NOT RECOMMENDED FOR PUBLICATION File Name: 18a0255n.06
No. 16-2106 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT MARLAN MCRAE, Petitioner-Appellant,

v. UNITED STATES OF AMERICA, Respondent-Appellee. ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN

BEFORE: DAUGHTREY, GIBBONS, and WHITE, Circuit Judges. HELENE N. WHITE, Circuit Judge. Petitioner-Appellant Marlan McRae was convicted of conspiracy to distri bute and possess with intent to di stribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 841(a) and § 846. McRae moved to vacate his conviction under 28 U.S.C. § 2255, asserting ine ffective assistance of counsel. The district court denied the motion, and we AFFIRM

. I. McRae was charged with conspiracy to distri bute and possess with intent to distribute five kilograms or more of cocaine for his part in a chain conspiracy that involved the delivery of cocaine from California to Detroit for dist ribution throughout Michigan. Represented by attorney Marvin Barnett, McR ae was tried with two of his co -defendants, Dr. Owusu Firempong and Roberto Farias. Several of McRae’s co-defenda nts pleaded guilty and testified against McRae at trial. Co-defendant James Dylan Hayes testified that tw o other co-defendant s uppliers shipped him anNo. 16-2106 Marlan McRae v. United States

-2- average of 70 kilograms of cocaine per mont h from the late 1990s until 2007, and that he supplied McRae with 10-to-20 kilograms of co caine from each 70-kilogram shipment he received. Hayes estimated that, from the late 1990s until 2007, he supplied McRae with a total of more than 500 kilograms of cocaine from these shipments. Hayes’ brother, Alvin Anderson, testified that he, too, delivered cocaine to McRae. Both Hayes and Anderson testified th at they primarily delivered cocaine to McRae at a house on Hamburg Street in Detroit, but occasionally met McRae at other loca tions around the city. Anderson kept a handwritten ledger, admitted into evidence, showing that Anderson delivered twenty-nine kilograms of cocaine to McRae. Officer Michael Patti of the Detroit Police De partment testified th at on July 6, 2006, officers executed a search warrant at the hous e on Hamburg Street, and found a large amount of cash, cocaine, heroin, marijuana, several handguns, and multiple safes. McRae stipulated that one of the safes contained a brown paper bag that had two of his fingerp rints on it and contained two bricks of cocaine. Tommie Hodges, a federal inmate se rving a marijuana-trafficking sentence at the time of trial, al so testified. Hodges was not a me mber of the charged conspiracy, but was McRae’s friend since el ementary school. Hodges testif ied that he saw McRae daily from the mid-1990s until approximately 2002 a nd witnessed McRae receive distributionquantities of cocaine and marijuana on numerous occasions. Hodges sa w McRae cook cocaine into crack-cocaine, sell crack-cocaine, and, on one occasion, possess five-to-ten kilograms of cocaine. Hodges’ testimony was only relevant to McRae; he presented no evidence regarding any other co-defendant. On cross-examination, Attorney Barnett aske d Hodges whether he received anything in exchange for his cooperation. Hodges responded that he received a sentence reduction forNo. 16-2106 Marlan McRae v. United States

-3- assisting in the investigation of th e murder of a federal witness in an unrelated case. On redirect, the government asked Hodges to describe that assistance, and in res ponse, Hodges invoked his Fifth Amendment privilege agains t self-incrimination. Outside th e presence of the jury, Hodges stated he would continue to invoke the Fifth Amendment in re sponse to any question concerning his assistance. The district court ap pointed counsel to advise Hodges. After further discussion, the district cour t ruled that Hodges had no Fifth Amendment privilege regarding any coopera tion he provided during the murder investigation. The government proposed that the C ourt strike Hodges’ redirect testimony and take his plea agreement out of evidence. Counsels for co -defendants Farias and Firempong moved for a mistrial. Barnett opposed the motion for a mistri al, asserting that there was no basis for that remedy, and instead asked the cour t to strike Hodges’s testimony in its entirety. The court adopted Barnett’s proposed remedy, reasoning that mistrials are to be granted only in “striking and extraordinary circumst ances” and that a curative instruc tion could remedy th e situation. The court instructed the jury as follows: Ladies and gentlemen of the jury, earlier during this trial you heard the testimony of Tommie Hodges. I instruct you that you are to disregard entirely the testimony of Tommie Hodges from your consideration of this case. You should consider this case as if he had not testified. [R.774, Tr. Trans. vol. IX at 7552–53]. On May 12, 2011, the jury found McRae guilty of conspiracy to distribute and possess with intent to distribute cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1). 1 On November 11, 2011, the district court sentenced McRae to a 235-month term of imprisonment and entered a

1 The jury also found Firempong guilty of pa rticipating in the drug conspiracy and a related money-laundering conspiracy . The jury acquitted Farias.No. 16-2106 Marlan McRae v. United States

-4- $17,280,000 forfeiture judgment against him. McR ae appealed his conviction and this court affirmed. United States v. Logan , 542 F. App’x 484, 501 (6th Cir. 2013).
II. It appears that Attorney Barnett committed seve ral ethical violations during trial. First, after Hodges invoked the Fifth Amendment, couns el for McRae’s co-defendants informed the district court that Barnett had attempted to intimidate Hodges through Hodges’ appointed counsel. Specifically, the attorneys asserted that Barnett told Hodges’ coun sel that he wanted “to give a message” to Hodges. The “message” was that if Hodges did not continue to invoke his Fifth Amendment privilege, Barnett would ensure that the transcript of his testimony, including any testimony about his cooperation, would beco me unsealed, and therefore available to the public, and that cooperating witnesses like Hodge s get “assassinated” when such information about their cooperation becomes public. Additionally, according to affidavits filed by McRae and his wife, McRae asked Barnett to move for a mistrial after Hodges invoked the Fifth Amendment, but Barnett refused to do so unless McRae paid him an additional $50,000 to re try the case. After McRae told Barnett he could not pay the additional $50,000, Barnett opposed co-defendant s’ motion for a mistrial. In 2014, Judge Paul Maloney, who had presided over the trial, filed a formal complaint against Barnett with the Michigan Attorney Grievance Board (“the Board”), citing the allegations of misconduct during Mc Rae’s trial. The Board also received unrelat ed complaints against Barnett in two se parate matters and held a formal he aring at which Judge Maloney was a witness. When asked about the events i mmediately following Hodges’ Fifth Amendment invocation, Judge Maloney testified: I was anticipating motions for mistrial . . . . I ruled that the invocation of the Fifth Amendment was improper under the law, because I didn’tNo. 16-2106 Marlan McRae v. United States

-5- see anything about the factual materi al that the witness did not want to talk about in any way implicated hi m in a crime. So I ruled that it was an improper invocation of the Fifth Amendment, and given trial, I anticipated motions for mistrial from the defense lawyers. [R.3-6 at PID 138]. Counsel for the Attorney Grievance Commission not ed that counsel for McRae’s co-defendants moved for a mistrial and asked if those motions were denied “because the testimony did not go to their clients, ” to which Judge Maloney responded: Correct. Mr. – that’s absolutely co rrect. I didn’t think there was any substantial prejudice to Dr. Firemp ong or Mr. Farais in light of the nature of [Hodges’] testimony. Of course, they made an argumen t which I thought was weak that, well, it is basically guilt by associ ation here. I didn’t think that merited a mistrial.

. . . [Counsel for the Attorney Grievance Commission]: [T]aking the totality of the circumstances into consideration, if Mr. Barnett had filed a motion for mistrial, do you be lieve it would have been based on – grounded on fact and law? [Judge Maloney]: Oh, certainly th ere was an argument – certainly there was an argument on behalf of Mr. McRae for a mistrial. [ Id. at PID 138, 145]. The Board suspended Barnett’s license for th ree years. Among other findings, the Board found that Barnett had engaged in misconduct duri ng McRae’s trial and ordered Barnett to pay McRae $47,000 in restitution.
III. McRae asserted an ineffectiv e-assistance-of-trial-counsel cl aim on direct appeal based on Barnett’s refusal to move for a mistrial without payment. This court determined that the claim should be pursued in a habeas petition, and McRae filed this timel y motion to vacate his conviction under 28 U.S.C. § 2255. Rejecting Mc Rae’s argument that he is entitled to aNo. 16-2106 Marlan McRae v. United States

-6- presumption of prejudice based on Ba rnett’s conflict of interest under Cuyler v. Sullivan , 446 U.S. 335 (1980), the dist rict court held that Strickland v. Washington , 466 U.S. 668 (1984), provides the applicable standard for evaluating McRae’s ineffective- assistance-of-counsel claim. The district court found that McRae could not demonstrate prejudice unde r that standard and denied habeas relief without an evidentiary hearing. This court granted Mc Rae a Certificate of Appealability regarding his ineffective-assist ance-of-counsel claim ar ising from Barnett’s alleged extortion attempt, which arguably involved a conflict of interest between Barnett’s own pecuniary interest and the duty of loyalty he owed to McRae.
IV. Ineffective-assistance-of-counsel claims are mixed questions of law and fact and are reviewed de novo. Short v. United States , 471 F.3d 686, 691 (6th Cir. 20 06). Although a district court’s decision not to conduct an evidentiary h earing is reviewed for abuse of discretion, an evidentiary hearing “is required unless the record conclusively shows that the petitioner is entitled to no relief.” Campbell v. United States , 686 F.3d 353, 357 (6th Cir. 2012).
V. The Sixth Amendment affords criminal defend ants the right to assistance of counsel because of the effect that assistance “has on th e ability of the accused to receive a fair trial.” United States v. Cronic , 466 U.S. 648, 658 (1984). “Derivative of the right to counsel under the Sixth Amendment is the right to have counsel pr ovide effective assistance, and assistance which is ineffective in preservi ng fairness does not meet the constitutional mandate.” Moss v. United States , 323 F.3d 445, 454 (6th Cir. 2003) (citations om itted). The Sixth Amendment right to counsel includes a “correlative righ t to representation that is free from conflicts of interest.” Wood v. Georgia , 450 U.S. 261, 271 (1981). Generally, a defendant alleging ineffective assistance of counsel must demonstrate both (1) that counsel’s performance was constitutionally deficient and (2) “a reasonable probabilityNo. 16-2106 Marlan McRae v. United States

-7- that, but for counsel’s unprofessi onal errors, the result of th e proceedings would have been different.” Strickland v. Washington , 466 U.S. 668, 694 (1984). A “reasonably probability” means “a probability sufficient to underm ine confidence in the outcome.” Id. However, in certain circumstances, courts “will discharge the defendant’s Strickland obligation to demonstrate a probable effect on the outcome and instead presume such prejudice.” Moss , 323 F.3d at 455 (citations omitted). Courts will presume prejudice when: (1) a defendant is completely denied counsel “at a critical stag e” of trial; (2) counsel fails to “subject the prosecution’s case to meaningful adversarial tes ting”; or (3) counsel “is called upon to render assistance where competent counsel very likely could not.” Id. (citing Cronic , 466 U.S. at 658– 59). The “presumption of prejudice” also applies in particular circumstances when defense counsel operates under a c onflict of interest. In Holloway v. Arkansas , 435 U.S. 475 (1978) and Cuyler v. Sullivan , 446 U.S. 335 (1980), two cases in whic h one attorney represented multiple co-defendants, the Supreme Court held that “a defendant who show s that a conflict of interest actually affected the adequacy of his representa tion need not demonstrate prejudice in order to obtain relief.” Sullivan , 446 U.S. at 349–50 (citing Holloway , 435 U.S. at 487–91). In the multiple-representation context, if a defendant object s to the conflict prior to or during trial, the trial court must inquire regarding the extent of the conflict, or subject any subsequent conviction to automatic reversal. Holloway , 435 U.S. at 489–92. In the abse nce of an objection, a showing of an actual conflict and its adverse effect on counsel’s performance will void the conviction. Moss , 323 F.3d at 455 (citing Mickens v. Taylor , 535 U.S. 162, 174–75 (2002)). A. The first question is whether the dist rict erred in declining to apply Sullivan ’s presumption of prejudice to the pecuniary conflict at issue here. We conclude that it did not; McRae’s petition is properly analyzed under the Strickland standard. Neither the Supreme Court nor the Sixth Circuit has applied Sullivan to this type of conflict. See Faison v. United States ,No. 16-2106 Marlan McRae v. United States

-8- 650 F. App’x 881, 889 (6th Cir. 2016) (“This Court has yet to apply Sullivan , a higher standard than Strickland , to a fee dispute.”) (citing Mickens , 535 U.S. at 176). Nevertheless, McRae argues we should apply Sullivan because Barnett actively represen ted his own conflicting interest when he demanded an additional $50,000 to retr y the case and opposed mistrial when McRae could not pay. The Supreme Court has explicitly cautioned against “appl[ying] Sullivan ‘unblinkingly’ to ‘all kinds of alleged atto rney ethical conflicts.’” Mickens , 535 U.S. at 174 (citation omitted). Mickens involved successive (rather than multip le) representation. Summarizing lower court cases, the Court disapprovi ngly cited opinions that: [I]nvoked the Sullivan standard not only when (as here) there is a conflict rooted in couns el’s obligations to former clients, but even when representation of the defendant somehow implicates counsel’s personal or financial interests, including a book deal, a job with the prosecutor’s office, the teaching of classes to Internal Revenue Service agents, a romantic “entanglement” with the prosecutor, or fear of an tagonizing the trial judge. Id. at 174–75 (citations omitted). Because “the language of Sullivan itself does not clearly establish, or indeed even suppor t, such expansive application,” the Court warned that “[t]he purpose of [the Supreme Court’s] Holloway and Sullivan exceptions from the ordinary requirements of Strickland . . . is not to enforce the Canons of Legal Ethics, but to apply needed prophylaxis in situations where Strickland itself is evidently inadequa te to assure vindication of the defendant’s Sixth Amendment right to counsel.” Id. at 175, 176 (citations omitted). In the sixteen years since Mickens was decided, circuit courts have been hesitant to apply Sullivan ’s presumption outside the multiple- or serial-representation context. See, e.g. , United States v. Young , 315 F.3d 911, 915 n.5 (8th Cir. 2003); United States v. Mota-Santana , 391 F.3d 42, 46 (1st Cir. 2004); Whiting v. Burt , 395 F.3d 602, 619 (6th Cir. 2005); United States v.No. 16-2106 Marlan McRae v. United States

-9- Goodley , 183 F. App’x 419, 422 (5th Cir. 2006); Cruz v. United States , 188 F. App’x 908, 913– 14 (11th Cir. 2006); Torres v. Donnelly , 554 F.3d 322, 325–26 (2d Cir. 2009); United States v. Williamson , 859 F.3d 843, 856 (10th Cir. 2017). Wei ghing further against the extension of Sullivan here is the rationale behind it: in cases of multiple repr esentation, “it is difficult to measure the precise effect on the defense of repr esentation corrupted by conflicting interests.” Strickland , 466 U.S. at 692; see also Mickens , 535 U.S. at 175 (“Both Sullivan itself and Holloway stressed the high probability of prejudice arising from multiple concurrent representation, and the diffi culty of proving that pr ejudice. Not all atto rney conflicts present comparable difficulties.”) (internal citations omitted). Here, assuming Barnett actively represented conflicting interests when he demanded an additional $50,000 to retry the case , McRae can point to a measurab le harm: Barnett’s failure to move for a mistrial. This is not the type of conflict that evades vindication under Strickland ’s prejudice requirement. See United States v. Walter-Eze , 869 F.3d 891, 906 (9th Cir. 2017) (“Thus, even if Sullivan ’s presumption of prejudice can extend . . . to the type of circumstances implicating counsel’s financial interests as are faced here, this is not a case where the presumption applies. . . . [W]here, as here, the ac tual conflict is relegated to a single moment of the representation and resulted in a single iden tifiable decision that adversely affected the defendant, the Supreme Court’s reasoning regard ing when prejudice should be presumed does not control.”). Because there is no difficulty identifying th e specific harm caused by the conflict here, and because the Supreme Court directed cour ts to exercise restraint in extending Sullivan to conflicts that do not involve mu ltiple representation, we conclude the district court correctly declined to apply Sullivan ’s presumption of prejud ice to this case.No. 16-2106 Marlan McRae v. United States

-10- B. Under Strickland , McRae must demonstrate (1) Barnett’ s performance was deficient; and (2) “a reasonable probab ility that, but for couns el’s unprofessional errors , the result of the proceedings would have been different.” Strickland , 466 U.S. at 694. Barnett’s decision to push fo r the exclusion of Hodges’ test imony rather than move for a mistrial would normally be entitled to deference. 2 Campbell v. Coyle , 260 F.3d 531, 551 (6th Cir. 2001) (citing Strickland , 466 U.S. at 689). Nevertheless, in assessing counsel’s performance, this court may consider “the skills a lawyer should possess, the guidelines of professional organizations such as the ABA , and the specific circumstances of each case.” Id. at 551 (emphasis added) (citation omitted). Under th e ABA’s canons of professional ethics, “[a] lawyer’s own interests should not be permitted to have an adverse effect on representation of a client.” Comment 10, Model Rule s of Prof’l Conduct R. 1.7 (2013); see also Rickman v. Bell , 131 F.3d 1150, 1154–55 (6th Cir. 1997) (“Indicia of objective unr easonableness include the violation of ‘certain basic dutie s’ inherent in the representati on of a criminal defendant, among them a ‘duty of loyalty’ to the client, from which derive ‘the overarc hing duty to advocate the

2 “Strickland cautions [] that any court applyi ng this analysis must do so with tremendous deference to trial counsel’s d ecisions. . . [T]he defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.’” Campbell v. Coyle , 260 F.3d 531, 551 (6th Cir. 2001) (citing Strickland , 466 U.S. at 689). Here, it would have been reasonable for counsel to conclude that the option of striking Hodges’ testimony in its entirety was preferable to a retrial in which Hodges might be pre ssured to testify under threat of contempt. However, because Barn ett injected his financ ial interests into the equation, we do not know what he thought was the best strategic outcome. He may have thought a mistrial was best but opposed it to avoid the need to devot e time to the re trial without additional payment; or he may have thought th at having Hodges’ testimony stricken in its entirety was preferable, but he saw an opportuni ty to obtain an extra $50,000, and so was willing to move for a mistrial, provided he was paid. Under the circumstances, because Barnett was pursuing his own financial interest s, there was no exer cise of professional judgment deserving of deference.No. 16-2106 Marlan McRae v. United States

-11- defendant’s cause and the more particular duties to consult with the defendant on important decisions and to keep the defendant informed of important developments in the course of the prosecution.’”) (citing Strickland , 466 U.S. at 688). We therefore assume that Barnett’s pe rformance in demanding money and opposing the mistrial was deficient. McRae mu st still show a reasonable probabi lity that “the result of the proceedings would have been different.” Strickland , 466 U.S. at 694. The district court found McRae could not demonstrat e prejudice because: Even if McRae had been given a new trial, there is no reason to believe that the outcome would ha ve been different. There was substantial evidence of McR ae’s guilt aside from Hodges testimony: Hayes and Anderson bot h testified to supplying McRae with cocaine, and officers found cash, guns, and drugs in McRae’s house, along with McRae’s finge rprints on a bag of cocaine. [R.34 at PID 313]. In essence, the district court found that even if McRae could show that Judge Maloney would have granted a motion for mistrial —which is not at all clear—the overwhelming evidence of McRae’s guilt made it impossible to establish prejudice. See Mickens , 535 U.S. at 166 (“[D]efects in assistance that have no pr obable effect upon the trial’s outcome do not establish a constitutional violation.”); Sylvester v. United States , 868 F.3d 503, 511–12 (6th Cir. 2017) (finding that, although counsel’s failure to move to dismiss due to a Speedy Trial Act violation constituted deficient performance, the defendant could not demonstrate prejudice because he could not show that the court would have dismissed th e indictments with prejudice). We agree that the substantial evidence of McRae’s guilt makes it difficult for him to demonstrate prejudice, but “an analysis focusing solely on mere outcom e determination, without attention to whether the result of the proceedi ng was fundamentally unfair or unreliable, is defective.” See Lockhart v. Fretwell , 506 U.S. 364, 369 (1993). Although overwhelming evidence of guilt may offer a reviewing court conf idence in the reliability of the proceeding, itNo. 16-2106 Marlan McRae v. United States

-12- does not necessarily establish fa irness. Our Sixth Amendment an alysis, therefore, cannot rest solely on the weight of the evidence against McRae. Here, the only allegation that Barnett’s performance was deficient stems from Barnett’s refusal to move for a mistrial. Barnett’s actions were clearly unethical, but those actions did not render the trial fundamentally unfair. Although Judge Maloney stated he thought McRae could have made “an argument” for mistrial, he also explained that such a re medy “should be reserved for ‘extraordinary and striking circum stances.’” [R. 774 at PID 7435] (citing Renico v. Lett , 559 U.S. 766, 784 (2010)). And even after Barn ett’s extortion attempt, he continued to vigorously represent McRae a nd, over government objection, succe ssfully moved to strike Hodges’ entire testimony, which would have been particularly damaging to McRae. The court then gave an adequate curative instruction. On balance, we cannot say that Barnett’s failure to move for a mistrial “so undermined the proper func tioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland , 466 U.S. at 686.
VI. For the foregoing reasons, we AFFIRM the district court’s judgment.