NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 12a0743n.06 No. 11-3238 UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T

DWI GHT EL MER BROWN, Petitioner-Appellant ,

v. W A R D E N , M A N S F I E L D C O R R E C T I O N A L I NSTI TUTI ON, Respondent-

Appellee

. ) ) ) ) ) ) ) ) ) ON APPEAL FR OM T HE UNI TED STATES DI STRI CT COURT FOR THE SOUTHERN DI STRI CT OF OH I O

O P IN I O N

BEF ORE: COL E and CL AY, Circuit J udg es; MATTI CE, District J udg e. * MATTI CE, District J udg e. Petitioner Dwig ht Br own appea ls from the district court’s denial of his pe tition for a

writ of habe as cor

pus, filed pursuant to 28 U.S.C. § 2254. Finding no err or in the district court’s de cision, we a ffirm. I

. On May 5, 2006, Br own pleade d g uilty to one count of pander ing sexually oriented materia l involving a minor and two counts o f ra p e, in violation of Ohio Rev. Code Ann. §§ 2907.322 and 2907.02, respe ctively

. Commensurate with the terms of a jointly filed sentenc ing rec ommendation, the tri al co u rt s en t enced Br own to five y ear s’ imprisonment as to the count of pander ing and to mandatory life prison terms as to eac h of the ra pe counts, a ll to run consecutively to one another.

The Honor able Ha

rry S. Mattice, Jr., United States District J udg e for the Easter

n District * of Tenne ssee, sitting by

desig nation.No. 11-3238

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arden Br own appea led his sentenc es, but afte r consulting with appellate counsel, he moved to dismiss the appea l based on the appea l waiver provision in his plea ag ree m en t wi t h the State. In September 2006, the Ohio Court of Appe als g rante d Br own’s motion and dismissed his appeal. I n August 2007, Br own reta ined a new attorney and moved to withdraw his gu i l t y plea,

asser ting that it was ent ere d without eff ective assistance of counsel. The trial court set the m atter for a hear ing, at which Br own was permitted to appea r via videoconf

ere nce. The court g ave Br own’s attorney s the option of appea ring in person or, alternatively , appea ring with Br own from prison via videoconf

ere nce. Br own’s att o rney s elec ted to appea r in person, and they objected to Br own’s phy sical absenc e. At the hear ing, the cou rt h ea rd testimony from Perry Parsons, Br own’s trial counsel; Andre w Sanderson, Br own’s counsel on his first direc t appea l; and David Phill ips, I I I , the Union County prosec utor assig ned to Br own’s ca se. On J anuar y 22, 2008, with the benefit of t he parties’ supplemental briefs, the trial court treated Br own’s motion as a petition for postconviction relief and denie d it. Br own appea led from the trial court’s order denying his motion to withdraw his g uilty plea. See State v. Brown , No. 14-08-11, 2008-Ohio-4649, 2008 WL 4193048 (Ohio Ct. Ap p . S ep t

. 15, 2008). He asser

ted on appea l that the trial court err ed by deny ing him the ri ght to be phy sically prese nt and consult with counsel during the hear ing on his motion. He also argued that the trial court improperly denied his reque st to withdraw his g uilty plea, in part beca use his trial counsel and first appellate counsel we re ine ffe ctive. The Ohio Court of Appea ls a ffirme d the decision of the trial c ourt. I t first determined that Br own’s phy sical prese nce was not require d at the hear ing on his motion to withdraw a g uilty plea: 2No. 11-3238

Brown v. W

arden The Six th Amendment to the United States Constit ution, Section 10, Article I of the Ohio Constit ution, and Crim.R. 43 all deal with the defe ndant’s prese nce or rig ht to confr ontation during their t ri al o r criminal prosec ution. Howeve r, in the prese nt case , Br own has a lrea dy been c onvicted and sentenc ed following his guilty plea. Since the t ri al and criminal prosec ution have been completed, the Six th Amendment to the United S t at es Constit ution, Section 10, Article I of the Ohio Constit ution, and Crim.R. 43 [do] not require the defe ndant’s phy sical prese nce at the hear ing on his m o t ion to withdraw a g uilty plea, nor have we found any Amendments or Criminal Rules that would direc tly require a criminal defe ndant' s phy sical pre sence at a he aringon such a motion. Brown , 2008 WL 4193048, at *3. The court noted that the parties identified no case law establishing

a defe ndant’s rig ht to be phy sically prese nt at a hear ing on a motion to withdraw a g uilty plea, and it foun d that Br own was not disadvantag ed by his lack of phy sical presence , espec ially in view of the fact that his attorney s declined t h e o p p o rt u n ity to be present wit h him at t he prison during the hear ing. The Ohio Court of Appea ls als o af fi rmed the trial court’s denial of Br own’s motion to withdraw his g uilty plea, reje cting Br own’s claim that he did not rec eive effec t i v e assistance of counsel. I t f

irst c oncluded that the claim was barr ed by the doctrine of res judicata , but it went on to addre ss the merits of his claim and hold that, even if the claim wer e not barr ed, it would still fail,

as Br own was unable to establish that either his trial counsel or appellate counsel provided defic ient repr esentation. The Ohio Supreme Court de clined to acc ept Br own’s subsequent appea l. State v. Brown , 900 N.E.2d 624 (Ohio 2009) (unpublished table de cision). On Februa

ry 4, 2010, in the United States District Court for the Southern D istrict of Ohio, Br own fil ed a petition for a writ of habe as cor pus pursuant to 28 U.S.C. § 2254. I n it, he asserted that the trial court impermissibly denied him the rig ht to be prese nt and consult with counsel during

3No. 11-3238

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arden the hear ing on his motion to withdraw his g uilty plea. He further claimed that, beca use he had been denied t h e ef

fec tive assistance of counsel, the trial court err ed in denying the motion. A United S tates Mag istrate J udg e reje cted Br own’s arguments and issued a corr esponding R ep o rt an d Recommendation , re commending that the habeas action be dis missed. The dist rict court adopted the Mag istrate J udg e’s Report and Reco m m en d at i on. Howeve r, the court g rante d a cer tificate of appea lability as to two issues: (1) whether Br own was denied a constitutional rig ht to be prese nt and consult with counsel at the hear ing on his motion to withdraw his g uilty plea, and (2) whether Br own was de nied the ef

fec tive assistance of trial and a ppellate c ounsel. This appea l followed. I I

. A. Stand ard of Review This Court revie ws de novo a district court’s leg al conclusions in § 2254 proce eding s. Harris

v. Ha eb erl in , 526 F.3d 903, 909 (6th Cir. 2008). Gene rally , it employ s a clea r-e rror standard in revie wing the district court’s fac tual finding s. Id

. Where the district court does not make independe nt fac tual finding s, the fac tual finding s are revie wed de novo . Carter v. Mitchell , 443 F.3d 517, 524 (6th Cir. 2006). Be cause Br own filed his § 2254 p etition afte r the enac tment of the Antiterror ism and Effe ctive Death Penalty Act of 1996 (“A EDPA”), AEDPA’s provisions g overn this Court’s revie w. See M urphy v. O hio , 551 F.3d 485, 493 ( 6th Cir. 2009). I n Murphy , this Court succinc tly define d AEDPA’s a

pplicable standa

rds:

4No. 11-3238

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arden Under AEDPA, a fede ral court may g rant a writ of habe as corpus with respe ct t o a “c l ai m t h at was adjudicate d on the merits in state court proce eding s” if the stat e court’s decision “wa s contra ry to, or involved an unrea sonable application of, clea rly established Fe dera l law, as deter mined by the Supreme Court of the United States.” 2 8 U.S.C. § 2254(d)( 1). A habea s petition may also be g rante d if the state cour t 's decision “w as based on an unrea sonable deter mination of the fac ts in light of the evidenc e presented in the S tate cou rt proce eding .” Id. § 2254(d)( 2). A s tate-c ourt decision is contra

ry to clea rly established fede ral law “if the state court applies a rule that contra dicts the g overning law set forth in [t he Supreme Court’s] case s” or “if the s t at e court confr onts a set of fac ts that are materia lly indisti ng uishable fro m a decision of [t he Supreme] Court and never t h eless arr ives at a result differ ent from [t hat] prec edent.” [ W

illiams v. Taylor , 529 U.S. 362, 405 (2000)]. A s t at e- co u rt decision is an unrea sonable application of clea rly established federa l l aw if it “cor rec tly identifies the g overning leg al rule but applies it unrea sonably to the fac ts of a particula

r prisoner’ s case ,” id. at 407–08, 120 S. C t

. 1 495, or if it “either unrea sonably extends or unrea sonably ref uses to extend a leg al principle from Supreme Court prec edent to a new context,” Seym our v. W alker , 224 F.3d 542, 549 (6th Cir. 2000). Murphy , 551 F.3d at 493-94 (textual alterations orig inal). B. P hysical Pr esence On appea l, Br own first contends that the trial court err ed in denying his reque st t o b e phy sically

prese nt at the hea

ring on the m otion to withdraw his guilty plea. B rown maintains that the trial court v i olated his rig hts under the Confrontation Clause of the Six th Amendment to the United States Constit ution; Article I , Section 10 of the Ohio constitution; and Ohio Rule of Criminal Procedur e 43(A ). His claim lac ks merit. At the o u t s et, Br own’s substantial relianc e on Ohio law is misplaced. When a state-c ourt decision is not based on an unrea sonable fac tual deter mination, a writ of habea s corpus may only issue under AEDPA when the decision is “contr ary to, or involved an unrea sonable application of, clearly established Fede ral l a w , as determine d by the Supreme Court of the United States .” 28

5No. 11-3238

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arden U.S.C. § 2254(d)( 1) (empha sis added)

. Thus, Br own’s arguments that the state court’s decision ran afoul of the Ohio constitution, Ohio Rule of Criminal Procedur e 43, or various Ohio Supreme Court decisions are unavailing – “[a] fe dera l c ourt cannot issue a writ of habea s corpus ‘on the basis of a perc eived err or of state law.’” W ilson v. Parker , 515 F.3d 682, 705 (6th Cir. 2008) (quoting Pulley

v. Harris , 465 U.S. 37, 41 (1984))

. Consequently , the only cog nizable issue in Br own’s first claim is whether the s tate court’s decision t o prohibit his phy sical pre sence at t he hearing on his motion to withdraw his g uilty plea violates th e Six th Amendment to the United States Constit ution, as interpre ted by

the United States Supreme Court. A def endant’ s constitutional right to prese nce in c riminal proce eding s “is rooted to a la rg e extent in t he Confronta

tion Cl ause of the S ix th Amendment.” United St ates v. Gagnon , 470 U.S. 522, 526 (1985). I n pertinent pa rt, the Six th Amendment states: “I n all criminal prose cutions, the

acc used shall enjoy the rig ht

. . . to be confr onted with the witnesses ag ainst him.” U.S. Const. amend. VI

. “Of the various elements to the confrontation rig ht – ‘phy sical pre sence , oath, crossexamination, and observation of demea nor by the trier of fac t’ – phy sical prese nce, or a defe ndant’s rig ht to confr ont the witnesses ag ainst him fac e-to-f ace , forms ‘the core of the values further ed’ by the [C onfrontation] Clause.” United States v. Burke , 345 F.3d 416, 425 (6th Cir. 2 0 0 3 ) (quoting Maryland v. Craig , 497 U.S. 836, 846–47 (1990)). Even if we wer e to as s u m e arguendo that Br own’s prese nce at the hear ing via videoconf

ere nce was somehow inadequate to meet the d ictates of the Six th Amendment, his argument would still fail. See Burke , 345 F.3d at 425–26 (“B ut the phy sical conf rontation rig ht is not absolute, and alternatives such as video-c onfrontation may be acc eptable where nece ssary to 6No. 11-3238

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arden further an important policy .”) (quotation omitted); see also Craig , 497 U.S. at 852 (holding that “use of [a] one-w ay closed cir cu i t t el evis ion proce dure, wher e nece ssary to further an important state interest, d o es n o t i mpinge upon the truth-see king or sy mbolic purposes of the Confrontation Clause”)

. Clearly established Confrontation-Clause jurisprudenc e g uara ntees a criminal defe ndant the “rig ht to be prese nt in the courtroom at ever y stag e of his trial .” Illinois v. Allen , 397 U.S. 337, 338 (1970) (empha sis added) ; see Gray v. Moore , 520 F.3d 6 1 6 , 6 2 2 (6th Cir. 2008). This rig ht “e xists wher e there is a rea sonably substantial relation to the fullness of opportunity to defe nd ag ainst the char g e and to the extent that a fair and just hear ing would be thwarte d by the defe ndant’s absenc e.” United States v. Barnwell , 477 F.3d 844, 852 (6th Cir. 2007) (citation omitted). Notably , “t h e Supreme Court has repe atedly explained that ‘[t] he rig ht to confr ontation is basica lly a t ri al rig ht.’” Burke , 345 F.3d at 426 ( quoting Barbe r v. Page , 390 U.S. 719, 725 (1968)); see Kentuc ky

v. S t i n cer , 482 U.S. 730, 738 n.9 (1987); Pennsylv ania v. Ritchie , 480 U.S. 39, 52–53 (1 9 8 7 ) (plurality opinion); Calif

ornia v. Gree n , 399 U.S. 149, 157 (1970). I n this case, B rown wa s not phy sically excluded from any

seg ment of the trial phase of his criminal litigation. Fur

ther, his challeng ed “abse nce” in no way aff ecte d his ability to defe nd ag ainst the char g es levied ag ainst him. Rather, he had alre ady pleade d g uilty to those char g es, the trial court h ad acc epted his plea and sentenc ed him acc ording ly , and he had dis missed his subsequent d i re ct appea l. At the hear ing on the motion t o wi thdraw his plea, Br own’s attorney s wer e prese nt, and Br own was able to participate via videoconf ere nce. To the extent that Br own and his attorney s wer e phy sically distant or otherwise unable to privately confe r, that seg reg ation was of their own volition

– the court aff

orded the attorney s the opportunity to appea r remotely beside Br own, but they ref used. 7No. 11-3238

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arden Br own has identified no Supreme Court prec edent – or, for that matter, prec edent from any other feder al court – sug g esting that the right to be present enshrined in the C onfron t at i o n Clause

ex tends to a post-conviction, post-sentenc e motion to withdraw a g uilty plea. The lack o f s u ch authority is meaning ful: “I f [t he Supreme Court] has not broken sufficie nt leg al g round to establish

an asked- for constitutional principle, the lower fede ral courts cannot themselves establish such a principle with clar ity sufficie nt to satisfy the AEDPA bar.” W illiams , 529 U.S. at 381; see 28 U.S.C. § 2254(d)( 1); Harrington v. Richter , 131 S. Ct. 770, 786–87 (2011) (“I f [AEDPA’s] standard is difficult to meet, that is beca use it was meant to be.

. . . As a condition for obtaining habea s corpus from a fede ral court, a state prisoner must show that the state court’s ruling on the claim being prese nted in fede ral court was so lacking in justification that there was an err or well understood and compre hended in exis ting law bey ond an y p o s s ibilit y for fairminded disag ree ment.”). Be cause Br own does not contend that the state court’s decision is premised on an unrea sonable deter mination of the fac ts, and beca

use he has identified no clea rly established fede ral law to which the state court’s d ec i s ion ran contra

ry , pursuant to § 2254(d), this Court cannot g rant the habea s relief he no w reque sts. C. Ineff

ect ive Assistance of Counsel Br own next ar g

u e s th a t h e was denied eff

ective assistance of counsel, both in connec tion with his guilty plea a nd on his first direct a

ppeal. We re

ject both claims. The S ix th Amendment guar antee s criminal defendants the rig ht to the effe ct i ve assist ance of counsel during their criminal proce eding s. Strickland v. W ashington , 466 U.S. 668,

8No. 11-3238

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arden 6 8 4

– 8 6 (1 9 8 4 ). I n Strickland , the S upreme Court established a two-par t test by which a criminal defe ndant’s alleg ations of ineff ective a ssistance of c ounsel are analy zed: First, the defe ndant mus t s how that counsel’s perf ormanc e was defic ient. This require s showing that counsel made err o rs so serious that counsel was not functioning as the “counse l” g uara nteed the defe ndant by the Six th Amendment. Second, the defe ndant must show that the defic ient perf ormanc e p rejudice d the defe nse. This require s showing that counsel’s err ors wer e so serious as to deprive the defe ndant of a

fair tr ial, a trial whose result is reliable. Id. at 687. When evaluating ineffe ctive-a ssistance-of -counse l claims, “we ‘strong ly presume’ counsel to have ‘re ndere d adequate assistance and made all signific ant decisions in the exercise of rea sonable profe ssional judgme nt.’” S h o r t v. United States , 471 F.3d 686, 692 (6th Cir. 2006) (alter ation omitted) (quoting Strickland , 466 U. S

. at 6 9 0 ). A defe ndant claiming that his attorney provided defic ient repr esentation there fore bear s “a heavy burden.” W hiting v. Burt , 395 F.3d 602, 617 (6th Cir. 2005). I ndeed, “[e]ven under de novo revie w, the standard for judging counsel’s repr esentation is a most defe rential one.” Harrington , 131 S. Ct. at 788. Moreove r, under AEDPA, deter minations made in state court must “be g iven the benef it of the doubt.” Cullen v. Pinholster , 131 S. Ct. 1388, 1398 (2011). Take n t o gether , “[e]st ablishing that a state court’s application of Strickland was

unrea sonab l e under § 2254(d) is all the more difficult. The standards cre ated by Strickland and § 2254(d) are both ‘hig hly defe rential,’ and when the two apply in tandem, revie w is ‘doubly ’ so.” Har rington , 131 S. Ct. at 788 (citations omitted)

. “When § 2254(d) applies, the question is not whether counsel’s actions wer e rea sonable. The question is whether there is any reasonable argument that counsel satisfied Strickland ’s def ere ntial standard.” Id.

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arden The Supreme Court has rec ently rea ffirme d that the rig ht to the ef fe ct i ve assistance of competent c ounsel extends to the plea-ba rg aining proce ss. See Lafler v. Cooper , 132 S. Ct . 1376, 1384 (2012). I n order to establish a succe ssful ineffe ctive-a ssistance-of -counse l claim in connec tion with plea neg otiations, the petit ioner “must show that counsel did not attempt to learn the fac ts of the case and failed to make a g ood-fa ith estimate of a likely sentenc e.” Short , 4 7 1 F. 3 d at 6 92 (quotation omitted). Additionally , to meet Strickland ’s “prejudice” re q u i re m ent i n the contex t of the pl ea- barg ain process, “the defenda nt must show that there is a reasonable p robability that, but for c ounsel’s errors, he would not have plea ded guilty and would have insisted on going to trial.” Hill v. Lockhart , 474 U.S. 52, 59 (1985). The rele vant analy sis closely rese mbles that employ ed by courts revie wing ineffe ctive-a ssistance challeng es afte r a conviction at trial, and it may nece ssarily include a pr ediction as to the likely outcome had the defe ndant elec ted to g o to trial. Id. A defe ndant is also entitled to the eff ective assistance of counsel in his first appea l as of rig ht. Jo s h u a v. DeW

itt , 341 F.3d 430, 441 (6th Cir. 2003) (citing Evitts v. Lucey , 469 U.S. 387, 39 6 (1985))

. As with trial counsel, appellate counsel ’s p er fo rm ance is judge d under the standard articulated in Strickland : “it must be shown that counsel’s perfor mance was deficient and

that the defic ient perf

ormanc e prejudice d the defe nse so as to rende r the trial unfair and the result unreliable .” Mapes v. Tate , 388 F.3d 187, 191 (6th Cir. 2004) (empha sis orig inal) (citing Strickland , 466 U.S. at 687). Appe llate counse l is not required to raise all nonfrivolous arguments on appea l, but instead is require d only “to exercise rea sonable profe s s i o nal judgme nt.” Joshua , 341 F.3d at 441.

10No. 11-3238

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arden Br own first asser

ts that his trial co unsel was ineffe ctive for failing to conduct a sufficie nt investigation into the char g es ag ainst him and for allowing him to plead g uilty in the fac e of evidenc e insufficient to establish his g uilt. To that end, he points to a purportedly exculpatory medical repor t, and he a sserts that counse l was def icient in failing to develop re lated medica l testimony

. We r ejec t B rown’s argument that the Ohio Court of Appea ls unrea sonably deter mined that his trial counsel’s perf

ormanc e was not defic ient. The rec ord belies Br own’s claim that his attorney failed to conduct an investigation. Trial counsel testified that he met with Br own four times and that

eac h mee t i n g l ast ed betwee n a half-hour and an hour. Counsel went to the police station and revie wed the transcr ipt of Br own’s rec orded confe ssion, in which Br own admitte d t o repe atedly raping his own m inor daug hter. Counsel viewed video evidenc e of the crimes with which Brown

was char g ed. Be fore Br own tender ed his g uilty plea, he and counsel revie wed the State’s discovery materia l, and counsel advised him of his plea options. Prior to sentenc ing, Br own’s counsel and the prosec utor jointly filed a sentenc ing rec omme n d at i o n , t o which the trial court later adher ed. C o nsidering counsel’s effor ts, it was not unrea sonable for the Ohio Court of Appeals to conc l u d e that counsel conducte d a sufficie nt investigation in connec tion with plea neg otiations. Whil e Br own sug g ests that counsel might have eng ag ed in more extensive prepa rations, this is not the standard by which ineffe ctive assistance is judge d, and it is cer tainly not the standard applicable under AEDPA. See 28 U.S.C. § 2254(d); Harrington , 131 S. Ct . at 788; Strickland , 466 U.S. at 687. We also reje ct the asser tion that counsel’s purported failure to invest i gat e resulted in prejudice to Br own. L eaving aside that Br own himself made a complete admission of g uilt as to the char g es ag ainst him, attested that his a dmission was knowing and voluntary , and stated under oath 11No. 11-3238

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arden that he was sat i s fi ed wi t h trial counsel’s repr esentation, his prejudice claim still lacks merit. The Court can find no rea sonable basis on which t o conclude that, if explored, the medical repor t to which Br own ref

ers would have induced him to maintain his innocenc e at trial. The repor t states that Br own’s minor daug hter (i.e., the victim of his abuse) showed no phy sical signs of sexual abuse, and she did not otherwise indicate that Br own had abused her. Howeve r, the repor t also states that over 90% of y oung women with substantiated case s of sexual abuse have normal or nonspecific phy sical examinations. I t makes ref ere nce to the video tapes memorializing Br own’s abuse of his daug hter, and it rec ounts a Union County Children’s Service s rep o rt t h at Br own attempted to put his penis inside his daug hter but was unsucce ssful beca use it would not fit. The repor t rela tes another portion of a video, in which Br own sexually abuses his daug hter while the child’s brother is prese nt. Finally , it r estates the disclosures Br own’s daug hter made prior to the re corde d examination, which de fine the nature of cer

tain sexual interac tions she had with Br own, including oral-g enital contac t (victim to offende r) a

nd digital- g enital contac t (offe nder to victim). Br own’s claim of prejudice is further diminis hed in the fa ce o f the evidenc e marshale d ag ains t him. Br own’s trial counsel testified that two video rec ording s showed Br own sexually abusing his daug hter. Additional still imag es on Br own’s computer also depicted appar ent minors eng ag ed in sexual behavior , but in exchang e for his g uilty plea, the State ag ree d not to prosec ute him based on those imag es. And Br own himself admitted in a rec orded co n fe ssion that he abused his daug hter, even g oing so far as to identify himself and his daug hter in one of the video rec ording s of the abuse. I n view of this e vidence , the rec ord does not disclose a rea sonable probability that, had counsel conducte d further investigation, Br own would have ref used the prosec ution’s offe r and 12No. 11-3238

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arden demande d a trial. Consequently , Br o wn cannot establish prejudice arising from trial counsel’s alleg ed fa ilure to conduc t a suffic ient investigation. See H ill , 474 U.S. at 58-59. Br own argues that counsel was defic ient for failing to aler t him to the exis tence of potential d efenses to the char g es ag ainst him, including defe nses based on Ohio law and t h e Fi ft h Amendment. This a

rg ument is w ithout mer it. Br own corr ectly notes that Ohio law require s some evidenc e of a crime in or der to a dmit a c onfession. See, e .g., State v. Kesler, No. 13-06-09, 2006- Ohio-6340, 2006 WL 3476815, at *7 (Ohio Ct. App. 2006) (citing , inter alia , State v. Van Hook , 530 N.E. 2d 883 (Ohio 1988)). That require s only a minimal showing , howeve r, and in this case , counsel’s testimony clea

rly identified evidenc e meetin g th is r e q u ir ement: video rec ording s of Br own raping his minor daug hter. See Van Hook , 530 N.E.2d at 261. There fore , the Ohio court rea sonably conclude d that trial counsel could not be ineffe ctive for failing to inform him that a confe ssion alone is not sufficie nt evidenc e of g uilt. L ikewi s e, to the extent that Br own relies upon the Fifth Amendment as a means of questioning the viability his confe ssion, he has identified nothing in the

rec ord bey ond his own contra dictory statements in the police interview to support his argument that the confe ssion ran afoul of the Constit ution or that his trial attorney was ineffe ctive for failing to pursue such a claim. See Tollett v. Hende rson , 411 U.S. 258, 267 (1973) (“A g uilty plea, voluntarily and intelligently enter ed, may not be vacated beca use the defe ndant was n o t ad v i s ed of ever y

conce ivable constitutional plea in abatement he mig ht have to the c harg e . . . .”)

. “The decision to plead g uilty – first, last, and alway s – rests with the defe ndant, not his lawy er.” Smith v. United States , 348 F.3d 545, 552 (6th Cir. 2003). I n this case , Br own’s trial attorney provided sufficient i nformation to ensure that Br own was able to make an i n fo rm ed plea 13No. 11-3238

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arden decision. Nothing sug g ests that, had counsel p e r f ormed any differ ently , Br own would have persisted in de manding a trial. Acc ording ly , the Ohio Court of Appea ls r easona bly reje cted Br own’s claim that his trial counsel wa s ineffe ctive. Br own also asser

ts that his appella

te c o u n s e l w a s in eff

ective, but this claim is unsubstantiated

as well. Br own appea led from a convic t i o n b as ed on a plea ag ree ment containing a valid appea l waiver

. His appellate counsel discussed the plea ag ree ment with him, advising that persisting in the appea l would void the plea ag ree ment and likely result in the imposit io n o f charg es based on the additional imag es found on his c omputer. There afte r, Br own himself signe d and filed a reque st to dismiss his appea l, in which he stated that he had been fully advised of his constitutional and statutory rig hts. As the s tate appellate court rea sonably deter mined: “Appellate counsel informed Br own about the conseque nces of purs u i n g an appea l, and Br own chose to dismiss his appea l.” Brown , 2008 WL 4193048, at * 8

. T h e co n duct of Br own’s counsel on appea l was neither

unrea sonable nor defic ient under the circ umstances, and conseque ntly , Br own cannot establish that he is entitled to relief

pursuant to 28 U.S.C. § 2254. Be cause Br own is una

ble to establish that he is entitled to habea s relief on the merits of his petition, we do not addre ss the State’s contention that he has proce durally defa ulted on his ineffe ctive-a ssistance-of

-counse l claim. I I I

. For the fore g oing r easons, we AFF I RM the decision of the district cour t.

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