention reliance on erroneous advice from trial counsel regarding a
“one-shooter” or aiding-and-abetting theory.
The evidence in the record refutes Williams’ ineffective assistance of trial counsel claim
as it relates to the plea withdrawal. Accordingly, as Williams has failed to meet the deficient
performance prong of Strickland, we need not analyze the prejudice prong. The district court’s
decision on this issue is affirmed.
4. Williams Was Not Prejudiced By Ineffective Assistance of Appellate Counsel
Williams next argues that his appellate counsel’s performance was deficient because he
failed to raise the claims regarding his trial counsel’s deficient performance on direct appeal.
AEDPA deference applies to this claim because the state court addressed it on the merits. See
Harrington, 562 U.S. at 101. As previously mentioned, this means that a “habeas corpus petition
filed by a state prisoner shall be denied with respect to any claim that was ‘adjudicated on the
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merits in State court’ unless the petitioner can demonstrate that the state court decision was
‘contrary to, or involved an unreasonable application of, clearly established Federal law’ or
involved an ‘unreasonable determination of the facts.’” Kelly v. Lazaroff, 846 F.3d 819, 831 (6th
Cir. 2017) (quoting 28 U.S.C. § 2254). “[T]he state court’s decision must have been more than
incorrect or erroneous.” Wiggins v. Smith, 539 U.S. 510, 520 (2003) (citing Lockyer v. Andrade,
538 U.S. 63, 75 (2003)). Rather, “[t]he state court’s application must have been ‘objectively
unreasonable.’” Wiggins, 539 U.S. at 520-21 (quoting Terry Williams, 529 U.S. at 409).
“AEDPA deference is made more deferential still where the underlying substantive law
requires this court to defer to another reasoned decision-maker on review.” Kelly, 846 F.3d at
831. “Claims of ineffective assistance of appellate counsel are subject to the Strickland test,
which requires a defendant to show both deficient representation and prejudice.” Evans v.
Hudson, 575 F.3d 560, 564 (6th Cir. 2009) (citing Mahdi v. Bagley, 522 F.3d 631, 636 (6th Cir.
2008)). Under Strickland, “counsel is strongly presumed to have rendered adequate assistance
and made all significant decisions in the exercise of reasonable professional judgment.”
466 U.S. at 690. “[T]his is a deferential standard that is challenging for a claimant to meet.”
Kelly, 846 F.3d at 831.
Where a state habeas petitioner’s claims are subject to AEDPA, Strickland’s deferential
standard “is raised even higher, as the petitioner must show that the state court’s application of
Strickland was itself unreasonable.” Id. at 832. This amounts to a “doubly deferential standard
of review that gives both the state court and the defense attorney the benefit of the doubt.” Burt
v. Titlow, 134 S. Ct. 10, 13 (2013) (internal quotation marks omitted). Stated differently,
AEDPA mandates that the court “take a highly deferential look at counsel’s performance through
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the deferential lens of § 2254(d).” Cullen v. Pinholster, 563 U.S. 170, 190 (2011) (internal
quotation marks omitted).
With respect to whether appellate counsel was ineffective for failing to raise on appeal
trial counsel’s inaccurate advice related to the one-shooter theory, Judge Kenny concluded that
the “contention is without merit because the appellate counsel’s decision to winnow out weaker
arguments and focus on those more likely to prevail is not evidence of ineffective assistance.”
Judge Kenny further stated that the court “will not second-guess strategies appellate counsel
employed.” Moreover, Williams did not give the state court or the district court reason to
believe that appellate counsel knew, or should have known, that Williams’ trial counsel gave
erroneous advice regarding the one-shooter theory. Under the doubly-deferential lens of
AEDPA and Strickland, Williams has not demonstrated that his appellate counsel rendered
deficient performance. Williams cannot shift the burden of trial counsel’s possible failings to his
appellate counsel. We therefore affirm the district court’s decision denying Williams’ claim for
ineffective assistance of appellate counsel.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s decision.
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