Cortez Miller v. Dennis M. Straub, Warden, Kermit Eldridge Haynes v. Luella Burke, Warden, Saginaw Correctional Facility

Haynes, Eldridge Kermit Prior Defendant’s Convictions C. Petitioner-Appellee, argues the defendant Finally, v. required have been should government Burke, Warden, Saginaw submit Luella convictions prior evidence Facility, Re recidivism Correctional in order to establish jury spondent-Appellant. However, the doubt. beyond a reasonable that the existence law is still well-settled 00-2150, Nos. 00-2163. and their effect on a de convictions prior Appeals, United States Court of are matters to be deter sentence fendant’s Sixth Circuit. court. United by the district See mined (6th Gatewood, F.3d Cir. States Argued: 2001. Oct. banc) 2000) (en (Apprendi explicitly ex Aug. Decided Filed: from those factors prior convictions empts Rehearing for Rehearing Suggestion jury beyond to the proven must be En Banc Denied: Oct. 2002.* doubt). reasonable CONCLUSION above, set out we AF-

For the reasons conviction for con-

FIRM the defendant’s However, distribute cocaine.

spiracy to order

we VACATE case to the district court

REMAND the resentencing conformity with this

opinion. MILLER, Petitioner-Appellee,

Cortez STRAUB, Warden,

Dennis M.

Respondent-Appellant. ment, requested jury making might instruction not have established the existence of kilograms beyond jury any of cocaine specific need not more than five clear that find reasonable doubt. drug determining amount when Cleaves’s guilt. prose- Boggs grant rehearing requesting * Judge the instruction the would for the expressed he cutor himself concern that reasons stated in his dissent.

John R. Minock (argued briefed), and Minock, Arbor, MI, Cramer Ann for Peti- tioner-Appellee in 00-2150. (briefed), Susan Meinberg M. Marla R. briefed), (argued McCowan State Ap- Office, pellate Detroit, MI, Defender for Petitioner-Appellee in No. 00-2163. M. (argued Thomas Chambers briefed), Office of the Prosecuting Attor- ney, County Detroit, MI, Wayne, Vin- Leone, Gen., cent J. Attorney Asst. Office law: General, sentence under Corpus able adult Attorney Habeas parole. MI, possibility without Respondents- prison life Division, Lansing, trial counsel 00-2150, Haynes’ Miller’s nor Neither Nos. 00-2163. Appellants respective or advised their considered GILMAN, BOGGS, Before clients that Judges.** BRIGHT, Circuit juvenile of a sentence. imposition for writs Haynes petitioned and Miller J., opinion of the BRIGHT, delivered corpus, and the federal district of habeas GILMAN, 583-585), (pp. J. court. that the failure of their court1 concluded concurring opinion. separate delivered them of the attorneys to inform defense 585-588), BOGGS, delivered a (pp. J. appeal, particularly prosecutor’s right dissenting opinion. separate of the youth at the time light of constituted ineffective assistance pleas, OPINION The cоurt further concluded counsel. BRIGHT, Judge. Circuit the facts and contrary determination on Michigan state cor- of two The wardens by Michigan Appeals Court of the law appeal a federal dis- rectional institutions application of constituted an unreasonable grant conditional of habeas trict law deter- clearly federal established courts Her- Cortez Miller and corpus prisoners Supreme mined the United States ground of ineffective Haynes mit on 362, Taylor, v. 529 U.S. Court Williams Miller Haynes counsel. and (2000); assistance of 1495, 389 120 S.Ct. 146 L.Ed.2d serving life sentences with- currently are Lockhart, 474 Hill v. U.S. guilty to first parole pleading after (1985);

out L.Ed.2d 203 and Strickland 88 degree murder. Washington, v. (1984). Accordingly, 80 L.Ed.2d 674 Haynes and were fifteen In separately granted court Miller’s old, Each, years respectively. and sixteen cor- Haynes’ petitions for writs of habeas on of his own defense the advice pus ground on the of ineffective assistance guilty Michigan state court to first appeal. The wardens After of counsel.2 attorneys believed degree murder. Their of the records the two careful review likely impose that the trial court would cases, AFFIRM the district court. we

juvenile The trial сourt did sentences. case, juveniles. In them as each sentence I. BACKGROUND appealed Michigan and the prosecution Kermit and Cortez Miller are reversed. Miller and by the state of only youths3 charged then received the avail- two of six Haynes each ** analyzed similarly. Myron Bright, Cir- the two cases The Honorable H. Senior that, cases, Ap- States Court of court ordered cuit United both the district Circuit, peals Eighth sitting by desig- days Michigan for the within 120 unless took action trials, they nation. Miller and new afford ordering apply for writs their forthwith Hood, Page 1. The Honorable Denise United custody. from release States District Court for the Eastern Michigan. District of boys trial'on 3.Two of the four other faced degree felony charges first murder and published only opinion. See 2. The court one armed; Burke, assault with to rob while intent F.Supp.2d boys pled guilty (E.D.Mich.2000). guilty. Two were found not opinion is un- other Straub, degree "murder and assault with published, to second see Miller No. 98-CV- 31, 2000), (E.D.Mich. They were sen- Aug. rob armed. 74655-DT but the intent to while Benja- with the murder of punishable by a maximum sentence of life min Gravel. The charged Haynes state imprisonment without parole. The court and Miller each with degree first felony described the situation to Miller: “the murder, assault with intent to rob while hope that you [have] in this plea is if I armed, possession during of a firearm you decide treat as a for the commission of a felony. purpose disposition. You heard [the prosecutor] say that they are going to A. Miller’s Plea want to lengthy hold a disposition hearing, On March Miller pled guilty you do understand that?” Miller stated before Chief Roberson of the Re- understood, that he specifically ac- corder’s Court for City of Detroit. He knowledged that he was “taking that years was fifteen old the time. at At the chance.” plea hearing, the court questioned Miller The court questioned then Miller briefly as to whether he understood that if he as to the factual basis plea. his for Miller guilty, “only his hope” to avoid mandatory stated that part he was of a group that imprisonment life lay convincing the decided steal a car. Sometime before court juvenile. to treat him as a the crime gave he Haynes gun a knowing answered that he understood. Miller’s Haynes planned that use it to steal a mother, who present was at the plea hear- car. Miller acknowledged knowing the in- ing, stated that Miller’s plea had been danger herent to life a when car taken is discussed with her and that she under- gunpoint. stood that judge the might sentence her son juvenile as a or as an adult.4 The Over the course of the year, next Chief prosecutor advised the court that his office Judge Roberson held several hearings on would request that the court sentence Mil- disposition the of Miller’s sentence. On ler as an adult. 22, 1991, February Miller’s counsel made closing arguments

The court court questioned then the at the Miller. Mil- final hearing ler affirmed that he Miller’s case. At making plea hearing, was his that freely, understanding^, prosecutor the voluntarily. announced if the court He acknowledged an understanding of sentenced Miller juvenile as a prosecu- rights various trial he was foregoing by appeal.5 tion would On June pleading guilty. Miller affirmed his un- court sentenced Miller to confinement in a derstanding that first degree murder juvenile institution age twenty-one. until juveniles. juvenile tenced as Those sentences 5. A 1988 Michigan statutory amendment to upheld by Michigan Ap- Court of granted Michigan prosecutors law an Brown, peals. People Mich.App. judgment from ''[a] final or final (1994). 517 N.W.2d 806 order of the ... court” recorder’s in criminal (as Comp. cases. § Mich. Laws Ann. 770.12 time, Under law at that the trial amended, 66). Mich. Pub. 1988 No. Act court had discretion to determine whether 1989, Michigan November Ap- Court of juveniles degree convicted of first murder peals published a decision in which it con- juveniles should be sentenced as or as adults. prosecutors strued the amendment to allow Comp. (1990). See § Mich. Laws Ann. 769.1 right. criminal People sentences as of Michigan legislature amended the statute Reynolds, Mich.App. 448 N.W.2d in 1996 to remove this discretion. See Mich. (1989). juveniles Pub. Act 1996 No. 247. All convict- degree ed of first murder are now mandatori- ly sentenced as Comp. adults. See Mich. (2001). § 769.1(g) Laws Ann.

' part he shot at the car as of his mitted that Haynes’ Plea B. it. attempt to steal Haynes pled guilty March On year, of the next Chief Over the course him, against also before charges to all hearings held several on Judge Roberson He was sixteen Roberson. Chief On disposition Haynes’ sentence. hearing, At plea time. at the years old 28, 1991, the court sentenced August Rice, stated that he Wilfred his Haynes to confinement in insti- Haynes the matter had discussed age twenty-one. tution until Haynes, acqui- with the family and father, wanted enter of his escence Post-plea Events C. charged. Rice stated that as plea Roberson ordered After Chief Haynes understood juvenile, adult or that Miller and be sentenced as him as an as sentence juveniles, prosecutor appealed understood that each and affirmed attempt appeals to convince sentence.6 The state court of re would Roberson that should versed on each defendant and remanded Chief imposition an adult. of the adult sentence: man be sentenced datory imprisonment parole life without on Haynes directly questioned The court degree charge. People the first murder that, if he whether understood about he Miller, Mich.App. 503 N.W.2d 89 only option you “the have pled guilty, (1993); Haynes, n People Mich.App. case, you only escape have this the (1993). The 502 N.W.2d 758 state life, prosecu- the mandatory [is] terms of supreme ap court denied the defendants’ you to treat as an tion can’t convince me plications for leave to those results. that he understood. Haynes adult.” stated On remand before Chief Rober- had talked to his that he Haynes stated son, the defendаnts moved to withdraw guilty plea. He affirmed parents about his guilty pleas evidentiary their and for hear- being plea coerced into his that he was Haynes ings on those motions. and Miller plea freely, made his under- and that he alleged guilty pleas each had voluntarily. He also af- standingly, and involuntary been due to ineffective assis- trial an awareness of the various firmed asserted, They tance of trial counsel. foregoing by pleading guilty. rights he attorneys’ other that their among things, prosecutor failure to inform them that the Haynes brief- questioned The court then imposition the of a for ly plea. the factual basis about constituted sentence ineffective assistance in the Haynes boys that other stated granted of counsel. The court the motions branch group a tree into the street pulled evidentiary hearings. victim, stop. cars to When the force Gravel, prosecutor applied car in front of the tree The to the state stopped his branch, appeals ran out to the car intend- court of for leave to file an inter- Haynes carrying locutory appeal granting it. He was hand- orders evi- ing to steal given Haynеs dentiary hearings. Michigan had him. As The Court of gun Miller car, Mich- pulled away application. and he denied the The approached Court, in Haynes specifically igan Supreme granting fired at the car. ad- lieu However, appealed Haynes' timely appeal. sentence did not file the prosecutor The Appeals granted prose- by right. appeal in Miller’s case was not Court of The application appeal. for leave to as a matter of because the cutor's appeal, leave to vacated the trial court’s granting evidentiary hearings orders Q you Did any have idea that pro- Haynes and directed and Miller be any section had option [sic] other be- sentenced “forthwith” as adults “without sides that hearing had in

prejudice subsequent consideration of front of the Judge? plea[s] ‍​​‌‌​​​​‌‌‌​‌‌‌​​‌​‌‌‌‌​‌‌‌​​​‌‌​‌​​​‌​​​‌​​​‌‌​‍to withdraw the motion[s] [Haynes] No. Miller, guilty.” People v. 527 N.W.2d 513 (Mich.1994); People Haynes, 447 Mich. Haynes at J.A. 176-77. (1994). 1021, 527 N.W.2d 512-13 Haynes also stated that he was innocent On December Chief Ro- of degree first murder because he did not imposed

berson sentences of life imprison- intend to harm anyone. Contrary to his possibility parole. ment withоut testimony at original plea hearing, subsequently separate held eviden- Haynes denied shooting at the car. He tiary hearings on and Haynes’ Miller’s mo- claimed that at plea hearing he was guilty pleas. tions to withdraw their “under advisement” of his attorney say only was the witness at his evi- that he shot the car. dentiary hearing.7 Haynes testified that We turn to Miller’s further proceedings. counsel, Rice, he talked with his Wilfred At evidentiary hearing on Miller’s mo- twice in guilty the three weeks before his tion to withdraw his plea, Miller’s plea. thirty Each visit lasted less than Lusby, Charles testified. He minutes and each centered on Rice’s ad- stated that he did trial work and vice that plead guilty before Chief never appeals. handled Lusby testified Roberson. testified that he that he considered abandonment to be a was hesitant plead guilty, but that Rice possible defense for Miller because when repeatedly told him that it was in his gave gun the Haynes Miller to he was plead interest before Chief Ro- deferring to boys the older group. berson, where he would great “have He testified “practically that Miller totally chances of being juvenile.” sentenced as a advice, on his and that reified]” he con- Haynes testified that Rice never told parents, vinced Miller’s who also relied on that, him even if Chief Roberson him, pleading that guilty was Miller’s juvenile, sentenced him as a prosecutor best interest. could still appeal that sentence and an Lusby stated that Miller was “reluctant” appellate court could impose an adult sen- to plead guilty, but that he “prevailed upon parole. Haynes tence life without stat- him,” by telling him likely he would be ed that he would not have guilty had juvenile. as a Lusby sentenced testified he known this. that, upon based his familiarity with the Q your So what is understanding you if juvenile sentencing process, he believed plead guilty you made it through Chief would Roberson sentence Mil- sentencing hearing you could juvenile. ler as a Lusby considered his convince judge you to sentence advice that Miller guilty to first de- juvenile, you did think there was gree “extraordinary.” murder to be anything after that?

[Haynes] No. Besides the fact that I’d Lusby admitted that his considerations going juvenile

be facility]. [a in formulating this advice did not include Rice, Haynes’ trial plea. Wilfred died before moved to withdraw his seventy-five what the trial court when was killed he was beyond Gravel any faсtor yards running away. from the car and would do. Contrary to the statements he made at his to Mr. Q formulating your In advice that there had plea hearing, Miller stated Miller, you take into account the did plan no to take a car and that he did been had since I prosecutor fact [that] planning not know what was to do appeal believe 1988 the sen- gave gun. when he him the He did not tence? part robbery. intend to take No, I [Lusby] did not. October, 1995, In court deter- that, Q you stop Did to consider did it Haynes’ guilty mined that Miller’s and you? occur to pleas voluntary, knowing, had not been [Lusby] That didn’t occur me at all. intelligent due to ineffectiveness of Q you possible Did discuss that risk granted trial counsel. The court each his with Mr. Miller? guilty plea. motion to withdraw his I [Lusby] things discussed a lot of Appeals granted Court of leave him, not one them. It but prosecutor appeal to the those orders. prosecutor didn’t occur to me that the In addressing a consolidated decision it, appellate would do nor that Haynes’ along Miller’s and with an- cases court would reverse decision. similarly other appellant, situated Dash- Miller J.A. 254-55. Lyons,8 appeals awn court reversed Lusby testified thаt he recalled the also People Haynes (After the trial court. prosecutor stating closing argument in his Remand), 221 Mich.App.551, 562 N.W.2d sentencing hearing at the that he would (1997). The court determined that the received a sen- Miller record showed Miller and Lusby explained tence. that Miller “was at the they pled guilty aware time statement, struck” prosecutor’s but they might be sentenced as adults to man- “I think I him I think [the told didn’t datory imprisonment terms of life without prosecutor] would be successful.” addition, possibility parole. Miller testified. He also stated prosecutor’s closing argu- knew from the Lusby when advised him to plead guilty, ment at his final disposition Lusby did not tell him that hearing that the prosecution appeals and the court of Miller received a sentence from authority had the to overturn Chief Despite knowledge the trial court. the that, Roberson’s decision. Miller stated had, each Miller and Haynes pled guilty known, had he he would not have pleas and did not move to their withdraw guilty. until after the conclusion the Therefore, Regarding plea, regarding the factual basis for his sentences. concluded, Miller stated that the version of the facts court and Miller under- gave he рlea hearing consequences pleas, at the was inaccurate: of their and stood “I was speaking upon pleas knowingly, the elements that were understanding- my lawyer told Haynes (After speak ly, voluntarily me to on as far as and made. Remand), 246, degree first murder.” Miller stated that 562 N.W.2d at 248. The Lyons petitioned corpus Lyons by 8. also for a writ of habeas relief to the district court. corpus opin Jackson, in federal district court. In an (6th Lyons v. See 297 F.3d 588 Cir. contemporaneously opin ion filed with this 2002). ion, grant we have affirmed the of habeas

577 Michigan Supreme Court Miller tion” prong denied of this statute. None of the appeal. and leave to parties argue that the federal district court inquired should have whether the Michi- Haynes petitioned Miller and the federal gan Court of Appeals decision was “con- district corpus. court writs of habeas trary clearly to” established federal law. writs, granted ordering The court proceed, therefore, We under the “unrea- be released unless application” sonable prong of 28 U.S.C. given trials. The district court con- 2254(d)(1). § cluded Haynes’ that Miller’s and counsel were in failing ineffective to advise 362, v. Taylor, Williams 529 U.S. 120 them of prosecutor’s right 1495, appeal.9 (2000), S.Ct. 146 L.Ed.2d 389 result, As a Miller and Haynes had not Supreme Court elucidated the terms of 28 2254(d)(1). pled guilty voluntarily or knowingly. First, § The U.S.C. the Court ex- appealed wardens to this court. plained “clearly established Federal law, by as Supreme determined Court”

II. DISCUSSION refers to the Court’s holdings, opposed dicta, at the time of the relevant state Corpus A. Review Habeas 412, court Id. decision. 120 S.Ct. 1495. Provisions of the Antiterrorism and Ef- Second, explained the Court that a state (AEDPA) Penalty fective Death Act codi- court unreasonably decision applies Su- 2254(d) § fied at 28 govern U.S.C. our preme (1) precedent by Court either: review of the state court decisions in this identifying correct governing legal rule corpus habeas case. Supreme from precedent but unrea- (d) application An for a writ of habeas sonably facts; (2) it to the applying or corpus on behalf of a person custody unreasonably extending legal principle pursuant judgment to the of a State Supreme from Court precedent to a new granted shall not be respect context it should not apply where or un- any adjudicated claim that was on the reasonably refusing to extend that princi- merits State court proceedings unless ple to a new context where it apply. should adjudication of the claim— 407, Id. at Finally, S.Ct. 1495. (1) resulted in a decision that was application Court declared that the of law to, contrary or involved an unreasonable unreasonable, objectively must be id. at of, application clearly Feder- established and not merely incor- law, al as determined the Supreme rect or Id. at erroneous.10 Court of the United Statesf.] 2254(d)(1). § 28 U.S.C. B. Ineffective Assistance of Counsel The federal district court considered Haynes’ petitions Lockhart, Miller’s for habeas In Hill v.

corpus (1985) under the appliea- “unreasonable L.Ed.2d court, and, Haynes alleged federal district legal oth- mon term in world accordingly, 9. grounds er for ineffectiveness of counsel. judges federal are familiar with its meaning.” court, having granted That relief based on 410, 529 U.S. at 120 S.Ct. 1495. This circuit Haynes’ counsel’s failure to advise of the him "rely has stated we solely on the Su prosecutor’s right appeal, did not address preme Court’s decision in Williams for Burke, those claims. v. 115 2254(d).” ‍​​‌‌​​​​‌‌‌​‌‌‌​​‌​‌‌‌‌​‌‌‌​​​‌‌​‌​​​‌​​​‌​​​‌‌​‍appropriate § standard under Har 813, (E.D.Mich.2000). F.Supp.2d 819-20 Stovall, 940, (6th v. ris 212 F.3d 943 Cir. 2000); Francis, 609, accord v. 269 F.3d Supreme 10. Court in acknowl- Williаms (6th Cir.2001). 614 & n. 1 Other circuit edged difficulty defining the term "un- attempted greater courts that have clarifica- reasonable,” explained but that "it is a com- 578

Strickland, 668, errors, Washington, 466 would not [the defendant] v. U.S. sel’s 2052, (1984), 80 L.Ed.2d 674 pleaded guilty 104 S.Ct. have and would have insist- applicable 59, set out the law Court at Supreme going ed on to trial.” Id. 106 S.Ct. of claim assistance counsel to an ineffective 366. by Haynes. made Miller and as that such of Although Michigan Appeals clearly es- and Strickland Both Hill did not mention either Hill or Strickland by the law as determined tablished federal name, by apply it did the law of those at the time the final of Supreme Court Thus, we must examine whether cases.11 Appeals of decision Michigan Court un- applied that court Hill and Strickland Williams, 391, 406, at 1997. See reasonably. (referring to Strickland as 120 1495 emphasize We that Hill and Strickland at the time “clearly precedent” established Rely- state the relevant law this case. decision). Virginia state court’s 1997 of cases, ing string on a of circuit court Strickland, a defendant Under argue wardens that defense counsels’ fail- ineffective assistance of counsel claiming to inform Miller and ure of the deficient performance must show both right to prosecution’s imposition prejudice to the defendant counsel of a not comprise sentence does

resulting performance. from deficient ineffective prosecu- assistance because the 687, 2052. be 466 U.S. at 104 S.Ct. To appeal represents tor’s of collater- deficient, performance counsel’s must fall al, direct, opposed to a of consequence objective below an standard of reasonable reject plea. argument We this on two Hill, 687-88, 2052; at ness. Id. grounds. Hill, 58-59, 474 366. In U.S. at First, the to the wardens’ reliance on cir applied plea which Strickland context, cuit court improper. that a defen cases is The AEDPA explained the Court by demonstrating “a of prejudice dant shows use lower decisions prohibits that, probability determining reasonable but coun- whether the state court deei- divergent widely appeals recognized views on tion have come to The court of that a meaning Compare of “unreasonable.” of whether determination Miller’s and Stone, (2d S. v. 221 F.3d 111 Francis Haynes' guilty pleas knowingly were made Cir.2000) (stating ap that an "unreasonable voluntarily turned on whether their attor- рlication" requires of “[s]ome increment in neys' range compe- advice was “within the of error,” beyond “the correctness but incre attorneys tence demanded of in criminal otherwise, great; ment need not be habeas Remand), Haynes (After cases.” 562 N.W.2d relief would to state court be limited decisions equivalent 250. This is the suggest judicial 'so far off the mark as Hill, performance inquiry in Strickland. See ”) incompetence' (quoting Superin Matteo v. (equating 474 U.S. at 106 S.Ct. 366 tendent, Albion, (3d SCI 171 F.3d 889 performance inquiry Strickland's with con- DuBois, Cir.1999)); with Kibbe F.3d sideration whether counsel's advice was (1st Cir.2001) ("[A] state court decision range competence "within demanded objectively is under AEDPA unreasonable cases”). attorneys in criminal Because the existing precedent, if it is so offensive Court of determined Mil- support, arbitrary, so devoid of or so record Haynes’ performed ler's and ad- as to indicate that outside the it is universe equately, questions it did not reach the wheth- outcomes.”) (internal plausible, quo credible prejudiced by er Miller and each were removed); Delgado tation marks and with performance. deficient Lewis, (9th Cir.2000) F.3d (equating application” an "unreasonablе error,” i.e., “clear “a definite and firm con committed”). viction that an error has been

579 (1) to, petitioners’ unreasonable to hold either: contrary or is an is sion objective- them with provided of, federal clearly established application (2) assistance; or that even 412, ly reasonable Williams, at law. petitioners reasonably if the had been ad- law as (defining “clearly established 1495 vised, they pled guilty. still would have by Supreme Court” determined decisions); holdings Supreme Court mean 1. Counsel Performance of is, (holding 212 F.3d at 944 Harr attorney The measure of proper in on author “rely[ing] court erred district whether counsel’s performance is assis Supreme than that of the Court ity other prevailing tance was reasonable “under analysis in its under of the United States all professional “considering norms” 2254(d)”). § Strickland, 466 circumstances.” U.S. Second, argument is in- the wardens’ 688, a at 104 S.Ct. 2052. We make case- law. Supreme Court case compatible evidence, by-case examination does not use a The Court direct/collateral Williams, 1495, at 120 U.S. S.Ct. consequence categorization scheme to de- “indulge strong presumption a assistance of cоunsel cide ineffective conduct falls within the wide counsel’s Indeed, Hill, Supreme claims. range professional of reasonable assis Eighth reviewed an Circuit decision Court Strickland, tance.” 466 U.S. at eligibility was not a holding parole S.Ct. 2052. of a consequence” plea. “direct See professional guide norms us (8th Lockhart, 568, 570-73 Hill v. 731 F.2d upon defense counsel’s rest fundamental Cir.1984). holding, noted this The Court bring duties “to to bear such skill and any such characterization but eschewed will render the trial a reli- knowledge as to the directly applying favor of Strickland testing process” and “to able adversarial Hill, 55, 57-60, 474 U.S. at plea context. on important consult with the defendant 366. As the Court stated the defendant in- keep decisions and to provides “the Strickland test Williams: developments in the important formed of virtually guidance resolving sufficient Id. at prosecution.” course of the ineffective-assistance-of-counsel all 120 S.Ct. 1495. claims.” 529 U.S. court articulat The federal district Analysis C. per to the ed the circumstances relevant inquiry in this case: formance The federal district court con performance was defi- Michigan counsel’s [T]rial cluded that the meaning within the оf the Strick- application an cient decision was unreasonable he failed to advise review de land standard where of Hill and Strickland. We ap- that the petitioner conclusions legal novo a district court’s a peal sentence to corpus proceeding. habeas (6th Cir.2001). Francis, very possi- with the real appellate court 269 F.3d would order Where, here, bility higher that a the district court’s factual Be- as an adult. transcript petitioner from the resentenced findings are based on age, peti- petitioner’s young and the district cause proceedings state court determination, on at- reliant credibility particularly tioner was court makes no guilty to the torney’s Id. advice to findings review those de novo. we also light of what offenses in this case. whether it is an unrea We must determine extraordinary advice amounted to application of Hill and Strickland sonable to plead guilty pleading guilty was Miller’s best inter- petitioner Thus, mandatory a which carried est.13 Miller did not know that the an offense juve- imprisonment prosecutor without could and that the of life sentence reversed, and, so, duty to had a both con- nile sentence could be parole, counsel petitioner advise of the Miller would a life sentence without sider and to serve right appeal any possibility parole. to sen- prosecutor’s courts, Michigan appellate tence to Lusby pos- should have considered these ju- possibility petitioner’s with the sibilities, them, informed Miller about venile sentence would be overturned on incorporated them into his risk assessment then have to appeal and he would serve pleading when he advised Miller about nonparolable a life sentence. Rather, guilty. He failed to do so. he Burke, 813, F.Supp.2d Haynes v. plead guilty solely advised Miller to based (E.D.Mich.2000).12 upon his assessment of the relative risks in going pleading guilty to trial versus before counsel, Lusby, brought to

Miller’s result, Judge Lusby Roberson. As a Chief knowledge of the bear on this case his regarding misinformed Miller the likeli- juvenile sentencing process Chief an hood he would receive adult sentence. practices. Roberson’s fully Miller apprised was not of the risks regard Mil- There is no doubt that this he faced. Lusby’s from advice. initially ler benefitted Furthermore, informed Lusby adequately duty of defense counsel to cоnsult is related to regarding Miller the risk Chief paramount when a client has to decide sentencing determina- Judge Roberson’s whether or not to waive a constitutional if he tion. Miller understood right, right such as the to trial. Because opt Roberson could Chief whether or not plead guilty decision a adult sentence of impose either severe client, ultimately rests with the see Jones juvenile life a sen- imprisonment or lenient Barnes, 463 U.S. tence. (1983) (“the 77 L.Ed.2d 987 accused However, incompetently authority has the ultimate Lusby acted make certain case, that the fundamental’ failing regarding to consider the likelihood decisions prosecutor ap- guilty, as to whether to a plead jury, would exercise waive behalf, peal imposition testify court’s of a in his or her own or an district take juvenile Any juvenile appeal”); Wainwright sentence v. Sykes, sentence. imposed would be less than six 93 n. on Miller 53 L.Ed.2d 594 (1977) C.J., years juvenile facility. (Burger, concurring) (“[o]nly Given such murder, degree lenient for first such basic sentence decisions whether to Lusby not to guilty, jury, testify was unreasonable for have waive or in one’s own ap- ultimately considered that the behalf are for the aсcused make”), peal and the sentence could be counsel must ensure that Lusby reversed. Yet did factor this client’s decision is as informed as possible. consider, advice to Miller ‍​​‌‌​​​​‌‌‌​‌‌‌​​‌​‌‌‌‌​‌‌‌​​​‌‌​‌​​​‌​​​‌​​​‌‌​‍that Failing notify scenario into his even to let alone addition, opinion Lusby entirely district The federal court's in Mil- failed to consid- 12. court, appeals er that an faced with the same precisely ler's case contains almost the same radically sentencing possibilities two Straub, different wording. No. 98-CV-74655- Roberson, might as Chief well reverse DT, (E.D.Mich. 2000). Slip Op. Aug. at 13 the trial court in favor of the more severe sentence.

581 of, negate the client a factor that could the fact that Rice did not inform Haynes of guilty plea prosecutor’s right entire benefit is not appeal. to There within the range professional being nothing norms.14 in the record to contradict Michigan assumption, court’s adopt we age heavy Miller’s and his reliance on it. a Lusby, Lusby acknowledged reliance ],” made, assumption was With this “practically total[ enhanced Lus- the reason- by’s duty ing to make that un- from applies. certain Miller’s case Like Mil- ler, Haynes derstood all the risks associаted with his should have been fully ap- prised faced, guilty plea. years Miller was fifteen of the risks he old but was not. a in We conclude that year parents, Haynes’ behind school. His trial counsel was according Lusby, incompetent were and that it objec- themselves reli- is an Lusby tively ant on epito- application for advice. This case unreasonable of Hill and Michigan mizes the criminal defendant’s Strickland for the Ap- need for Court of peals what the to hold Supreme Court has called the otherwise.

“guiding every step hand of counsel at Prejudice 2. against

the proceeding him.” Powell v. Alabama, 77 To determine whether petitioners (1932). L.Ed. 158 prejudiced attorneys’ their defi performance, cient we ask whether there is conclude that

We Miller’s trial counsel a that, reasonable probability had incompetent. objectively It is an un- been prosecutor’s advised right of application reasonable of Hill and Strick- appeal, they would have pled guilty. not A land for the Michigan Court of “reasonable probability” is a probability hold otherwise. sufficient to undermine confidence testified that his trial outcome; it is less than a preponderance Rice, similarly failed to inform him of the Strickland, of the evidence. 466 U.S. at prosecutor’s right appeal the trial 694, 104 S.Ct. 2052. imposition court’s of a sentence. death, Due to Rice’s Haynes was unable Both Miller and Haynes testified any testimony to offer might which cor similarly evidentiary at the hearings on roborate this assertion. plea withdrawal that motions each Court of Appeals assumed that Haynes’ was initially guilty, hesitant to defense counsel did not him inform each would have not guilty had prosecutor appeal could the trial each known the appeal. court’s decision. Haynes (Af testimony, though This self-serving, may Remand), ter at N.W.2d 245 n. 1. The be enough by satisfy itself to prejudice federal accepted district court prong as under the circumstances here. See Burke, sumption. Magana Hofbauer, 263 F.3d 547 n. (6th F.Supp.2d Cir.2001) that, 818. her this (noting unlike the court, Warden Circuits, Burke does not challenge Seventh and Second this Circuit Citing Supreme Court's recent decision A defense counsel’s failure to or inform advise Cone, - U.S. -, in Bell v. regarding right the defendant the state’s (2002), 152 L.Ed.2d 914 the dissent states appeal and the attendant chances of reversal attorney's legitimate that an do tactics strategy. is not a tactic or Such omissions of performance. not constitute deficient A de legal practice legal counseling can never prosecu fense counsel's failure to a consider legitimate strategy. be defense tactic or strategy. tor’s is tactic or adopted requirement argument. Haynes pled guilty Miller and explicitly

has not prejudice a de- avoiding imprisonment to establish life hopes order objective must come forward with fendant A parole. without reduced likelihood of post-conviction in to his evidence addition an adult the sole being sentenced as was changed would have his mind claim that he guilty pleas benefit of their before Chief guilty). The circumstances pleading about reality, Roberson. risk require not that re- cases do we of these being an adult came in two sentenced as today. (1) solve this issue parts: being sentenced as an adult (2) Roberson; having re- Chief argue that Miller The wardens juvenile ceived a from sentence Chief prejudiced by have been not Haynes could Roberson, being subject to a suc- part deficiency on the their any appeal by prosecutor. cessful Miller they acknowledged because counsel however, and Haynes, each received from plea hearings they that their March 1990 attorney only his information of the first imprisonment to life could be sentenced risk. Defense counsel’s failure to assess According to the war- parole.15 without all the risks and inform Miller and dens, Haynes] fact that [Miller “the left impor- each of them to make the most prosecu- not have been told that the might tant decision of his life without essential juvenile] sentence appeal [the tion could risks, information. with all Presented in [they receiving never assured of were] Haynes and might Miller well have decid- should be of no place the first conse- plead guilty ed to not and to take quence.” prejudice chances at trial. To meet the maintain if a The that defen- wardens Strickland, requirement under Hill and possible of the maximum dant is aware Haynes and need Miller show rea- prejudiced by he cannot be his sentence they probability sonable would have him pros- failure to inform counsel’s pled guilty not attorneys compe- had their right appeаl. to decline to ecutor’s We tently advised them. argument. An adopt the wardens’ aware- sentencing range available ness of the puts Miller forth additional evidence judge the trial is not the same as an that, assistance, competent he would understanding that a sentencing informed pled guilty. Lusby have not testified subject judge’s decision is to reversal. pled guilty only reluctantly. Miller The suggested by the warden would rule Lusby fact that prevail upon had to finding prejudice from preclude courts plead guilty tends to Mil- corroborate any situation where the defendant knew testimony ler’s that he would have not penalties to which he range guilty prosecutor’s had he known of the subject. Lusby appeal. convinced Miller to Furthermore, plead, advising the circumstances of these but did so without him of failings cases illustrate the of the wardens’ the full risk receiving he faced of a life argues already 15. Warden Burke also as the decision to had because, Moreover, prejudice learning cannot show after been made. the warden’s conten- prosecution appealed had his tion is weakened because the case remained sеntence, court, request appeals failed to that the not the trial court where pleas case be remanded the trial court so that he withdrawal must be made. Additional- plea. ly, Haynes could his appellate withdraw A defendant's deci- testified that his process appellate steps sion not to abandon the advised him there other to be guilty plea an effort to withdraw his does taken before should consider withdraw- prejudice pleading ing plea. obviate to the defendant in sentence. This evidence shows that Miller assistance of counsel. We further con- likely plead guilty would have been less clude that contrary decisions to the on the competently had he been advised of all the facts each case are appli- unreasonable risks. clearly cations of established federal law. We therefore AFFIRM the federal district argues

Warden Straub that Miller actu- court’s grant conditional of habeas corpus ally knew before he was sentenced that the separately Haynes. for Miller and appeal. The prosecutor closing argument did state at Mil- GILMAN, Circuit Judge, concurring.

ler’s final sentencing hearing that he would appeal juve- Miller was sentenced as a I fully concur with the opinion’s lead However, nile. already the die had been conclusion that Haynes’s Miller’s and cast. Miller’s final sentencing hearing counsel were constitutionally ineffective came eleven after plea months his had because of their lawyers’ failure to inform accepted Lusby been dismissed the petitioners that the state appeal expressed concerns Miller himto about the decision of the trial judge to sentence the prosecutor’s Lusby statement because juveniles. them My reason for writing considered the unlikely to suc- separately is to explain, regal’d what I suddenly reject ceed. Miller’s failure case, as an extremely close why I find the advice, upon counsel’s which he relied well-written dissenting opinion persua- less heavily, and press guilty to withdraw his opinion. sive than the lead plea year after he made it does not show Like opinion, the lead I believe that the unprejudiced Miller was by Lusby’s incom- of Appeals’s determination petence. Haynes’s Miller’s and per counsel We Lusby’s conclude that Miller’s and formed competеntly was an unreasonable testimony, along with reasonable infer- application of Strickland v. Washington, ences from the facts and circumstances of 80 L.Ed.2d case, this are sufficient to demonstrate not (1984). dissent, contrast, The finds only a probability reasonable that Miller performance counsels’ to be constitutional plead would have decided to not guilty but ly competent, a conclusion I with which also that a contrary objective- conclusion is disagree for several reasons. ly unreasonable. First, in reaching the conclusion that the untimely Haynes’ death of trial petitioners’ provided counsel competent counsel him prevents offering any from representation, the dissent does not ad- testimony corroborative Haynes dress the failure of counsel to inform Mil- pled would have not In guilty. spe- these ler and that the state could circumstances, cial we conclude that judge’s sentencing the trial decisions. The Haynes’ claim and the any absence of evi- solely dissent instead focuses on whether dence argument or tenable contrary strategy counsels’ was reasonable in light is sufficient to not establish a reason- knowledge of their judge’s trial sen- able pled likelihood that he would have tendencies, tencing thereby overlooking guilty, any but also contrary conclu- very omission that in my opinion ren- objectively sion is unreasonable. performance dered the petitioners’ counsel deficient. III. CONCLUSION Second, We conclude that Miller Haynes’s because Miller’s and each constitutionally received ineffective counsel never the possibility considered answers, they may uncertain as judge’s sen- counsel’s appealing

the state be.”); decisions, Hanley, 906 F.2d advising peti- United States tencing (6th Cir.1990) mur- first-degree (recognizing guilty plead tioners to a reasonable considered assistance would be “a reversal for ineffective der cannot which deference had strategic decision if the defendant be order” Strickland, 466 U.S. accorded. should be solely upon in reliance his counsel’s 690-91, (explaining that eligible erroneous advice “that he would be in- thorough made after “strategic choices the time he received parole for one-third and facts relevant law vestigation of sentence”). virtually unchallenge- are plausible options that if agree opinion I also with the lead able; made after less strategic choices had informed Miller and are investigation reasonable complete than judge’s the trial that the state could pro- that reasonable the extent precisely to decisions, proba reasonable limitations support the judgments fessional would bility petitioners exists that both opinion As the lead investigation”). on rather than proceeded have to trial have notes, attorney would a reasonable “prej guilty. considering Strickland’s possibility appeal of an be- considered the AED- we are not prong, udice” bound Haynes to Miller and advising fore review, standard of be PA’s deferential pres- the circumstances of the guilty under Michigan Appeals the of never cause Court ent case. prejudice the issue of when reached con Finally, I that the dissent’s believe performance that counsels’ determined strength the of the state’s sideration of v. was not deficient. See Gonzales petitioners assessing the against case (10th McKune, 247 F.3d 1075-76 Cir. provided competent rep whether counsel 2001) that the state (explaining because resentation, including suggestion the that require three only court considered two of only hope available defense was their necessary ments to establish a violation of nullification, wrong on the

jury focuses Brady Maryland, v. 373 U.S. my opinion, petitioners, issue. (1963), a de novo 10 L.Ed.2d 215 possibili be advised of the were entitled to to the third applied standard of review deciding whether to ty appeal of an before element). I therefore believe that the dis that knowl plead guilty, because without “objectively application sent’s of AEDPA’s upon were not based edge their decisions prejudice compo test to the unreasonable” the Although all the relevant facts. of is not appropriate. nent of Strickland has that the Supreme Court held Sixth 362, 409, Taylor, 529 U.S. Williams require a correct Amendment does (2000) (clarify 146 L.Ed.2d 389 the risks and benefits of assessment of an ing meaning appli the of “unreasonable pleading guilty opposed proceeding to cation” law under 28 U.S.C. trial, it that must at recognizes to 2254(d)(1)). § risks, especially aware of such least be The dissent concludes that Miller’s and directly im where the lack of awаreness Haynes’s guilty efforts to withdraw their whatever ad pacts reasoning behind “a second pleas attempts get constituted to provided. vice is See McMann Rich petitioners and that the ardson, apple,” bite (1970) voluntarily guilty pleas entered their and (“Questions L.Ed.2d 763 like these possible sen- knowledge with full to the risks of cannot be [relating trial] certitude; they respectfully that faced. I dis- to tences yet answered with decision Although prose- Miller heard the plead guilty necessarily upon agree. must rest they prior pleading that faced judge that the state believed the trial cutor inform guilty, example but above illustrates as a if Miller were sentenced would significance failing to consider the came eleven this statement juvenile, appealing. of the state The fact possibility and was im- guilty plea, months after Haynes Miller were aware that and of the telling by his counsel mediately neutralized not, penalty they maximum that ‍​​‌‌​​​​‌‌‌​‌‌‌​​‌​‌‌‌‌​‌‌‌​​​‌‌​‌​​​‌​​​‌​​​‌‌​‍faced does any appeal. This worry him not to about therefore, negate significance of the the additional disguised once more advice they that neither nor their information Miller faced. More- of an risk Perhaps counsel considered. and over, finding supports the record Haynes pled guilty they would have even if Haynes’s peti- not the Miller’s and judge’s had known that the trial sentenc- tioners, pursue made the decisions hurdle ing decisions were not There respective their clients. appeals for they to overcome in order to be sen- had anyone informed Mil- no indication is juveniles. they But were enti- tenced as of with- Haynes possibility ler or tled to be advised of all the risks that pleas prior to sentenc- drawing their choosing plead guilty faced before appeal of their ing during or the state’s rights jury trials. foregoing that Miller I do not believe sentences. I am not confident that Miller Because for what penalized should be have if their pled guilty would the decisions of their counsel appears to be counsel had informed that their sentences Thus, appeals. pursue the state-court appealed, could be I concur with the lead that Miller and the dissent’s inference opinion concluding that the decision of is, in “gaming system” an unwarranted under these cir- my opinion, application unreasonable of Strickland. 28 cumstances. 2245(d)(1) § that a writ (providing U.S.C. to whether and respect With a corpus person of is available for habeas know- guilty pleas entered their adjudi- custody in state the state court’s I that the ingly intelligently, and believe claim petitioner’s cation of the “resulted the of significance dissent underestimates ... involved an unreason- a decision calculation that appeal any a possible clearly of ... established application able made. petitioners or their counsel law, determined the Su- Federal as Haynes might Miller and have believed States”); Hill of the United preme Court had, say, being an 80% chance of they 366, Lockhart, 474 U.S. 106 S.Ct. juveniles by particular as sentenced (1985) (“[I]n order to satis- L.Ed.2d 203 they pled guilty. judge before whom the defen- fy ‘prejudice’ requirement, the state they If had been advised there is a reasonable dant must show that however, they might have appeal, could errors, that, for counsel’s probability but judge’s the trial de- evaluated the odds of pleaded guilty not have he would as being appeal sustained on terminations trial.”); going on would have insisted judge’s The risk of the trial only 50-50. Strickland, 694, at 104 S.Ct. 2052 466 U.S. being ap- reversed on sentencing decisions (“A probability is a probability reasonable would, example, in this reduce peal in the to undermine confidence sufficient likelihood of Miller and ultimate outcome.”). juveniles from 80% to being sentenced BOGGS, dissenting. 40%. Judge, Circuit unable, course, majority’s analysis disagree I with the are of to determine We of habeas grant reverse the and would the exact odds that Miller land, 689-90, 2052; I respectfully therefore dissent. 466 U.S. corpus. Cone, 122 of decided S.Ct. at 1854. case, that, a failure a in this to inform prejudice As for the element of Strick- defendant, guilty plea, before a criminal land, it seems clear that even with knowl- may a prosecution that the have edge possibility prosecutorial ap- of juvenile, being his sentenced as peal, petitioners would still have does not constitute ineffective assistance of guilty. expressly Miller was informed at To succeed on a claim of ineffec counsel. 22, sentencing hearing, February his on petitioner tive assistance of 1991, prosecution that the intended ap- (1) performance by must show deficient peal juvenile. his sentence as Miller and (2) attorney, prejudice. Strick attorney his noticed аnd discussed the 668, Washington, land v. 104 prosecution’s claim appeal, (1984). 2052, Legiti 80 L.Ed.2d 674 S.Ct. prosecution but felt that the would be un- are expressly mate trial tactics excluded appeal: judgment successful on that was perfor definition deficient from the obviously given unreasonable the state —Cone, -, -, mance. Bell v. U.S. of the law at that time. Miller did not 1854, 152 L.Ed.2d 914 attempt guilty plea to withdraw his as of (2002). prejudice having To establish after sentencing hearing. Haynes, despite pled guilty, pleader must show a rea the fact that his co-defendant had been probability sonable that he would not have possibility prosecutorial warned of the pled, competent had he received advice. February as of did not move to Lockhart, Hill v. U.S. plea during withdraw his the five months (1985). case, 88 L.Ed.2d 203 this August before his own on petitioners have established neither ele petitioner attempted Neither ment of Strickland. guilty plea withdraw after the prosecu- rather, actually they argued tion appealed; trial, At faced near-certain petitioners their case on the merits before the Court conviction. The defenses that would Appeals. This makes sense: even with were, essence, have asserted at trial possibility prosecutorial appeal, vague hopes jury nullification. Their juvenile chance to be sentenced as a was however, knew, defense counsel that there only option short of trial. Petitioners very hope they was a real that could be sentence, juvenile a a wanted not new trial. juveniles they pled guilty, sentenced as Petitioners, counsel, through gamed the because of the habits of the system attempted to withdraw their particular judge the case. Counsels’ pleas only after their sen- deficient; indeed, performance was not the rejected by tences were the of Ap- Court gamble sprang idea for the from defense peals. post-conviction strategy gave This superior knowledge counsels’ and intimate petitioners the apple; two bites at that attorneys of the court. Their explained they argue they given up now would have the ramifications of the peti decision to (and likely) their first ex ante more bite very carefully. par tioners Petitioners’ possibility because of the of prosecutorial ents were involved in the decisionmaking appeal defies credence. process. The decision to calcu was lated, informed; voluntary, and pre very pos- this is Petitioners aware of the cisely competent representation consequences the sort of sible pleading guilty that degree is excluded from the Strickland defi first murder. Roberson told nition performance. them, of deficient they pled, they Strick before that

587 adults, applies and there- dard to the ineffective be sentenced as assistance of possibly Cone, setting. life sen- 122 subject mandatory to a S.Ct. at 1850. fore be Cone, tence, guilty pleas. In held that when a as a result of their Court state correctly after the court exactly happened, That is what identifies the Strickland appeal. applicable, Petitioners knew standard as and makes a rea- prosecutorial risk, judgment regarding attorney per- and took their chances. The fact sonable correctly prejudice assess whether formance and under the they that did not correct standard, would be sentenced as a federal court they actually power or not lacks wholly plea grant irrelevant. The was a writ corpus adults is of habeas contra- knowledge vening full that at voluntarily made and with determination. Id. 1853-54. I possible consequences. would not hold that the court objectively unreasonable in its judg- Moreover, imposes AEDPA additional ment, it, I disagree even were as courts ability constraints on the of federal majority does. corpus. of habeas In order grant writ meet the standards set forth gatekeeper Gilman’s concurrence makes a 2254(d), AEDPA, § interesting points for the number of that by 28 U.S.C. deserve corpus, response. Contrary a brief issuance of writs of habeas to the state- adjudication page court of the claim that is ment at I that I thought state had did note, dissent, challenged on collateral must have in the first paragraph of this “contrary dispute in a decision that was and did not resulted obvious facts to, record, application or involved an unreasonable that counsel did not inform their of, law, clearly Federal de- clients of the possibility government established Supreme appeal. termined Court of the All of the counsel involved noted Ibid; Cone, 122 S.Ct. at did not that an contemplate United States.” such аppeal could occur or that would be successful. the Miller case on this Supreme held in Williams v. Court client, appeal, Miller’s were in 120 146 Taylor, U.S. S.Ct. court when the said that (2000), L.Ed.2d 389 most im- “[t]he appeal, specifically state would testi- ap- is that an unreasonable portant point fied he felt the chances of such of federal law is different from an plication (one succeeding an had never been incomct of federal law.” Id. application Michigan, point) tried in to this were suffi- (emphasis origi- at ciently low that it did not affect then- nal). A state-court decision can involve an judgment. application unreasonable United States Supreme precedent interesting two Gilman’s mathematical First, analysis begins to address the ways. might identify page state rule, legal unreasonably inquiry, go the correct but correct but does not far Second, enough. question it to the facts. a state-court The relevant is whether apply strategy extend a the ultimate advice was a within might unreasonably decision Su- legal precedent professional compe- to a new the broad bounds of preme Court Relatedly, it or un- tence. аsk whether the de- apply context where should not we of a reasonably principle probability refuse to extend that crease successful appeal ren- apply. prosecutorial to a new context where it should outcome due to petitioners’ Id. at 1495. The credible assertions that Supreme ders at a recently given up reiterated would have their chance objective juvenile Williams unreasonableness stan- sentence before Roberson. Strickland, analysis specifically- As the above who testified counsel The one the state suc- Williams, shows, the chances of thought and Cone we can no small, and fairly ceeding on judgment means term judg- discounting for basis we have no judg- Court of unreasonable. Thus, if calculated the ment. debatable; ignore we perhaps ment is sentencing Judge Roberson’s chances of requirements, might clear we Strickland’s (when juveniles at 90% as the defendants incorrect; say it was under no circum- 100%), out to be turned reality say we stances can was unreasonable. of success on the chance believed 10%, contingent on the to be by the state below, then ultimate success would have

chances might This still from 90% 81%.

shrunk opposed very as to a extremely good, look LYONS, Petitioner-Appellee, Dashawn of conviction of first de- large probability of life without and a sentence gree murder JACKSON, Warden, Andrew parole. Respondent-Appellant. just assigning of values is as my While Gilman’s, it does em- as No. 00-2153. speculative proper inquiry for effec- phasize of Appeals, United States Court of counsel should be the tive assistance Circuit. Sixth employed. It does not strategy overall properly say, Argued: that we can 2001. appear to me Oct. standard, that the state under the AEDPA Aug. Decided and Filed: Strickland,. unreasonably applied courts Rehearing Suggestion Rehearing dp agree I not Gil- Finally, En Banc Denied: Oct. 2002.* failure of the state court to man that the prejudice prong of Strickland discuss correctly identify not

means that it did

apply governing as the federal Strickland parse But even if we were to the two

rule. way,

parts of in this we would Strickland review, a full de novo but conduct review laid out “independent”

rather a Stovall, recent case of Harris v. our (6th Cir.2000). There, 940, 943 we

F.3d

said, “That independent in a similar case: however, full,

review, is not a de novo claims, but remains deferen-

review of grant

tial the court cannot relief because court’s result is not

unless state AED-

keeping with the strictures of the Thus, in conducting

PA.” Ibid. even an

independent review we determine must simply

more than that we believe the state wrong in its ultimate outcome.

* Judge Boggs grant rehearing would ‍​​‌‌​​​​‌‌‌​‌‌‌​​‌​‌‌‌‌​‌‌‌​​​‌‌​‌​​​‌​​​‌​​​‌‌​‍for the reasons stated in his dissent.

Case Details

Case Name: Cortez Miller v. Dennis M. Straub, Warden, Kermit Eldridge Haynes v. Luella Burke, Warden, Saginaw Correctional Facility

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Oct 2, 2002

Citation: 299 F.3d 570

Docket Number: 00-2150, 00-2163

Court Abbreviation: 6th Cir.