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United States Court of Appeals, Sixth Circuit.

BRION MCCONNELL, Petitioner-Appellant, v. JEFFREY WOODS, Warden, Respondent-Appellee.

No. 16-1437

Decided: November 14, 2016


Brion McConnell, a Michigan prisoner proceeding pro se, appeals the district court's judgment denying his 28 U.S.C. § 2254 habeas corpus petition. This court construes the notice of appeal as an application for a certificate of appealability (COA). See Fed. R. App. P. 22(b)(2). McConnell also moves to proceed in forma pauperis. See Fed. R. App. P. 24(a).

In 2007, McConnell pleaded no contest to second-degree murder, two counts of armed robbery, and possession of a firearm during the commission of a felony. The trial court sentenced McConnell to two concurrent 18-to-28-year terms of imprisonment and a consecutive two-year term of imprisonment. After sentencing, McConnell filed a motion to withdraw his plea, which the trial court denied. On direct appeal, McConnell argued that the trial court improperly denied his motion to withdraw his plea and that trial counsel was ineffective. The Michigan Court of Appeals and Michigan Supreme Court denied leave to appeal. People v. McConnell, 769 N.W.2d 683 (Mich. 2009) (order).

McConnell filed a motion for post-conviction relief in state court, raising seven of his eventual federal habeas claims. The trial court denied relief pursuant to Michigan Court Rule 6.508(D)(3), holding that the claims were barred because McConnell should have raised them in his direct appeal. The Michigan Court of Appeals and the Michigan Supreme Court again denied leave to appeal.

McConnell filed a § 2254 habeas corpus petition claiming that: (1) the trial court abused its discretion when it denied his motion to withdraw his plea in light of trial counsel's ineffective assistance; (2) he was denied due process when the court improperly coerced him into pleading no contest; (3) he was denied the effective assistance of trial counsel due to a breakdown in the attorney-client relationship; (4)(a) his plea was not knowingly, voluntarily, or intelligently made due to being premised on an illusory bargain, and (b) trial counsel was ineffective for failing to adequately advise him regarding the plea offer, including that he was not given enough time to consider the plea offer prior to signing; (5) trial counsel was ineffective for failing to suppress a suggestive in-court identification; (6) trial counsel failed to move to suppress his confession; (7) trial counsel failed to obtain an expert on eyewitness identification; and (8) trial and appellate counsel's ineffectiveness should excuse his procedural default. The district court denied McConnell's fourth claim as meritless and the reminder of his petition as procedurally defaulted.

A COA may issue when an “applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Under the Antiterrorism and Effective Death Penalty Act, the district court may not grant habeas relief on a claim that was adjudicated on the merits in state court “unless the state court's decision ‘was contrary to, or involved an unreasonable application of, clearly established Federal law,’ meaning Supreme Court precedent, or ‘was based on an unreasonable determination of facts in light of the evidence presented’ during the state court proceedings.” Railey v. Webb, 540 F.3d 393, 397 (6th Cir. 2008) (quoting 28 U.S.C. § 2254(d)(1)-(2)).

For a plea to be constitutionally valid, there must be “an affirmative showing that it was intelligent and voluntary.” Boykin v. Alabama, 395 U.S. 238, 242 (1969). McConnell entered a no contest plea pursuant to a plea agreement. McConnell represented that his plea was offered freely, voluntarily, and in the absence of any force or threat. The trial court provided McConnell an opportunity to review the “special considerations” incorporated into the agreement. McConnell indicated that, despite his use of glasses, he was able to see, read, and understand the contents of the special considerations. Reasonable jurists would not debate the district court's determination that the state court's ruling was not an unreasonable application of clearly established federal law. See id.

McConnell also argues that he pleaded no contest as a result of trial counsel's erroneous advice that he would not be required to testify against his co-defendants and that he would be eligible for good-time credits in prison. A defendant who enters a plea must have “sufficient awareness of the relevant circumstances and likely consequences.” Brady v. United States, 397 U.S. 742, 748 (1970); see Hart v. Marion Corr. Inst., 927 F.2d 256, 257 (6th Cir. 1991). The Supreme Court has held that where “the defendant was not fairly apprised of [a plea agreement's] consequences,” the plea can be attacked under the Due Process Clause. Mabry v. Johnson, 467 U.S. 504, 509 (1984).

To establish ineffective assistance of counsel, a habeas petitioner must show both deficient performance and prejudice under Strickland v. Washington, 466 U.S. 668, 687 (1984). “[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” Id. at 697. To establish prejudice in the context of a no contest plea entered on the advice of counsel, a petitioner must show that there is a reasonable probability that, but for counsel's error, he would not have pleaded no contest and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985); Premo v. Moore, 562 U.S. 115, 129 (2011). “The test is objective, not subjective; and thus, ‘to obtain relief on this type of claim, a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances.’ ” Pilla v. United States, 668 F.3d 368, 373 (6th Cir. 2012) (quoting Padilla v. Kentucky, 559 U.S. 356, 372 (2010)). An assessment of whether a defendant would have proceeded to trial “will depend largely on whether the affirmative defense likely would have succeeded at trial.” Hill, 474 U.S. at 59; see Maples v. Stegall, 340 F.3d 433, 440 (6th Cir. 2003).

McConnell argues that if counsel had advised him that he would be required to testify against his co-defendants and that he was ineligible for good time credits in prison, he would not have pleaded no-contest. Rejecting the plea agreement in this case, however, means proceeding to trial on first-degree-murder charges for killing an off-duty police officer—a crime to which McConnell had already confessed. McConnell's defense at trial would have been that he did not remember what happened due to an alcoholic blackout. Because a decision to reject the plea agreement and proceed to trial on this defense would not be objectively rational under the circumstances, reasonable jurists would not debate the district court's conclusion that McConnell was not entitled to habeas relief on this issue.

The district court concluded that McConnell's remaining claims were procedurally defaulted. Where a habeas petition is denied on procedural grounds, “a COA should issue when the prisoner shows ․ that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484. A petitioner may overcome procedural default by demonstrating cause and prejudice for failing to follow the procedural rule or that a fundamental miscarriage of justice will result. Coleman v. Thompson, 501 U.S. 722, 750 (1991); Nields v. Bradshaw, 482 F.3d 442, 451 (6th Cir. 2007); Maupin v. Smith, 785 F.2d 135, 137-138 (6th Cir. 1986).

McConnell's habeas claims one through three and five through eight were first presented to the state court in his motion for post-conviction relief. The state court rejected these claims as procedurally barred by Michigan's rule that bars review of post-conviction claims that could have been raised on direct appeal but were not. See Mich. Ct. R. 6.508(D)(3)(b). Rule 6.508(D)(3) is an adequate and independent state ground upon which the state can rely to foreclose review. See Amos v. Renico, 683 F.3d 720, 733 (6th Cir. 2012). Thus, McConnell must demonstrate cause and prejudice to excuse his default.

McConnell blames trial and appellate counsel's ineffectiveness as the cause for his defaults. However, before a claim of ineffective assistance of counsel can serve as cause to excuse the procedural default of another constitutional claim, that ineffective-assistance claim must have been presented to the state courts as a stand-alone claim and must not have been procedurally defaulted. Edwards v. Carpenter, 529 U.S. 446, 451-52 (2000); see Murray v. Carrier, 477 U.S. 478, 489 (1986).

McConnell's ineffective assistance of trial counsel claims were presented as stand-alone claims, but were subject to procedural default. Thus, they cannot be used to excuse the procedural default of other constitutional claims. See id. McConnell's ineffective assistance of appellate counsel claims were not presented as stand-alone claims. Therefore, appellate counsel's alleged ineffectiveness cannot excuse McConnell's procedural default. In any event, review of the record reveals that appellate counsel did not omit any arguments that were “clearly stronger than those presented” on direct appeal. Monzo v. Edwards, 281 F.3d 568, 579 (6th Cir. 2002). In the absence of cause to excuse the procedural default or a showing of actual innocence, reasonable jurists would not debate the district court's procedural ruling.

Accordingly, we DENY McConnell's application for a COA and DENY as moot his motion to proceed in forma pauperis.


Deborah S. Hunt, Clerk