1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 15a0257p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

A

NTONIO T ERRANCE C OLEMAN , Petitioner-Appellant , v

.

D AVID B ERGH , Warden, Respondent-Appellee

. ┐ │ │ │ │ │ │ ┘ No. 14-1459

Appeal from the United St ates District Court for the Eastern District of Michigan at Flint. No. 4:12-cv-10883—Terrence Geor ge Berg, District Judge. Decided and Filed: October 27, 2015 Before:DAUGHTREY and CLAY, Circuit Judges; ECONOMUS, District Judge. *

_________________ COUNSEL
ON BRIEF: John S. Pallas, OFFICE OF THE MI CHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee. An tonio Terrance Coleman, Cold water, Michigan, pro se.

_________________ OPINION

_________________ MARTHA CRAIG DAUGHTREY, Circuit Judge. Antonio Terrance Coleman, a Michigan state prisoner proceeding pro se , appeals the district c ourt’s judgment denying his petition for a writ of hab eas corpus that Coleman filed pursuant to 28 U.S.C. § 2254. The district court also denied a certificate of appealability (COA), but we granted a COA on a single issue: “whether Coleman’s appellate counsel was constitutionally ineffective for failing to argue that

* The Honorable Peter C. Economus, United States Distri ct Judge for the Northern District of Ohio, sitting by designation. 

### >No. 14-1459 Coleman v. Bergh Page 2

Coleman had a right to counsel at his pre-appeal evidentiary hearing on hi s motion for a new trial and whether Coleman waived that right.” We now vacate that COA as improvidently granted.
The factual background and the proceedings in Coleman’s case have been set out on several occasions. He was convicted by a jury on charges of armed robbery, felon-in-possession of a firearm, and possession of a firearm in th e commission of a felony and was sentenced to 22- 32 years in prison. People v. Coleman , No. 268770, 2007 WL 1791694, at *1 (Mich. Ct. App. June 21, 2007). Shortly after sentencing, Cole man filed the pleadin g at issue here, a pro se motion for a new trial, which was denied. His di rect appeal was unsuccessful, as was his motion for leave to appeal his conviction to the Michigan Supreme Court. People v. Coleman , 740 N.W.2d 251 (Mich. 2007). Coleman then f iled a motion for relief from judgment, Michigan’s post-conviction vehicle. In it he ar gued, among other things, that he had received ineffective assistance of counsel when his appellate attorney faile d to argue that he was allowed to proceed without counsel at th e hearing on his motion for a new trial. The state trial judge denied Coleman’s motion for relief from judgmen t, pointing out that he had warned Coleman against proceeding without the aid of counsel, albeit at the end of the h earing rather than the outset. The Michigan C ourt of Appeals and the Michigan Supr eme Court denied leave to appeal. People v. Coleman , 809 N.W.2d 587 (Mich. 2012).
Coleman then filed a petition for a writ of hab eas corpus in federal court, raising various claims. The district court denied relief on the merits and declined to issue a COA. However, we subsequently granted review on Coleman’s claim that his appellate attorney was constitutionally ineffective “for failing to argue that Coleman ha d a right to counsel at pre-appeal evidentiary hearing on his motion for a new trial and wh ether Coleman waived that right.”
As a threshold procedural matter, we note that the hearing in question was not “evidentiary” in nature. Shortly after senten cing, Coleman filed the motion for a new trial pro

se , and the state trial judge allowed him to appear in court and argue the motion. Coleman raised three claims, none of which had any merit. Neve rtheless, the judge listene d patiently, explaining to Coleman as to each claim why he was not enti tled to relief. The judge then involved Coleman in a colloquy that last several minutes, tryi ng to impress upon him the importance of having a lawyer represent him on direct appeal. Colema n maintained at that time that he intended toNo. 14-1459 Coleman v. Bergh Page 3

represent himself before the Michigan Court of Appeals, but he evidently changed his mind a few weeks later, because the state court docke t sheet reflects the appointment of appellate counsel in Coleman’s case, and he was re presented by counsel on direct appeal.
Significantly, in the brief filed on appeal, appointed counsel did not raise any of the claims set out in his client’s pro se motion for a new trial, most likely because, as previously noted, they were completely withou t merit. But, counsel also did not raise one of the issues that Coleman later included in his state post-conviction litigation, which is the subject of the COA in this case: whether the state trial court committed constitutional error in letting Coleman appear
pro se at the hearing on his motion for a new trial w ithout securing a valid waiver of the right to counsel and whether it was ineff ective assistance by appellate couns el to fail to raise the issue on direct appeal. Thus, the state court of appeals ne ver had the occasion to ru le on the issue, and the only reasoned opinion to discuss it came from the state trial court in ruling on Coleman’s postconviction motion for relief from judgment. The trial judge held that the claim had no merit because he had warned Coleman not to proceed w ithout counsel at the end of the hearing on the motion for a new trial.
Coleman next filed his habeas petition in fede ral court, raising several issues, including his claim that he had been deprived of counsel at the post-trial hearing. The district court held that the claim was meritless, “because a court is only required to warn a defendant of the dangers of self-representation when he seeks to represen t himself at trial, but not on appeal,” citing Martinez v. Court of Appeal of California , 528 U.S. 152, 161–63 (2000). The Martinez case does stand for the proposition that the Sixth Amendm ent right to counsel at trial does not extend to appeals, which might leave us to decide whet her a hearing on a motion for a new trial is, as the state describes it, a “pre-appeal” process not covered by the Sixth Amendment or, instead, merely a stage of the trial at wh ich counsel is guaranteed. In th e latter situati on, a criminal defendant intent on self-represent ation at trial must not only be warned of the risks entailed in proceeding without counsel, Faretta v. California , 422 U.S. 806, 835 (1975), but must also enter a valid waiver of counsel—one that is knowing, voluntary, a nd intelligent. See Johnson v. Zerbst , 304 U.S. 458, 464 (1938).No. 14-1459 Coleman v. Bergh Page 4

Fortunately, we do not have to decide this issue on the basis of semantics, i.e. , whether the hearing at issue was “post-tria l” or “pre-appeal.” The Suprem e Court has told us repeatedly that the Sixth Amendment right to counsel attaches only to “cr itical stages” of a criminal prosecution and trial. See, e.g. , Iowa v. Tovar , 541 U.S. 77, 80–81 (2004). Thus, the dispositive question here is whether the heari ng on a motion for a new trial is a “critical stage” of a criminal prosecution. Because Coleman’s claim is br ought under 28 U.S.C. § 2254(d)(1), the answer must be found within a very narrow set of limits. As the Supreme Court has observed: The starting point for cases subject to § 2254(d)(1) is to identify the “clearly established Federal law, as determined by the Supreme Court of the United States” that governs the ha beas petitioner’s claims. 1 See Williams v. Taylor , 529 U.S. 362, 412 (2000); Knowles v. Mirzayance , 556 U.S. 111, 112 (2009). Marshall v. Rodgers , 133 S. Ct. 1446, 1449 (2013). And, as the Court has rece ntly reiterated, “[C]learly established Federal law for purposes of § 2254(d)(1) includes only the holdings, as opposed to the dicta, of [the Supreme Court’s] decisions.” White v. Woodall , 134 S. Ct. 1697, 1702 (2014) (internal quotation marks and citation omitted).
As it turns out, the Supreme Court has never held that a hearing on a motion for a new trial is a critical stage of a criminal proceeding. Indeed, in Marshall , the Supreme Court was presented with the opportunity to rule that such a “post-trial, preappeal motion for a new trial is a critical stage of the prosecution” but specifically declined to do so, saying that “[t]he Court expresses no view on the merits of the underl ying Sixth Amendment principle the respondent urges,” i.e. , that the motion for a new trial constitutes a critical stage of the proceedings. 133 S. Ct. at 1449, 1451.
As a result, for purposes of a prisoner’s re quest for habeas relie f under § 2254(d)(1), there is no “clearly established Federal law, as determined by the Supreme Court,” creating a right to counsel at a hearing on a motion for a new trial and, t hus, no basis on which Coleman’s

1 Under the 1996 Antiterrorism and Effective Death Pena lty Act (AEDPA), 28 U.S.C. § 2254(d), federal habeas relief may not be granted unless the state court decision at issue: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal 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 presented in th e State court proceeding.No. 14-1459 Coleman v. Bergh Page 5
appellate attorney could have argued before the Michigan Court of Appeal s that a violation of the Sixth Amendment had occurred when Coleman wa s allowed to appear without counsel in the absence of a valid waiver. It follows that there could be no finding of in effective assistance of counsel in this regard and, therefore, no argu able basis for the issuance of a certificate of appealability, which we now VACATE as improvidently granted.