NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 12a0412n.06 No. 10-1660 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

J AMES EVERETT, Petitioner-Appellant,

v. DAVI D B ERGH, WARDEN, Respondent-Appe llee. ) ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED ST ATES DI STRI CT COURT FOR THE EASTERN DI STRI CT OF MI CHI GAN

Be fore : MARTI

N, SUTTON, a

nd KETHL EDGE, Circuit Judges. KETHL EDGE, Circuit Judge

. A Michig an jury convicted J ames Evere tt of second- deg ree murder in 1999. After his unsucce ssful state-c ourt appea l and motion for relief from judgme nt, he filed for fede ral ha

beas r elief, w hich the district cour t denied. We af

firm. I

. J ames Evere tt and Christopher May wer e selling drug s in Detroit in Dec ember of 1995 when Ernest Dicker son approa ched them. Dicker son, who occa sionally sold dr ug s with Evere tt out of a house on Fa ircre st Street, beg an arg uing with Evere tt. When Evere tt drove aw ay in his black Cadillac, Dicker son shot at him. A few day s later, Evere tt war ned L atesha L ewis to stay awa y from the Faircr est house, whe re she too sold drugs. Eve rett told sever al ot her people t hat he was going to shoot up the house. I n the early morning hours of Dec ember 23, he did. L ewis, who wa s ly ingNo. 10-1660

Eve rett v. Bergh

on a couch downstairs, wa s killed by four bullets fire d from a black Cadill ac. An occupant of the house identified Eve rett as the pa sseng er in the Cadillac

. At trial, Ever ett advanc ed an alibi defe nse: his brother, sister, a nd mother all testified that he was in New York on the night of L ewis’s death. The jury did not believe his alibi, howeve r, and found him g uilty of second-d egr ee murder. The trial court sentenc ed him to 25 to 50 y ear s’ imprisonment. Evere tt appea led, prese nting differ ent arg uments than the ones he makes here

. The Michig an Court of Appe als aff irmed his conviction. Evere tt then filed a motion for relief from judgme nt in the trial court. The court found that most o f h i s claims wer e barr ed by Michig an Court Rule 6.508(D)( 3), since he had failed to bring them on direc t a

ppeal. The Michig an Court of Appea ls a nd Michig an Supreme Court la ter denied relief

. There afte r, Evere tt f

iled a claim for fede ral habea s relief under 28 U.S.C. § 2254, which the district court denie d. This appea l followed. I I

. The State a

rg ues, and the district court ag ree d, that all of Evere tt’s claims are proce durally defa ulted. Procedur al defa

ult occur s when: “(1) the petitioner fails to comply with a state proce dural rule; (2) the state courts enfor ce the rule; (3) the state proce dural rule is an adequate and independe nt state g round for deny

ing revie w of a fede ral constitutional claim; and (4) the petitioner cannot show

cause and prejudice excusing the defa ult.” Guilmette v. Howes , 624 F.3d 286, 290 (6th Cir. 2010) (en banc)

. Her e, Michig an Court Rule 6.508(D)( 3) require d Evere tt first to bring his claims on direc t appeal

. E v er et t d i d not comply with this rule with respe ct to the claims he bring s here

. The Michig an C ourt of Appeals an d M ichig an S upreme Court declined to g rant relief on those claims -2-No. 10-1660

Eve rett v. Bergh in form order s citing Rule 6.508(D). Those order s “are ambig uous as to whether they ref er to proce dural defa

ult or denial of relief on the merits, the order s are unexplained.” Guilmette , 624 F.3d at 291. We there fore “look t o the l ast rea soned st ate court opinion” to deter mine t h ei r b as i s . Id

. Her e, that opinion was the trial court’s d en i al o f relief from judgme nt. I n that opinion, the court enfor ced the proce dural bar in Rule 6.508(D). That rule “constitutes an adequate and independe nt g round on which the Michig an cour ts ma y rely in f orec losing revie w of fede ral claims.” Akrawi v. Booke r , 572 F.3d 252, 261 ( 6th Cir. 2009). Thus, Evere tt’s claims are proce durally defa ulted here

. A. E v er et t arg ues t hat t he allege dly ineffe ctive assist ance of hi s lawy er in his direc t appeal i s

cause to excuse his proce dural defa ult. To establish ineffe ctive assistance , Evere tt must show that his attorney ’s perf

ormanc e was defic ient and that it prejudice d Evere tt’s defe nse. See Strickland v. W a s h i n g t o n , 466 U.S. 668, 687 (1984). The “mer e failure of appellate counsel to bring up ever y non-fr ivolous claim” on appea l does not amount to defic ient perf ormanc e. Alexande r v. Smith , 311 F. App’x 875, 885 (6th Cir. 2009) (interna l quotation marks omitted). To show cause , Evere tt must demonstrate that the issue not prese nted “wa s clea rly strong er than issues that counsel did prese nt.” W ebb v. Mitchell , 586 F.3d 383, 399 (6th Cir. 2009) (interna l quotation marks omitted). Moreove r, he mus t show there is a rea sonable proba bility that he would have preva iled on his appea l, but for counsel’s failure to bring up the issue. See Strickland , 466 U.S. at 694. Thus, for us to consider eac h of E v er et t’s claims, he must show that his appellate counsel was constitutionally ineffe ctive for

-3-No. 10-1660

Eve rett v. Bergh failing to raise it on direc t appea l. We revie w de novo whether Evere tt has made that showing

. See Combs v. Coyle , 205 F.3d 269, 278 ( 6th Cir. 2000). 1. Evere tt’s first claim is t h at h i s at torney should have arg ued that the State violated the I nterstate Ag ree ment on Detaine rs by returning him to fede ral custody without try ing him first and by taking too long to bring him to trial. See Mich. Comp. L aws § 780.601 and 18 U.S.C. app. § 2. That cla im is not cog nizable on fede ral habeas review. See Browning v. Folt z , 837 F.2d 276, 283 (6th Cir. 1988) (“While there is a division of authority on this issue, we are satisfied that the majority view dictates that a violation of [t he I nterstate Ag ree ment on Detaine rs]

. . . is not a basis for habea s corpus r elief” ). We there fore deny this claim for that re ason.

2. E vere tt next claims that his attorney should have arg ued on direc t appea l that Evere tt wa s denied his Six th Amendment rig ht to a speedy trial. Whether that rig ht was violated depends on four fa ctors: “[l] eng th of delay , the rea son for the delay , the defe ndant’s asser tion of his rig ht , an d prejudi ce t o t h e d ef

endant.” See Barker v. W ingo , 407 U.S. 514, 530 (1972). We thus consider whether , at the time of Evere tt’s direc t appea l, these fac tors so clea rly favor ed him that his counsel’s failure to present the c laim amounted to ineffe ctive assistanc e. The first fac tor is a threshold inquiry : a delay of more than one y ear trig g ers analy sis of the

rema ining Barker fac tors. See United States v. Robinson , 455 F.3d 602, 607 (6th Cir. 2006). “Onc e char g es are dismiss ed, the speedy trial g uara ntee is no longe r applicab l e.” United States v. MacD onald , 456 U.S. 1, 8 (1982). Her e, the first indictment ag ainst Evere tt was dismiss ed, and -4-No. 10-1660

Eve rett v. Bergh

more than a y ear elapse d befor e another indictment was filed. We omit the period betwee n the dismiss al of the first indictment and the issuance of the s econd. See United States v. Ma r t i n , 543 F.2d 577, 579 (6th Cir. 1976). One y ear and six day s elapse d betwee n the filing and dismiss al of the first indictment. And near ly 8 months elapse d betwee n the filing of the second ind i ct m ent and Evere tt’s trial. A total of 20 months leads us to consider the rema ining Barker fac tors. As to the second fac tor, “[g]overnme ntal delay s motivated b y b ad faith, hara ssment, or attempts to seek a ta ctical advantag e weigh heavily ag ainst the gover nment, while neutral rea sons such as neg lige nce are weig hted less heavily .” Robinson , 455 F.3d at 607. Her e, Evere tt admits that part of the delay could plausibly be attributed to him, since he had left Michig an and was fede rally incar cer ated unde r a diff

ere nt name. This fa ctor ther efor e inclines a g ainst him. The same is true of the third fac tor. Although Evere tt reque sted action on the first indictment under the I nterstate Ag ree ment on Detaine rs, he made no eff ort to expedite action on the s econd. Nor did he obje ct to the trial date

. “The final Barker fac tor require s the defe nd a n t to s h o w that substantial prejudice has resulted from the delay .” Id. at 608 (interna l quotation marks omitted). Evere tt arg ues that his defe nse was prejudice d beca

use t wo prosecution witnesses, Erne st Dickerson a nd L isa Ward, wer e not prese nt at trial. As the district court noted, howeve r, eac h of these witnesses could have implicated Evere tt in the murder. (Presumably that is why they wer e prosec ution witnesses.) Evere tt also contends that the delay impaired his d ef en s e b ec ause his witnesses wer e “thoroug hly attacke d” by the State for their lack of memory . But for the most pa rt their lapses in memory perta ined to minor details, like the make of

the ca r that Ever ett used to g et to New Y ork. So we do not see much pre judice her e. -5-No. 10-1660

Eve rett v. Bergh Evere tt cannot show that the Barker fac tors so favor ed him that his appellate counsel was ineffe ctive for failing to raise a constitutional speedy -trial claim. We there fore cannot consider the claim her e. 3. Evere tt’s next claim is that the evidenc e was insufficient to convict him. Michig an define s second- deg ree murder a s: “ (1) a death, (2) the death was cause d by an act of the defe ndant, (3) the defe ndant acte d with malice, and (4) the defe ndant did not have lawful justification or excuse for causing the dea

th.” People v . Smith , 731 N.W.2d 411, 414-15 (Mich. 2007). Her e, L atesha L ewis died from g unshot wounds. Evere tt told sever al people that h e was g oing to shoot up the Fa ircre st St ree t house. Wit nesses saw him cruising by the hous e less than a minute afte r the shooting. He had a motive, and he fled Detroit afte r lear ning of L ewis’s death. This claim was not so strong that Evere tt’s attorney was ineffe ctive for omitti ng it on direc t appea l. Thus the claim is defa

ulted, and we cannot c onsider it. 4. Evere tt also arg ues that the prose cutor c ommitt ed misconduct during his tria l, tha t his trial counsel was ineffe ctive, and that the trial judge was biased ag ainst him. Suffice it to say that these claims wer e not so plainly meritorious that his appellate counsel was ineffe ctive for failing to raise them. We theref

ore c annot consider

these c laims either. Since all of the claims Evere tt now bring s wer e proce durally defa ulted, his only avenue for habea s relief is showing that “fa ilure to consider the claims will result in a fundame ntal miscarr iag e of justice.” Coleman v. Thompson , 501 U.S. 722, 750 (1991). Evere tt has not made that showing

. -6-No. 10-1660

Eve rett v. Bergh The district cour

t’s judgme nt is affirmed.

-7-