* The Ho nora ble D avid W . M cK eagu e, U ni ted States Distr ict Judge

for the Western District of Michigan, sit

ting by designat ion.
1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2003 FED App . 0444P (6th C ir.) File Name: 03a04 44p.06


### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
B ARRY ANTHONY W ILLIS , Petitione r-Appell ant,

v.

D AVID S MITH , Respondent-Appellee. X

- - - -
> , - - N No. 02-2445

Appeal from the United States District Court for the E astern D istrict of Michiga n at Detr oit. No. 02-70028—Bernard A. Friedman, D istrict Judge.

Submitted: December 2, 2003
Decided and Filed: December 16, 2003

Befor e: MARTI

N and MOO RE, Circui

t Judges; McKEAGUE, District Judge. *

_________________ COUNSEL

ON BRIE F: Janet A. V an Cleve, OFFI CE OF THE ATT ORN EY G ENE RAL, Lansing, Michiga n, for Appellee. Barry Anthony Willis, New Haven, Michig an, pro se. 2 Willis v. Smith No. 02-2445

_________________ OPINION

_________________ BOY CE F . MARTIN, JR., Circuit Judge. Barry Anthony Wi llis, 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 refer red to
a pane l of the cou

rt pur suan t to Sixt h C ircuit Rule 34(j)(1). Uponexamination, this panel unani m ously agr ees that oral argument is not needed. F ED

. R. A PP

. P. 34(a).

I. Following a bench trial in 1995, Willis was found guilty of conspiring to distrib ute six hundred fifty gra ms or more of cocaine. The cour

t sentenc ed Willis to life imprisonment withoutthe possib ility

o f 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 Michiga n Supreme

Court den

ied leav e to appe al. Thereafter, Willis filed a petitionfor post-conviction relief that asserted several claims. The trial cou rt denie d Willis relief on h is ineffective assistance of counsel claims, but granted relief on his sente

ncing c laim, maki

ng him el igible for parole after serving seve ntee n andone-hal f y ears of his sentence. Willis filed a motionto amend his post-conviction peti tion in order to assert a new claim alleging ineffe ctiv e assistance of trial counsel, which the trial court denied because Willis had

failed to demonstrate “good cause” under Michigan CourtRule 6.508 (D)(3) (a) for failing to assert that claim in his appeal as of right. T he Michigan Court of Appeals entered an order dismissing Willis’s appeal for lack of jurisdiction, whichthe Michigan Supreme Court vacated. Onremand, the Michigan Court o f Appea ls c on sidered Willis’ s ap plication but denied it because Willis had “failedNo. 02-2445 Willis v. Smith 3

to meet the burden of establishingentitlement to relief under [Rule] 6.508)(D).” The Michigan Supreme Court also denied leave to appeal for the same rea son.
W illis then file d the insta nt section

2254 petit

io n , essent ial ly

arguing that: 1) his trial counsel render ed ineffective assistance by advising him to accept a bench trial before a judge who, while presiding over the tr ial of Willis’s brother and co-defendant, Antawn Willis, commented that “I agreewith

some of what defense counsel[’s] theory is going to be – that Barry

[Willis] is the big guy – may be th e b ig gu y. It sure lo oks like it f

rom talkin

g to thes e witness es;” 2) appellate counsel rendered ineffective assistance by

failing to challen ge tria l counsel ’s ineff

ectiveness in his appeal as of right; 3) the Michigan courts improperly fai l ed to allow expansion of the record by way of an evidentiary he aring under Michi gan law; and 4) the Michigan Supreme Court violated the Michigan

Constitution by failing to give facts and
reason s as to why an evide ntiary rema

nd was unwarranted. The district court concluded that Willis had pr oce durally defaulted his first claim and

that his remaining claims lacked merit. However, the district court granted Willis a ce

rtifica te of appealability a s to his first and second claims. This court denied him a cer

tificate of appea

lability on his thi rd and fo urth claims. Will is timely filed the

instant ap

peal, reasserting

hi s claims that his trial and appellate counsel rendered ineffective assistance

. II.
This court re

views de novo a district court’s disposition of
a habeas corpus petition. Harris v. S tovall , 212 F.3d 940, 942 (6th Cir. 2000) . The dis tr ict court shall not grant a habeas petition with respect

to any claim that was a

djudicated

on the merits in the stat

e courts unless the

adjudica tion resu lted in a decisionthat: (1) w as contrary to, or involved an
unreasonableapplica

tion of, c learly

established federallaw as determined

by the Un

ited States Supreme Court; or (2) was based upon an unreasonable determination of the facts in lig ht 4 Willis v. Smith No. 02-2445

of the evidenc e prese nted to the state co urts. 28 U .S.C. § 2254(d). Uponreview, we concl

ud e that the

district c ourt prop erly held that Wil lis has procedurally defaulted his ineffective assistance of trial cou

n sel claim and that his ineffective assistance of appel late cou nsel cla im la cks merit. “When a habeas petitione

r fails to obtain consideration

of a c la im by a state court, e ither due

to the pet

itioner’ s failu

re to raise that claim before th e s tate courts while state-court remedies are still available or due to a state p rocedura l rule tha t preven ts the s tate courts from reaching the merits of the pe titioner’s claim, th at cl ai m i s p ro ce du ra ll y d efaulted and may not be considered

by the fede

ral court onhabeas review.” Seymour

v. Walker , 224 F.3d 542, 549-50 (6th Cir.), cert. denied, 532 U.S. 989 (2001 ) (cit ing Wainwright v. Sykes , 433 U.S. 72, 80, 84-87 (1977); Picard v. Con n or , 404 U.S. 270, 275-80 (1971)); see also M

aupin v. S

mith , 785 F.2d

135, 138 ( 6th Cir. 1986). We have previously e xplained that procedura l default results w

here thr ee elements are

satisfie d: ( 1 ) the petitioner failed to comply with a state procedu ral rule that is applica ble to t he p etitioner ’s claim; (2) the s tate cou rts actually enforced the procedural rule in the petitioner’s case; and (3) the procedural forfeiture is an “ adeq u ate and independ ent” state g

round for eclo s ing review of a federa l constitutional claim. Maupin , 785 F.2d at 138.

The first ele

ment is sa

tisfied here be cause Will is 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 pertin

ent part : (D) Entitlement to Relief. The defendant has the burden of establishing entitlement to the relief reques ted. The court may not gra nt relief to the defendant if the motion

. . . (3) alleges grounds for re lief, other than jurisdictional defect s, which could have been raised on appeal fromNo. 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 rai se such grounds on appeal or in the prior motion, and (b) actual prejudic e from the alle ged i rregularities that support the claim for relief.

The sec ond eleme

nt is also sa

tisfied be cause

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- con viction petition. The state trial court deni e d that motion

on the g round tha t Willis had f

ailed to demonstr ate entitlement to relief under Rule 6. 50 8(D), and the Michiga

n Court of A

ppeals and Michi gan Supr eme Court each denied

Willis’s motion for leave to appeal for the same
reason. Finally, Willis’s failure to co mp ly w ith Rule 6.508(D) constitutes an adequate and independ ent state ground on which to foreclose habeas review be cause 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 pro cedura l default may be e xcused, however, if the petitioner demonstrates “that there was cause for the defa ult and prejudice resulting from the default, or that a misc arriage of justice will result from enforcing the procedura l default in the petitioner’s case .” Seymour , 224 F.3d at 550; see also Coleman v. Thompson , 501 U.S. 722, 749-50 (1991). Wi llis appare ntly relies on his appellate counsel’s failure to raise t his claim on direct appeal

as cause

to excuse t

he defa ult. Attorney e rr or may constitute ca

use if it rises to the level of constituti onally

ineffective assistance of counsel. Gravley v. Mills , 87 F.3d 779, 785 (6th Cir. 1996). In or der to succeed
ona claim of ineffective assistance of appe llate co uns el, a petitioner must show that his “co u nsel’s re present ation fe ll 6 Willis v. Smith No. 02-2445

below anobjectiv e standa rd of re asonable

ness”and that there is “a reasonable probability that, but for

couns el’s unprofessional errors , the resu lt of the pr oceedin g 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 he ld that “a ppellate counsel cannot be ineffective for a failure to raise anissue that lacks merit.” See Greer v

. Mitche ll , 264 F.3d 663, 676 (6th Cir. 2001). Thus, in o rder to determine whether cause e xists for the procedural default

of Willis’s i

nef fective assistance of trial counsel claim, we must, ironically, consider the merits of

that claim. We agree with the districtcourt’s conclusion that Willis’s trial counsel did not render ineffective as sistance and, therefore, that his appellate counsel’s failure to raise that issue does not constitute ca

use fo r the pro cedura

l defaul t. Willis
argues that t

he judge’s comments during Antawn Willis’s trial

– i.e. ,“I agree with some o f what the

defense counsel[ ‘s ] theory is going to be – that Barry [Willis] is the big – may

be the big gu

y. I t sure loo ks li ke it from talking to these witnesse s” – reveal that the judge had formed a preconceived notion of Willis’s g

uilt. Willi s argu es that in t hose circumst ances, it was objectively unre asonable for his trial counsel to advise

him to acce pt a be nch tr ial be fore t hat ju dge rather than exer

cise his r

ight to a jury trial, pa rticular ly withoutcond ucting a pre-trial investigation to determine whether the judge had “prede termined the verdict.”

W e ca nnot accept Willis’s assertion that the trial judge’s comments

reveal a preconceived notion of Willis’s guilt such that it was ob jectivel y un reasona ble for Wil lis’s coun sel to recommend

a bench trial. The Supre

me Court has explained that “opinions

held by judges a s a

result of what they lea

rned inearlier procee dings” c annot alon e establish “bias” or “prejudice” agains tan 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 notNo. 02-2445 Willis v. Smith 7

d emonstra

te bias). De spite the j udge’ s comments , Willis’ s attorney could hav e reasonably

believe d th at it w as better st ra te gy f or Wi ll is to be tr ie d b y th e j ud ge ra th er th an a j ur y, an d W il li s h as fa il ed to of fe r a ny e vi de nc e t o t he co nt ra ry.
M oreove r, the record illustrates that at the beginning of Willis’s trial , the j udge discusse d the situa tion with Will is to
ensure that his decision to waive his right to a jury tri al in favor of a b en ch tr ia l w as ma de kn ow in gl y andvo lu nt ar il y. During this discussio n, the judg e candid ly acknowledged that he had made

comments a

bout Willis du

ring his brother ’s trial, butassured

Willis th a t despite those comments he had no feeling s for or a

gainst Wil lis and tha

t he would

disqualif y himself if he had such feelings. Willis then confirmed that he wished to be trie d by

the judg e inste a d of a jury, stating that “it’s my will” and “I

decided this.”

E v enif Willis’s c ounsel pe rformed in an obje ctively
unreasonablemanner, Willis cannot show “a rea s onable pr ob ab il it y” that “the result of the proc e eding would have been different” but for his counsel’s errors. Strickla nd , 466 U.S. at 694. Willis has presented no evidence that

the judge’s rulin gs were biased in any way or that the trial wa s otherwi se unfair. Moreover, Willis’s convictionwas fully supported by the over whelming evidenc e prese

nted by the gov ernment

. Becau se Willis’s claim of ineffective assistance of trial counsel la cks merit , his appe llate cou nsel’s fa ilure to r aise that claim on direct appeal cannot be deemed c onstitutionally deficient performance. See Greer , 264 F.3d at 676; see also Se ymour , 224 F.3d at 551 (reasoning that counsel nee d no t raiseevery

conceiv able col orable c laim onappeal i

n order t o fulfill his or h er duty to a client) . Therefore, Willis cannot rely upon ineffective assistanceof appellate counselas cause to excuse for the pro cedura l default. In light of our conclusionthat no ca

use existsfor the procedur al defa ult, we decline to consider whether Willis has demonstrated the requisite prejudice. Simpson v. Jones , 238 F.3d 399, 408 (6th Cir. 2000) (“When a pet itioner f ail s t o establish cause t

o 8 Willis v. Smith No. 02-2445

excusea procedural default, a court does notneed to a

ddress the is sue of

preju dice. ”) (cit ing Smith v. Murray , 477 U. S

. 527, 533 (1986); Long v. McKeen , 722 F.2d 28 6, 289 (6th Cir. 1983)).

Nor has Willis demonstrated t hat , notwithstanding the procedural defau l t, we should review his ineffective assistance of trial c ounsel claim to avoid a miscarriage of justice. To secure review of his pro cedura

lly d efaulte d claim for that rea son, Willis mu st submit newand reliable evidence of his actu al innocence. See Sch lup v. De lo , 513 U.S. 298 (1995). Willis has submitted no such evidence.

For the fore going

reasons , we hold t

hat Willis is barred

by
reason of pro cedural default from obtaining adjudication of his ineffective assistanceof tria l counsel claim, an d that his ineffective assistance of appel late cou nsel cla imlacks me

rit. Ac co rd in gl y, we AFF IRM th e dis trict court’s judgment deny ing Willis’ s petition f

or a writ of habea s corpus.