NOT RECOMMENDED FOR PUBLICATION 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. 

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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 distribute and possess with intent to distribute 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 ineffective assistance of counsel. The district court denied the 

motion, and we AFFIRM. 

I. 

McRae was charged with conspiracy to distribute 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 distribution throughout Michigan. Represented by 

attorney Marvin Barnett, McRae was tried with two of his co-defendants, Dr. Owusu Firempong 

and Roberto Farias. 

Several of McRae’s co-defendants pleaded guilty and testified against McRae at trial. 

Co-defendant James Dylan Hayes testified that two other co-defendant suppliers shipped him an 
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average of 70 kilograms of cocaine per month from the late 1990s until 2007, and that he 

supplied McRae with 10-to-20 kilograms of cocaine 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 that they primarily delivered cocaine to McRae at a house on 

Hamburg Street in Detroit, but occasionally met McRae at other locations 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 Department testified that on July 6, 2006, 

officers executed a search warrant at the house 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 fingerprints on it and contained 

two bricks of cocaine. Tommie Hodges, a federal inmate serving a marijuana-trafficking 

sentence at the time of trial, also testified. Hodges was not a member of the charged conspiracy, 

but was McRae’s friend since elementary school. Hodges testified that he saw McRae daily 

from the mid-1990s until approximately 2002 and witnessed McRae receive distributionquantities of cocaine and marijuana on numerous occasions. Hodges saw 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 asked Hodges whether he received anything in 

exchange for his cooperation. Hodges responded that he received a sentence reduction for 
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assisting in the investigation of the murder of a federal witness in an unrelated case. On redirect, 

the government asked Hodges to describe that assistance, and in response, Hodges invoked his 

Fifth Amendment privilege against self-incrimination. Outside the presence of the jury, Hodges 

stated he would continue to invoke the Fifth Amendment in response to any question concerning 

his assistance. The district court appointed counsel to advise Hodges. 

After further discussion, the district court ruled that Hodges had no Fifth Amendment 

privilege regarding any cooperation he provided during the murder investigation. The 

government proposed that the Court 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 mistrial, asserting that there was no basis for that 

remedy, and instead asked the court 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 circumstances” and that a curative instruction could remedy the 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 participating in the drug conspiracy and a 

related money-laundering conspiracy. The jury acquitted Farias. 
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$17,280,000 forfeiture judgment against him. McRae 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 several ethical violations during trial. First, 

after Hodges invoked the Fifth Amendment, counsel 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’ counsel 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 become unsealed, and therefore available to the 

public, and that cooperating witnesses like Hodges 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 retry the case. After McRae told Barnett he 

could not pay the additional $50,000, Barnett opposed co-defendants’ 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 McRae’s trial. The Board also received unrelated complaints 

against Barnett in two separate matters and held a formal hearing at which Judge Maloney was a 

witness. When asked about the events immediately 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’t 
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see anything about the factual material that the witness did not want 

to talk about in any way implicated him 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 noted 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 correct. I didn’t think there was any 

substantial prejudice to Dr. Firempong or Mr. Farais in light of the 

nature of [Hodges’] testimony. 

Of course, they made an argument which I thought was weak that, 

well, it is basically guilt by association 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 believe it would have been based 

on – grounded on fact and law? 

[Judge Maloney]: Oh, certainly there 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 three years. Among other findings, the Board 

found that Barnett had engaged in misconduct during McRae’s trial and ordered Barnett to pay 

McRae $47,000 in restitution. 

III. 

McRae asserted an ineffective-assistance-of-trial-counsel claim 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 timely motion to vacate his 

conviction under 28 U.S.C. § 2255. Rejecting McRae’s argument that he is entitled to a 
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presumption of prejudice based on Barnett’s conflict of interest under Cuyler v. Sullivan, 

446 U.S. 335 (1980), the district 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 under that standard and 

denied habeas relief without an evidentiary hearing. This court granted McRae a Certificate of 

Appealability regarding his ineffective-assistance-of-counsel claim arising 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. 2006). Although a district 

court’s decision not to conduct an evidentiary hearing 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 defendants the right to assistance of counsel 

because of the effect that assistance “has on the 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 provide effective assistance, and assistance which 

is ineffective in preserving fairness does not meet the constitutional mandate.” Moss v. United 

States, 323 F.3d 445, 454 (6th Cir. 2003) (citations omitted). The Sixth Amendment right to 

counsel includes a “correlative right 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 probability 
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that, but for counsel’s unprofessional errors, the result of the proceedings would have been 

different.” Strickland v. Washington, 466 U.S. 668, 694 (1984). A “reasonably probability” 

means “a probability sufficient to undermine 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 stage” of trial; (2) counsel fails to “subject the 

prosecution’s case to meaningful adversarial testing”; 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 conflict of interest. In Holloway v. Arkansas, 435 U.S. 475 (1978) and 

Cuyler v. Sullivan, 446 U.S. 335 (1980), two cases in which one attorney represented multiple 

co-defendants, the Supreme Court held that “a defendant who shows that a conflict of interest 

actually affected the adequacy of his representation 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 objects 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 absence 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 district 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, 
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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 represented his own conflicting interest 

when he demanded an additional $50,000 to retry 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 attorney ethical conflicts.’” Mickens, 535 U.S. at 174 (citation omitted). 

Mickens involved successive (rather than multiple) representation. Summarizing lower court 

cases, the Court disapprovingly cited opinions that: 

[I]nvoked the Sullivan standard not only when (as here) there is a 

conflict rooted in counsel’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 antagonizing the trial judge. 

Id. at 174–75 (citations omitted). Because “the language of Sullivan itself does not clearly 

establish, or indeed even support, 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 inadequate 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. 
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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). Weighing further against the extension of 

Sullivan here is the rationale behind it: in cases of multiple representation, “it is difficult to 

measure the precise effect on the defense of representation 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 difficulty of proving that prejudice. Not all attorney 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 measurable 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 actual conflict is relegated to a single moment of 

the representation and resulted in a single identifiable decision that adversely affected the 

defendant, the Supreme Court’s reasoning regarding when prejudice should be presumed does 

not control.”). 

Because there is no difficulty identifying the specific harm caused by the conflict here, 

and because the Supreme Court directed courts to exercise restraint in extending Sullivan to 

conflicts that do not involve multiple representation, we conclude the district court correctly 

declined to apply Sullivan’s presumption of prejudice to this case. 
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B. 

 Under Strickland, McRae must demonstrate (1) Barnett’s performance was deficient; and 

(2) “a reasonable probability that, but for counsel’s unprofessional errors, the result of the 

proceedings would have been different.” Strickland, 466 U.S. at 694. 

 Barnett’s decision to push for the exclusion of Hodges’ testimony 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 the 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 Rules 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 unreasonableness include the 

violation of ‘certain basic duties’ inherent in the representation of a criminal defendant, among 

them a ‘duty of loyalty’ to the client, from which derive ‘the overarching duty to advocate the 

 2

 “Strickland cautions [] that any court applying this analysis must do so with tremendous 

deference to trial counsel’s decisions. . . [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 pressured to testify 

under threat of contempt. However, because Barnett injected his financial 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 devote time to the retrial without 

additional payment; or he may have thought that having Hodges’ testimony stricken in its 

entirety was preferable, but he saw an opportunity 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 interests, there was no exercise of professional judgment deserving of 

deference. 
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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 performance in demanding money and opposing the 

mistrial was deficient. McRae must still show a reasonable probability that “the result of the 

proceedings would have been different.” Strickland, 466 U.S. at 694. The district court found 

McRae could not demonstrate prejudice because: 

Even if McRae had been given a new trial, there is no reason to 

believe that the outcome would have been different. There was 

substantial evidence of McRae’s guilt aside from Hodges 

testimony: Hayes and Anderson both testified to supplying McRae 

with cocaine, and officers found cash, guns, and drugs in McRae’s 

house, along with McRae’s fingerprints 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 probable 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 the 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 outcome determination, without 

attention to whether the result of the proceeding 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 confidence in the reliability of the proceeding, it 
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does not necessarily establish fairness. Our Sixth Amendment analysis, 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 remedy “should be reserved 

for ‘extraordinary and striking circumstances.’” [R. 774 at PID 7435] (citing Renico v. Lett, 

559 U.S. 766, 784 (2010)). And even after Barnett’s extortion attempt, he continued to 

vigorously represent McRae and, over government objection, successfully 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 functioning 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.