Antonio Terrance COLEMAN, Petitioner-Appellant, v. David BERGH, Warden, Respondent-Appellee.
No. 14-1459
United States Court of Appeals, Sixth Circuit.
Oct. 27, 2015.
817 F.3d 816
For these reasons, I dissent from Section IV of this panel‘s decision. Original jurisdictiоn properly lies in this court, not in the district court.
Before: DAUGHTREY and CLAY, Circuit Judges; ECONOMUS, District Judge.*
OPINION
MARTHA CRAIG DAUGHTREY, Circuit Judge.
Antonio Terrance Coleman, a Michigan state prisoner proceeding pro se, appeals the district court‘s judgment denying his petition for a writ of habеas corpus that Coleman filed pursuant to
The factual background and the proceedings in Coleman‘s case have been set out on several occasiоns. He was convicted by a jury on charges of armed robbery, felon-in-possession of a firearm, and possession of a firearm in the commission of a felony and was sentenced to 22-32 yeаrs in prison. People v. Coleman, No. 268770, 2007 WL 1791694, at *1 (Mich.Ct.App. June 21, 2007). Shortly after sentencing, Coleman filed the pleading at issue here, a pro se motion for a new trial, which was denied. His direct appeal was unsuccessful, аs was his motion for leave to appeal his conviction to the Michigan Supreme Court. People v. Coleman, 480 Mich. 926, 740 N.W.2d 251 (2007). Coleman then filed a motion for relief from judgment, Michigan‘s post-conviction vehicle. In it he argued, among other things, that he had received ineffective assistance of counsel when his appellate attorney failed to argue that he was allowed to proceed without counsel at the hearing on his motion for a new trial. The state trial judge denied Coleman‘s motion for relief from judgment, pointing out that he had warned Coleman against proceeding without the aid оf counsel, albeit at the end of the hearing rather than the outset. The Michigan Court of Appeals and the Michigan Supreme Court denied leave to appeal. People v. Coleman, 491 Mich. 886, 809 N.W.2d 587 (2012).
Coleman then filed а petition for a writ of habeas corpus in federal court, raising various claims. The district court denied relief on the merits and declined to issue a COA. However, we subsequently granted review on Coleman‘s claim that his appellate attorney was constitutionally ineffective “for failing to argue that Coleman had a right to counsel at pre-appeal evidentiary hearing on his motion for a new trial and whether Coleman waived that right.”
As a threshold procedural matter, we note that the hearing in question was not “evidentiary” in nature. Shortly after sentencing, Coleman filed thе motion for a
Significantly, in the brief filed on appeal, appointed counsel did not raise any of the claims set out in his client‘s pro se motion for a new trial, most likely because, as previously noted, they were completely without merit. But, counsel also did not raise one of the issues that Coleman later includеd in his state post-conviction litigation, which is the subject of the COA in this case: whether the state trial court committed constitutional error in letting Coleman appear pro se at the hearing on his motion for a new trial without securing a valid waiver of the right to counsel and whether it was ineffective assistance by appellate counsel to fail to raise the issue on direct аppeal. Thus, the state court of appeals never had the occasion to rule on the issue, and the only reasoned opinion to discuss it came from the state trial court in ruling оn Coleman‘s post-conviction motion for relief from judgment. The trial judge held that the claim had no merit because he had warned Coleman not to proceed without counsel at the end of the hearing on the motion for a new trial.
Coleman next filed his habeas petition in federal court, raising several issues, including his claim that he had been deprived of counsel at the post-trial hearing. The district court held that the claim was meritless, “because a court is only required to warn a defendant of the dangers of self-representation when he seeks to represent himself at trial, but not on appeal,” citing Martinez v. Court of Appeal of California, 528 U.S. 152, 161-63, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000). The Martinez case does stand for the proposition that the Sixth Amendment right to counsel at trial does not extend to appeals, which might leave us to deсide whether a hearing on a motion for a new trial is, as the state describes it, a “pre-appeal” process not covered by the Sixth Amendment or, instead, merely a stage of the triаl at which counsel is guaranteed. In the latter situation, a criminal defendant intent on self-representation at trial must not only be warned of the risks entailed in proceeding without counsel, Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), but must also enter a valid waiver of counsel—one that is knowing, voluntary, and intelligent. See Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).
Fortunately, we do not have to decide this issue on the basis of semantics, i.e., whether the hearing at issue was “post-trial” or “pre-appeal.” The Supreme Court has told us repeatedly that the Sixth Amendment right to counsel attaches only to “critical stages” of a criminal prosecution and trial. Sеe, e.g., Iowa v. Tovar, 541 U.S. 77, 80-81, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004). Thus, the dispositive question here is whether the hearing on a motion for a new trial is a “critical stage” of a criminal prosecution. Because Coleman‘s claim is brought under
The starting point for cases subject to
§ 2254(d)(1) is to identify the “clearly established Federal law, as determined by the Supreme Court of the United States” that governs the habeas petitioner‘s clаims.1 See Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Knowles v. Mirzayance, 556 U.S. 111, 112, 129 S.Ct. 1411, 173 L.Ed.2d 251 (2009).
Marshall v. Rodgers, — U.S. —, 133 S.Ct. 1446, 1449, 185 L.Ed.2d 540 (2013). And, as the Court has recently reiterated, “[C]learly established Federal law for purposes of
As it turns out, the Supreme Court has never held that a hearing on a motion for a new trial is a critical stage of a criminal proceeding. Indeed, in Marshall, the Supreme Court was presented with the opportunity to rule that such a “post-trial, preappeal motion for a new trial is a critical stage of the prosecution” but specifically declined to do so, saying that “[t]he Court expresses no view on the merits of the underlying Sixth Amendment principle the respondent urges,” i.e., that the motion for a new trial constitutes a critical stage of the proceedings. 133 S.Ct. at 1449, 1451.
As a result, for purpоses of a prisoner‘s request for habeas relief under