*

The Honorable Robert M. Dow, Jr., United States District Judge for the Northern District of

Illinois, sitting by designation

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 14a0020p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

LEO M. ABBY,

Petitioner-Appellant,

v.

CAROL HOWE,

Respondent-Appellee.

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No. 12-1437

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 2:08-cv-15333—David M. Lawson, District Judge.

Argued: November 21, 2013

Decided and Filed: January 30, 2014 

Before: SUTTON and KETHLEDGE, Circuit Judges; DOW, District Judge.*

_________________

COUNSEL

ARGUED: Ross W. Bergethon, BERGETHON LLC, Atlanta, Georgia, ,for Appellant.

Dean F. Pacific, WARNER, NORCROSS & JUDD, LLP, Grand Rapids, Michigan, for

Appellee. ON BRIEF: Ross W. Bergethon, BERGETHON LLC, Atlanta, Georgia, for

Appellant. Matthew T. Nelson, Elinor R. Jordan, WARNER, NORCROSS & JUDD,

LLP, Grand Rapids, Michigan, for Appellee.

_________________

OPINION

_________________

DOW, District Judge. A Michigan jury found Leo Abby guilty of second-degree

murder. Abby’s conviction was affirmed on appeal. Abby then filed a petition for a writ

of habeas corpus in federal court, arguing that he was deprived of his Sixth Amendment

1
No. 12-1437 Abby v. Howe Page 2

right to counsel of choice and that counsel who tried his case was ineffective. The

district court denied the petition. We affirm.

I.

On November 4, 2003, a resident of Buena Vista, Michigan, found a human leg

on his lawn. The man alerted the police, who found several plastic bags containing

dismembered human limbs nearby. All of the recovered remains belonged to Calvin

Tubbs, a friend of Abby’s, who had last been seen on October 27, 2003. 

Laboratory technicians found Abby’s fingerprints on some of the plastic bags.

They also recovered bits of Tubbs’ flesh from a reciprocating saw that Abby had

borrowed from his cousin on October 27, 2003. The police did not find any other

physical evidence connecting Abby to the crime. After conducting further investigation,

the police arrested Abby on November 20, 2003 and charged him with Tubbs’ murder.

Abby retained attorney James Gust to represent him. Gust entered his

appearance on Abby’s behalf on November 25, 2003. Abby retained a second attorney,

James Piazza, sometime in early 2004. The record indicates that Piazza first appeared

in court on Abby’s behalf in April 2004. After that point, both Gust and Piazza appeared

on Abby’s behalf, sometimes separately and sometimes together.

When Abby’s trial began on Thursday, February 24, 2005, only Gust appeared

on Abby’s behalf. Piazza was handling a different trial that was expected to last through

the following Tuesday. After the jury was selected, Abby objected “to any further

proceedings until Mr. Piazza would be present.” Abby informed the court (outside the

presence of the jury) that it was “his understanding when [he] retained Mr. Piazza that

he would be a part of [Abby’s] defense team, including whatever agreement he made

with Mr. Gust and also in regards to trial.” Abby also said that he understood “that

during the trial you can only have one attorney cross-examining a witness at a time. But

it’s my understanding that I would have two attorneys representing me to ensure

that . . . I had someone representing me from all angles.” The court indicated that it was
No. 12-1437 Abby v. Howe Page 3

inclined to proceed without Piazza, but invited Abby to present case law and argument

in support of his position before the State began its case-in-chief the following day.

The next morning, both Gust and Piazza appeared. Piazza explained to the court

that per his arrangement with Gust, “Mr. Gust was going to handle the factual basis and

[Piazza] was going to handle the legal issues and motions.” Piazza indicated that he had

been brought into this case only “to assist Mr. Gust”; in his view, Gust was “lead

counsel.” Piazza noted that “Mr. Abby is on a different plane with that.” Gust reported

to the court that although “there may have been some miscommunication,

misunderstanding between Mr. Abby and [himself], Mr. Piazza to a certain degree,”

Abby’s “clear and plain” wish was to have both his attorneys present at the trial. Gust

proposed that the prosecutor lead with some less significant witnesses to accommodate

Piazza’s schedule without delaying the trial, but the prosecutor declined to acquiesce to

Gust’s request.

The court ultimately concluded that it was “going to start this morning,” without

Piazza. The court noted that the “case has been set for I don’t know how many

months. . . . [A]nd there never was any request made of this Court to adjourn either this

matter or the other case.” It also pointed out that “[b]oth attorneys in this case have

acted together and/or independently on behalf of the defendant as his agent in

representing him,” and emphasized that the issue was first brought to its attention only

the day before. The court further commented that “Mr. Gust is one of our more

experienced counsel here in Saginaw,” and characterized him as “effective counsel.”

The trial judge did not disqualify or dismiss Piazza or rule that Abby was not permitted

to have two attorneys represent him. In fact, the judge had informed the potential jurors

the day before that “there will be another attorney assisting in this matter on behalf of

the defense, Mr. James Piazza. He is not here today.”

Abby’s trial lasted a total of eight days, spread over the course of a few weeks.

There is no indication in the record that Piazza was present in any capacity beyond his

brief appearance on the second day, notwithstanding his representation to the court that

he would “be coming back down here” as soon as he was available.
No. 12-1437 Abby v. Howe Page 4

During its case-in-chief the prosecution called numerous witnesses, including

Abby’s fiancée, Larissa White. White testified that police detectives interviewed her at

her house while Abby was hiding out there, and that although he probably could hear her

talking to the detectives, Abby opted to stay concealed in a bedroom. Gust also called

witnesses, including Detective Frank Smith. On direct examination, Smith testified that

Abby’s lawyer contacted him during the investigation and conveyed to him Abby’s

willingness to schedule an interview with police at some point in the future. (This

interview never happened because Abby was arrested the day after Smith’s conversation

with Abby’s lawyer.) On cross, Smith testified that he interviewed White at her home,

that White told him that Abby was not there, and that Abby did not reveal himself during

the interview. Gust did not object to any aspect of this cross-examination. He likewise

did not object to the prosecutor’s comments during closing and rebuttal arguments that

Abby hid in the bedroom rather than talking to the police while they were at White’s

house.

After the jury found Abby guilty of second-degree murder, the court sentenced

Abby to 40–60 years in prison. On direct appeal, Abby raised numerous challenges to

his conviction and sentence, including the two issues raised here. The Michigan Court

of Appeals found “no error, plain or otherwise, in the prosecutor’s comments” referring

to Abby’s “pre-arrest, pre-Miranda warning conduct.” The court held that “a

defendant’s constitutional right to remain silent is not violated by a prosecutor’s

comment on his silence before custodial interrogation and before Miranda warnings have

been given.” It also held that Gust’s performance with regard to the prosecutor’s proper

comments was neither deficient nor prejudicial.

The appeals court likewise found no error in the trial court’s decision to move

forward with the trial in Piazza’s absence. The court recognized that the right to counsel

of one’s choice is not absolute, and that United States Supreme Court precedent gives

trial courts “wide latitude” to balance the right against considerations of fairness and

judicial administration. The court determined that Abby effectively (if not in so many

words) had “sought a continuance until such time as Piazza was available to join his lead
No. 12-1437 Abby v. Howe Page 5

counsel in trial,” placing the matter squarely within the trial court’s discretion. The

appeals court applied a four-factor test from Michigan law to assess the reasonableness

of the trial court’s denial of Abby’s implicit request for a continuance: “(1) whether the

defendant is asserting a constitutional right; (2) whether the defendant has a legitimate

reason for asserting the right; (3) whether the defendant was negligent in asserting the

right; and (4) whether the defendant is merely attempting to delay trial.”

In applying that test, the appeals court determined that Abby had asserted a

constitutional right and that he had not been attempting to delay his trial. The appeals

court nevertheless concluded that the balance of the four-factor analysis cut against

Abby. Because “both Gust and Piazza, as well as the trial court, seemed to clearly

understand Piazza’s limited role in defending defendant in this matter,” the court

concluded that “defendant’s failure to assert his alleged right to Piazza’s presence at trial

was . . . negligent.” And as to the final factor, the court determined that Abby’s reason

for asserting his right was “insufficiently legitimate” because, under Wheat v. United

States, 486 U.S. 153, 159 (1988), “the essential aim of the [Sixth] Amendment is to

guarantee an effective advocate for each criminal defendant rather than to ensure that a

defendant will inexorably be represented by the lawyer he prefers.”

The appeals court found “misplaced” Abby’s “reliance on [United States v.]

Gonzalez-Lopez [, 548 U.S. 140 (2006)] . . . for the proposition that it is irrelevant

whether defendant in fact received the effective assistance of competent counsel.” The

court distinguished Gonzalez-Lopez on the basis that the parties in that case had

conceded that the denial of counsel was wrongful; in Abby’s case, “the issue is whether

the trial court’s refusal to delay trial was an abuse of its discretion and thus an erroneous

deprivation of counsel in violation of the Sixth Amendment.” The appeals court

concluded that, “[i]n light of the reasons presented to the trial court, its decision to

proceed with trial was within the principled range of outcomes and not, therefore, an

abuse of its discretion.”

The Court of Appeals ultimately affirmed Abby’s conviction but remanded the

case for resentencing on other grounds. The Michigan Supreme Court denied Abby’s
No. 12-1437 Abby v. Howe Page 6

motion for leave to appeal. On remand, the trial court again sentenced Abby to 40–60

years. Abby appealed, and the Michigan Court of Appeals affirmed in a short per

curiam opinion that is irrelevant here.

Abby then timely filed a pro se petition for a writ of habeas corpus in the Eastern

District of Michigan. The district judge referred the matter to a magistrate judge, who

carefully considered and rejected all of Abby’s claims in a lengthy and detailed report

and recommendation. The district court overruled Abby’s objections and largely

adopted the report and recommendation. As to Abby’s ineffective assistance claim, the

district court was “loath[] to say that the petitioner has not demonstrated deficient

performance, in light of controlling Sixth Circuit precedent,” Combs v. Coyle, 205 F.3d

269, 283 (6th Cir. 2000). The district court concluded, however, that Abby was unable

to show prejudice. In this regard, the district court observed that Abby had at best

“identified only one error with arguable merit”—Gust’s failure to object to the

prosecutor’s comments that Abby silently hid in the bedroom rather than affirmatively

talking to the police while they were at White’s house. The district court further noted

that “[t]he prosecutor’s argument on this point was brief,” and that “there was ample

circumstantial evidence tying the petitioner to the crime.” The district court also found

that the state appellate court’s resolution of Abby’s counsel-of-choice claim was neither

unreasonable nor contrary to clearly established federal law. The district court

acknowledged that reasonable jurists might disagree with the trial court’s decision to

move forward with the trial, but concluded that this was insufficient to overcome the

exceedingly deferential review prescribed by the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”). 

II.

A writ of habeas corpus may be granted with respect to any claim that was

adjudicated on the merits in state court only if the adjudication resulted in a decision that

(1) “was contrary to . . . clearly established Federal law, as determined by the Supreme

Court of the United States; (2) “involved an unreasonable application of [] clearly

established Federal law, as determined by the Supreme Court of the United States”; or
No. 12-1437 Abby v. Howe Page 7

(3) “was based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. § 2254(d). These limited bases for

granting the writ “reflect[] the view that habeas corpus is a ‘guard against extreme

malfunctions in the state criminal justice systems,’ not a substitute for ordinary error

correction through appeal.” Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (quoting

Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979) (Stevens, J., concurring)). Thus, “[a]

state court’s determination that a claim lacks merit precludes federal habeas relief so

long as ‘fair-minded jurists could disagree’ on the correctness of that decision.” Id.

(quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Put another way, “a state

prisoner must show that the state court’s ruling on the claim being presented in federal

court was so lacking in justification that there was an error well understood and

comprehended in existing law beyond any possibility for fairminded disagreement.” Id.

at 786-87. 

The standard of review governing Abby’s ineffective assistance claim is “doubly

deferential.” See, e.g., Burt v. Titlow, 134 S. Ct. 10, 13 (2013). To establish ineffective

assistance under Strickland v. Washington, 466 U.S. 668, 687-88 (1984), a habeas

petitioner must demonstrate that his legal representation “fell below an objective

standard of reasonableness,” as indicated by “prevailing professional norms,” and that

he suffered prejudice as a result. There is a “strong presumption that counsel’s conduct

[fell] within the wide range of reasonable professional assistance.” Strickland, 466 U.S.

at 689. AEDPA mandates the application of a second layer of deference; we examine

only whether the state court was reasonable in its determination that counsel’s

performance was adequate. Burt, 134 S. Ct. at 18. “The pivotal question is whether the

state court’s application of the Strickland standard was unreasonable,” which “is

different from asking whether defense counsel’s performance fell below Strickland’s

standard.” Harrington, 131 S. Ct. at 785.
No. 12-1437 Abby v. Howe Page 8

III.

A. Counsel of Choice

Abby’s principal claim is that he was denied his Sixth Amendment right to

counsel of choice when he was forced to go to trial without one of his two retained

attorneys. He contends that the state courts misapplied controlling federal law, namely

United States v. Gonzalez-Lopez, 548 U.S. 140 (2006), and Ungar v. Sarafite, 376 U.S.

575 (1964), by “collaps[ing] the right to counsel of choice into the right to effective

assistance of counsel” and unreasonably denying his implicit request for a continuance.

We disagree. 

The Sixth Amendment “guarantees a defendant the right to be represented by an

otherwise qualified attorney whom that defendant can afford to hire, or who is willing

to represent the defendant even though he is without funds.” Gonzalez-Lopez, 548 U.S.

at 144 (quotation omitted). This right is distinct from the generalized due process right

to a fair trial. Id. at 147. Deprivation of the right is complete when a defendant is

erroneously denied counsel of choice; he need not show prejudice or demonstrate that

the counsel he received was ineffective. Id. at 148. As Abby acknowledges, however,

“the right to counsel of choice ‘is circumscribed in several important respects.’” Id. at

144 (quoting Wheat v. United States, 486 U.S. 153, 159 (1988)). One of those respects

is that trial courts retain “wide latitude in balancing the right to counsel of choice against

the needs of fairness, and against the demands of its calendar.” Id. at 152 (citation

omitted). Even after Gonzalez-Lopez, the discretion that trial courts hold over their

calendars remains vast. See id. (“This is not a case about a court’s power to enforce

rules . . . or to make scheduling and other decisions that effectively exclude a

defendant’s first choice of counsel.”). It is not limitless, however; “an unreasoning and

arbitrary ‘insistence upon expeditiousness in the face of a justifiable request for delay’

violates the right to assistance of counsel.” Morris v. Slappy, 461 U.S. 1, 11-12 (1983)

(quoting Ungar v. Sarafite, 376 U.S. 575, 589 (1964)). 

Here, in denying Abby’s implicitly requested continuance, the trial court noted

(1) the longstanding trial date, which already had been reset several times; (2) its late
No. 12-1437 Abby v. Howe Page 9

notice of the problem; (3) Piazza’s failure to alert the court of the conflict or attempt to

reschedule either of his cases; (4) the fact that both Gust and Piazza previously had

appeared alone in Abby’s case without objection or incident; and (5) the fact that Gust

was an experienced attorney who was prepared to proceed with or without Piazza. The

Michigan Court of Appeals reviewed the trial court’s decision and concluded that it was

not an abuse of discretion under the circumstances. Under AEDPA, it is this latter

decision that we review. See, e.g., Nichols v. Heidle, 725 F.3d 516, 538 (6th Cir. 2013).

That is, we ask only whether the Court of Appeals’ conclusion that the trial court did not

unconstitutionally abuse its discretion was contrary to or an unreasonable application of

clearly established federal law, as articulated by the Supreme Court. 

As Abby’s counsel conceded at oral argument, there is no Supreme Court

precedent—including Gonzalez-Lopez—that squarely addresses the scope of the right

to counsel of choice in the multiple-counsel context. Although Abby is correct that at

least two circuit courts have determined that the right to counsel of choice applies to

second or secondary counsel, see Rodriguez v. Chandler, 492 F.3d 863, 864-65 (7th Cir.

2007); United States v. Laura, 607 F.2d 52, 55-57 (3d Cir. 1979), the Supreme Court has

not weighed in on the matter. We need not stake out a position on the issue at this time.

The important point for purposes of resolving this case is that the Supreme Court has not

held that a defendant’s right to counsel of choice necessarily is violated when his

secondary retained counsel has a scheduling conflict precluding his or her attendance at

trial. Cf. Mortiz v. Lafler, 525 F. App’x 277, 287 (6th Cir. 2013). The state appellate

court’s analysis of that issue therefore was not unreasonable or contrary to clearly

established federal law. 

B. Ineffective Assistance

Abby also contends that Gust was ineffective for failing to object to the

prosecutor’s comments about his pre-arrest silence—i.e., his failure to come out of the

bedroom during White’s interview with the police. Abby disagrees with the district

court’s conclusion that he was not prejudiced by Gust’s performance. He contends that

there were significant gaps in the prosecution’s evidence against him, such that the
No. 12-1437 Abby v. Howe Page 10

prosecutor’s “running theme” of his pre-arrest silence undermines confidence in the

verdict.

To prove ineffective assistance, Abby must make two showings. First, he must

show that Gust’s “performance was deficient.” Strickland v. Washington, 466 U.S. 668,

687 (1984). To do so, Abby must prove “that counsel’s representation fell below an

objective standard of reasonableness.” Id. at 688. And second, he must show that “the

deficient performance prejudiced the defense.” Id. at 687. To make that showing, Abby

must prove “that there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Id. at 694. In addition,

because we are reviewing Abby’s petition under § 2254, “[t]he question is not whether

[we] believe[ ] the state court’s determination under the Strickland standard was

incorrect but whether that determination was unreasonable—a substantially higher

threshold.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (quotation omitted).

Abby has a colorable argument as to the performance prong. Several years

before Abby’s 2005 trial, this Court held that the use of a defendant’s pre-arrest silence

as substantive evidence of his guilt violated the Fifth Amendment’s privilege against

self-incrimination, and that counsel’s failure to object to the unconstitutional use of such

evidence “clearly fell below an objective standard of reasonableness.” Combs v. Coyle,

205 F.3d 269, 283, 286 (6th Cir. 2000). Thus, at the time of Abby’s trial, a reasonable

attorney arguably should have objected to the prosecutor’s comments about Abby’s prearrest silence. 

However, even if we assume that Gust’s performance was deficient, Abby cannot

demonstrate that Gust’s failure to object prejudiced him. During the pendency of this

appeal, the Supreme Court held that prosecutors may use a defendant’s pre-arrest silence

as substantive evidence of his guilt if the defendant did not expressly invoke his right to

remain silent. Salinas v. Texas, 133 S. Ct. 2174, 2179, 2184 (2013). The record in this

case contains no evidence that Abby invoked his right to remain silent, which means that

the prosecutor’s comments regarding Abby’s pre-arrest silence would be permissible

under Salinas if Abby were tried today. Any objection by Gust would be “wholly
No. 12-1437 Abby v. Howe Page 11

meritless under current governing law, even if the objection might have been considered

meritorious at the time of its omission.” Lockhart v. Fretwell, 506 U.S. 364, 374 (1993)

(O’Connor, J., concurring); see also Evans v. Hudson, 575 F.3d 560, 565-66 (6th Cir.

2009). In Lockhart, the Supreme Court held that courts assessing whether a defendant

was prejudiced by his counsel’s errors may not consider the effect of such now-void

objections. Lockhart, 506 U.S. at 374 (O’Connor, J., concurring). Consequently, in

making our prejudice determination, we may not consider the effect of Gust’s failure to

object because we now know that such an objection would be futile in light of Salinas.

Id.; see also Evans, 575 F.3d at 565-66. The failure to object is the only claim of error

charged to Gust, however. Applying Lockhart and Salinas in tandem therefore precludes

Abby from demonstrating prejudice based on Gust’s failure to object to the prosecutor’s

comments and completely forecloses Abby’s ineffective assistance of counsel claim. 

IV.

For the foregoing reasons, we affirm the decision of the district court.