Case Information
*1
BEFORE: BOGGS and McKEAGUE, Circuit Judges; and PEARSON, District Judge. * McKEAGUE, Circuit Judge. As in our most recent en banc case,
Hill v. Curtin
, — F.3d
—,
* The Honorable Benita Y. Pearson, United States District Judge for the Northern District of Ohio, sitting by designation.
I
Garry Jones, the petitioner here, committed two armed robberies in Michigan. The first one started with his seemingly innocent request to borrow a hundred dollars from an acquaintance. When the acquaintance tried to give Jones the money, Jones pulled out a semi- automatic handgun and said, “Give me all your sh*t.” People v. Jones , No. 281464, 2008 WL 5382926, at *1 (Mich. Ct. App. Dec. 23, 2008). The acquaintance complied, and a man in a ski mask gathered his belongings. Jones and the masked man took the belongings, stole the Lexus the acquaintance was driving, and drove away. The second robbery came eighteen days later— and it involved the same victim. Jones lay in wait in front of the acquaintance’s home and pointed a gun at him when he got home from work, demanding аll of his money. The acquaintance again complied. Id. The police later found and arrested Jones.
The State of Michigan charged Jones with two counts of armed robbery and two counts relating to using a firearm. Michigan appointed Luther Glenn to represent Jones. After the final pretrial conference, the judge ordered Jones to remain at the local jail “to prepare for trial” with Glenn. R. 8-4 at 6–7. But Jones did not think Glenn was prepared. See R. 8-1 at 22–23. In a grievance and lettеr against Glenn, Jones asked the court to appoint a different attorney to his case—but he never requested to represent himself at trial.
On the morning of the first day of trial, Jones immediately objected, explaining that he was unhappy with his attorney. He said:
I explained to [Glenn] that I didn’t want him to represent me because he’s not prepared for my case. And I have an attorney grievance against him that I have filed. And this case is my рersonal copy, if you would like to read it. Because you writted me down here last week and [Glenn] hasn’t discussed anything pertaining to any of my issues on both of my cases. And he’s trying to walk me in here right now and he’s not prepared.
R. 8-5 at 3. But the court disagreed and expressed concern about delaying the impending trial. It said:
I think [Glenn] is prepared. And I talked to him extensively beforehand about these issues. And he’s an excellent lawyer . . . . Your case hаs been adjourned before. It’s an old case. And I’m not going to adjourn it again . . . . [I]t’s a very old case on my docket. It’s over ninety-one days, which is beyond the statistics . . . . [W]e’re going to go forward and going to go forward with this lawyer [Glenn]. So, have a seat now and try to be respectful.
Id. at 3–5.
Having denied Jones’s request for a new attorney, the court asked Jones whether he wanted “to accept [the previously read plea] or go to trial.” The following colloquy occurred:
THE DEFENDANT: I would like to represent myself at trial, your Honor.
THE COURT: Well, I don’t think you can handle that. So, I’m going to deny it. THE DEFENDANT: Can you place that on the record?
THE COURT: And I take that as a no [about accepting the plea offer]. He wants to go to trial. It’s on the record. All right. We’re going to bring the jury in now and get started.
Id. at 7–8.
Trial began. And Jones did not raise the self-representation issue again. A Wayne County Circuit Court jury found him guilty on all counts, and the trial judgе sentenced him.
Jones appealed with representation of counsel. He raised claims relating to ineffective
assistance of counsel (for his trial counsel’s failure to call certain witnesses), sufficiency of the
evidence (because the victim’s trial testimony was allegedly not credible), and cruel and unusual
punishment (for his allegedly disproportionate punishment). But he did not raise the self-
representation issue. The stаte appellate court affirmed his conviction.
People v. Jones
, Nos.
281464, 281465,
Jones then filed a motion for relief from judgment before the state trial court. He argued
that he was deprived of (a) the right to represent himself; (b) effective assistance of trial and
appellate counsel; and (c) due process at trial. The trial court denied Jones’s motion under
Michigan Court Rule 6.508(D)(3). In doing so, it found that Jones’s self-representation claim
lacked merit, which triggers our deferential AEDPA standard. R. 8-11 at 3, 5;
accord
Appellee
Br. 3, 12–13 (agreeing that this standard applies). And it found that Jones could not establish
“actual prejudice” to excuse his procedural default because he could not show that “but for the
allеged error, [he] would have had a reasonably likely chance of acquittal” or that the error was
“so offensive to the maintenance of a sound judicial process” that the conviction should not
stand.
Id.
(quoting Mich. Ct. R. 6.508(D)(3)(b)(i), (iii)). Jones filed a delayed application for
leave to appeal and a motion for remand in the Michigan Court of Appeals. The court denied
both “for failure to meet the burden of establishing entitlement to relief under M.C.R. 6.508(D).”
R. 8-11. The Michigan Supreme Court did the same thing.
People v. Jones
,
Having exhausted all his state-court routes, Jones took his case to federal court. He filed
a petition for writ of habeas corpus in the Eastern District of Michigan, arguing that his
conviction was obtained in violation of his Sixth Amendment right to self-representation and that
ineffective assistance of appellate counsel excused his failure to raise the issue on direct aрpeal.
The district court agreed. , No. 2:10–CV–14476,
The State appealed. We review the district court’s grant of habeas relief de novo.
Matthews v. Ishee
,
II
On habeas review, we ask whether a state-court merits determination “resulted in a
decision that was contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1);
accord
Appellee Br.
3. But where the state court relies on a state procedural rule to deny a claim, federal courts lack
jurisdiction to reach the merits.
Coleman v. Thompson
,
A. Procedural Default
All agree that Jones procedurally defaulted his self-representation claim. Appellant Br.
18–19; Appellee Br. 26;
Jones
,
Our review is thus barred unless Jones can excuse this procedural default. That is no easy task. He may do so by showing (1) “cause” for the default and (2) “actual prejudice” resulting from the alleged constitutional violation, Wainwright v. Sykes , 433 U.S. 72, 84 (1977)—which the Michigan courts already found that he failed to do. Because Jones cannot excuse his procedural default, we lack jurisdiction to hear his habeas claims on the merits.
1. Cause
Jones argues that his appellate attorney’s ineffective assistance serves as the cause to
excuse his default. Ineffective assistance of counsel constitutes “cause” to excuse a default only
if it is “so ineffective as to violate the Federal Constitution,”
Edwards v. Carpenter
, 529 U.S.
446, 451 (2000)—
i.e.
, it meets
Strickland
’s ineffectiveness standard.
Byrd v. Collins
, 209 F.3d
486, 519 (6th Cir. 2000). Under that standard, Jones must show (i) that his appellate counsel’s
“performance was deficient” and (ii) that “the deficient performance prejudiсed the defense.”
Strickland v. Washington
,
(i)
Constitutionally Deficient Performance
. Jones can show constitutionally deficient
performance if his counsel committed an error “so serious that counsel was not functioning as
the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Strickland
,
It is not clear that Jones would have prevailed on his day-of-trial request to represent
himself—even on direct review. Michigan recognizes that day-of-trial requests may be validly
rejectеd as untimely because they disrupt the administration of justice.
People v. Hill
,
(ii) Strickland
Prejudice
. Even if Jones is able to show deficient performance, he still
must also show
Strickland
prejudice. He can do so by establishing “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.”
Strickland
,
Assuming deficient performance, there was
Strickland
prejudice as well. The Supreme
Court has held that “denial [of the right to self-representation] is not amenable to ‘harmless
error’ analysis”; it is structural error.
McKaskle v. Wiggins
,
2. Actual Prejudice
But that doesn’t end this part of the analysis: Habeas petitioners must
additionally
show
“actual prejudice” to excuse their default—even if the error that served as the “cause” is a
structural one that would require a new trial.
Ambrose v. Booker
,
The
Ambrose
case explains the actual-prejudice rule with respect to structural errors. A
computer glitch systematically excluded African Americans from jury pools. But the
defendant’s counsel did not object to the then-unknown glitch at trial or on appeal, causing the
claim to become procedurally defaulted. The defendant learned of the glitch after exhausting his
appeals and filed for habeas relief based on the Sixth Amendment’s fair cross-section
requirement. The district court held that because the glitch was unknown, it constituted “cause”
to excuse the default. And the district court held that since the claim would have required
automatic reversal and retrial, actual prejudice should be presumed from the merit of the Sixth
Amendment claim. We disagreed with the actual-prejudicе conclusion, explaining that even
when errors that constitute “cause” would result in
automatic reversal
on appeal, courts must
still look for something more:
actual
prejudice.
Ambrose
,
Neither Jones nor the district court attempted to show that the outcome at trial would have been different had Jones represented himself. Nor is there any indication in the record that it would have been. They instead conflate Strickland prejudice with procedural-default “actual prejudice.” They are distinct. And as Ambrose makes clear, a meritorious structural claim does not necessarily lead to actual prejudice to excuse procedural default. Lacking any evidence of actual prejudice, Jones has not made the requisite showing to excuse his procedural default, even if Strickland were met.
B. Merits
Yet even if Jones were able to excuse his procedural default, his claim fails on the merits. Jones has two ways to obtain habeas relief, since both parties agree that AEDPA review is proper. The state-court determination must have either (1) “resulted in a decision that was contrary to . . . clearly established Federal law, as determined by the Supreme Court”; or (2) involved an “unreasonable application of” the same. 28 U.S.C. § 2254(d)(1). This standard “is difficult to meet”—as the Supreme Court has repeatedly and “recently reminded the Sixth Circuit.” White v. Woodall , 134 S. Ct. 1697, 1702 (2014) (internal quotation marks omitted). The state-court error must amount to an obvious and extreme constitutional malfunction. The district court held that this one did. But under this highly deferential standard, it did not.
First
, the state courts’ decisions were not contrary to
Faretta
. A state-court decision is
“contrary to” federal law only “if the state court arrives at a conclusion opposite to that reаched
by [the Supreme] Court on a question of law or if the state court decides a case differently than
[the] Court has on a set of materially indistinguishable facts.”
Williams v. Taylor
,
Jones relies on
Faretta
, which holds that a trial court violates the Sixth Amendment when
it denies a defendant’s voluntary and intelligent self-representation request.
Second
, the state courts did not unreasonably apply
Faretta
. A state court unreasonably
applies federal law when its decision is “so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fairminded
disagreement.”
White
,
The trial court’s denial of Jones’s morning-of-trial request to represent himself was not
an extreme constitutional malfunction; fairminded jurists could disagree on whether the Sixth
Amendment right to self-representation—as currently defined by the Supreme Court—covers it.
“[T]he right to self-representation is not absolute”; it can be outweighed by other concerns like
the timing of the request.
Martinez
, 528 U.S. at 161;
see Hill
, 2015 WL 4114658, at *4. No
Supreme Court casе has filled the gap between requests made weeks before trial and the day of
trial, so courts have “leeway” “in reaching outcomes in case-by-case determinations.”
Harrington
,
Jones disagrees. He argues that this case is different than
Hill
because no state-court
decision here explicitly denied his request as “untimely.” True enough; no state court used those
words. But context matters. And the record—at least from our highly deferential vantage point,
see Holland v. Jackson
,
With all that looming, Jones only then made his self-representation request. In light of
this context, the trial court’s apparent conclusory denial (“I don’t think you can handle that”)—
when read deferentially—isn’t conclusory at all: The court meant that Jones could not handle
self-representation
at that time
, exactly what the trial court in
Hill
said. It incorporated its
timeliness concerns, articulated in its previous ruling, into this denial. Plus, even if the record is
ambiguous on the point, the state court gets “the benefit of the doubt”: We read the record to
favor the state court’s decision because States are “presum[ed]” to “know and follow the law.”
Visciotti
,
That’s not legitimate, Jones responds, because Michigan did not have a clearly
established self-representation timing rule
before
applying it Jones. Timing questions are
*13
“question[s] of state procedural law,” Jones argues, and when a state court does not “actually
enforce[] [the] proсedural rule,” federal courts should ignore the State’s
post-hoc
justification.
Appellee Br. 17 (quoting
Lovins v. Parker
,
Jones’s counsel made this same argument in an amicus brief in
Hill
, and the en-banc
court rejected it. We held it was forfeited, but we went on to say that the argument is “without
merit” “[i]n any event.”
Hill
,
We add to the en banc court’s reasoning here: Jones’s response misunderstands the timing element at play. It is not a state-court procedural rule regarding the timing to invoke one’s right of self-representation; it is a federal-law substantive rule—part of Faretta ’s holding—about the limits of the self-representation right. Analyzing a state court’s application of Faretta , then, necessarily includes analyzing its holding with respect to timing, for timing is part of a court’s substantive analysis under Faretta . See id. at *4. The cases Jones cites are different in that they involve constitutional rights that do not include timing as part of their substantive analysis but rather where state courts created timing rules to enforce substantive rights. Appellee Br. 18–19. Contrary to these holdings, ’s holding itself has a timing element. Hill , 2015 WL 4114658, at *4. So denying a self-representation request because of timing can be based on the nature of the federal right, not on the state procedure. These *14 Michigan courts accordingly did not need a previously announced state procedure to deny Jones’s right; they permissibly could base their denial on the scope of the federal right itself.
Moving on, Jones, like Hill before him, also relies on
Moore v. Haviland
,
Nor, finally, must we grant habeas relief “on the ground that the trial court did not inquire
into the basis of Hill’s self-representation request.”
Hill
,
The Michigan courts decisions neither contradicted nor unreasonably applied clearly established federal law.
III
For these reasons, we reverse the district court’s grant of habeas relief.