*

The Honorable David W. McKeague, United States District Judge

for the Western District of Michigan, sitting by designation.

1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2003 FED App. 0444P (6th Cir.)

File Name: 03a0444p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

BARRY ANTHONY WILLIS,

Petitioner-Appellant,

v.

DAVID SMITH,

Respondent-Appellee.

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No. 02-2445

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 02-70028—Bernard A. Friedman, District Judge.

Submitted: December 2, 2003

Decided and Filed: December 16, 2003 

Before: MARTIN and MOORE, Circuit Judges;

McKEAGUE, District Judge.*

_________________

COUNSEL

ON BRIEF: Janet A. Van Cleve, OFFICE OF THE

ATTORNEY GENERAL, Lansing, Michigan, for Appellee.

Barry Anthony Willis, New Haven, Michigan, pro se.

2 Willis v. Smith No. 02-2445

_________________

OPINION

_________________

BOYCE F. MARTIN, JR., Circuit Judge. Barry Anthony

Willis, a pro se Michigan prisoner, appeals a district court

judgment dismissing his petition for a writ of habeas corpus

filed under 28 U.S.C. § 2254. This case has been referred to

a panel of the court pursuant to Sixth Circuit Rule 34(j)(1).

Upon examination, this panel unanimously agrees that oral

argument is not needed. FED. R. APP. P. 34(a). 

I.

Following a bench trial in 1995, Willis was found guilty of

conspiring to distribute six hundred fifty grams or more of

cocaine. The court sentenced Willis to life imprisonment

without the possibility of parole and subsequently denied

Willis’s motion for a new trial. On direct appeal, the

Michigan Court of Appeals denied Willis’s motion for a

remand and affirmed his conviction and sentence. The

Michigan Supreme Court denied leave to appeal.

Thereafter, Willis filed a petition for post-conviction relief

that asserted several claims. The trial court denied Willis

relief on his ineffective assistance of counsel claims, but

granted relief on his sentencing claim, making him eligible

for parole after serving seventeen and one-half years of his

sentence. Willis filed a motion to amend his post-conviction

petition in order to assert a new claim alleging ineffective

assistance of trial counsel, which the trial court denied

because Willis had failed to demonstrate “good cause” under

Michigan Court Rule 6.508(D)(3)(a) for failing to assert that

claim in his appeal as of right. The Michigan Court of

Appeals entered an order dismissing Willis’s appeal for lack

of jurisdiction, which the Michigan Supreme Court vacated.

On remand, the Michigan Court of Appeals considered

Willis’s application but denied it because Willis had “failed
No. 02-2445 Willis v. Smith 3

to meet the burden of establishing entitlement to relief under

[Rule] 6.508)(D).” The Michigan Supreme Court also denied

leave to appeal for the same reason.

Willis then filed the instant section 2254 petition,

essentially arguing that: 1) his trial counsel rendered

ineffective assistance by advising him to accept a bench trial

before a judge who, while presiding over the trial of Willis’s

brother and co-defendant, Antawn Willis, commented that “I

agree with some of what defense counsel[’s] theory is going

to be – that Barry [Willis] is the big guy – may be the big guy.

It sure looks like it from talking to these witnesses;”

2) appellate counsel rendered ineffective assistance by failing

to challenge trial counsel’s ineffectiveness in his appeal as of

right; 3) the Michigan courts improperly failed to allow

expansion of the record by way of an evidentiary hearing

under Michigan law; and 4) the Michigan Supreme Court

violated the Michigan Constitution by failing to give facts and

reasons as to why an evidentiary remand was unwarranted.

The district court concluded that Willis had procedurally

defaulted his first claim and that his remaining claims lacked

merit. However, the district court granted Willis a certificate

of appealability as to his first and second claims. This court

denied him a certificate of appealability on his third and

fourth claims. Willis timely filed the instant appeal,

reasserting his claims that his trial and appellate counsel

rendered ineffective assistance.

II.

This court reviews de novo a district court’s disposition of

a habeas corpus petition. Harris v. Stovall, 212 F.3d 940, 942

(6th Cir. 2000). The district court shall not grant a habeas

petition with respect to any claim that was adjudicated on the

merits in the state courts unless the adjudication resulted in a

decision that: (1) was contrary to, or involved an

unreasonable application of, clearly established federal law as

determined by the United States Supreme Court; or (2) was

based upon an unreasonable determination of the facts in light

4 Willis v. Smith No. 02-2445

of the evidence presented to the state courts. 28 U.S.C.

§ 2254(d). 

Upon review, we conclude that the district court properly

held that Willis has procedurally defaulted his ineffective

assistance of trial counsel claim and that his ineffective

assistance of appellate counsel claim lacks merit. “When a

habeas petitioner fails to obtain consideration of a claim by a

state court, either due to the petitioner’s failure to raise that

claim before the state courts while state-court remedies are

still available or due to a state procedural rule that prevents

the state courts from reaching the merits of the petitioner’s

claim, that claim is procedurally defaulted and may not be

considered by the federal court on habeas review.” Seymour

v. Walker, 224 F.3d 542, 549-50 (6th Cir.), cert. denied, 532

U.S. 989 (2001) (citing Wainwright v. Sykes, 433 U.S. 72, 80,

84-87 (1977); Picard v. Connor, 404 U.S. 270, 275-80

(1971)); see also Maupin v. Smith, 785 F.2d 135, 138 (6th

Cir. 1986). We have previously explained that procedural

default results where three elements are satisfied: (1) the

petitioner failed to comply with a state procedural rule that is

applicable to the petitioner’s claim; (2) the state courts

actually enforced the procedural rule in the petitioner’s case;

and (3) the procedural forfeiture is an “adequate and

independent” state ground foreclosing review of a federal

constitutional claim. Maupin, 785 F.2d at 138. 

The first element is satisfied here because Willis failed to

comply with Michigan Court Rule 6.508(D)(3), a state

procedural rule applicable to his case. Rule 6.508(D)

provides, in pertinent part:

(D) Entitlement to Relief. The defendant has the burden

of establishing entitlement to the relief requested. The

court may not grant relief to the defendant if the motion

. . . 

(3) alleges grounds for relief, other than jurisdictional

defects, which could have been raised on appeal from
No. 02-2445 Willis v. Smith 5

the conviction and sentence or in a prior motion under

this subchapter, unless the defendant demonstrates

(a) good cause for failure to raise such grounds on

appeal or in the prior motion, and

(b) actual prejudice from the alleged irregularities

that support the claim for relief.

The second element is also satisfied because the state courts

enforced Rule 6.508(D)(3) in Willis’s case. Willis first raised

his ineffective assistance of trial counsel claim in his motion

to amend his post-conviction petition. The state trial court

denied that motion on the ground that Willis had failed to

demonstrate entitlement to relief under Rule 6.508(D), and

the Michigan Court of Appeals and Michigan Supreme Court

each denied Willis’s motion for leave to appeal for the same

reason. Finally, Willis’s failure to comply with Rule

6.508(D) constitutes an adequate and independent state

ground on which to foreclose habeas review because the rule

was “firmly established and regularly followed” at the time it

was applied in Willis’s case. Rogers v. Howes, 144 F.3d 990,

992 (6th Cir. 1998). Because all three elements are satisfied,

Willis has procedurally defaulted his ineffective assistance of

trial counsel claim. 

A procedural default may be excused, however, if the

petitioner demonstrates “that there was cause for the default

and prejudice resulting from the default, or that a miscarriage

of justice will result from enforcing the procedural default in

the petitioner’s case.” Seymour, 224 F.3d at 550; see also

Coleman v. Thompson, 501 U.S. 722, 749-50 (1991). Willis

apparently relies on his appellate counsel’s failure to raise this

claim on direct appeal as cause to excuse the default.

Attorney error may constitute cause if it rises to the level of

constitutionally ineffective assistance of counsel. Gravley v.

Mills, 87 F.3d 779, 785 (6th Cir. 1996). In order to succeed

on a claim of ineffective assistance of appellate counsel, a

petitioner must show that his “counsel’s representation fell

6 Willis v. Smith No. 02-2445

below an objective standard of reasonableness” and that there

is “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have

been different.” Strickland v. Washington, 466 U.S. 668, 688,

694 (1984);see also McMeans v. Brigano, 228 F.3d 674, 682

(6th Cir. 2000). We have held that “appellate counsel cannot

be ineffective for a failure to raise an issue that lacks merit.”

See Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir. 2001).

Thus, in order to determine whether cause exists for the

procedural default of Willis’s ineffective assistance of trial

counsel claim, we must, ironically, consider the merits of that

claim. 

We agree with the district court’s conclusion that Willis’s

trial counsel did not render ineffective assistance and,

therefore, that his appellate counsel’s failure to raise that issue

does not constitute cause for the procedural default. Willis

arguesthat the judge’s comments during Antawn Willis’s trial

– i.e.,“I agree with some of what the defense counsel[‘s]

theory is going to be – that Barry [Willis] is the big – may be

the big guy. It sure looks like it from talking to these

witnesses” – reveal that the judge had formed a preconceived

notion of Willis’s guilt. Willis argues that in those

circumstances, it was objectively unreasonable for his trial

counsel to advise him to accept a bench trial before that judge

rather than exercise his right to a jury trial, particularly

without conducting a pre-trial investigation to determine

whether the judge had “predetermined the verdict.” 

We cannot accept Willis’s assertion that the trial judge’s

comments reveal a preconceived notion of Willis’s guilt such

that it was objectively unreasonable for Willis’s counsel to

recommend a bench trial. The Supreme Court has explained

that “opinions held by judges as a result of what they learned

in earlier proceedings” cannot alone establish “bias” or

“prejudice” against an individual or his case. Liteky v. United

States, 510 U.S. 540, 551 (1994); see also Paradis v. Arave,

20 F.3d 950, 958 (9th Cir. 1994) (explaining that a trial

judge’s exposure to evidence, standing alone, does not
No. 02-2445 Willis v. Smith 7

demonstrate bias). Despite the judge’s comments, Willis’s

attorney could have reasonably believed that it was better

strategy for Willis to be tried by the judge rather than a jury,

and Willis has failed to offer any evidence to the contrary.

Moreover, the record illustrates that at the beginning of

Willis’s trial, the judge discussed the situation with Willis to

ensure that his decision to waive his right to a jury trial in

favor of a bench trial was made knowingly and voluntarily.

During this discussion, the judge candidly acknowledged that

he had made comments about Willis during his brother’s trial,

but assured Willis that despite those comments he had no

feelings for or against Willis and that he would disqualify

himself if he had such feelings. Willis then confirmed that he

wished to be tried by the judge instead of a jury, stating that

“it’s my will” and “I decided this.” 

Even if Willis’s counsel performed in an objectively

unreasonable manner, Willis cannot show “a reasonable

probability” that “the result of the proceeding would have

been different” but for his counsel’s errors. Strickland, 466

U.S. at 694. Willis has presented no evidence that the judge’s

rulings were biased in any way or that the trial was otherwise

unfair. Moreover, Willis’s conviction was fully supported by

the overwhelming evidence presented by the government.

Because Willis’s claim of ineffective assistance of trial

counsel lacks merit, his appellate counsel’s failure to raise

that claim on direct appeal cannot be deemed constitutionally

deficient performance. See Greer, 264 F.3d at 676; see also

Seymour, 224 F.3d at 551 (reasoning that counsel need not

raise every conceivable colorable claim on appeal in order to

fulfill his or her duty to a client). Therefore, Willis cannot

rely upon ineffective assistance of appellate counsel as cause

to excuse for the procedural default. In light of our

conclusion that no cause exists for the procedural default, we

decline to consider whether Willis has demonstrated the

requisite prejudice. Simpson v. Jones, 238 F.3d 399, 408 (6th

Cir. 2000) (“When a petitioner fails to establish cause to

8 Willis v. Smith No. 02-2445

excuse a procedural default, a court does not need to address

the issue of prejudice.”) (citing Smith v. Murray, 477 U.S.

527, 533 (1986); Long v. McKeen, 722 F.2d 286, 289 (6th

Cir. 1983)).

Nor has Willis demonstrated that, notwithstanding the

procedural default, we should review his ineffective

assistance of trial counsel claim to avoid a miscarriage of

justice. To secure review of his procedurally defaulted claim

for that reason, Willis must submit new and reliable evidence

of his actual innocence. See Schlup v. Delo, 513 U.S. 298

(1995). Willis has submitted no such evidence.

For the foregoing reasons, we hold that Willis is barred by

reason of procedural default from obtaining adjudication of

his ineffective assistance of trial counsel claim, and that his

ineffective assistance of appellate counsel claim lacks merit.

Accordingly, we AFFIRM the district court’s judgment

denying Willis’s petition for a writ of habeas corpus.