1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 16a0239p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

R EBECCA J EAN S HIMEL , Petitioner-Appellant ,

v

.

M ILLICENT W ARREN , Warden, Respondent-Appellee

. ┐ │ │ │ │ │ │ │ ┘ No. 15-2419

Appeal from the United St ates District Court for the Eastern District of Michigan at Bay City. No. 1:14-cv-14882—Thomas L. Ludington, District Judge. Argued: July 26, 2016
Decided and Filed: September 22, 2016
Before: SILER, GIBBONS, KETHLEDGE, Circuit Judges.

_________________ COUNSEL

ARGUED: James S. Brady, DYKEMA GOSSETT PLLC, Grand Rapids, Michigan, for Appellant. Laura Graves Moody, OFFICE OF THE MICHIGAN A TTORNEY GENERAL, Lansing, Michigan, for Appellee. ON BRIEF: James S. Brady, Alison L. Carruthers, DYKEMA GOSSETT PLLC, Grand Rapids, Michiga n, for Appellant. Andrea M. ChristensenBrown, OFFICE OF THE MI CHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee.

_________________ OPINION

_________________ JULIA SMITH GIBBONS, Circuit Judge. Rebecca Shimel was convicted of seconddegree murder and possession of a firearm in the commission of a felony pursuant to a plea deal in the shooting death of her husband. After se ntencing, the Michigan trial court conducted an 

### >No. 15-2419 Shimel v. Warren Page 2

evidentiary hearing under People v. Ginther , 212 N.W.2d 922 (Mich. 1973). The court
concluded that Shimel’s trial c ounsel was ineffective for failing to investigate a battered spouse self-defense theory and granted her motion to w ithdraw her guilty plea. The Michigan Court of Appeals, however, reversed. It concluded that the trial court clearly erred in impermissibly substituting its judgment for that of trial counsel on a matter of strategy. On collateral review,
the district court denied Shimel’s claims that trial counsel was ineffective for failing to spend sufficient time consulting with her and for advising her to plead guilty rather than taking the case to trial and presenting a battered spouse self-def ense theory. Shimel is unable to establish prejudice. Therefore, we affirm.

I.
The facts as recited by the Michigan Cour t of Appeals are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). 1 Wagner v. Smith , 581 F.3d 410, 413. According to the Michigan Court of Appeals:
Defendant was charged with open mu rder, MCL 750.316, and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b, in the shooting death of her husband, Rodney Sh imel. Defendant fired seven shots, reloaded the gun, and continued to fire. Shimel sustained nine gunshot wounds, seven of which entered his body through his back. Defe ndant was arrested on the same day that the shooting occurred.
Defendant was represented by four differe nt attorneys, two court-appointed and two retained, before she entered her guilty plea. The court-appointed attorneys represented defendant only briefly. Before defendant’s preliminary examination, while she was represented by her first reta ined attorney, the a ssistant prosecutor, J. Dee Brooks, offered to allow defendant to plead guilty to second-degree murder and felony-firearm with no sentence recommendation in exchange for the dismissal of the open murder charge. The offer remained open until the day before the preliminary examination. Although defendant decided to accept the plea offer, Brooks withdrew it because defendant’s attorney did not inform him that defendant wanted to accept it unt il the morning of the preliminary examination. Thus, because the plea offer was not accepted before Brooks’s deadline, the offer was withdrawn. Fo llowing the preliminary examination, defendant was bound over for trial.

1 Shimel’s argument that deference is owed to the state tr ial court’s version of the f acts, rather than the court of appeal’s factual findings and legal conclusions, is without merit. See infra Section II.B.No. 15-2419 Shimel v. Warren Page 3

Thereafter, the trial court granted defense counsel’s motion to withdraw, and defendant retained attorney E. Brady De nton to represent her. On October 5, 2010, the trial court entered a stipulation to adjourn tr ial that indicated that Denton was investigating a “battered s pouse” defense and intended to hire an expert to interview defenda nt. Denton spoke several tim es with attorney Dale Grayson at the National Clearinghouse fo r the Defense of Battered Women. Grayson sent Denton a packet of materi als regarding the defense, including articles, appellate decisions in cases involving the defens e, and information regarding courts’ positions on the defense. According to Denton, he discussed the possibility of a battered s pouse defense with defendant and her family and friends as well as the prosecutor. Ultimately, he decided not to pursue a battered spouse defense and did not hire an expert.
Over the next few months, Denton and Br ooks had several discussions regarding a possible guilty plea. Brooks refused to consider a plea to manslaughter and refused Denton’s request for a second-degre e murder plea with a sentence cap. In January 2011, Brooks offered defendant th e same plea that he had previously offered, i.e., second-degree murder and felony-firearm with no sentence recommendation in exchange for dropping the open murder charge. Defendant accepted the plea and pleaded guilty on February 3, 2011. The trial court sentenced defendant to 18 to 36 years in prison for the murder conviction, to be served consecutive to 2 years’ imprisonm ent for the felony-firearm conviction.
On September 21, 2011, defendant filed a moti on to withdraw her plea, to correct her invalid sentence, and to amend the pr esentence investigati on report. In her motion to withdraw her plea, defenda nt argued that Denton had rendered ineffective assistance of counsel for failing to investigate a battered spouse syndrome defense and/or hire an expe rt to examine defendant. Defendant asserted that her plea was therefore invol untary. She requested the appointment of a battered spouse syndrome expertat public expense as well as a Ginther 2 hearing.

At the Ginther hearing, Denton admitted that he signed the stipulation to adjourn trial in part to investigate a battered spouse syndrome defense. He obtained the packet of materials from Grayson regardi ng the defense, talked to defendant, and reviewed the police reports. He asserted that he originally intended to hire an expert witness regarding the defense, but ultimately determined after reviewing the case materials that the defense was not worth pursuing. One of Denton’s biggest concerns was the fact that de fendant reloaded her gun and continued shooting. Also, there was not much evid entiary support to show a history of physical abuse against defendant. Ther e was only one documented incident of domestic violence. When asked whether he thought that self-def ense or a battered

2 People v. Ginther , 390 Mich. 436; 212 N.W.2d 922 (1973) (footnote in original).No. 15-2419 Shimel v. Warren Page 4

spouse defense was a viable defense, Dent on responded, “I don’t think it could be sold to a jury.”

Denton testified that he met with defendant while she was incarcerated at least two or three times and probably wrote lett ers to her during the seven months that he represented her. Denton scored defe ndant’s sentencing gui delines before the plea hearing but he did not tell defendant the sentence that she was likely to receive. Denton admitted that he told Grayson in a letter dated March 10, 2011, that defendant could receive “as little as 8 years, although [he] would expect 10 to 11 years” based on his calculation of the sentencing guidelines. Denton told defendant that her sentence would be co ntrolled by the sentencing guidelines. Denton testified that one of his concerns was defendant’s desire to be with her children. Defendant had told Denton that she wanted an opportunity to get out of prison and be with her children someda y. Denton testified that considering defendant’s desire to be with her childre n and his belief that a battered spouse defense would not be successful, he thought the second-degree murder plea was a good option because it would give defendant a chance to be released from prison one day.
Dr. Karla Fischer testified as an expert witness on domestic violence and battered spouse syndrome. She maintained that battered spouse syndrome is “not a defense per se, but the expert testimony help s to support a theory of self-defense.” She opined that a battered spouse defense pres ented to a jury typically results in a reduction of charges, most commonly from first-degree murder to second-degree murder.

Fischer conducted a domestic violence evaluation of defendant in prison in October 2011 after defendant moved to withdraw her plea. Defendant told Fischer that Shimel [her husband] had abused her physicallyand emotionally throughout their 30-year marriage and had th reatened to kill her. Defendant claimed that Shimel had punched her, strangl ed her, kicked her, restrained her, and committed acts of sexual violence agai nst her. Defendant admitt[ed] stabbing Shimel with a knife while he was choking her early in their relationship. Fischer opined that, based solely on the informa tion that defendant provided, defendant had acted in self-defense. Fischer admitted that she did not have a “full grasp” of the forensic evidence and that a ba ttered spouse assessment is based on a defendant’s perception of events, which might not match up with other facts. Defendant told Fischer that she was having financ ial difficulties at the time of the shooting, but Fischer did not believe that that information was important. When asked whether it would have had any si gnificance if defendant had a gambling problem and defendant and Shimel had conflict about it, Fischer responded:

A . Well, my job in understanding th e history of domestic violence doesn’t necessarily in—tha t wouldn’t necessarily be psychologically significant in the evaluation of domestic violenceNo. 15-2419 Shimel v. Warren Page 5

and its effects. So, I guess th e answer would be no, it wouldn’t necessarily be important. Q . So you wouldn’t consider othe r motivation for the shooting?
A . I’m not really sure how to an swer that question. I mean, my job is not to understand the mo tivation underlyi ng the shooting. My job is to understand the history of . . . domestic violence, how it affected her and whether or not it led her to act in self-defense.

Defendant testified that she never r eceived any phone calls or correspondence from Denton while she was in jail. She claimed that Denton visited her twice, the first time for “under an hour and the sec ond time lasted for about 10, 15 minutes.” According to defendant, Denton told her at the second meeting that he was going to speak to Brooks and try to negotiate a plea deal with a sentence of 7 to 15 years or less. Defendant maintained that th e next time that she saw Denton was when she walked into the courtroom for the plea hearing. Afte r defendant pleaded guilty, she wrote a letter to Denton that stated:
I’m writing you to—I’m writing to in regards to—to the plea hearing that occurred today at 1: 30. What happened? Why was I not notified by you or your office or by Mr. Jacob Kolinski, your legal assistant who was with you to day? Why didn’t I get to meet or speak with you before the court—before court so you could explain what this plea deal you ha d was all about? How could you do this to me? What did I just plea to? How much time am I looking at? What is the differe nce of Open Murder and Second Degree Murder? I’m extremely c onfused, distraught, and frankly, I don’t remember much about wh at happened today in court.
Defendant admitted that it was a priority for her to be able to be released from prison one day so that she could be with her children. Defendant also admitted that she told a different story about the shooting when she first spoke to a detective and persons at the fo rensic center. She initiall y did not tell the detective that she thought that Shimel was going to kill her that day. Later, defendant claimed that she did not tell the detectiv e that she thought that Shimel was going to kill her because she wanted to protect her family from the media. Defendant admitted that she was an avid gambler and had financial problems. She “possibly” bounced two checks on the day of the s hooting, and she “might have told” a friend that she could not support herself financially without Shimel. Defendant also admitted that she talk ed to her daughters on the phone from jail and tried to get them to remember the abuse that Shim el allegedly inflicted on her. Defendant testified that her daughters “pr obably” told her that they did not recall any abuse.No. 15-2419 Shimel v. Warren Page 6

Defendant also acknowledged that her daughters testified at the preliminary examination that they did not recall any physical abuse. 3
Grace Ombry, defendant’s best friend in high school, testified that defendant began dating Shimel after she dropped out of high school in the beginning of her senior year in 1981. Defendant and Shimel moved into an apar tment together in 1983 before they married. Ombry visited the apartment once, during which time defendant showed Ombry bruises on her le g and claimed that Shimel had beaten her. She also showed Ombry a gun that Shimel owned and said that Shimel had threatened her with it. Later in 1983, s hortly after defendant and Shimel married, defendant told Ombry that she was unha ppy and wanted to get a divorce because Shimel was mean to her. Ombry had not had regular contact with defendant since they were teenagers.
Brooks testified that from the beginning of the case, he believed that defendant had only two possible defenses—insanit y and self-defense under a battered spouse theory. Brooks viewed defendant’s videotaped statements to the police in which she admitted that she shot Shimel several times during an argument in their bedroom while three of their children were home. No other weapons were involved to suggest that defendant was in any danger. Brooks te stified that in his early conversations with Denton, Denton mentioned that he was considering a self-defense defense under a battered s pouse theory, but Brooks did not believe that the evidence supported such a defense. Brooks maintained that the police had spoken to “dozens and dozens” of people, and Brooks did not believe that there was any substantiating proof of any serious prior violent acts between defendant and Shimel. In fact, Brooks testified that all four of defendant’s children “denied that they had ever seen any physical vi olence or threats of physical violence” between their parents. Brooks told De nton that, in his view, the shooting was precipitated by the couple’s financial pr oblems, and specifically defendant's gambling problem. Shimel was working extr a jobs on the side to earn money for the family during the holidays, and funds were missing, including a recent payment for a job in the form of a chec k. Brooks learned from family members and a friend that Shimel was considering leaving the home and either divorcing or separating from defendant. According to Brooks, the physical evidence was also inconsistent with self-def ense. Shimel suffered seven gunshot wounds to his back, two of which were fatal and would have disabled Shimel very quickly. Although the chamber of the gun held only seven bullets, Shimel suffered nine gunshot wounds. The theory that defendant reloaded the gun and then continued to shoot was consistent with the childre n’s description of wh at they had heard from downstairs. Brooks reviewed Fisc her’s report and testified “with absolute certainty” that it would not have convinced him to change the plea offer or his

3 It is unclear how old defendant’s daughters were at that time, but they were younger than defendant’s oldest son, who was 24, and older than her youngest son, who was 12 (footnote in original).No. 15-2419 Shimel v. Warren Page 7

assessment of the strengths and weaknesses of his case. Brooks viewed Fischer's report as contradictory and self serving.
The trial court granted defendant’s motion to withdraw her plea. With respect to counsel’s performance and the first prong of the Strickland 4 test, the court stated:
[C]ertain things, listening to the testimony, strike me. One is that Mr. Denton spent, from the record, probably no more than 1.5 hours maximum time speaking to hi s client on a capital felony life offense without parole should sh e be convicted as charged. Presumably it was an open murd er, but let’s assume it was a murder one that she was convicted of. As no doubt the prosecution would argue.
Mr. Denton spent approximately ma ximum of 1.5 hours time with the defendant before negotiating a plea that ultimately was taken.
In my opinion, and I also find, that Mr. Denton did not meet with the defendant in—in jail or even in lockup prior to coming into the courtroom and having his client accept the plea after it was negotiated with Mr. Brooks.

I believe the defendant when she i ndicates that the first time she saw Mr. Denton the day of the plea was when she walked into the courtroom here.
I find it somewhat incredible that the lawyer would not go over the plea even the day of the plea one last time and say, do you really want to do this? Do you understa nd what’s going on? Not sitting at counsel table as does counsel right now for [defendant.]

I find that he didn’t do an inve stigation into what he could characterize as a duress defense, but probably more of a selfdefense aspect of the case. Even asking for an adjournment and an opportunity to do so, representing to the Court that he wanted to look into that defense. And wh en he—I think he failed to thoroughly investigate the self-defense aspect of the case.

He failed to inform her of what she was even in court for on the day she took the plea, to talk to her one last time as I already said. I find that that’s the case. I believe her.
And that he failed to discuss, als o, the likely sentence or disclose the likely sentence based upon an adequate analysis of the

4 Strickland v. Washington , 466 U.S. 668; 104 S. Ct. 2052; 80 L.Ed 2d 674 (1984) (footnote in original).No. 15-2419 Shimel v. Warren Page 8

guidelines. And that’s reflect ed by that—the—the—some of the exhibits that are here, and frankly, by the testimony.
There was no independent investigat ion of the self-defense aspect of the case. . . . In my opinion, he ’s testified that he primarily relied upon the prosecutorial representations as to the strength of their case without doing any independent investigation that I've heard of.
So, in my opinion, the first test of Strickland is met. I’m sorry. The test of Strickland is met. It’s the test of Strickland-Hill then comes into play.

The trial court then addressed the second prong of the test, regarding prejudice resulting from counsel’s deficient performan ce. In its ruling, th e court declined to address the issue of prejudice under Strickland and Hill v. Lockhart , 474 U.S. 52 . . . (1985). The court stated:

THE COURT : The second prong, the Hill part of it requires that the defendant allege that but for his attorney's deficient performance, “she” in this case, would've gone to trial rather than pled guilty.
Well, of course, by the very nature of these motions that’s what she’s asserting here. That remains to be seen, her prerogative later on whether or not to make—do that or not.
Very difficult for me in light of some of the standards, as [the prosecutor] indicates here on the r ecord, that I’m supposed to make some sort of educated guess ra ther was [sic] to likelihood of success, and I don’t think—I thi nk I can decline to do that.
One can certainly strongly argue that maybe a—a defense lawyer can convince a jury that it was either justifiable or perhaps voluntary manslaughter which woul d greatly reduce her sentence from what it presently is.
On the other hand, a jury could easily convict of first degree and/or second degree.
I want—on a personal note and I alluded to this with [the prosecutor], the transcript doesn’ t reflect the atmosphere that existed in this courtroom that I pe rsonally observed. A transcript is a black and white summary of wh at was said, basically and—not summary, but verbatim, what was said by me and what was said by her.No. 15-2419 Shimel v. Warren Page 9

And I will indicate this. I—I know I thoroughly covered the aspects of the plea in this case. And there’s a reason I did it. And the reason is, is I wasn’t sure if she knew what was going on. I wasn’t positive of it. And at the time, I assumed that she was fully aware of what the likely sentence would be. At least the sentencing guideline range.
Of course, I would have the prerogative to sentence her simply to life without a guidelines range as well. But I recall without even reading the transcript one of the things she said to me was that “I just wanted him to stop” or words to that effect. That’s my recollection, and again, I didn’t review—actually I didn’t review the plea taking transcript for today. And prior to the Ginther hearing, I—I don't recall reviewing the transcript either then. But I remember her saying, vividly, “I just wanted him to stop.” And that’s when I went in to, I think, and again, I didn’t review it for today’s purposes, but the self-defense and waiving defenses and the like.
And I did that because I was very cautious in that I really wanted to make sure she knew what she was doing by pleading guilty in light of a potential defense that she had.
And perhaps that will come back to haunt her, as [the prosecutor] suggests it should. But from a pe rsonal standpoint, I think she was confused.

And I did not know until the—after the fact, that Mr. Denton had not spoken to her that morning or afternoon prior to the plea taking process other than on the record here, that she met him for the first time in the courtroom. She testifie d to that, as I recall. And I believe her on that.
I tried my best to determine that she understood what was going on, the gravity of her plea and the likely course of action that I would take. I did find her plea wa s voluntarily (sic). But again, that plea—voluntariness was notfound, ah, because I was aware [sic] that counsel hadn’t informed her of these various and sundry things. And having heard that now on this post-sentence proceeding, I have to also find th at in my opinion that based upon her ineffective assistance of counsel, that her plea was not knowingly and voluntarily made.
Accordingly, the trial court granted de fendant’s motion to withdraw her guilty plea.No. 15-2419 Shimel v. Warren Page 10

People v. Shimel , No. 312375, 2013 WL 4006549, at *1–7 (Mich. Ct. App. Aug. 6, 2013).
The Michigan Court of Appeal s reviewed the trial court’s fi ndings of fact for clear error and questions of constitutional law de novo

. Id. at *7. The Michigan Court of Appeals reversed the trial court’s grant of Shimel’s motion to wi thdraw her plea, finding that she was not denied
the effective assistance of counsel and that her plea was knowing and voluntary. Id. at *13.
Specifically, the court first found that “the tr ial court clearly erred by determining that Denton failed to conduct an investigation regardi ng a battered spouse self-defense theory and improperly substituted its judgment for that of trial counsel on a matter of trial strategy.” Id. at *8. In so holding, the cour t relied on the following:

The Ginther hearing testimony established that Denton is an experienced attorney, he was the elected county prosecutor for Saginaw County for four years beginning in 1972, and he had handled approximately two hundred homicide cases. Denton testified that he had spoken on several occasions with Dale Grayson at the National Clearinghouse for the Defense of Battered Women regarding the battered spouse syndrome defense and ha d obtained materials from Grayson regarding the defense. Denton was concer ned about the fact th at defendant fired several shots into Shimel’s back, reloaded the gun, and continued to fire. He was also concerned that none of her four ch ildren had witnessed any physical abuse or threat of physical abuse to defendant, a nd there was very little evidentiary support to substantiate a history of physical abus e. Denton explained that he decided not to pursue the defense because he did not beli eve that “it could be sold to a jury.” In fact, he testified that he believed that defendant would have been convicted of first-degree murder had she proceeded to trial. Because defendant’s primary goal was to one day be released from prison in order to be with her children, Denton believed that a plea to second-de gree murder was her best option.

Id.
The Michigan Court of Appeals also held th at the trial court erred in its analysis of whether Shimel was prejudiced. Id. at *9–10. Relying on record evidence, the court found that
Shimel “would not have received a better outcome if she had gone to tr ial and argued that she acted in self-defense based on a battered spouse th eory,” because of the lack of a history of domestic violence, the fact that seven of the bullets entered Shimel’s body through his back, and Fischer’s testimony that a successf ul battered spouse defense co mmonly results in second-degree murder charges—exactly the outcome Shimel received. Id. at *10. The court then consideredNo. 15-2419 Shimel v. Warren Page 11

the voluntariness of Shimel’s plea and found that even if Denton’s performance was deficient, Shimel could not establish prejudice because “she chose to accept the same plea offer before her preliminary examination, but the offer was withdr awn because defendant’s attorney at that time did not timely communicate defendant’s accepta nce of the offer to the prosecution.” Id. at *11.
The Michigan Supreme Court denied Shim el’s application for leave to appeal. People v.
Shimel , 840 N.W.2d 312 (Mich. 2013).
Thereafter, Shimel filed a petition for a writ of habeas corpus in the federal district court.
The district court denied Shimel ’s Petition, but granted her a cer tificate of appealability on her ineffective assistance of counsel claim. Shimel timely appealed.

II.

A.
In a 28 U.S.C. § 2254 habeas appeal, we revi ew the district court’s legal conclusions de

novo and factual determinations for clear error. Loza v. Mitchell , 766 F.3d 466, 473 (6th Cir. 2014); Dando v. Yukins , 461 F.3d 791, 796 (6th Cir. 2006). A state court’s determination of factual issues “shall be presumed to be correct” unless the petiti oner rebuts this presumption “by clear and convincing evidence. ” 28 U.S.C. § 2254(e)(1).
Federal habeas corpus relief is governed by the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Under 28 U.S.C. § 2254(d):
An application for a writ of habeas co rpus on behalf of a person in custody pursuant to the judgment of a State court sh all not be granted w ith respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim:
(1) resulted in a decision that was contra ry to, or involved an unreasonable application of, clearly established Fede ral law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presen ted in the State court proceeding.No. 15-2419 Shimel v. Warren Page 12

A state court’s decision is an “unreasonable application” of clearly established federal law if it “correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner’s case.” Williams v. Taylor , 529 U.S. 367, 407–08 (2000). “The ‘unreasonable application’ clause requires the stat e court decision to be mo re than incorrect or erroneous”—it must be “objectively unreasonable.” Lockyer v. Andrade , 538 U.S. 63, 75 (2003). The phrase “clearly established Federal law” in § 2254(d)(1) “refers to the holdings , as opposed to the dicta, of [the Supreme] Court’s decisions as of the tim e of the relevant state-court
decision.” Williams , 529 U.S. at 412 (emphasis added); see also Lopez v. Smith , 135 S. Ct. 1, 4 (2014) (per curiam) (“Circuit prec edent cannot ‘refine or sharpen a general principle of Supreme Court jurisprudence into a spec ific legal rule that this Co urt has not announced.” (quoting Marshall v. Rodgers , 133 S. Ct. 1446, 1450 (2013))).
The Supreme Court’s holding in Strickland v. Washington , 466 U.S. 668 (1984), provides the “clearly established Federal law” relevant to Shimel’s claim of ineffective assistance of
counsel. See Williams , 529 U.S. at 391. To prevail, Shimel must first “show that counsel’s performance was deficient” by “an objective sta ndard of reasonableness, ” meaning that trial
counsel “made errors so serious that counsel wa s not functioning as th e ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland , 466 U.S. at 687–88. “Judicial scrutiny of counsel’s performance must be highly deferential.” Id. at 689. “Second, the defendant must show that the deficient performance prejudiced the defense,” meaning that Shimel “must show
that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 687, 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. In the case of ineffectiveness in regard to th e acceptance of a plea deal, ther e is a “strong presumption that counsel’s conduct falls within the wide rang e of reasonable professional assistance.” Id. at 689.

The Strickland inquiry coupled with AEDPA re view is doubly hard to meet. Harrington
v. Richter , 562 U.S. 86, 105 (2011); Bell v. Cone , 535 U.S. 685, 699 (2002).No. 15-2419 Shimel v. Warren Page 13

B.
We are first tasked with determining to which state court decision we must defer. Generally, this court reviews the decision of “the last state cour t to issue a reasoned opinion on the issue[s]” raised in a habeas petition. Joseph v. Coyle , 469 F.3d 441, 450 (6th Cir. 2006) (internal quotation marks and citatio n omitted). In this case, the Michigan Court of Appeals was
“the last state court to issue a reasoned opinion.” Id.
Shimel argues, however, that this court shoul d review the decision of the trial court and ignore the factual findings and legal conclusion s of the Michigan Court of Appeals. She contends that “[d]eference must be given to both findings of fact and legal conclusions made by a trial court following a Strickland evidentiary hearing,” which in this case would mean deferring to the credibility determinations and legal conclusions made by the trial judge at the Ginther hearing. Appellant Br. at 20–21. In contrast, the government cont ends that AEDPA deference is due to the opinion of the Michig an Court of Appeals. The govern ment is correc t: the Michigan Court of Appeals “is the last state court to ad judicate the claim on the me rits” and its opinion is therefore “[t]he relevant state court decision.” Pudelski v. Wilson , 576 F.3d 595, 607 (6th Cir. 2009). The cases cited by Shimel are not to the contrary.

In Foster v. Wolfenbarger , the defendant was convicte d, the trial co urt conducted a
Ginther hearing and found trial counsel ineffective for failing to investigate and present an alibi defense, and the Michigan Court of Appeals reve rsed, finding that the de cision not to put on an alibi defense was a strategic decision. 687 F.3d 702, 707 (6th Cir. 2012). Then, on § 2254 review, the district court found that trial counsel was deficien t, and this court agreed. Id. at 707– 09. In arriving at its conclusion, the panel noted that this cour t “give[s] due deference to the conclusions of the trial judge on the effectiven ess of counsel, because ‘[t]he judge, having observed the earlier trial, shou ld have an advantageous perspective for determining the
effectiveness of counsel’s conduct and whethe r any deficiencies we re prejudicial.’” Id. at 708 (quoting Massaro v. United States , 538 U.S. 500, 506 (2003)). This statement, however, must be read in light of the court’s conclusion that th e Michigan Court of Appeal’s decision was an unreasonable application of clearly establis hed Federal law. Id. at 709. Although the Foster court noted the trial court’s superi or position to assess credibility , it did not rely on the trialNo. 15-2419 Shimel v. Warren Page 14

court’s ruling as a dispositive basis for granting relief. See id. at 708–09. Rather, it applied AEDPA deference to the opinion of th e Michigan Court of Appeals. See id.

Likewise, Ramonez v. Berghuis does not require this court to ignore the findings of the Michigan Court of Appeals and defe r to the determinations of the state trial court. 490 F.3d 482, 490 (6th Cir. 2007). In stating that “in the context of a Strickland evidentiary hearing, it is for the judge to evaluate the credibil ity of the criminal defendant and the former defense counsel in deciding what advice counsel had in fact given to the defendant during his trial, and such findings are entitled to the Section 2254(e)(1) pres umption,” this court was merely illustrating
the distinction between credibility determinatio ns within the judge’s or jury’s province. Id.
Such a statement does not divest a state appellate court of its ability to review the factual findings and legal conclusions of a state trial court. As in Foster , the Ramonez court applied AEDPA’s double deference to the opinion of the Michigan Court of Appeals. Id. at 486–87.
Nor does § 2254(e)(1) support Shimel’s position. The statute speaks only to the factual determinations made by a “State court”—it does not differentiate between state trial and state appellate courts:
In a proceeding instituted by an applica tion for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the pr esumption of correctness by clear and convincing evidence.
It would be an inappropriate exercise of federal habeas re view to ignore the factual and legal conclusions of the Michigan Court of App eals and instead look to the state trial court’s findings. See Rose v. Lundy , 455 U.S. 509, 518–19 (1982). Shimel ’s argument boils down to a complaint that the Michigan Court of Appeals unreasonably applied the state-mandated standard of review. This is not a ground on which we cangrant habeas relief. As this court has previously opined, AEDPA sets forth “a precondition to the grant of habeas relief . . . not an
entitlement to it.” Daniels v. Lafler , 501 F.3d 735, 740 (6th Cir. 2007) (citing Fry v. Pliler , 551 U.S. 112, 119 (2007)). Therefor e, we apply § 2254(e)(1)’s pres umption of correctness to the factual findings of the Michig an Court of Appeals and AEDPA double deference to the legal conclusions of the Michigan Court of Appeals.No. 15-2419 Shimel v. Warren Page 15

C.

Shimel must establish that trial counsel’s performance was deficient and that his deficiencies prejudiced the defense. Strickland , 466 U.S. at 687. Although we have doubt that Denton’s performance was deficient, we resolv e Shimel’s claim on the prejudice prong because there can be no finding of ineffective assi stance of counsel w ithout prejudice. Phillips v.
Bradshaw , 607 F.3d 199, 216 (6th Cir. 2010) (citing Strickland , 466 U.S. at 691–92).
To satisfy the prejudice requirement in the context of guilty pleas, “the defendant must show that there is a reasonable probability that , but for counsel’s errors , [s]he would not have pleaded guilty and would have in sisted on going to trial.” Hill , 474 U.S. at 59. In the Sixth Circuit, a petitioner “cannot make that showing me rely by telling [the court] now that she would have gone to trial then if sh e had gotten different advice.” Pilla v. United States , 668 F.3d 368, 373 (6th Cir. 2012). “The test is objective, not s ubjective; and thus, ‘to obt ain relief on this type of claim, a petitioner must convi nce the court that a decision to reject the plea bargain would
have been rational under the circumstances.’” Id. (quoting Padilla v. Kentucky , 559 U.S. 356, 372 (2010)). “[W]here the alleged error of counsel is a failure to advi se the defendant of a potential affirmative defense to the crime charge d, the resolution of the ‘p rejudice’ inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial.” Hodges
v. Colson , 727 F.3d 517, 534 (6th Cir. 2013) (quoting Hill , 474 U.S. at 59). This is such a case,
as Shimel contends that her counsel was deficien t for his failure to present a theory of selfdefense. “[I]n determining whether a defend ant has shown prejudice, a court must predict whether correction of the deficient performance might have enabled the defendant to succeed at
trial.” Id. at 538.

With these considerations in mind, Shimel has not establis hed a reasonable probability that, but for counsel’s advice to plead guilty, she would have gone to trial. Nor has she proven
that there is a reasonab le probability that the presentation of a battered spouse syndrome theory
of self-defense at tria l would have resulted in a better outcome for he r than a conviction of second-degree murder.No. 15-2419 Shimel v. Warren Page 16

Shimel argues that she would have rejected the plea and insisted on going to trial and that
she would have received a better outcome at trial. She asserts that at trial, she would have used Fischer’s expert testimony on battered spouse s yndrome “to explain the reasonableness of the battered spouse’s perception that danger or great bodily harm is imminent, and also to rebut the prosecution’s inference that the defe ndant could have left rather th an kill the spouse.” Appellant Br. at 33 (quoting People v. Wilson , 487 N.W.2d 822, 824 (Mich. Ct. App. 1992)). In response, the government contends that Shimel cannot show th at she would have chosen to go to trial and that if she had, even with Fischer’s expert test imony, she likely would have been convicted of the more serious charge of first-degree murder, wh ich would have subjected her to a non-parolable
life sentence.
Shimel was charged with open murd er under Michigan Comp. Law 750.316, which “shall be punished by imprisonment for li fe without eligibility for parole.” Shimel , 2013 WL 4006549, at *1. In contrast, second-degree murd er pursuant to Michigan Comp. Law 750.317 “shall be punished by imprisonmen t in the state prison for life, or any terms of years, in the discretion of the court trying the same.” In disc ussions with Denton, Shimel expressed her desire to have the opportunity to be released from pr ison and someday return to her four children.
Shimel , 2013 WL 4006549, at *2, 4. Therefore, Denton’ s belief that “the second-degree murder plea was a good option because it would give defenda nt a chance to be released from prison one day” was reasonable. Id. at *2. Indeed, Shimel was sentenced to eighteen to thir ty-six years in prison, which leaves open the possi bility that she might be reun ited with her children someday.
Nowhere has Shimel stated that if she had better advice or spent more time with her trial counsel, she would not have pled guilty; nor would a reas onable person have chosen to proceed to trial
under the circumstances. Shimel’s statement in her briefs that she would have rejected the plea agreement and insisted on going to trial are belied by the fact that she had agreed to plead guilty to second-degree murder prior to her pr eliminary examination but, because of a
miscommunication between her former counsel and the prosecutor, the deal expired. Id. at *1. Shimel’s statements to the contrary are insuffi cient to rebut the Michigan Court of Appeals’ findings on this matter. See 28 U.S.C. § 2254(e)(1). A r easonable defendant in Shimel’s situation would have accepted the second-degree murder plea, especially in light of the prosecutor’s stance that, even w ith expert testimony on battered spouse syndrome, he would notNo. 15-2419 Shimel v. Warren Page 17

have further reduced the charge to manslaughter. See Shimel , 2013 WL 4006549, at *2, *4. In reaching this conclusion, the Michigan Court of Appeals did not unr easonably apply clearly
established Federal law. Id. at *11.
Even assuming that a reasonable defendant in Shimel’s position would have rejected the second-degree murder plea agreement, she has faile d to establish a reasonable probability that expert testimony on battered spouse syndrome woul d have improved her result. Michigan law does not permit a defendant to plead battered spouse syndrome as a freestanding defense but rather as part of a self-defense claim. See Seaman v. Washington , 506 F. App’x 349, 360 (6th Cir. 2012) (citing People v. Christel , 537 N.W.2d 194, 202 (Mich. 1995)). “In Michigan, the killing of another person in self-defense is ju stifiable homicide if the defendant honestly and reasonably believes that [her] life is in imminent da nger or that there is a threat of serious bodily
harm.” People v. Heflin , 456 N.W.2d 10, 18 (Mich. 1990). Shimel would have been unable to
meet this burden. Her husband suffered nine gunshot wounds, seven of which entered his body through his back, Shimel , 2013 WL 4006549, at *1, which weighs ag ainst a self-defense theory.
See Cain v. Redman , 947 F.2d 817, 822 (6th Cir. 1991). Furt her, the government would have presented evidence that “the shooting was precip itated by the couple’s financial problems, and specifically defendant’s gambling problem” and th at Shimel had reloaded the gun and then
continued to shoot her husband. Shimel , 2013 WL 4006549, at *4. There is no reasonable probability that Shimel’s battered spouse syndrom e self-defense theory would have succeeded at trial. Shimel is unable to establish prejudice, and therefore, her clai m for habeas relief fails.

III.

For the reasons stat ed above, we affirm.