NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0514n.06 No. 11-2448 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

MI CHAEL

STOKES, Petitioner-Appellee ,

v. DEB RA SCUTT, W arde n, Respondent-Appe llant. ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED STATES DI STRICT COURT FOR THE EASTERN DI STRI CT OF MI CHI GAN OPI NI ON

Be fore : GUY, DAU GHTREY, a nd STRANCH, Circuit J udg es. JANE B. STRANCH , Circuit J udg e. A Michig an jury convicted petitioner Michae l Stokes of assault with intent to do g reat bodily harm less than murder. I n a reque st for fede ral habea s relief from the state court judgme nt, Stokes argues th at he was forc ed to repr esent himself at trial in violation of his Six th Amendment rig ht to counsel. The State arg ues that this claim is barr ed by the
proce dural defa

ult doctrine. Our consideration of this argument require s revisiting a l o n g line of decisions that wre stle with the application of the proce dural defa ult doc trine to the Michig an state courts’ prac tice of denying post-conviction relief based on ambig uous form order s. See Guilmette
v. Howes , 624 F.3d 286, 290 ( 6th Cir. 2010) (en ba nc). The district court deter

mined that the proce dural defa ult doctri n e d id not bar revie w of Stokes’s Six th Amendment claim, conclude d that the Michig an courts unrea sonably applied clea rly established fede ral law in denying that claim, and conditionally g rante d a writ o f h ab eas corpus.No. 11-2448

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arden Be cause we disag ree with the district court’s proc edura l defa ult determination, we REVERS E the conditional g rant, a

nd we REMAND this case f or fur ther proc eeding s. I. BACKG ROUND The State of Michig an orig inally char g ed Stokes with the crime of assault with intent to commit murder. The char g e stemmed from an incident in which Stokes stabbed another man sever al times, causing life-thre atening injuries. Stokes did not deny that he st abbed the man, but claimed that he did so in self-de fense

. At the preliminary examination, Stokes’s appointed counsel I ra Har ris
arg ued that the vic ti m’ s testimony was unreliable and that there was insufficient evidenc e of Stokes’s intent, but he did not pursue a se lf-def ense strateg y . On the first day of trial, Har ris advised the judge for the first time that Stokes was dissatisfied with his counsel and wa s reque sting a new a ttorney

or to proce ed pro se : MR. HARRI S: Your Honor, a few day s ag o I met with Mr. Stokes. And he submitt ed to me sever al pag es o f questions which he has asked me to direc t to the witnesses in this matter. He’ s also written out a closing arg umen t, which he has reque sted that Ig ive. I told Mr. Stokes that while I appre ciated his assistance , I was not g oing to be limit ed to the questions he pr opounded or the argument that he pre pare d. I told that ag ain to Mr. Stokes today

. And Mr. Stokes is upset. He thinks that I am not proper ly repr esenting him. And he wants either another lawy er or he wishes to repre sent himself.
R. 11 at Pag e I D# 196–97. The prosec utor objected to substitut e counsel, citing the time nece ssary
to prepa re a new attorney and the difficulty in g etting the witnesses to the courthouse. He also noted that Stokes had a c onstitut ional rig ht to defend himself. After expressing displeasure that counsel raised the issue at noon on the first day of trial, the judge stated th at “[ i] n terms of appointing a new attorney , we’ re just not g oing to do that at this 2No. 11-2448

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arden
p o i n t

. ” He then advised Stokes of his rig ht to have a lawy er repr esent him in the case . Stoke s responde d with the complaints that his attorney had “no g ame plan,” had not pursued a self-de fense strateg y during the preliminary examination, and had rec ently sug g ested that it might be pref era ble to consent to a be nch trial. The judge , Har

ris, and the prosec utor then met in chambe rs, afte r the judge promised Stokes that they would the revie w the questions Stokes wanted Har ris to ask. The five-minute meeting was off the rec ord and Stokes was not prese nt. After war d, the judge advised Stokes that Har ris was not
go i n g to ask the questions, but assure d him that Har ris was “one of the best” attorney s i n t h e building. The judge did not, howeve r, expli citly state that Har ris was prepa

red for trial. Nor did the judge explain why Har

ris wo u l d n o t as k the questions Stokes wanted him to ask. Nothing was
enter ed into the re cord a

bout what was sa id in chamber s betwee n the judg e and c ounsel. The judge then proce eded with an inquiry into Stokes’s ability to repr esent himself and with

an eff ort to advise him of the dang ers. He inquired into Stokes’s educational backg round, lear ning that Stokes had a GED and had completed a para leg al prog ram while incar cer ated. He explained to Stokes the potential penalties associate d with the char g es ag ainst him and discussed in some depth the risks of self-r epre sentation. The prosec utor advised Stokes that if he repr esen t ed h i mself, Michig an law w ould prec lude him from ra ising inef fec tive assistance of counse l on appea l. After a short rec ess, Stokes a nd Har ris proposed that Har

ris would repr esent Stokes dur ing voir dire and advise Stokes throug hout the trial, but that Stokes would g ive the opening and closing
arg uments and cross-e x amine witnesses with the questions he wanted asked. On hear ing Stokes’s

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arden proposed division of responsibilities, the judge ag ain eng ag ed Stokes in a coll o q u y to advise him
ag ainst self-r epre sentation and to assure that he wa s voluntarily waiving his right to counse l:
THE COURT: And do y ou understand that it's the Court's strong opinion that y ou do not repre sent y ourself at any part of the proce eding s in this case? MR. STOKES: Yeah, I

understand that y ou think it's not a g ood idea.

. . . . THE COURT: And y ou' re still willing to pro cee d in a manner that we' ve spoken about?
MR. STOKES: Well, I don’t fee l I have a choice , y our Honor. I don’t fee l - I mean, it's like all that on the line that y ou' re telling me that I ’m fac ing. And I ’m just g oing to - THE COURT: Well, we have clients that come in here eac h and ever y day with their attorney s. And their attorne y s handle those c ases. MR. STOKES: Well, we didn’t have time to talk. And at no point did he bring any defe nse. He didn’t sugg est any defe nse. I

had to do the re sear ch and do the work.
THE COURT: Well, I understand Mr. Har ris has been over to visit y ou a number of times. MR. STOKES: Yes, sir.
THE COURT: A nd, of cour se, Mr. Ha rris ca n’t make stea

k out of choppe d liver. I mean, the defe nse - the defe nse comes from whateve r it is that the - I mean, defe nse attorney s don’t wave mag ic wands a nd make de fense s. MR. HARRI S: W e’r e re ady to proce ed. THE COURT: Are y ou rea dy to proce ed, Mr. Stokes? MR. STOKES: Yes, sir. THE COURT: You’r e doing it with y our ey es wide ope n?

4No. 11-2448

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arden MR. STOKES: Yes, sir.
THE COURT: And y ou know the conseque nces are quite sever e with y ou repr esenting y ourself? MR. STOKES: Yes, sir. Id. at 210–12. The judge then made an expli cit finding i n the rec ord that Stokes understood the disadvantag es of self-r epre sentation and had intelligently , volunta r il y , k n o w in g ly , a

n d u n e q u iv o c a lly waived his rig ht to counsel. Stokes eventua lly signe d a waiver of his Six th Amendment rig ht to counsel and repr esente d himsel f at trial with Mr. Harris as st andby counsel. Stokes g ave the opening argument and crossexamined witnesses; he g ave the closing argument and proposed jury instructions. I n the end, the jury found him g uilty of the lesser- included offe nse of assault with intent to do g reat bodily harm less than murder , and he r ece ived a se ntence of ten to twenty y ear s in prison. Stokes unsucce ssfully appea led his conviction to the Michig an Court of Appea ls, filing one brief throug h newly appointed appellate counsel and one brief in prop ia persona . I n this direc t
appea l, he did not raise the issue of whether his waiver of rig ht t o co u n sel at trial satisfied the require ments of the Six th A mendment. Rather, Stokes r aised this Six th A mendment claim for the first time in his subsequent pro se application for leave to a ppeal to the Michig an Supreme Court.
I n that application, Stokes stated he had been “for ced” to repr esent himself at trial, and there fore the waiver had violated his Six th Amendment rig ht to counsel. The Michigan Supreme C ourt denied the application in a one-se ntence order , stating: “[W ]e are not persua ded that the questions prese nted

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arden should be revie wed by this Court.” People v. Stokes , 720 N.W.2d 314, 314 (Mich. 2006) (“Stokes
I ”). Stokes nex t filed a pe tition for writ of habeas corpus in fede ral court, seeking relief on the
g rounds that there was insufficient evidenc e to justify the char g es and conviction and that omission of two reque sted jury instructions rende red the trial unfair. Stokes once ag ain did not raise the Six th Amendment claim, but the district court sua sponte raised it and held the petition in abey ance to permit Stokes to return to Mic higa n state cour

t to e x haust the claim throug h post-conviction relief
proce eding s. 1
All three Michig an courts revie win g Stokes’s post-conviction claim denied relief with ref ere nce t o M i chigan Court Rule 6.508(D), which l imits post-conviction relief i n Michig an st ate courts. I n rele vant par

t, MCR6.508(D) r eads: (D) Entitlement to Relief. The defe ndant has the burden of establishing entitlement to the relief reque sted. The court may not g rant relief to the defe ndant if the motion

. . . . (2) alleg es g rounds for r elief w hich wer e dec ided ag ainst the defe ndant in a prior appea l or proce eding under this subchapte r, u n less the defe ndant establishes that a retroa ctive chang e in the law has undermined the prior decision; (3) alleg es grounds for relief , other than jurisdictional defe cts, which c ould have been raised on appea l from the conviction and s en t en ce or in a prior motion under this subchapter, unle ss the defe ndant demonstrate s

“B efor e a fede ral court may g rant habea s relief to a state prisoner, the prisoner must exhaust 1 his reme dies in state court. I n other words, the state prisoner must g ive the state courts an opportunity to act on his claims befor e he p re s en t s those claims to a fede ral court in a habea s petition.” O'Sulli van v. Boerck el , 526 U.S. 838, 842 (1999). This doctrine is codified at 28 U.S.C. § 2254(b)( 1). 6No. 11-2448

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arden (a ) g ood cause for failure to raise such g rounds on appea l or in th e prior motion, and (b) actua l prejudice from the alleg ed irregularities t h at support the claim for r elief.

. . . . MCR 6.508(D).
T h e state trial court issued a three pag e order that beg an and ended with ref ere nce t o t h e proce dural bar in MCR 6.508(D)( 3). At the outset, citing MCR 6.508(D)( 3)(b) , the trial court noted

t hat a defe ndant must show cause and prejudice in order to advanc e a reque st for post-convicti o n relief on a claim that could have been raised on direc t appea l or in a prior motion for post-conviction relief

. The court then revie wed the merits of Stokes’s Six th Amendment claim and conclude d that: the waiver of counsel was knowing and intelligent; the court’s proce dures wer e proper ; and Stokes’s claim was thus without merit. Following discussion of the merits, the court deter mined that Stokes had not “shown ‘g ood cause ’ under MCR 6.508(D)( 3) as to why the issue prese nted in this motion

was not previously raised on appea l,” and “[f]urther, he has not proven ac t u al prejudice .” R. 19, Pag e I D# 617. Stokes a ppeale d the trial cour

t’s decision to the Michig an Court of Appe als. In that pro se appea l, Stokes did not addre ss the trial court’s decision that h e h ad not shown “g ood cause ” or proven actua l prejudice under 6.508(D)( 3). I nstead, he presse d the argument that the trial court had failed to c orre ctly rule on the merits of his Six th A mendment claim. The Court of Appea ls denied relief with a form o rder stating that “the defe ndant has failed to meet the burden of establishing entitlement to relief unde r MCR 6.508(D).” R. 19 a t Page I D# 618.

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arden I n his application for leave to appea l that order to the Michig an Supreme Court, Stokes ag ain did not address the MCR 6.508(D)( 3) dec ision of the trial court. The only issue he ra ised was the following : Whether or not the decision of the tr ial court a nd court of a

ppeals re quires re versa l wher e the trial court failed to corr ectly interpre t the ruling of the fede ral district judge in fi n d i ng that trial counsel was ineffe ctive during trial for specific individual acts and omissions of misconduct an d t h at s u ch conduct and that such conduct forc ed Def endant- Appellant to believe he had no other choice to obtain eff ective assistance of counse l but to represe nt himself wher e the trial judg e’s manne r in resolving this situation was an abuse of discretion, bias, and impartial to Def enda n t -Appe llant’s constitutional rig ht to ef

fe ct i v e assistance of trial counsel and if invalid waiver of counsel wa s proper

and ade quate dur ing the se proc eeding s. Delay ed Application for L eave to Appeal, F eb. 23, 2009, R. 27-4, Pag eI D #714. Denial by the Michig an Su p r e me Court of Stokes’s application for leave to appea l beg an with that same sentenc e as the Court of Appea ls order , ref ere ncing MCR 6.508(D). Rather than stopping there , the court continued: “We write further only to comment on the unusual posture of the case .”
P eo p l e v. Stokes , 772 N.W.2d 55, 55 (Mich. 2009) (“Stokes I I ”). I t included sever al addition al
para g raphs, summarizing the proce dural posture of the case , emphasizing that the claim had alre ady been prese nted in the initial application for leave to appea l to that court, and quoting at leng th from the portion of the state trial court’ s review of the mer its of Stokes’s claim.
Be cause the fede ral district court’s ref usal to find proce dural defa ult turned on the lang uag e of the final two para g raphs of the Michig an Supreme Court order , we include those two para g raphs here in full: Def endant

. . . filed an appea l in the Court of Appea ls raising the ‘wa iver of counsel’ issue, which court denied defe ndant’s application on the g rounds that defe ndant had “fa iled to meet the burden of e s ta b li s h in g e n ti tlement to relief under MCR 6.508(D).” 8No. 11-2448

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arden Def endant now seeks leave to appea l in this Court raising the ‘wa iver of counsel’ issue and we deny

leave to appea l for the same re ason. As set forth above , t he [federa l] district court was appar ently under the mistaken belief that defe ndant had not raised his ‘wa iver of counsel’ issue in the state courts. I n any event, h aving revie wed the written ‘wa iver of counsel’ form signe d by defe ndant on October 12, 2004, and the 24 pag es of transcr ipt that consisted of two separ ate extended discussions with defe ndant over the course of two day s, we ag ree with the trial court that defe ndant’s waiver was unequivoca l. Even if this issue was being considere d by

this Court i n the first instance , we would sti ll deny relief from judgmen t b eca

use defe ndant has not established actua l prejudice

. MCR 6.508(D)( 3)(b)

. I n this latter reg ard, we note that even though defe ndant repr esente d himself at trial, his former counsel conducte d voir dire and otherwise assisted him as standby

counsel throug hout the trial. Stokes II , 772 N.W.2d at 56. After the Michig an Supreme Court issued this order , Stokes returne d to fede ral court wher e the district court g rante d his motion to reope n the fede ral habea s petition. The district court car efully revie wed the wording of the Michig an Supreme Court’s denial of relief and deter mined that the order

was not clea

rly and unambig uously based on Stokes’s failure to timely raise his Six th Amendment claim, but appea

red to be based o n a combi nation of res judicata and denial on the merits. Concluding that the proce dural defa ult doctrine did not apply , the district court turned to the merits of the c laim and found a

violation of Stokes’s Six th Amendment rig hts. The district court found that Stokes’s waiver of his rig ht to counsel was not knowing and volun t ar y as require d by the Six th Amendment beca use the state trial judge had not car efully addre ssed Stokes’s conce rns about his c o u n s e l a n d thus had prese nted him with a “Hobson’s Choice” betwee n unprepa

red counsel and no counsel at all. Stokes v. Scutt , 821 F. Supp. 2d 898, 911 (E.D. Mich. 2011) (“Stokes I I I ”). Ba sed on this finding , the court conditionally g rante d a writ of habea s

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arden
corpus. I n doing so, the court did not rea ch Stokes’s other claims reg arding insufficienc y of the evidenc e and omission of jury instructions. II. DISCUSS ION Un d er the proce dural defa ult doctrine, a fede ral court acting on a state prisoner’ s habeas petition will not revie w the petitioner’s fede ral law claim if the last sta t e co u rt judgme nt denying relief on the claim rests on a proce dural state law g round that is “indepe ndent of the fede ral question and is adequa

te t o support the j udg ment.” Coleman v. T hompson , 501 U.S

. 7 2 2 , 729–30 (1991). Thus, a fe dera l habea s claim is proce durally defa ulted when: (1) the petitioner fails to comply wi t h a state proce dural rule; (2) the state courts enfor ce the rule; (3) the state proce dural rule is an adequate and independent state g round for denying revie w of a fede ral constitutional claim; and (4) th e petitioner cannot show c ause a

nd prejudice excusing the de fault. Guilmette , 624 F.3d a t 290.
I n this case , the first and third prong s of the proce dural defa ult test ar e m et

. We have previously held that MCR 6.508(D)( 3) is an independe nt and adequate state g round for the purpose of the proce dural defa

ult doctrine. See Howard v. Bouchard , 405 F.3d 459, 477 (6th Cir. 2005). Rule 6.508(D)( 3) bars post-conviction relief on claims that “could have been raised on appea l from the conviction and sentence.” Stokes could have r aised his Six th Amendment invol untary waiver claim on direc t appea l to the Michig an Court of Appea ls, but he did not. Stokes there fore failed to comply with the state proc edura l rule embodied in MCR 6.508(D)( 3). See Skinner v. McLem ore , 2

The nomenclatur e in proce dural defa ult case s is at best confusing , at worst inexpl icable. The 2 specific problem here arises from the lang uag e of MCR 6.508(D)( 3), which states (in the neg ative) a cate g ory of claim on which a Michig an court may not g rant p o s t-conviction relief , instead of 10No. 11-2448

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arden 425 F. App’x 491, 495 (6th Cir. 2 0 1 1 ) (not ing that MCR 6.508(D)( 3) “cle arly applies” wher e, as here , petitioner did not r aise a claim on direc t a ppeal to the Michig an Court of Appea ls and raised it for the first time instead in the a pplication for lea

ve to appe al to the M ichig an S upreme Court). Cf. Castil le v. Peoples , 489 U.S. 346, 3 51 (1989) (holding that a claim raised for the first time on

a petition to a state’s highe st court was not “fa ir prese ntation” for the p u rposes of the exhaustion require ment in 28 U.S.C. § 2254(c)). Whether the sec ond and four th prong s of the proc edura l defa ult test are met prese nt closer questions. The district court conclude d that: the Michig an Supreme Court—in denying Stokes relief throug h a confusing and am biguous order —had not actua lly enfor ced the proce dural sanction of MCR 6.508(D)( 3); the second prong was not satisfied; and the claim was not proce durally defa ulted. Finding no defa

ult, the district court did not rea ch the cause and preju d i ce d et erminations in the fourth prong . We reviewthe district court’s pr ocedur al def ault decision de novo . See McFarland
v. Y ukins , 356 F.3d 688, 699 ( 6th Cir. 2004). A. Act ual enf

orce m ent of the procedural rule - P rong two The Supreme Court has applied the “plain statement rule” of Michigan v. Long , 463 U.S. 1032 (1983), to the deter

mination of whether the state court actua lly enfor ced a proce dural rule on post-conviction revie w. See Harris v. Ree d , 489 U.S. 255, 263 (1989). Thus, “a proce dural defa ult
stating (in the positive) the require ments a petitioner must meet in order to reque st relief

. To avoid repe ating the full rule eac h time and despite its somewhat awkwa rd fit with the neg ative subsections, we use “fa ilure to c omply ” as a ref ere nce to the initial part (D) require ment that the defe ndant has the “burde n of establishing entitlement” to reli ef

. He re S t okes “fa iled to comply ” (fa iled to show entitlement to relief

) beca use he did not proper ly raise his Six th Amendment claim “on appea l from the conviction and se ntence or in a prior motion [ for post-c onviction relief].” MCR 6.508(D)( 3). 11No. 11-2448

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arden does not bar c onsideration of a fede ral c laim on either dire ct or ha beas r eview unle ss the last state
court rende ring a judgme nt in the case clearl y and expressly states that its judgme nt rests on a proce dural ba

r.” Id. (interna l quotation marks omitted). The plain statement rule does allow a state court to rea ch the merits of the fede ral claim “in

an alternative holding” without jeopar d i z i n g a finding of proce dural defa ult. Id. at 264 n.10 (empha sis in orig inal). I n such case s, howeve r, to result in a proce dural bar to fede ral habea s revie w, the state court must “explicitly invoke[] a state proce dural bar rule as a separ ate basis for decision.” Id. Conversely , “[w]hen the decision rests upon proce dural default ‘as an alternative ground,’ we may , but a

re not require d to, rea ch the merits of the claim on habea s revie w.” Hanna v. Ishee , 694 F.3d 596, 607 ( 6th Cir. 2012) (citing McBe e v. A bramajtys , 929 F.2d 264, 265 ( 6th Cir. 1991)). 3
To deter mine whether state courts have clea rly and expressly invoked a state proce dural bar,

a fede ral habea s court looks to the last state court to be prese nted with the fede ral cl ai m . Y l st v. Nunnemake r , 501 U.S. 797, 801 (1991). Thus, ev en wh er e a state trial court or appellate court expressly invokes a state proce dural bar, fede ral habea s revie w may not be pre cluded if the state’s

We also note that the independe n t and adequate state g round doctrine—a nd the plain 3 statement it require s—is “not technica lly jurisdictional” in the context of a § 2254 claim. Lambrix v. Singletary , 520 U.S. 518, 523 (1997). Thus , wher e the merits of a claim “pre sent a more straig htforwa

rd g round for

decision,” w e may

consider the merits of the c laim first and then rea ch the proce dural defa

ult question only if nece ssary . See Arias v. Hudson , 589 F.3d 315, 316 (6th Cir. 2009) (citing Lambrix , 520 U.S. at 525). Her e, howeve r, the merits of Stokes’s constitutional claim involve a complex cross-se ction of the rig ht to self-r epre sentation under Faretta v. Calif ornia , 422 U.S. 806, 818 (1975), and the proper proce dure for addre ssing a motion for substitut e counsel. See, e.g. , Martel v. Clair , 132 S. Ct. 1276, 1288 (2012) (citing United States v. Iles , 906 F.2d 1122, 1130 (6th Cir. 1990)). As a result, we do not see resolution of Stokes’ s cl ai m o n t h e merits as a more straig htforwa

rd g round for

decision. 12No. 11-2448

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arden h i gh es t co u rt instead rea ches the merits of the claim without expressly ruling on the proce dural question. Id. Howeve r, wher e the last state-c ourt judgme nt is an “unexplained” order upholding a p rior judgme nt or reje cting the same claim, a fede ral court applies a presumption that gi v es t h e unexplained judgme nt “ no eff ect” and “simply ‘looks throug h’

. . . to the last rea soned decision.” Id. at 804. An order need not be “utterly silent” to be unexplained. Y lst , 501 U.S. at 805 (f

i n d i n g an order unexplained and subject to look throug h wher e it contained two cas e ci t at i o ns, but nothing more). Rather, to the extent that this court has considere d the standard, an order is unexplained when it is “simply not ‘informa tive with respe ct to the question’” of the basis for the decision. Guilmette , 624 F.3d at 293 (B og g s, J ., concur ring in part and dissenting in part) (quoting Y lst , 501 U.S. at 805.).
I n Guilmette , we conclude d that a one-se ntence order deny ing relief beca

use “the defe ndant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D)” i s “unexplained” and subject to “look throug h” for the purpose of the proce dural defa ult doctrine. 624 F.3d at 291. We rea ched this conclusion beca use various subsections of MCR 6.508(D) do not

nece ssarily invoke a proce dural bar. “Rule 6.508(D)’ s introductory sentenc e requiring the petitioner
to establish his entitlement to relief applies to both the proce dural and merits aspec ts of a petitioner’s claim.” Guilmette , 624 F.3d at 291 (citing People v. Jack son , 633 N.W. 2 d 8 2 5 , 8 33–34 (Mich. 2001)). And MCR 6.508(D)( 2) is akin to a res judicata rule and there fore subject to its own “look throug h” to the prior judgme nt c reating the res judicata eff ect. See Hicks v. Straub , 377 F.3d 538, 558 n.17 (6th Cir. 2004). Recog nizi ng that M CR 6.508(D) had been used to deny relief on the merits as well as for proce dural rea sons, we conclude d in Guilmette that “[b] rief o rders citing 13No. 11-2448

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arden Michig an Court Rule 6.508(D) ar e not explained order s invoking a proce dural bar.” 624 F.3d at 289.
I nstead, a review ing c ourt should look through these orders to the l ast rea soned decision below to deter mine the basis for r ejec tion of the claim. Id. at 291. The State contends the application of Guilmette here require s a finding of proce dural defa ult. Both the decision of the Michig an Supreme Court and the Michig an Court of Appea ls rest expli citly

on ref ere nces to MCR 6.508(D). The State argues that both decisions are there fore not “re asoned” or “e x plained” judg ments pursuant to Guilmette

. I f that is corre ct, the prope r proc edure is to look throug h them to the last rea soned opinion, the state trial court’s denial of post-conviction relief

. The trial court decision expressly invoked the proce dural bar in MCR 6.508(D)( 3) and there fore would support a finding that the Michig an courts actua lly enfor ced an independe nt and adequate s t ate
proce dural rule in deny ing Stokes re lief. Stokes responds that Guilmet t e does not control our decision beca use in Guilmette we conclude d only that bare one-se ntence order s ref ere nci n g M C R 6.508(D) should be considere d “unexplained” and subject to “look throug h,” and here the Michig an Supreme Court’s order contains eig ht para g raphs following the ref ere nce to MCR 6.508(D). Stokes argues that the order is there fore “re asoned,” Y

lst , 501 U.S. at 804, and should be revie wed to de termine if the plain statement rule has bee n satisfied. Stokes then points specific ally to the final para g raph of the order t hat s tates “[ e]ven if this issue was being considere d by this Court in the first instance, we would still deny re l i ef from judgme nt beca

use defe ndant has not established actua l prejudice

. MCR 6.508(D)( 3)(b) .” He arg ues that the “eve n if” introductory clause sug g ests that t he case was not being considere d for the first 14No. 11-2448

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arden time and indicates (thoug h not expressly ) that the Michig an Supreme Court was denying relief under the res judicata provision in MCR 6.508(D)( 2), not under MCR 6.508(D)( 3). This infere nce is supported by ref

ere nces in the order to the fac t that on his dire ct appe al, Stokes raised the claim in his first application for le ave to a ppeal to the Michig an Supreme Court.
We ag ree with the district court that the lang uag e in the last two para g raphs of the Michig an Supreme Court order border s on inscrutable. First, if the Michig an Supreme Court did rest its denial of relie f o n t h e r es judicata provision in MCR 6.508(D)( 2) as Stokes sug g ests, that would be an abrupt and unexplained depar ture from the holding of other Michig an courts that “Rule 6.508(D)( 2) does not bar claims raised for the first time in a direc t appea l to the Michig an Supreme Court wher e the Supreme Court has de nied the application for leave to appea l.” Lamb v

. Jones , No. 03-73587, 2005 WL 1378762 (E.D. Mich. J une 2, 2 0 0 5 ) (c i ting People v. Shook , No. 233346, 2002 WL 31379664, at *2 (Mich. Ct. App. Oct. 22, 2002)). Adding to the confusion, the last two para g raphs al s o s t at e t h at the court denies relief to Stokes “for the same rea sons” as the Michig an Court of Appea ls. The Michig an Court of Appea ls made only a bare ref ere nce to MCR 6.508(D), lang uag e that Guilmette require s us to look through to the l ast rea soned decision—the trial court’s decision invoking MCR 6.508(D)( 3). Nonetheless, we need not g rapple with the internally inconsistent lang uag e in the last two
para g raphs of the order beca use the Michig an Supreme Court specific ally stated that we should not. Following the ref

ere nce to MCR 6.508(D) in the first sentenc e of the order , the Michig an Supreme Court e x plicitly

stated that it wrote f

urther “ only

to comment on the unusual posture of the case .”
We rea d this lang uag e as a “plain statement” that we are not to consider the eigh t p ar agra phs that 15No. 11-2448

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arden fo llow as indicating the basis for the court’s decision. As a result, we are left only with the first
sentenc e, a bare and unexplained ref ere nce to MCR 6.508(D). Apply ing Guilmette, we look throug h that lang uag e to the last rea soned opinion—the state trial court’s decision clea rly a n d unambig uously denying post-c onviction relief on the basis of the proc edura l bar in MCR 6.508(D)(3)

. I n sum, we share the di strict court’s conce rn with the problematic order of the Michig an Supreme Court. Even so, we find the order sufficie nt under Guilmette to support a finding that the Michig an courts actua lly enfor ced the state proce dural bar in MCR 6.508(D)( 3) as an independe nt basis for denying relief on Stokes’s Six th Am en d m en t claim. The first three prong s of the
proce dural defa

ult doctrine test are there fore met, and we may only revie w the merits of Stokes’s Six th Amendment claim if he is able to demonstrate both cause for and prejudice from his failure to raise the c laim on direct a ppeal to the Michig an Court of Appe als. B. Cause and prejudice - P rong fou r Even when the first three prong s of the test leading to a proce dural defa ult are met, a petitioner still may be able to secur e fede ral court revie w o f t h e merits of his claim if he can “(1)
prese nt a substantial rea son to excuse the defa ult [i .e. show cause ], and (2) show that he was actua lly prejudice d as a result of the claimed constitutional err or.” Martin v. Mitchell , 280 F.3d 594, 603 (6th Cir. 2002) (citations omitted). To avoid proce dural defa ult, Stokes must prese nt his case as outside the fourth prong by showing both cause and prejudice. We need not consider whe ther S tokes has shown prejudice if he c annot show ca use. “The ‘ca use’ standard in proce dural-de fault case s require s the petitioner to show that ‘some objective fac tor external to the defe nse impeded co u n s el ’s eff orts’ to raise a claim in the state 16No. 11-2448

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arden courts.” W

ogenstahl v. Mitchell , 668 F.3d 307, 321 (6th Cir. 2012) (quoting McClesk ey v. Zant , 499 U.S. 467, 493 (1991))

. “Such fac tors may include interfe renc e by officia ls, an attorney err or rising to the level of ineffe ctive assistanc e of c ounsel, or a show ing of a fac tual or leg al basis for a claim that was not rea sonably available .” Id

. As the State argu es , h o wever, Stokes was awa re of the fac tual basis supporting his Six th Amendment claim as of the day of hi s trial, and his claim is not based on any fac ts that wer e disclosed at some later date or otherwise withheld by opposing counsel or the c ourt. Stokes, for his part, directs our attention to W ogenstahl , in which we noted t hat a claim of ineffe ctive assistance of appellate counsel (“IAAC”) may under some circ umstances serve as cause
to excuse the state-c ourt proce dural defa ult of other constitutional claims. 668 F.3d at 321–22, 338. Stokes presumably means to sug g est that the proce dural defa ult of his Six th Amendment involuntary waiver claim should be excused due to constitutionally defe ctive perf ormanc e by the att o rney appointed to re prese nt him in t he dire ct appe al of his conviction.
W ogenstahl , though, is distinguishable because Wogensta hl raised an I AAC claim in state
court as cause to excuse his defa ult. Wogensta

hl broug ht the I AAC claim to the state court of
appea ls in a motion to rec onsider that court’s denial of his appea l on direct re view, and the n ag ain alleg ed the I AAC claim in his application for leave to appea l to the state’s highe st court. See State

v. W ogenstahl , 662 N.E.2d 16, 1 6

– 1 7 (O h io 1996). Stokes, on the other hand, raised only his substantive claim of involuntary waiver of counse l and that only

to the Michig an Supreme Court.
He neve r alleg ed I AAC or made any other argument to excuse the defa ult—to show cause —either

on direc t revie w or in his reque sts for post-conviction relief in st at e co u rt

. I n fac t, Stokes did not 17No. 11-2448

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arden

even alleg e I AAC in his fede ral h ab ea s p etition. And, aside from imply ing such an argument by ref ere ncing W

ogenstahl , Stokes still has not direc tly alleg ed I AAC or attempted any cause showing

. Moreove r, even if Stokes had alleg ed I AA C i n his fede ral habea s petition, we could not consider I AAC as cause to excuse his proce dural defa ult. Citi ng the exhaustion require ments of 28 U.S.C. § 2 2 5 4 , t h e Supreme Court has square ly reje cted the possibili ty of raising I AAC for this purpose f or the fir st tim e in a f

eder al habe as proc eeding : [I ]neffec tive assistance adequa te to establish cause for the proce dural defa ult of some other c onstitut ional claim is itself an indepe ndent constitutional c laim. A nd

. . . the principles of comity and fede ralism that underlie our longsta nding exhaustion doctrine -- then as n o w codified in the fede ral habea s statute, see 28 U.S.C. §§ 2254(b), (c) -- require that constitutional claim, like others, to be first raised in state court. ‘[ A] claim of i neff

ective assistance,’

. . . g ener ally must ‘be presente d to the state courts as an independe nt claim befor e it may be used to establish cause for a proce dural de fault.’ Edwards v. Carpenter , 529 U.S. 446, 452 (2000) (quoting Murra y v. Carrier , 477 U.S. 478, 489 (1986))

. Be cause Stokes ne ver raised a claim of I AAC in state court, we cannot now consider any ineffe ctive assistance by Stokes’s appellate counsel as cause to excuse the proce dural defa ult of his Six th Amendment involuntary waiver of rig ht to counsel claim. Wit h no exhausted I AAC claim, no claim of a newly available fac tual or leg al basis, and no other theor

y of an e x terna l impediment to S tokes’s appe llate re prese ntation, we are constraine d to conclude that Stokes has not prese nted ca use to excuse the proc edura l defa ult. Theref

ore, the re is

no need to consider whether Stokes is prejudice d by the proce dural defa ult. The fourth prong of the test is met, and Stokes’s Six th Amendment involuntary waiver claim is proce durally

defa ulted.

18No. 11-2448

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arden III. CONCLUSION After car efully cons i d er i n g the long rec ord in this case , we deter mine that the Stokes’s untimely Six th Amendment claim did not comply with MCR6.508(D)( 3), that the Michig an state courts actually enfor ced MCR 6.508(D)( 3) i n denying relief on that claim, and that Stokes cannot show cause to excuse his failure to satisfy MCR 6.508(D)( 3). The proce dural defa ult doctrine thus bars us from consideri n g the merits of Stokes’s Six th Amendment involuntary waiver of counsel claim. 4
For the a

b o v e r e a s o n s , w e R

EV ER SE the conditional g rant of habea s corpus, and REMAND the case to the district court for further proce eding s consistent with this opinion, includin g fo r consideration of the other c laims of constitutional error Stokes ra ised in his petition.

Thoug h Stokes ha s not r aised this issue, to r eac h this c onclusion we a lso have de termined 4 t h at t h e failure to consider the merits of Stokes’s Six th Amendment claim will not result in “a fundame ntal miscarr iag e of justice,” such as would occur wher e “in light of

. . . new e vidence , no juror, acting rea sonably , would have voted to find [S tokes] g uilty bey ond a rea sonable doubt.” Coleman v. Mitchell , 244 F.3d 533, 540 (6th Cir. 2001) (quoting Schlup v. Delo , 513 U.S. 298, 329 (1995)) (interna l quotation marks omitted). 19No. 11-2448

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arden MARTHA CRAI G DAUG HTREY, Circuit J udg e, conc urring separ ately

.

After a thoroug h rec apitulation of the events in the state trial court g iving rise to this appea l, the majority conclude s in footnote three that the merits of Stokes’s Six th Amendment claim “involve

a complex cross-se ction of the rig ht to self-r epre sentation under Faretta v. Calif ornia , 422 U.S. 806, 818 (1975), and the p roper proce dure for addre ssing a motion for substitut e counsel” and opts instead to resor

t t o the doctrine of proce dural defa ult to resolve the appea l. But, the exercise of wading – perha

ps slogg ing is a better descr iption – throug h the i ntellectual moras s o f M i ch i gan’s somewhat unusual appellate and post-conviction proce dural rules strikes me as a far more complex
approa ch to the resolution of this ca s e t h an a straig htforwa rd revie w of its merits under the Antiterror ism and Effe ctive Death Penalty Act (AEDPA) , 28 U.S.C. § 2254(d). Moreove r, that path is a potentially perilous one that require s our parsing of state statutes and there by poses the risk that we will g et the Michig an proc edura l rules wrong

. I n contra st, dealing with the S ix th Amendment is a trip throug h familiar ter ritory

.

Under § 2254(d)( 1) and (2), fede ral habea s relief may not be g rante d to a state prisoner “with
respe ct to any claim that was adjudicate d on the merits in State court proce edings u nless the adjudication of the claim (1) resulted in a decision that was contra ry to, or involved an unrea sonable application of, c lear ly

established F eder al law, a s deter mined by the S upreme Court of t he United States; or (2) resulted in a decision that was based on an unrea sonable deter mination of the fac ts in light of the evidenc e pre sented in the State c ourt proce eding .” A state court de cision is entitled to

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arden

a high level of defe renc e under AEDPA and cannot b e re v iewed for “ordina ry err or corr ection,” Harrington v. Richter , 131 S.Ct

. 770, 786 (2011), althoug h that appea rs to be what the district court did in the instant case.

The principal deter

mination on the merits in this case came in a post-conviction action filed by Stokes in the trial court that resulted in an opinion upheld by the Michig an Supreme Court. The state trial cour

t made the f

ollowing de termination conc erning Stokes’s Six th Amendment claim:

Def endant argues that he had “ no purpose or desig n” to repr esent himself during trial and that he was forc ed into self-r epre sentation. Be fore g ranting defe ndant’s reque st to proce ed in propria persona , trial courts must substantially comply with waiver of counsel proce dures set forth in People v. Anderson , 398 Mich. 361; 247 N.W.2d 857 (1976) and MCR 6.005(D). Substantial compliance require s [a] court to discuss with defe ndant waiver of counsel require ment s an d to deter mine that defe ndant fully understands, rec og nizes, and ag ree s t o ab ide by these proce dures. People v. Ahumada , 222 Mich. App. 612; 564 N.W.2d 1 8 8 (1 9 9 7 ). T he trial judge is in the best position to deter

mine whether the defe ndant has made the waiver knowing ly and voluntarily

. Id. There are three main require ments with which a court must comply in this context. First, the defe ndant’s reque st must be unequivocal. Second, the defe ndant must asser t his rig ht to self-r epre sentation knowing ly , intelligently , and v o l u n t arily

. I n assuring a knowing and voluntary waiver , the trial court must make the defe ndant awa re of the dang ers and disadvantag es of self-r epre sentation, so that the rec ord will establish that he knows what he is doing and that his choice is made with ey es open. Id

. Third, the court must establish that the defe nd ant will not unduly disrupt the court while acting as his own counsel. Id

. In addition, MCR 6.005 require s the trial court to offe r the assista n ce of an attorney and to advise the defe ndant about the possible punishment for the cha rg ed off ense. Id

. Her e the rec ord indicates that the defe ndant’s reque st was unequivoca l, as the court asked the defe ndant if he wished to repr esent himself and the defe ndant answe red in the af firmative. The defe ndant also indicated that he had prior work experience as a para leg al and as a result of that experience was capa ble of prepa

ring his trial strateg y . Fur

ther the court advised the defe ndant of his continu ed ri ght to counsel and that the counsel assig ned to his case was a very capa ble attorney and one of the -21-No. 11-2448

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arden “best in the building.” T he cour t a lso a dvised defe ndant of the statutory maxi mum penalty for the crime for which he was char g ed. A t h o ro u gh re view of the rec ord indicates that the court proper ly deter mined that defe ndant’s d es i re to repr esent himself was knowing and intelligent. As such, there was no violation of defe ndant' s six th amendment rig ht to counsel. Def endant’ s claim is without merit.
People v . Stokes , No. 04-07072-01, a t 2 (Mich. Cir. Ct. May

20, 2008).

The Michig an Supreme Court de nied Stokes’s application for leave to a ppeal. I n the order denying revie w, the court set out in full the trial court’s analy sis of the Faretta hear ing and pointed

o ut, in addition, “that even though defe ndant repr esente d himself at trial, his former co u n s el conducte d voir dire and otherwise assisted him as standby counsel throug hout the trial.” People v. Stokes , 772 N.W. 2d 55, 56 (Mich. 2009). The court might also have noted that, in the end, Stokes

acc omplished w hat he set out to do, i.e ., ask a prepa red list of questions of the witnesses and press his own theory

of def ense, w hile still having standby counsel a vailable a s neede d.

The district court was appropr iately solicitous of Stokes’s rig ht to counsel but p ai d l es s attention to the fac t that his dissatisfaction wit h his attorney was not communicated to the court

– and appar ently not even to his attorney – until the morning of trial; that the trial judge car efully went

over a ll the issues nece ssary to a fair deter mination of the validity

of Stokes’s waive r; and that the judge saw a copy of the script Stokes had cre ated and took a rec ess to g o over it with defe nse counsel and to satisfy hims elf, if not Stokes, that the lawy er was prepa red for trial. The district court

never theless conclude d that Stokes was fac ed with a “‘H obson’s choice ’ of either proce eding to trial wi t h an at t o rn ey whom [S tokes] felt was unprepared or with no counsel at all,” resulting in a

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arden violation of his Six th Amendment rig ht to counsel so substantial tha t it merited the issuance of the writ. Stokes v . Scutt , 821 F.Supp. 2d 898, 911 (E.D. Mich. 2011) (emphasis added)

. But, as the 1

s t ate now points out, a defe ndant must demonstrate more than a “fe eling ” that his counse l i s n o t
p repa red for trial in order to establish a constitutional violation, particula rly when – as here

– t h e attorney decla

res on the rec ord that he is prepa red to proce ed, and the trial court is satisfied that the defe ndant’s choic e to re prese nt himself is made with full knowledg e of the difficulty he fa ces.

The district court based its conclusion on two case s, both of which are distinguishable from the one at hand. The first, Gilbert v. Lockhart , is an Eig hth Circuit case in which the state trial judge denied a reque st for a continuance made on the morning of trial b y Gi lbert’s counsel, a public defe nder who “cla im[ ed] that he had had no opportunity to confe r with Gil b ert (due to Gilbert’s incar cer ation on a previous conviction) and that Gilbert had just g iven him t h e n ame of an alibi witness.” 930 F.2d 1356, 1357 (8th Cir. 1991). When the motion was denied and Gilbert asked for

new counsel, pointing out t h at his attorney was unprepa red to repr esent him, “the state trial court
g ave [hi m] the option of proce eding pro se or with the public defe nder

. . . [and] Gilbert elec ted to
repr esent himself.” Id. Not surprising ly , the Eig hth Circuit deter mined that Gilbert had indeed been offe red “the ‘Hobson’s choice ’ of proce eding to trial with unprepa red counsel or no counsel at all,” id. at 1360, and direc ted the writ to issue. Id. at 1360-61. Def ense counsel in this case , by contra st,

T h e d i s t r i c t c o u r t s u p p l i e d a d e f i n i t i o n o f “ H o b s o n ’ s c h o i c e ” a s “ a n a p p a r e n t l y f r e e c h o i c e t h a t o f

f e r s n o a c t u a l 1
a l t e r n a t i v e , ” a n d i t s s o u r c e a s T h o m a s H o b s o n ( 1 5 4 4

- 1 6 3 1 ) , “ a n E n g l i s h l i v e r y m a n , f r o m h i s r e q u i r e m e n t t h a t c u s t o m s t a k e e i t h e r t h e h o r s e n e a r e s t t h e s t a b l e d o o r o r n o n e , ” l e a d i n g t h e s t a t e ’ s a t t o r n e y t o p o i n t o u t i n h i s b r i e f o n a p p e a l t h a t w h e n “ t h e g o v e r n m e n t i s p r o v i d i n g t h e h o r s e , a n d t h e ‘ h o r s e n e a r e s t t h e d o o r ’ i s p e r f e c t l y c o m p e t e n t , t h e t r i a l c o u r t m a y r e q u i r e t h e d e f

e n d a n t t o a c c e p t t h e ‘ h o r s e n e a r e s t t h e d o o r ’ o r g o b y f o o t

. ” S t o k e s , , 8 2 1 F

. S u p p 2 d a t 9 1 1 n . 5

. -23-No. 11-2448

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arden

assure d the trial judge that he was prepa red to proce ed to trial, and the rec ord thus ref lects that S t o k es’s choice was betwee n either repr esenta tion by counsel prepa red to proce ed or sel frepr esenta tion, which is also his rig ht under Faretta , in this case with the advice of stand-by counsel.

I n the ot her ca s e ci t ed by the di strict court, Jame s v. Brigano , the s tate trial judge allowed
J ames to “ fire” his attorney afte r counsel moved to withdraw beca use he was not pr epar ed to g o to trial and “could not proper ly re p re s en t J ames.” 470 F.3d 636, 639 (6th Cir. 2006). But, the trial judge “did not inquire into J ames’s rea sons for wanting to fire [hi s attorney ], nor did the trial judge explain the risks and dang ers of self-r epre sentation,” instead “per mitt[ ing] J am es to repr esent himself, without making a spec i fi c finding that J ames’s waiver of counsel was knowing or intelligent.” Id. I n that case , we held that “eve n under the AEDPA standard, the finding [by the state
court of appea ls] that J ames knowing ly and intelligently waived appointed counsel was a failure to apply clea rly established Supreme Court prec edent.” Id. at 644. Obviously , the situation in Jame s

was so distinct fr om the one befor e us, in ever y rele vant way , that the district c ourt’s relianc e on it is, at best, puzz ling.

Measur ed ag ainst the AEDPA standa rd, the state c ourt’s rulingthat Stokes had executed a constitutionally

valid waiver

of his rig ht to r epre sentation by counsel was not “ a decision that was
contra ry to, or involved an unrea sonable application of, clea rly established Fe dera l law” nor was it “base d on an unrea sonable deter mination of the fac ts in light of the evidenc e prese nted in the State
court proce eding .” 28 U.S.C. § 2254(d)( 1)-( 2). For that rea son, I would reve rse the judgme nt of the district court in ruling to the contra ry . -24-