NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 13a0283n.06 No. 10-2284 UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T

PRENTI CE WATKI

NS, ) ) ON APPEALFROM THE U NI TED Petitioner-Appellant, ) STATES DI STRI CT COURT FOR THE ) EASTERN DI STRI CT OF MI CHI GAN v. ) ) BL AI NE L AFL ER, Warden, ) ) O P I N I

O N Respondent-Appe llee. )

BEF ORE: COOK and STRANCH, Circuit J udg es, and STAMP, District J udg e. *

F REDERICK P . STAMP , JR., Senior District Judge. Petitioner-appe llant (“Watkins”) appea ls the order

of the United States District Court f or the Easter

n District of Michig an (“ district court” ) deny

ing his petiti on for a writ of habe as cor pus pursuant to 28 U.S.C. § 2254, in which he challeng ed his con v i ct i o n s for first deg ree felony murder in violation of M.C.L .A. § 750.316 and felony -fire arm in violation of M.C.L .A. § 750.227b. On appea l, Watkins alleg es that (1) the district
court err ed in deny ing his ineffe ctive assistance of counsel claims when his trial counsel advised him
to w aive his r ight to a jury trial and plead g uilty to ope n murder, failed to investiga te his history of mental illness, and was alleg edly laboring under a conflict of interest; (2) the district court err ed in

The Honora

ble Fr eder ick P. Stamp, J r., Senior United States District J udg e for the Norther n * District of West Virg inia, sitti ng by desig nation

.

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arden ref using to g rant Watkins’ petition on the basis of the arg ument that his Fifth Amendment privileg e ag ainst self-incr imination was violated when he was c alled by the trial court to testify

at a he aring
to deter mine the deg ree of murder of which he was g uilty ; a nd (3) the district court err ed in failing to gr ant the petiti on based upon the arg ument that the s tate court acc epted W atkins’ plea of g uilty when there was an insufficient prese ntation of evidenc e of g uilt. F or the re asons stated below, we aff irm the district court’s denial of Watkins’ petition for writ of habea s corpus on all g rounds

asser ted. I. Background Both parties, as well as the district court, dir ec tly quote and adopt the finding s of the Michig an Court of Appea ls as to the underly ing fac ts surrounding Watkins’ arr est and conviction. Acc ording ly , this Court does the same. 1

On J anuar

y 18, 1998, Allen R u s s el l S t ewart was shot in the back in his mother’s front y ard and died the same day from his g unshot wound. There wer e no ey ewitnesses to the shooting, althoug h the next-door neig hbor rec alled seeing two men s tanding by a tree shortl y befor e Allen was shot, and st ated th at s h e h ear d the g unshot. Allen’s mother, Charlene Stewart, also hear d a loud noise at the time of the shooting and observe d Allen stag g ering into her kitchen with blood on his head. Charlene said that afte r Allen was shot, she was unable to locate his wallet or sever al piece s of jewelr

y that he no rm al l y wore . A police office r who responde d to Charlene ’s 911 call noticed that Allen had duct tape on his wrists. After a sear ch of Allen’s room at his mother’s house, the office r found what ap p ear ed to be drug

traff icking para

pherna lia and 10.98 g rams of cra ck coca ine with an estimated value of $1,000.

Pursuant to 28 U.S.C. § 2254(e) (1), all fac ts rec ited are as deter mined by the state court and 1 “shall be pr esumed to be c orre ct.”

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arden The police subsequently rec eived information that [W atkins] may have been involved in the shooting. A police detec tive trave led to Kentucky , wher e [W atkins] was in jail o n an unrela ted char g e, and interviewe d [hi m] afte r he waived his Miranda rig hts. Acc ording to the d et ec tive, [W atkins] initially denied any involvement in the shooting or that he had ever been t o M i chigan. During a third interview, [W atkins] alleg edly admitted that he and a friend, Arde ll Robinson, went to the neig hborhood to a

ttend a party and sat on the hood of Allen’ s car waiting for the party to beg in. [W atkins] claimed that Allen pushed him and his g un went off as he sl ipped and fell. I n a fifth interview, [ Watkins] alleg edly told the detective t hat R obinson g ave him a gun before they arr ived i n Allen’s neighbor hood. [ W at k i n s ] sai d that Robinson g rabbe d Allen, and when Allen broke awa y and approa ched [W atkins], he pulled his gun and it we nt off. The detec tive claimed that [W atkins] further admitted that he and Robinson discussed robbing someone. The prosec ution char g ed [W atkins] with open murder and felony firea rm. At a hear ing on November 4, 1999, [W atkins] pleade d g uilty to both char g es and claimed that he shot Allen af t er the two foug ht. During the course of the plea hear ing, the court informed [W atkins] that by pleading g uilty he was waiving his rig ht to a jury trial and the rig ht to rema in silent at that trial. [W atkins] indicated his understanding of his rig hts and the conseque nces of his plea and waived his rig hts on the re cord. On November 8, 1999, the court held a d egree hear ing pursuant to M.C.L

. § 750.318. At the hear ing, the prosec ution prese nted s ev er al witnesses, including Charlene Stewart, the police office r who responde d to the scene fol l o wing the shooting, and the detec tive who interviewe d [W atkins]. The prosec ution also called a fore nsic patholog ist who testified that Allen had scra pes on his f

orehe ad and fac e and died as a result of the g unshot wound. Acc ording to the patholog ist, the bullet enter ed Allen’s back, trave led down t h ro u g h his body , perf orating his aorta , and stopped i n h i s thigh. After the prosec ution and defe nse rested, the court called [W atkins] as a witness, and he was questioned both by the court and the prosec ution. De fense counsel did not object to the court calling [W atkins] as a wi t n es s o r t o [W atkins’] testimon y . Du ri ng his testimony , [W atkins] denied robbing Allen and continued to insist that the shooti ng occur red a s the two foug ht. I n an oral decision following the deg ree hear ing, the trial co u rt fo u nd that [W atkins] planned t o rob Allen and the shooting could not have happene d in the manner descr ibed by [W atkins]. The court then conclude d that the killing constituted felony murder be cause it occurr ed during the cour se of a robber y .

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arden People v . W

atkins , 634 N.W.2d 370, 374-75 (Mich. Ct. App. 2001) (f ootnotes omitt ed).

Ba sed upon its conclusion that Wa t k i n s wa s guilty of first deg ree felony murder, the trial
court sentenc ed him to a mandatory l i fe sentenc e without the possibili ty of parole on the murder count, and two y ear s on the felony firea rm count. Watkins subsequently moved to withdraw his plea, which motion was denied by the trial court. He then appea led his conviction and sentenc e. The Michig an Court of Appea ls denied this appea l, W atkins , 634 N.W.3d at 373-82, as did the Michig an Supreme Court, People v. W at ki n s , 661 N.W.2d 553 (Mich. 2003). Following the state appellate courts’ denial of his appea ls, Watkins filed the instant Petition for Writ of Habe as Corp u s i n t he United States District Court for the Easter n District of Michig an, and afte r the district court held the petition in abey ance to allow W at kins to exhaust all of his claims in state court, the petition was reinstated a

nd the district c ourt appointed counsel and g rante d an evide ntiary hear ing on Watkins’ ineffe ctive assistanc e of c ounsel claims which a re r aised he re on a

ppeal. Following this evidentiar

y hear ing and supplemental briefing by the parties, the district court issued an “Opinion and Orde r Deny ing the Petition for Writ of Habe as Corpus” on all of Watkins’

asser tions of err or. The district court also g rante d a cer tificate of appea lability and leave to a ppeal in forma pauperis . Watkins’ notice of appe al was timely filed. Subject matter jurisdiction over this matter was confe rre d to the fede ral district court by 28 U. S

. C

. § 2254. This Court has jurisdiction to hear this appea l as of rig ht pursuant to 28 U.S.C. § 1291, which author izes an appea l from a f inal order by a district cour

t.

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arden II. Analysi s The district court revie wed the finding s of the state court of appea ls based upon whether the
state court’s ruling s w e r e “ c o n tr a r y to , o r involved an unrea sonable application of, clea rly established Fe dera l L aw.” Harris v. Stovall , 212 F.3d 940, 942 (6th Cir. 2000) (quoting 28 U.S.C. § 2254(d))

. A decision that is contra

ry to clea rly established fede ral law is one that is “opposite to that rea ched b y [ t h e Un i t ed States Supreme] Court on a question of law,” or one that is opposite to a decisio n

rea ched by the United States Supreme Court “on a set of materia lly indi s t i n gu i shable fac ts.” W illiams v. Taylor , 529 U.S. 362, 412-13 (2000). Fur ther, a decision contra

ry to established fede ral law can be one that “identifies the corr ect g overning leg al principle” but that “unre asonably applies that principle to the fa cts of the pr isoner’s c ase.” Id. at 413. T h is Court revie ws the district court’s decision deny ing Watkins’ petition for a writ of habea s corpus pursuant to 28 U.S.C. § 2254 de novo . Goodell v. W illiams , 643 F.3d 490, 495 (6th Cir. 2011). A. Ineff

ect ive assistance of counsel Watkins’ first char g e of err or asser ts that he was denied h is Si xth a nd Four teenth Amendment rig ht to eff

ective assistance of trial counsel beca use (1) trial counsel in this matter encour ag ed him
to plead g uilty to open murder, (2 ) t ri al co unsel did not investiga te Watkins’ history of mental illness, and (3) trial counsel labore d under a conflict of interest. I n order to succe ed on these claims, Watkins bear s the burden o f proving that his trial counsel’s perf ormanc e fell below the rang e of

rea sonable profe ssional assistance

. This burden of proof is met throug h satisfac tion of the Strickland

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arden test, as promulg ated by the United States Supreme Court in Strickland v. W ashington , 466 U.S. 668 (1984). This test require s two specific showing s: that with reg ard to eac h char g e of ineffe ctiveness, trial counsel (1) “made err ors so serious that counsel was not functioning as the ‘counse l’ g uara nteed the defe ndant by the Six th Amendment”; and (2) “that the defic ient perf ormanc e prejudice d the defe nse.” Id. at 687. The Court is char g ed with evalua ting the claims of ineffe ctiveness as to their cumulative ef

fec t in light of the totality of the c ircumstance s. Id. at 695-96. 1. Open murder guilty p lea This c laim of err or, Watkins’ c entra l c laim of err or as to inef fec tive assistance of counsel,

asser ts that trial counsel was ineffe ctive in counseling Watkins to plead g uilty to open murder. The

crux of Watkins’ arg ument is that it falls below the applicable standards of prac tice for defe nse trial counsel in a first deg ree murder case to encour ag e a defe ndant to waive a jury trial and plead g uilty
to open murder when that defe ndant consistently claims that a shooting was an acc ident, as was the

case here

. He maintains that such encour ag ement amounts to ineffe ctive assistance of counsel b eca use a plea of g uilty to open murder allows the j udg e alone to deter mine the degr ee of m u rd er of which the defe ndant is g uilty , and t o t al ly prec ludes a finding of manslaug hter. Watkins also arg ues that trial counsel was defic ient in failing to do any outside in v estig ation of the fac ts of the

case and in failing t o contac t Arde ll Robinson’s attorney to inquire about Mr. Robinson testify ing for the defe ndant; was defic ient i n n o t o b j ec t i n g to the trial court calling Watkins to testify at his deg ree hear ing; and was defic ient in not informing his client of the repe rcussions of pleading g uilty

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arden to open murder to sufficie ntly allow Watkins to make a knowing and understanding waiver of a jury trial. 2 The district court, in reje cting the claim that trial counsel was ineffe ctive in rec ommending that the defendant plead g uilty to open murder, found that the decision to waive a jury trial in this

case was a rea soned trial strateg y , well explained by trial counsel at the evidentiar y hear ing for this

case . The district court also found that, even if Watkins had shown that trial counsel’s actions wer e objectively unrea sonable, he had failed to pr esent evidenc e of prejudice

. Wit h reg ard to c ounsel’s failure to perf

orm an independe nt investiga tion an d fa i l ure to object to Watkins’ testimony at the deg re e h earing , the district court conclude d that, without a showing of prejudice , a finding on whether counsel should have done either of these things was unnece ssary . Finally , the district court reasoned that, based upon the plea hear ing colloquy alone, Watkins g ave a knowing and wi l l i n g waiver of a jury trial, and any possible f ailure of trial counsel in f ully explaining the repe rcussions of such a waiver was cure d by that hear ing. This Court aff irms t h e d i s t ri ct court’s finding s in all respe cts with reg ard to this claim of e rror . A criminal defe ndant is entitled to a constitutionally adequate d efe nse during pretria l proce eding s, but when evidenc e exis ts to support a finding that trial counsel’s decisions and actions

wer e based upon a trial strateg y , unless that strateg y was objectively unrea sonable, the defe ndant has

Watkins also claims that, beca use he was ultimately convicted o f felony murder, he was 2 convicted of a crime of which he was not cha rged and that trial counsel’s failure to object to the s ame constituted ineffe ctive assistance of counsel. Howeve r, as the district court found, i n Michig an, felony murder is included within open murder. See P eople v. McKinney , 237 N.W.2d 215, 217-18 (Mich. Ct. App. 1975).

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arden failed to show defic ient perf ormanc e. See Missouri v

. Frye , 132 S. Ct . 1399, 1405 (2012) (“[T]he rig ht to the effe ctive assistanc e of counsel applies to cer tain steps befor e trial

. . . . Critical stag es include

. . . the entry o f a g uilty plea.” ); United States v. Munoz , 605 F.3d 359, 376-77 (6th Cir. 2010). We ag ree with the district court that Watkins has failed to show that trial counsel’s decision
to encour ag e Watkins to plea d guilty to open murder was based upon objectively unrea sonable strateg y . At the evidentiar

y hear ing befor e the district court, trial counsel testified that his experience has taug ht him t h at j udg es tend to ask more questions and to follow evidentiar y rules less strictly during deg ree hear ings than they do at bench trials, which he believed would b e benef icial to Watkins. He further testified that, while Watkins claimed that the shooting was acc idental and such

an acc idental shooting could have led to a manslaug hter instruction at trial, he thought that Watkins’ claims would be attacke d as self-se rving if the case went to trial, and that the prosec ution had a strong case ; the evidenc e of which contra dicted Watkins’ claim of an acc idental shooting and could open Watkins “up to something far more sever e than first deg ree murder.” Trial counsel also stated that he believed the judge assig ned to Watkins’ case to be a liberal judge , and that t h e h i story in “Jackson County up to that point was that at virtually ever y deg ree hear ing, the judge s had returne d

a verdic t of second deg ree at worst, and g iven the fac t that I had the most liberal judge on the bench,” he believed t he chance s of g etting Watkins second de g ree murder thr oug h pleading g uilty to open murder and g oing to a deg ree hear ing wer e much highe r than g oing to trial befor e a j u ry i n t h at county

. (Evid. Hr’g Tr. *42.) I n addition to the above testimony re gar d i n g h i s strateg y behind

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arden

encour ag ing Watkins to plead g uilty to open murder, trial counsel also testified reg arding his b a c k g r o u nd, his extensive criminal defe nse experience , and specific a ll y h is e xte n s iv e mu r d e r d e f e n s e experience , as we ll as his relationship with W atkins during his defense . (Evid. Hr’ g Tr. *20-24.) As outlined above, trial counsel g ave a rea soned and supported explanation for his decision
to advise the defe ndant to plead g uilty and g o to a deg ree hear ing rathe r than to g o befor e a jury

. He believed that the prosec ution had a strong case for intentional murder, that the evidenc e contra dicted Watkins’ assertions that the s hooting was an accident, and that the j udg es in J ackson County , and specific ally the judge assign ed t o Watkins’ case , wer e much more likely to convict Watkins of second deg ree murder tha n wer e juries in that county

. See M unoz , 605 F.3d a t 379 (endorsing the use of pe rsonal knowledge reg arding past interac tion with judge s and juries to support sound trial strateg y ). Simpl y beca

use the defe ndant maintained his innocenc e of intentional murder in this case d o es not make counsel’s decision to advise him to plead g uilty to open murder constitutiona l l y defic ient. Trial counsel clea rly made a rea soned assessment of Watkins’ rea listi c risk at trial versus his risk at a deg ree hear ing, and came t o the conclus ion that the l atter was of lesser risk. Be cause his strateg y

y ielded an unde sirable r esult does not mean it was obje ctively unrea sonable. Fur ther, even if Watkins could satisfy his burden of showing that trial counsel’s decision to

rec ommend that Watkins waive a j ury trial and plead g uilty was deficient u n d er t he first prong of Strickland , he fails to show that he was prejudice d by it. I n order

to show prejudice in the context of a plea, Watkins must provide evidenc e “that there i s a reasonable probability that, but for counsel’s err ors, he would not have pleade d g uilty and would have insisted on g oing to trial.” Hill

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arden

v. Lockhart , 474 U.S. 52, 59 (1985). I n order to assess whether this burden has been met, the court must deter

mine “whe ther the aff

irmative defe nse likely would have succe eded at trial.” Id. Watkins makes littl e attempt to satisfy this prong here

. Throug hout the b ri efing of this appea l, Watkins repe atedly reminds the Court that he continually maintained that the shooting was an acc ident, and
t h at h i s s t ory did not chang e throug hout the investiga tion, and that, if believed by a jury , “it is

cer tainly possible tha t a jury could have found the lesser offe nse of second deg ree murder, or even manslaug hter.” Not only are these statements by Watkins insufficie nt to show that he would have likely been convicted of less than first deg ree m u rd er at trial, they ignor e the evidenc e that the prosec ution would have prese nted which outweig hed and strong ly contra dicted Watkins’ asser tions, which we re unsuppor

ted by any fac ts other than his own statements. I nitially , the rec ord shows that, befor e the shooting occur red, witnesses s aw W atkins and Arde ll Robinson standing behind a tree near wher e the vi cti m was shot. This is inconsistent with Watkins’ testimony that he was sitti ng on the v i ct i m ’s ca r waiting for a party to start when the alterc ation beg an. Fur

ther, the victim was found by his mother to be bound with tape around his wrists and to be missing his wallet and s ev er al piece s of jewelr y that he normally wore –evidenc e which is consistent with the victim being robbed. The victim’s fac ial wounds wer e also inconsistent with Watkins’ story that the victim pushed him causing his g un to discharg e, and with his testimony
t h at he pulled his g un as t he victim approa ched him. Fur ther, the patholog ist’s testimony that the victim was shot from behind and that the bullet trave led down throug h his body , stop ping in his thigh, is also at varia

nce with Watkins’ testimony that the victim was standing and fac ing him as the

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arden two foug ht when t h e gu n ac ci dentally discharg ed. Finally , Watkins himself admitted that he and Arde ll Robinson had discuss ed robbi ng the victim. All of this evidenc e strong ly points to a conclusion t hat Watkins did not have a reasonable likelihood of receiving a more favor able result from a trial, and thus Watkins has failed to show prejudice resulting from trial counsel’s advice that the def endant plea d g uilty

rathe r than g o to trial. The above fac ts simil arly belie defe ndant’s claim that trial counsel was ineffe ctive in failing
to conduct his own outside investiga tion, and in failing to contac t Arde ll Robinson’s attorney about Mr. Robinson’s possible tes t i m o n y . Wit hout a showing of prejudice , Watkins cannot prove i n effective assistance of counsel throug h a failure to conduct an independe nt investiga ti o n o f t h e fac ts. See Moss v. Hofbauer , 2 8 6 F. 3 d 851, 867 (6th Cir. 2002). I n addition to the evidenc e that
contra dicted Watkins’ claims of an acc ident al s h o oting and strong ly sug g ested that Watkins was robbing the victim when he was shot, Watkins h as p re s ented no arg ument to sug g est that an independe nt i n v es t i gat i on would have resulted in the uncover ing of any evidenc e either to

co rr oborate Watkins’ claims or to ref ute the prosec ution’s evidenc e. Fur ther, there has bee n n o showing that Mr. Robinson’s testimony would have a ided Watkins’ case in any way . Watkins also points to trial counsel’s failure to obje ct or to ask questions of Watkins whe n he was called by the trial court to testify at his deg ree hear ing. Ag ain, simply beca use trial counsel’s actions did not y ield a positive result fo r W at kins does not make them defic ient. “Silence can constitute trial strateg y .” Id. at 863 (quoting W arner v. Ford , 752 F.2d 622, 625 (11th Cir. 1985)). Coun s el stated that he wanted the judge to be able to g et a fee l for who Watkins was, and that he

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arden believed that was the best strateg y beca use he did not think that Watkins would be taken as someone who intentionally murdere d the victim. Fur ther, for the rea sons stated above, Watkins has also failed to present e vidence of pre judice re sulting fr om this si lence

. Finally as to this claim of err or, Watkins claims that trial counsel failed to proper ly asce rtain whether he understood the char g es ag ai n s t h i m and the ramifications of pleading g uilty to open murder. Howeve r, there was no evidenc e provided to support this alleg ation. Trial counsel testified
at the evidentiar

y hear ing befor e the district court that he met with Watkins s ev en o r ei ght times, explained the char g es ag ainst him, and explained the option and conseque nces of pleading g uilty to open murder and opting for a deg ree hear ing. (Evid. Hr’g Tr. *23, 36-37, 42-43.) Trial counsel also testified that, in his meeting s with Watkins, he lear ned that Watkins had o n l y a ninth g rade education, but that he never had an inclination that Wa t k i ns did not or could not understand his situation, his options, or the conseque nces of the same. (E v i d. Hr’g Tr. *33.) Watkins provided nothing to ref

ute this testimony and no aff irmat i v e ev i d en ce of Watkins’ lack of understanding

. Finally , as the district c ourt pointed out, the trial judge informed Watkins at his plea hear ing of his exposure to a

non-par olable life se ntence , and such a proper colloquy cure s any

failure by defe nse counsel to f

ully inform his client of the conseque nces of his plea. Ramos v. Rogers , 170 F.3d 560, 565 (6th Cir. 1999)

. ( See Plea Tr. *5-6.) For all of the rea sons cited above, this Court aff irms the district court’s de nial of the pe tition as to hi s first claim of e rror .

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arden 2. Trial counsel’s f

ailure to investigate Wat kin s’ m ental health his tory Watkins n ex t claims that the di strict court erre d in dismiss ing his char g e that trial counsel was inef fec tive in failing to investiga te his mental hea lth hist ory . Acc ording to Watkins , had trial counsel “bo t h er ed t o d o any investiga tion of hi s client’s backg round, or make a phone call to any family member, he would have lear ned that [W atkins] was poorly educated, attempted suicide, and

s p ent time in juvenile trea tment cente rs.” (Appe llant’s Br

. *27-28.) At the evidentiar y hear i n g befor e the district cour

t on this petit ion for habe as corpus, Watkins’ mother t estified that Watkins b ec am e a disciplinary problem at a y oung ag e, was place d in a juvenile trea tment cente r d u e t o truanc y , and assig ned a social worke r for some time afte r his r elea se. (Evid. Hr’g Tr. *9-17.) She further testified that Watkins would drink rubbing alcohol in what she deeme d to be suicide attempts, would bang his head ag ainst walls, and left home at the ag e of fiftee n to beg in a life on the streets. Howeve r, Watkins’ mother had no information as to any psy cholog ical diag nosis that was ever made

as t o W at k i n s , and Watkins admits that few medical rec ords, all of which wer e from Watkins’ childhood, could be obtaine d. (Appe llant’s Br . *29, *30.) Watkins does not sugg est, howeve r, how a ny of t his information would have impacted his conviction, sentenc e, or both. Watkins has prese nted no evidenc e or arg ument that he was mentally infirm at the time of the shooting, during any of his interac tions with trial counsel, or at the time of any o f t h e criminal proce eding s resulting there from. Fur ther, trial counsel indicated that he interviewe d Watkins and discovere d that he had only rec eived a ninth-g rade education, but that he did n o t fe el t h at W atki ns was unable to understand the situation or the crimes of which he was

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arden char g ed. I n short, Watkins ag ain cannot show prejudice resulting from trial cou n s el’s failure to investiga te his me ntal health history

. See Thompson v. Bell , 315 F.3d 566, 591-92 (6th Cir. 2003) (finding that, without evidenc e of “mental disease or defe ct at the time of the crime” or trial, a failure
to investiga te mental state of defe ndant does not result in prejudice , beca use there ca n be no “inef fec tive assistance of counsel unless the rec ord establishes that there is ac t ual mitigating evidenc e that wa s not presente d.”) ( subsequent history omitted). Fur ther, it is acknow led ged t hat the demands of the Six th Amendment require “def ense counsel to rea sonably investiga te a defe ndant’s backg round and prese nt it to the jury ,” Austin v. Bell , 126 F.3d 843, 848 (6th Cir. 1997), and that the failure to conduct such an investiga tion “and to p re s ent mitigating evidenc e to the jury

. . . can constitute ineffe ctive assistance ,” Poindex t er v. Mitchell , 454 F.3d 564, 577 (6th Cir. 2006). Howeve r, while the rec ord does show evidenc e of Watkins’ difficult childhood, as well as other backg round and family issues which could have serve d

as mitigating fac tors in many case s, in this particula r case , the failure to prese nt this evidenc e did not prejudice Watkins. Here, Watkins wa s convicted of a crime w hich mandate d a prison sente nce of life without the possibili ty of par ole. M.C.L .A. § 750.316(1)( b). Additionally , the par ticular ty pe of first deg ree murder of which Watkins was convicted did not require a showing of specific intent
to kill, but rathe r only attempt to rob, which was admitted by Watkins. Id

. When the sentenc ing judge deter

mined that Watkins had been attempting to rob the victim at the t i m e of the shooting, Michig an state law mandated that he be sentenc ed to life in prison; no deter mination was nece ssary which could have taken Watkins’ bac kg round into acc ount. Accor dingly , while it is arg uable that

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arden the failure to investiga te Watkins’ backg round a n d p r e s e n t mi ti g a ti n g e vidence may have repr esente d defic ient repr esenta tion, W atkins ag ain ca nnot show that he wa s prejudice d by this failure. 3. Trial counsel’s alleged conf lict of in ter est I n Watkins’ fin a l c la im o f e r r o r , h e ma inta ins that trial counsel rende red ineffe ctive assistance beca use he was opera ting under a conflict of interest during his repr esenta tion of Watkins. I n support of this asser

tion, Watkins arg

ues that his trial counsel had been previously appointed briefly
to repr esent Ar d ell Robinson in an unrela ted case roug hly five months befor e his appointment to repr esent Watkins, but afte r the death of the victim in this case . Mr. Robinson dismiss ed Watkins’ trial counsel from repr esenta tion in that case afte r an undisputedly short amount of time. Watkins arg ues that this crea ted a c onflict of intere st and that this conflict resulted in trial counsel’s failure to contact Mr. Robinson’s attorne y reg arding Mr. Robinson’s possible testim ony for Watkins. Watkins has failed to demonstrate the exis tence of an actua l conflict of interest. He asser ts that his trial counsel “mention[ed] the name Allen Stewart [t he victim in this case ]” to Mr. Robinson during the short time when he repr esente d him, and sug g ests that he pulled punches in not attempting
to obtain testimony from Mr. Robinson as a re sult of this alleg ed conflict. (Appe llant’s Br

. *37) Howeve r, Watkins ignore s the fac t that his trial counsel was appointed to repr esent Mr. Robinson in an entirely unrela ted case , and that his repr esenta tion had completely ended roug hly five months befor e he was assig ned to repr esent W at k i n s i n this case . Acc ording ly , wher e the two repr esenta tions were suc cessive, the conflict in this case is not actual, but rathe r attenua ted.

15No. 10-2284

W atkins v. Lafler, W

arden Stewart v. W

olfenbarger , 468 F.3d 338, 351 (6th Cir. 2006), is on point to this issue. I n that

case , this court deter

mined that presumed prejudice due to an actua l conflict of interest, as articula ted by the Unit ed S tates S upreme Court in Cuyler v. Sullivan , 446 U.S. 335 (1980), does not apply in

case s of successi v e re p re s en t ation. Rather, in case s such as these, the Strickland test applies. As

s t at ed ab o v e, no prejudice can be found in trial counsel’s decision to not investiga te the possible testimony of Mr. Robinson, bec ause no evidenc e has be en pre sented to sug g est that Mr. Robinson would have testified in such a way that would have benef itted Watkins’ case . Acc ording ly , Watkins has failed to support his claims for ineffe ctive assistance of counsel on any of the g rounds prese nted. 4. P roce dural d efaul t issues The appellee also arg ues that all three of Watkins’ claims of err or with reg ard to his ineffe ctive assistance of counsel claims are proce durally barr ed as in sufficie ntly raised in state court. Howeve r, the district court specific ally noted that it chose not to addre ss these arg uments and rathe r

as s u m ed t hat no proce dural defa ult exis ted, beca

use “the proce dural defa ult issue raises mor e questions than the case on the merits.” W atkins v. W

oods , No. 04-cv- 72112, 2010 U.S. Dist. L EXI S 94497 * 1 4 n.1 (E.D. Mich. Sept. 10, 2010). Given the varie ty and complexit y of the defa ults involved, as we ll as Watkins’s failure to brief these issues, we do likewise. B. Violation of

F if th Am endm ent right against self-in crim ination The sec ond arg ument raised by Watkins on appe al is that the district court er red in finding that Watkins was not entitled to habea s corpus relief due to a violation of his Fifth Amendment rig ht ag ainst self-inc rimination when he was called by the trial judg e to testify at hi s deg ree hear ing. I t

16No. 10-2284

W atkins v. Lafler, W

arden is clea r that the overa ll finding of the district court, that the state court’s decision to deny Watkins’ Fifth Am en d m en t claim was not contra ry to clea rly established fede ral law, was not in err or. Acc ording ly , we de ny

Watkins’ appeal a

nd aff irm the district court on this issue as well. T h e d istrict court defe rre d to the state court and conclude d that Watkins waived his rig h t ag ainst self-inc rimination when he was called by the trial judge to testify at his deg ree hear ing, and chose to do so without objection. The Fifth Amendme n t p ro t ec ts individuals from “compe lled” testimony , b u t it has alway s been considere d a waivable rig ht, and any individual is fre e to voluntarily testify

. I f an individual “make s disclosures instead of claiming the privileg e, the g overnme nt has not compelled him to incriminate him self.” Minnesota v. M urphy , 465 U.S. 420, 427 (1984) (interna l quota tion mar ks and citations omitted). Watkins arg ues that, in order for him
to have eff

ectively waived these rig hts, his waiver must have been an “intellige nt” one. See Johnson

v. Zerbst , 304 U.S. 458, 464 (1938) (“The deter mination of whether there has been an intelligent waiver

. . . must depend, in eac h case , upon the particula r fac ts and circ umstances surrounding that

ca s e[

. ] ”) , o verruled in part on other grounds by Edwards v. Arizona , 451 U.S. 477 (1981). Hi s backg round and limit ed education, he maintains, establishes t hat s uch an intelligent wa i v er co u ld not have be en made

. Howeve r, the Michig an Supreme Court specific ally found that t h e ap p el lant’s Fifth Amen dment claim lacke d merit beca use he failed to even attempt to invoke his privileg e ag ainst compelled self-inc rimination. People v. W atkins , 661 N.W.2d 553, 557 (Mich. 2003) (per curia m). Rather , t h e co urt found, he answe red questions and made disclosures to the court. Thus, under

17No. 10-2284

W atkins v. Lafler, W

arden Minnesota v. Murphy , he waived any rig ht to rema in silent. 465 U.S. at 427. Under 28 U.S.C. § 2254(e) (1), the fac tual deter minations of the state court as to whether or not t h e ap p ellant attempted to invoke his privileg e ag ainst self incrimination are presumed corr ect unless the appellant rebuts the same “by clea r and convincing evidenc e.” The appellan t h as n o t so rebutted this presumption as to this fac tual finding

. Nor has appellant shown an unrea sonable application of fede ral law. Despite Watkins’s claim of mental illness, he prese nts no evidenc e that diminis hed capa city aff

ecte d his testimony at the deg ree hear ing. Thus the district court proper ly defe rre d to the
state court and found that the appellant had waived his rig ht to rema in silent by failing to invoke it. Acc ording ly , this Court affirms the district court on this basis. C. Evid entiary support for acceptance of Watki ns’ guil ty plea Fi n al l y , Watkins asser

ts that the district court err ed in ref using to reve rse the state court’s denial of Watkins’ claim t hat hi s Four teenth Amendment rig ht to a fair t rial was violated because the trial court allowed insufficient evidenc e to support Watkins’ plea of g uilty

. This Court aff irms the district court a

nd dismiss es this claim as we ll. First, as the district court corr ectly conclude s, the claim that the fac tual basis for a g uilty plea was insufficient is not a cognizable claim for habeas corpus. The Cons titu t i o n d o es n o t require a fac tual basis to establish a plea of g uilty

. United States v. Tunning , 69 F.3d 107, 111 (6th Cir. 1995). Whil e Michig an law require s such a fac tual basis pursuant to M.C.R. 6.302(D)( 1), a mere violation of Michig an law c annot support a ha beas c laim.

18No. 10-2284

W atkins v. Lafler, W

arden Watkins also arg ues that, while he does not disag ree with the district court’s deter mination

as to his plea of g uilty to open murder, he nonetheless contends that insufficient evidenc e exis ted to support the trial court’s ultimate conviction of first deg ree felony murder. The district court found that there was sufficie nt evidenc e to support this finding , an d t h i s C o u rt aff irms. The proper standard in assessing a challeng e to the sufficie ncy of the evidenc e prese nted to support a verdic t is whether , in “‘vie wing the evidenc e in the light most favor able to the prosec ution, any rational trier of fa ct could have found the e ssential elements of the crime bey ond a reasonable doubt.’” United States v. Chavis , 296 F.3d 450, 455 (6th Cir. 2002) (quoting Jack son v. Virginia , 443 U.S. 307, 319 (1979)) (empha sis in original). Watkins here does not e ven attempt to ar g ue that no ra tional trier of fac t could have f ound Watkins g uilty of first deg ree felony murder based upon the fac ts pr esente d, but r ather only arg ues that no direc t evidenc e of robber y was prese nted and that the circ umstantial evidenc e prese nted also supports “an equally rea sonable infere nce that the victim was shot during a scuff le, and items stolen afte rwa rds.” (Appe llant’s Br

. * 46.) This a rg ument itself fails to alleg e the require d standard, and

even if it did, is not supported by the rec ord. The elements of first deg ree felony murder in Michig an

are as follows: (1) the killing of a human being , (2) with the intent to kill, to do g rea t bodily harm, or to cre ate a very high risk of death or g rea t bodily harm with knowledg e that death or gre at bodily

harm wa s the probable result, (3) while commi tting , attempting to commit, or assisting in the commission of any of a set of specific all y enumer ated felonies. [arson, criminal sexual conduct in the first, second, or third d egr ee, child abuse in the f

irst deg ree , a major c ontrolled substance offe nse, robbe ry . . .]

19No. 10-2284

W atkins v. Lafler, W

arden Matthews v. Abramajtys , 319 F.3d 780, 789 (6th Cir. 2003) (citing People v. Carines , 597 N.W.2d 130, 136 (Mich. 1999)); Mich. Comp. L aws § 750.316. As descr ibed above, the evidenc e befor e the trial court s t ro n gl y s ug g ested that Watkins was attempting to rob the victim at the time of the shooting. I t also strong ly contra dicts Watkins’ claims that the shooting was an acc ident and that he

was not robbing the victim. Even if Watkins’ arg ument that the evidenc e supported a rea sonable conclusion that the shooting was an acc ident had merit, this would not make the trial court’s ultimate conclusion that Watkins wa s g uilty of fe lony murder a ny less rea sonable. Unde r the “ any rational juror could conclude ” standar d , Watkins has failed to show that the trial court’s verdic t was insufficiently

supported by

fac ts. III. Conclusi on For the fore g oing rea sons, we AFF I RM in its entirety the district court’s denial of Watkins’ petition for a wr it of habea s corpus pursua nt to 28 U.S.C . § 2254 on all g rounds asser ted.

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