NOT RECOMMENDED F OR PUBL I CATI ON File Na me: 12a1207n.06 No. 11-1595 UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T

CL AUDE V ARNEY, Petitioner-Appellant,

v. RAYMOND B OOKER, Respondent-Appe llee.

______________________________________ ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED STATES DI STRI CT COURT FOR THE EASTERN DI STRI CT OF MI CHI GAN

OPI NI ON Before: G ILMAN, G IBBO NS, and ROGERS, Circ uit Jud ges. RONALD L E E GILMA N, Circuit Judge. Claude Var ney was convicted in the circ uit
court for Way

ne County , Michig an of second- deg ree murder and of possessing a firea rm in the commission of a felony

. He was sentenc ed to se rve 20 to 30 y ear s in prison on the former char g e,

consec utive to a 2-y ear prison term on the latter char g e. Var ney filed a motion for a new trial, arg uing that he had rec eived the ineffe ctive assistance of counsel at his bench trial. The circ uit court, with the same presiding judge , held an evidentiar y hear ing and gra

nted Varney ’s m otion. But the S t at e ap p eale d, and the Michig an Court of Appea ls pere mptorily reve rsed the trial court’s order

. Var ney ’s subsequent direc t appea l and his petitions for post-conviction relief in the state courts wer e

unsucce ssful. He then filed a petition for a writ of habea s corpus in fede ral district court. The district court denied his pe tition but g rante d a cer tificate of appea lability with r espec t to Var ney ’s claim that hisNo. 11-1595

Claude Varney v . Raymond Book er trial counsel was ineffe ctive in not calling Var ney to testify in support of his self-de fense theory of the ca se. F or the re asons set for th below, we AF F IRM the judg ment of the district cour t. I. BACKG ROUND I n September 1993, Varne y shot and kil led Tom my Maples in a bar in Detroit, Mi chig an. Var ney was arr ested and char g ed with second- deg ree murder, in violation of M.C.L

. § 750.317, and with possessing a firea

rm in the commission of a felony , i n violation of M.C.L

. § 750.227b. Wit nesses at Var

ney ’s bench trial g ave conflicting acc ounts of the events surrounding Maples’s death. The following para g raph summar izes the trial court’s finding s of fa ct. Var ney enter ed the ba

r with a g roup of pe ople, approa ched Ma ples, and be g an spea

king to him. The two men sat down at a table toge ther, contin u ing a conver sation that near by witnesses descr ibed as outwardly friendly

. There was no evidenc e of an arg ument or confr ontation. Then “[a]n unusual sound was hear d, possibly the scra ping of chair s at the table,” and the two men stood up , M ap les with his hands raised and Varney “ar med wit h a handgun.” Var ney fired a bul let into Maples’s body “for no appar ent rea son.” Var ney might have believed that Maples was rea ching for

a wea pon, but Var

ney did not see a wea

pon and Maples had none. Whatever Var ney ’s belief, it did
not war rant his shooting Maples “under the circ umstances then obtaining.” The court conclude d that the killing wa s in no way justified or excused, thus finding V arne y g uilty as cha rg ed. Var ney filed a motion for a new trial, alleg ing that he was denied his Six th Amendment rig ht
to the eff ective assistance o f co unsel. The trial court held an evidentiar y hear ing on Var

ney ’s motion, ref

err ed to in Michig an as a Ginther hear ing. See, e.g. , People v. Dende l , 748 N.W.2d 859, 863 (Mich. 2008) (citing People v. Ginther , 212 N.W.2d 922 (Mich. 1973)) (re fer ring to a “ Ginther -2-No. 11-1595

Claude Varney v . Raymond Book er hear ing to deter

mine whether [t rial counsel] had provided ineffe ctive assistance ”). Both Var ney and his former tr ial counsel, Dominick S orise, testi fied about the defense that Sorise pr ovided and the

rea sons why

Var ney did not testify

at the trial. Sorise said that Var

ney initially wanted to take the witness stand, but that, afte r at least one arg ument b et wee n the two men, Sorise convince d him that he should not testify

. At no point did Sorise expl i ci t l y ad v i s e Var ney of his constitutional rig ht to testify in his own defe nse. I nstead, Sorise “assumed [Varney ] understood that he had a rig ht or an opportunity to testify .” Sorise explained that he ad v i s ed Va rn ey not to testify beca use the prosec ution had alre ady enter ed into evidenc e a statement that Var ney had made to Detec tive Patrick Hena han sufficie ntly explaining Var ney ’s self- defe nse story . That statement, a s relate d by Det. He nahan at trial, was as f ollows: I went in the bar. I saw Tommy [Maples] in there

. He wave d me to come over wher e h e was. I walked over to him and he said, come on. I want to t al k t o y o u . W e walked over to a table. We sa t down—and we sat down. He said to me , y ou know I shot a couple of y our members and I shot at y ou befor e. And now I ’m g oing to kill y ou. Then he rea ched be hind his back like he w as g oing f or a g un and I

shot him. Det. Hena

han went on to testify that Var ney “stated it looked like Mr. Maples was rea ching fo r a g un,” but that he did not “he ar [Var ney ] say any thing a bout seeing a g un.” Var ney ’s testimony at the Ginther hear ing told a somewhat differ ent story about the decision
to not have him take the witness stand and about the statement that he made to Det. Hena han. Consist ent with Sorise’s testim o n y , Va rney said that the two men arg ued about whether Var ney should testify at trial and that Sorise never advised him of his co n s t i tutional rig ht to testify

. But unlike Sorise’s acc ount of his convincing Var ney not to testify , Var

ney claimed that Sorise told him, without explanation, that he could not take the stand. Var ney said that he told Sorise what he wanted -3-No. 11-1595

Claude Varney v . Raymond Book er to say on the stand and that he “fe lt it was important for the Court to know exactly what happene d.” Sorise alleg edly

responde d, “no, y ou are not taking the stand.” Var ney also testified that Det. Hena han’s testimony was mistaken beca use Var ney had told the detec tive that Maples had in f act pulled a g un on him, not that Maples mere ly “re ache d as if to have a g un.” Although Var ney did not specific ally testify that he had informed Sorise of having seen Maples with a g un, he claimed to have told Sorise “eve ry t h i ng ” about the issues that he was now raising at the Ginther hear ing. Sorise could neither dispute nor confirm that Var ney had tol d him about seeing Maples with a g un at the time of the shooting. But Sorise was cer tain that Var

ney had “indicate d that Mr. Maples rea ched behind him as if to dr aw a g un and beg an draw ing out a g un.” Fur thermore , a defe nse witness, Marc ello Gug lieletti, testified at the trial that Maples “pull[ed] a g un befor e [Varne y ] shot [Maples] .” The trial court considere d the two “strong ly held” positions prese nted at the Ginther hear ing: (1) Sorise’s testimony that he mere ly advised Var ney not to testify , and (2) Var ney ’s contra

ry claim that Sorise did not allow him to testify

. Whether the decision was unilatera l or joint, the court made clea r that the decision was “cr itical” for two rela ted rea sons. First, Var ney ’s testimony would have supported his arg ument that his “unsig ned, and there fore unadopted” statement to Det. Hena han was either “incomplete,

. . . altere d, or not his at all.” The trier of fac t would have hear d that Var ney saw Maples dra

w a we apon, ra ther than tha t Varne y simply saw Maples make a motion as if to dra w a

wea pon. Second, “shor

t of some other pe rson desc ribing circ umstances that would to an or dinary mind r aise the question of whether the acc used rea sonably and honestly fea red for his life or being

-4-No. 11-1595

Claude Varney v . Raymond Book er seriously injured,” Var

ney ’s only method of establishing that he had such fea r would be by his own testimony

. The state tr ial court be lieved that Va rney had li ed whe n he said that Sorise did not explain why Var ney should not take the stand. But it noted that no rec ord had been made at trial “as to why [Varney ] didn’t testify .” Giving Var ney “the benef

it of the doubt,” the court g rante d the motion for

a new trial. The Michig an Court of Appea ls, howeve r, per em p t o ri l y reve rsed the circ uit court’s order , finding that Var

ney had “not overc ome the presumption that trial counsel rende red eff ective assistance when advising him reg arding his rig ht to testify on his own behalf .” Var ney ’s petition to appea l that decision wa s d en i ed b y the M ichig an S upreme Court. People v. Varney , 568 N.W.2d 680, 680 (1997) (table)

. His subsequent direc t appea l and motions for post-conviction relief in the State courts all fa iled. Turning to the fede ral courts for relief , Var ney filed a petition for a writ of habea s corpus in the United States District Court for the Eastern Di strict of Michig an, prese nting eig ht separ ate gro u n d s i n support of his petition. All of these arg uments wer e reje cted, but the court g rant ed a

cer tificate of appea lability on Var ney ’s claim involving counsel’s alleg ed ineffe ctiveness in failing
to c all Var

ney to te stify on his own behalf in suppor t of his se lf-def

ense claim. This timely appea l followed. II. ANALYSIS A. Stand ard of review We revie w “the district court’s leg al conclu sions in a habea s proce eding de novo and its fac tual finding s under the clea r-e rror standard.” Davis v. Lafler , 658 F.3d 525, 530 (6th Cir. 2011).

-5-No. 11-1595

Claude Varney v . Raymond Book er “The state-c ourt decision under revie w is entitled to defe renc e pursuant to the An t i t er rorism and Effe ctive Dea th Pena lty Act of 1996 (AEDPA) , which is c odified at 28 U.S.C. § 2254(d).” Titl ow v. Burt , 680 F.3d 577, 585 ( 6th Cir. 2012). AEDPA provides in pe rtinent part a s follows: An application for a writ of habea s corpus on behalf of a person in custody pursuant to the j udg ment of a State court shall not be gra nted wi t h re s p ec t to any claim t hat was a djudicated on the me rits in St ate c ourt proce eding s unless the adjudica tion of the claim— (1) resulted i n a decision that was contrary to, o r i n v o l v ed an unreasonable application of, clea

rly established Fe dera l law, as deter mined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unrea sonable deter mination of the fa cts in light of the e vidence prese nted in the State cour t proce eding

.

28 U.S.C. § 2254(d). A state-c ourt decision must be objectively unrea sonable, not mere ly incorre ct, to be an “unre asonable application ” o f cl ea rl y established fede ral law. Titl ow , 680 F.3d at 585. Finding s of fac t by the state court “ar e presumed to be corr ect unless they are rebutted by clea r and convincing evidenc e.” Id. at 586. Var ney ag ree s that AEDPA defe renc e applies, and we there fore apply the AEDPA standa

rd of r eview to a ll the issues before us. B. The Michiga n Court of Appeals’s rej ect ion of Varney’ s inef fective- assistance-ofcounsel claim was not an u nreasonable app lication of Stri ckland Var ney claims that he was denied his Six th A mendment rig ht to the effe ctive assistanc e of

c o u n s e l beca use Sorise deprive d him of a substantial defe nse by failing to have Var ney testify at trial. A succe ssful claim of ineffe ctive assistance of counsel must meet the two-prong test established in Strickland : (1) “counse l’s perf ormanc e was defic ien t ”; and (2) “the defic ient perf ormanc e -6-No. 11-1595

Claude Varney v . Raymond Book er prejudice d the defe nse.” 466 U.S

. at 6 8 7. We must decide whether the state appellate court’s decision was an unrea sonable application of the Strickland test. Even though that court’s order does
not provide a substantive Strickland analy sis, the Supreme Court’s decision in Harrington v. Richter makes clea

r that AEDPA defe renc e must still be g iven to the state court’s decision beca use “[w]hen

a fede ral claim has been prese nted to a state court and the state court has d en i ed relief , it may be presumed that the state court adjudicate d the claim on the merits in the absenc e of any indication or state law proce dural principles to the contra ry .” Harrington v. Richter , 1 3 1 S. Ct. 770, 784-85 (2011); see Brown v. Bobby , 6 5 6 F.3d 325, 328-29 (6th Cir. 2011) (explaining that in light of Har rington , “the mere fact that the Ohio Court of Appeals did not specific ally explain th at i t wa s ruling on Br own’s Six th Amendment claim does not preve nt this court from defe rring to that court’s opinion on habeas r eview.” ). Review of a trial counsel’s perf ormanc e is “hig hly defe rential” and entails “a strong presumption t h at counsel’s conduct falls within the wide rang e of rea sonable profe ssional

as s i s t ance.” Strickland , 466 U.S. at 689. “[T] he defenda nt must overc ome t he presumption t h at , under the circ umstances, the challeng ed action m i gh t b e considere d sound trial strateg y .” Id. (interna l quotation marks omi tted). Var ney must there fore show that Sorise ’s decision not to call Var ney as a witness was an “er ror[] so serious th at [ S o ri se] was not functioning as [Varney ’s] ‘counse l.’” S

ee i d. at 687. Then Var ney must show that concluding otherwise would be an

unrea sonable a

pplication of Strickland

. Var ney attempts to meet this heavy burden by arg uing that his testi m o n y wa s t h e only evidenc e availab le that could establish all the elements of his self-de fense claim. The test in -7-No. 11-1595

Claude Varney v . Raymond Book er Michig an for sel f- d ef

en se at the time of Var

ney ’s trial was whether “the defe ndant honestly and

rea sonably believes that his life is in imminent dang er or that there is a threa t of s er i o u s b o d ily harm.” Peo

ple v. Heflin , 456 N.W.2d 10, 18 (Mich. 1990). Var ney contends that, absent his testimony , the trier of fac t had “no rea sonable basis upon which to conclude that [he] acte d in lawful self-de fense .” To the contra

ry , Michig an law is clea

r that a defe ndant can “show his state of mind by circ umstantial evidenc e to establish that he acte d in self-de fense ” and that he “nee d not take the stand and testify .” People v. Hoskins , 267 N.W.2d 417, 419 ( Mich. 1978). Two ke y piece s of evidenc e in the trial rec ord arg uably support Var ney ’s self-de fense theory : (1) Var ney ’s statement to Det. Hena han descr ibing the events immediately prec eding the shooting, including M aples’s alleg ed threa t that he was g oing to kill Var ney and that Maples made a motion as if to draw a wea pon; and (2) testimony from Marc ello Gug lieletti, an ey ew i t n ess to the shooting, stating that Maples had pulled out a g un befor e Var ney shot Maples. Sorise decide d to rely on this evidenc e rathe r than have Var ney testify and possi bly be im peac hed with such facts as hi s flee ing the scene of t he shoo t i n g , his telling another witness that he shot Maples in reta liation for Maples’s shooting three of Var ney ’s associate s, and his ref

using to reve al the location of his g un to Det. Hena han. See Varney v. Booke r , No. 2:09-CV-11127, 2011 WL 1480385, at *9 (E.D. Mic h. Apr. 19, 2011). Given the Michig an law as stated in Hoskins , Sorise had an objectively rea sonable basis to believe that the evidenc e he introduced, if taken by the trier of fac t to be tr u e, wa s sufficie nt to establish self-de fense

. See 267 N.W.2d at 419. Sorise’s decision thus appea rs to have been a matter

-8-No. 11-1595

Claude Varney v . Raymond Book er of trial strateg y , not defic ient perf ormanc e. See Miller v. Francis , 269 F.3d 609, 616 (6th Cir. 2001) (noting that “trial stra teg y itself must be objectively rea sonable” ). To be sure, this strateg y ultimately failed, and the presiding judge at the Ginther hear ing, who

was also the trier of fac t at Var ney ’s trial, stated that Var ney ’s testimony would have been “cr itical”
to the case . Although this post-c onviction sta tement indicates that Var ney might have far ed better had he testified, it does not place Sorise’s decision outside “the wide rang e of re as onable profe ssional assistance .” See Strickland , 4 6 6 U.S. at 689. “A fair assessment of attorney perf ormanc e require s that ever y eff ort be made to eliminate the distorting eff ects of hindsight.” Id. Fur thermore , even if

Sorise’s dec ision was not sound trial strateg y and he in fac t provided ineffe ctive counsel, that conclusion is not so clea r as to make the state appellate court’s decision an “unre asonable application” of Strickland

. I n sum, Var ney has not established that he could meet the perf ormanc e prong of the Strickland test, let alone that the f

acts weig h so heavily in his favor that the state appellate court was unre asonable in concluding otherwise. We the ref ore have no need to

rea ch the pr ejudice pr ong of the Strickland test beca use Va rney must mee t both prong s in order to establish his ineffe ctive-a ssistance-of -counse l claim. See United States v. W illiams , 176 F.3d 301, 312 (6th Cir. 1999). Var

ney has thus failed to make the requisite showing on this claim to war rant habea s relief

under A EDPA. C. The determ ination that Varney waived his right to te stify Some c onfusion is a

ppare nt in the briefs conce rning the pre cise issue that the district c ourt

cer tified for appea l. Var

ney ’s brief addre sses the failure -to-ca ll claim discussed above but attempts to fold in his rig ht-to-testify arg ument as part of that claim. I n contra st, the S t ate’s brief -9-No. 11-1595

Claude Varney v . Raymond Book er char acte rizes the issue prese nted as solely conce rning the rig h t t o testify but also confla tes the analy sis of the two separ ate claims. This court added to the confusion in its order deny ing Var ney ’s
mot i o n to expand the cer tificate of appea lability by first char acte rizing the cer tified issue as the failure to permit Var

ney to testify and later descr ibing it as the f

ailure to call

Var ney to testify

. T h ese intertwined i ssues in fac t raise disti nct l eg al claims: the former concerns Varne y ’s due proce ss and Six th Amendment rig ht to testify , see United States v. W ebber , 208 F.3d 545, 550 (6th Cir. 2000); the latter conce rns Sorise’s alleg ed ineffe ctiveness for faili n g to provide a substantial defe nse. To clar ify , the district court cer tified Var ney ’s “cla im involving counsel’s ineffe ctiveness in failing to call [ Var

ney ] to testify on his behalf i n s u p p o rt o f his self-de fense claim.” Varney v. Booke r , No. 2:09-CV-11127, 2011 WL 1480385, at *17 (E.D. Mich. April 19, 2011). Although not the cer tified issue, we will a lso a ddress below the rig ht-to-testify claim, which both par ties arg ued to some deg ree . A defe ndant’s rig ht “to testify at trial is a constitutional rig ht of fundame ntal dimension and is subject onl y to a knowing and volunt ary waiver by the defendant.” W ebber , 208 F.3d 545, 550 (6 t h Cir. 2000). The rig ht falls under the due proce ss protec tions of the Fifth and Four t ee n t h Amendments, as well as “the Com pulsory Pr o ce s s Clause of the S ix th Amendment, which g rants

a defe ndant the rig ht to call witnesses in his favor —which, of course , would include himself.” Id. (interna l quotation marks omitted). Although “the rig ht to testify is persona l to the defe ndant,” who thus retains “the ultimate decision whethe r to testify [,]

. . . when a tactical decision is m ade not to have the defendant testify, the de fendant’s assent is presumed .” Id. at 550-51 (e mphasis added)

.

-10-No. 11-1595

Claude Varney v . Raymond Book er The presumption of assent arises from two other strong presumptions: (1) that the defe ndant’s counsel followed the profe ssional rules of conduct, which provide that “[i] n a criminal

case , the lawy er shall abide by the client’s decision

. . . whether the client will testify ,” id. at 551 n.2; and (2) that counsel “‘r ender ed adequate assistance ’ in car ry ing out the g ener al duty ‘to advocate the defe ndant’s cause and the more particula r duties to c o n s u lt with the defe ndant on important decisions and to kee p the def

endant infor

med of important developments in the course of the prosecution.” Id. at 551 (quoting Strickland v. W ashington , 466 U.S. 668, 688-90 (1984))

. Absent “stateme nts or actions from the d ef

en d an t i ndicating disag ree ment with counsel or the desire to testify , the trial court is neither require d to

. . . inquire whether the defe ndant knowingly and int entionally waived the rig ht to testify , nor ensur e that the de fenda nt has waive d the right on the re cord.” Id. ; see also Hodge v. Haebe rlin , 579 F.3d 627, 639 (6th Cir. 2009) (h o l d i n g t h at the rig ht to testify , though fundame ntal, can be presumed waived “fr om a defe ndant’s c o n d u c t a lo n e ” ) ( in

te r n a l q u o ta tion marks omitted). The state trial cour t at the Ginther hear ing noted that no rec ord had been made during the bench trial reg arding Var ney ’s desire to testify

. Nor does Var ney now sug g est that the trial rec ord contains any

indication that he wa

nted to testify

or that he ha d a disag ree ment with Sorise. Given these facts, t he st ate appellate court applied the presumptio n fr om Strickland that Sorise rende red eff ective assistance in advising Var ney of his rig ht to testify

. This decision was not an unrea sonable application of Strickland

or any other c lear ly

established fe dera l law. T o be sure, Sorise testified that he did not specific ally advise Var ney that the U. S

. Constit ution g uara

nteed Var ney ’s rig ht to testify

. But the state appellate court’s deter mination that -11-No. 11-1595

Claude Varney v . Raymond Book er this fac t alone did not overc ome the Strickland presumption was not objectively unrea sonable. See Titl ow v. Burt , 680 F.3d 577, 585 (6th Cir. 2012) (explaining that a state court decision must be “objec tively unrea sonable” to be deeme d an “unre asonable application of clea rly established fede ral law” under AEDPA). Var ney is thus pre sumed to have knowing ly waived his r ight to te stify

. See W ebber , 208 F.3d a t 550-551. We theref ore r ejec t Varne y ’s due- proce ss claim for ha beas r elief. III. CONCLUSION For all of the re asons set for

th above, we AF F IRM the judg ment of the district cour t.

-12-