Willis v. Smith

• Decision Date: 16 December 2003
• Docket Number: No. 02-2445.,02-2445.
• Citation: 351 F.3d 741
• Parties: Barry Anthony WILLIS, Petitioner-Appellant, v. David SMITH, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

351 F.3d 741

Barry Anthony WILLIS, Petitioner-Appellant, v. David SMITH, Respondent-Appellee.

No. 02-2445.

United States Court of Appeals, Sixth Circuit.

Submitted: December 2, 2003.

Decided and Filed: December 16, 2003. Pursuant to Sixth Circuit Rule 206.

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ON BRIEF: Janet A. Van Cleve, OFFICE OF THE ATTORNEY GENERAL, Lansing, Michigan, for Appellee.

Barry Anthony Willis, New Haven, Michigan, pro se.

Before MARTIN and MOORE, Circuit Judges; McKEAGUE, District Judge.^*

OPINION

BOYCE F. MARTIN, JR., Circuit Judge.

Barry Anthony Willis, a pro se Michigan prisoner, appeals a district court judgment dismissing his petition for a writ of habeas corpus filed under 28 U.S.C. § 2254. This case has been referred to a panel of the court pursuant to Sixth Circuit Rule 34(j)(1). Upon examination, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

I.

Following a bench trial in 1995, Willis was found guilty of conspiring to distribute six hundred fifty grams or more of cocaine. The court sentenced Willis to life imprisonment without the possibility of parole and subsequently denied Willis's motion for a new trial. On direct appeal, the Michigan Court of Appeals denied Willis's motion for a remand and affirmed his conviction and sentence. The Michigan Supreme Court denied leave to appeal.

Thereafter, Willis filed a petition for post-conviction relief that asserted several claims. The trial court denied Willis relief on his ineffective assistance of counsel claims, but granted relief on his sentencing claim, making him eligible for parole after serving seventeen and one-half years of his sentence. Willis filed a motion to amend his post-conviction petition in order to assert a new claim alleging ineffective assistance of trial counsel, which the trial court denied because Willis had failed to demonstrate "good cause" under Michigan Court Rule 6.508(D)(3)(a) for failing to assert that claim in his appeal as of right. The Michigan Court of Appeals entered an order dismissing Willis's appeal for lack of jurisdiction, which the Michigan Supreme Court vacated. On remand, the Michigan Court of Appeals considered Willis's application but denied it because Willis had "failed to meet the burden of establishing entitlement to relief under [Rule] 6.508)(D)." The Michigan Supreme Court also denied leave to appeal for the same reason.

Willis then filed the instant section 2254 petition, essentially arguing that: 1) his trial counsel rendered ineffective assistance by advising him to accept a bench trial before a judge who, while presiding over the trial of Willis's brother and co-defendant, Antawn Willis, commented that "I agree with some of what defense counsel['s] theory is going to be — that Barry [Willis] is the big guy — may be the big guy. It sure looks like it from talking to these witnesses;" 2) appellate counsel rendered ineffective assistance by failing to challenge trial counsel's ineffectiveness in his appeal as of right; 3) the Michigan courts improperly failed to allow expansion of the record by way of an evidentiary hearing under Michigan law; and 4) the Michigan Supreme Court violated the Michigan Constitution by failing to give facts and reasons as to why an evidentiary remand was unwarranted. The district court concluded that Willis had procedurally defaulted his first claim and that his remaining claims lacked merit. However, the district court granted Willis a certificate of appealability as to his first and second claims. This court denied him a certificate of appealability on his third and fourth claims. Willis timely filed the instant appeal, reasserting his claims that his trial and appellate counsel rendered ineffective assistance.

II.

This court reviews de novo a district court's disposition of a habeas corpus petition. Harris v. Stovall, 212 F.3d 940, 942 (6th Cir.2000). The district court shall not grant a habeas petition with respect to any claim that was adjudicated on the merits in the state courts unless the adjudication resulted in a decision that: (1) was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the United States Supreme Court; or (2) was based upon an unreasonable determination of the facts in light of the evidence presented to the state courts. 28 U.S.C. § 2254(d).

Upon review, we conclude that the district court properly held that Willis has procedurally defaulted his ineffective assistance of trial counsel claim and that his ineffective assistance of appellate counsel claim lacks merit. "When a habeas petitioner fails to obtain consideration of a claim by a state court, either due to the petitioner's failure to raise that claim before the state courts while state-court remedies are still available or due to a state procedural rule that prevents the state courts from reaching the merits of the petitioner's claim, that claim is procedurally defaulted and may not be considered by the federal court on habeas review." Seymour v. Walker, 224 F.3d 542, 549-50 (6th Cir.), cert. denied, 532 U.S. 989, 121 S.Ct. 1643, 149 L.Ed.2d 502 (2001) (citing Wainwright v. Sykes, 433 U.S. 72, 80, 84-87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Picard v. Connor, 404 U.S. 270, 275-80, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971)); see also Maupin v. Smith, 785 F.2d 135, 138 (6th Cir.1986). We have previously explained that procedural default results where three elements are satisfied: (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. Maupin, 785 F.2d at 138.

The first element is satisfied here because Willis failed to comply with Michigan Court Rule 6.508(D)(3), a state procedural rule applicable to his case. Rule 6.508(D) provides, in pertinent part:

(D) Entitlement to Relief. The defendant has the burden of establishing entitlement to the relief requested. The court may not grant relief to the defendant if the motion ...

(3) alleges grounds for relief, other than jurisdictional defects, which could have been raised on appeal from the conviction and sentence or in a prior motion under this subchapter, unless the defendant demonstrates

(a) good cause for failure to raise such grounds on appeal or in the prior motion, and

(b) actual prejudice from the alleged irregularities that support the claim for relief.

The second element is also satisfied because the state courts enforced Rule 6.508(D)(3) in Willis's case. Willis first raised his ineffective assistance of trial counsel claim in his motion to amend his post-conviction petition. The state trial court denied that motion on the ground that Willis had failed to demonstrate entitlement to relief under Rule 6.508(D), and the Michigan Court of Appeals and Michigan Supreme Court each denied Willis's motion for leave to appeal for the same reason. Finally, Willis's failure to comply with Rule 6.508(D) constitutes an adequate and independent state ground on which to foreclose habeas review because the rule was "firmly established and regularly followed" at the time it was applied in Willis's case. Rogers v. Howes, 144 F.3d 990, 992 (6th Cir.1998). Because all three elements are satisfied, Willis has procedurally defaulted his ineffective assistance of trial counsel claim.

A procedural default may be excused, however, if the petitioner demonstrates "that there was cause for the default and prejudice resulting from the default, or that a miscarriage of justice will result from enforcing the procedural default in the petitioner's case." Seymour, 224 F.3d at 550; see also Coleman v. Thompson, 501 U.S. 722, 749-50, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Willis apparently relies on his appellate counsel's failure to raise this claim on direct appeal as cause to excuse the default. Attorney error may constitute cause if it rises to the level of constitutionally ineffective assistance of counsel. Gravley v. Mills, 87 F.3d 779, 785 (6th Cir.1996). In order to succeed on a claim of ineffective assistance of appellate counsel, a petitioner must show that his "counsel's representation fell below an objective standard of reasonableness" and that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also McMeans v....