RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 11a0134a.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

HOLLAND HARDAWAY,

 Petitioner-Appellant,

v.

KENNY ROBINSON,

 Respondent-Appellee.

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No. 08-1156

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 01-70230—George C. Steeh, District Judge.

Argued: November 30, 2010

Decided and Filed: May 19, 2011 

Before: BATCHELDER, Chief Judge; ROGERS and KETHLEDGE, Circuit Judges.

_________________

COUNSEL

ARGUED: B. Kurt Copper II, JONES DAY, Columbus, Ohio, for Appellant. John S.

Pallas, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan,

for Appellee. ON BRIEF: B. Kurt Copper II, Chad A. Readler, Erik J. Clark, JONES

DAY, Columbus, Ohio, for Appellant. Brad H. Beaver, OFFICE OF THE MICHIGAN

ATTORNEY GENERAL, Lansing, Michigan, for Appellee. Holland Hardaway,

Kincheloe, Michigan, pro se.

______________________

AMENDED OPINION

______________________

ROGERS, Circuit Judge. Holland Hardaway appeals the denial of a habeas

petition challenging his 1994 murder conviction on two grounds. Hardaway’s first

argument, that his due process rights were violated when the trial judge gave the jury a

coercive Allen instruction, lacks merit. However, Hardaway is entitled to relief on his

1
No. 08-1156 Hardaway v. Robinson Page 2

second ground, because the ineffective assistance of appellate counsel—who failed to

file an appellate brief and thereby deprived Hardaway of a direct appeal—was not cured

by the ability to appeal from later state collateral proceedings.

Hardaway shot and killed Norman Spruiel, a Detroit police officer, on October 2,

1993. Hardaway’s defense was that he did not know Spruiel was a police officer, and

that he returned fire in self-defense. Officer Spruiel and his partner had been working

undercover, investigating a murder near a body shop where Hardaway was employed.

Believing the two men were about to rob the repair shop, Hardaway went home,

retrieved a rifle, and returned to the shop. Shots were fired, and Officer Spruiel was

fatally wounded. Both sides claimed the other shot first.

Hardaway was charged with three counts—murder, assault with intent to murder,

and possession of a firearm during the commission of a felony—and tried on May 9-18,

1994. On the second day of deliberations, the jury sent a note to the trial judge stating

that it was “[h]opelessly deadlocked on first and second counts.” The trial court

responded with the following supplemental instruction:

Now, you have returned from deliberations indicating that you

believe you cannot reach a verdict. I am going to ask you to please

return to the jury room and resume your deliberations in the hope that

after further discussion, you will be able to reach a verdict.

As you deliberate, please keep in mind the guidelines I gave you

earlier. Remember, it is your duty to consult with your fellow jurors and

try to reach agreement if you can do so without violating your own

judgment. To return a verdict, you must all agree and the verdict must

represent the judgment of each of you.

As you deliberate, you should carefully and seriously consider the

views of your fellow jurors. Talk things over in a spirit of fairness and

frankness. It’s natural there will be differences of opinion. You should

each not only express your opinion but also give the facts and the reasons

on which you base it. By reasoning the matter out, jurors can often reach

agreement.

And when you continue your deliberations, do not hesitate to

rethink your own views and change your opinion if you decide it was

wrong. However, none of you should give up your honest beliefs about
No. 08-1156 Hardaway v. Robinson Page 3

the weight or effect of the evidence only because of what your fellow

jurors think or only for the sake of reaching agreement.

So once again, ladies and gentlemen, this was a long trial, we

were in trial all week and you’ve got plenty of time. Take your time.

We are going to break now for 15 – let you have a 15-minute break and

then you will return to the courtroom, to the jury room and you will

deliberate for as long as necessary for you to reach agreement.

R. 17 at 986-87 (emphasis added). Defense counsel’s objection to the supplemental

charge as coercive was overruled.

On the third day of deliberations, the jury indicated that it was “[s]till hopelessly

deadlocked on Counts 1 and 2.” Over defense counsel’s objection, the trial judge again

rejected the jury’s conclusion, sent the jurors to lunch, and informed them that they

would resume deliberations when they returned. On the fourth day of deliberations, the

jury reached a verdict, convicting Hardaway of second-degree murder and possession

of a firearm during the commission of a felony, but acquitting him of assault with intent

to murder. The trial court sentenced Hardaway as a habitual offender to consecutive

terms of 40-80 years in prison for the murder conviction and five years in prison for the

felony firearm conviction.

On June 30, 1994, Hardaway filed a timely claim of appeal through his attorney,

Paul Curtis. However, the Michigan Court of Appeals dismissed the appeal on August

18, 1995, because Curtis failed to file an appellate brief. Hardaway filed a delayed

application for leave to appeal through different appellate counsel, which was denied as

untimely. The Michigan Supreme Court denied leave to appeal the state appellate

court’s decision, but suggested that Hardaway file a motion for relief from judgment in

the trial court and argue that his first appellate counsel’s neglect of the appeal of right

established cause for Hardaway’s failure to raise his claims on direct appeal.

Hardaway did exactly that. As relevant to this appeal, Hardaway’s motion for

state post-conviction relief asserted claims of jury coercion, ineffective assistance of trial

counsel, and ineffective assistance of appellate counsel. The motion was denied on

August 4, 1999, in an opinion that reached the merits of Hardaway’s jury coercion and
No. 08-1156 Hardaway v. Robinson Page 4

ineffective assistance of trial counsel claims, but did not address the merits of

Hardaway’s ineffective assistance of appellate counsel claim. The Michigan Court of

Appeals upheld the district court’s ruling in an order stating, “the delayed application

for leave to appeal is denied, for lack of merit in the grounds presented.” The Michigan

Supreme Court, also in a one-sentence order, declined review.

Hardaway next sought federal habeas relief. His petition was initially dismissed

as time-barred, and both the district court and this court denied a certificate of

appealability. Hardaway then filed a Rule 60(b) motion to vacate the judgment and

reinstate his petition, arguing that the prior dismissal mistakenly used the wrong filing

date in concluding that his petition was time-barred. The district court granted the

motion on March 11, 2005, and then denied Hardaway’s claims on the merits. The

district court held that the trial court’s supplemental instruction on the whole was not

coercive, and that Hardaway was not prejudiced by appellate counsel’s ineffective

assistance because Michigan’s collateral post-conviction procedure was an adequate

substitute for his direct appeal. Hardaway now appeals the district court’s denial of

habeas relief.

Although the failure of Hardaway’s counsel to effect an appeal requires reversal,

as explained below, Hardaway is not entitled to habeas relief on his jury coercion claim.

This is because, in light of the entire supplemental instruction, the Michigan trial court’s

determination that the Allen charge was not coercive is not an unreasonable application

of federal law. 

The Michigan trial court on collateral review denied relief on Hardaway’s jury

coercion claim, stating, “[i]n this case, the overall effect of the comment was not

coercive, rather it stressed the need of the jurors to seriously engage in deliberations.”

Even if we disagreed with that result, the state court’s determination is entitled to

deference under the Antiterrorism and Effective Death Penalty Act (AEDPA), which

prohibits federal courts from granting habeas relief unless the state court’s adjudication

of a claim “was contrary to, or involved an unreasonable application of, clearly
No. 08-1156 Hardaway v. Robinson Page 5

established Federal law, as determined by the Supreme Court of the United States.”

28 U.S.C. § 2254(d).

The state court’s determination was a reasonable application of federal law. As

the district court below reasoned, although the trial judge’s comment was ill-advised, the

supplemental charge included several remarks that were sufficient to mitigate any

coercive effect the comment might have had. For example, the trial judge also instructed

the jurors to “try to reach agreement if you can do so without violating your own

judgment.” And the court emphasized that “none of you should give up your honest

beliefs about the weight or effect of the evidence” for the sake of reaching agreement.

The Supreme Court has long maintained that a trial judge may properly

encourage a deadlocked jury to continue deliberating by issuing a supplemental

instruction that urges the jury to reach a unanimous verdict. Allen v. United States, 164

U.S. 492, 501-02 (1896). These so-called Allen charges serve the important purpose of

avoiding the social costs of a retrial, including the time, expense, and potential loss of

evidence that a new trial would entail. See Lowenfield v. Phelps, 484 U.S. 231, 237-38

(1988); id. at 252 (Marshall, J., dissenting). This court has also generally upheld

“verdict-urging” charges, even when they contain flaws, e.g., Williams v. Parke, 741

F.2d 847, 850 (6th Cir. 1984), and despite “troubling” references to trial expense and

effort, e.g., United States v. Clinton, 338 F.3d 483, 490 (6th Cir. 2003).

The Supreme Court’s decision in Jenkins v. United States, 380 U.S. 445, 446

(1965), does not require habeas relief in this case. It is true that, taken in isolation, the

trial court’s statement that “you will deliberate for as long as necessary for you to reach

agreement” is similar to the mandatory language held to be coercive in Jenkins. There

the trial judge told a deadlocked jury, “[y]ou have got to reach a decision in this case,”

and the Supreme Court ordered a new trial. See id. The Court explained that “the

principle that jurors may not be coerced into surrendering views conscientiously held is

so clear as to require no elaboration.” Id. But the Court carefully refrained from stating

a categorical rule. Instead, it held that “[u]pon review of the record . . . in its context and

under all the circumstances the judge’s statement had the coercive effect attributed to it.”
No. 08-1156 Hardaway v. Robinson Page 6

Id. The state court in this case, undertaking a similar review of the record, in context and

under the circumstances, could come to a contrary conclusion.

Our finding that the Michigan trial court did not unreasonably apply federal law

in rejecting Hardaway’s Allen charge claim on post-conviction review does not foreclose

any state law challenges that could be raised on direct appeal to the Michigan Court of

Appeals. Nor does our decision necessarily foreclose a federal law challenge to the

Allen charge on direct appeal, because we hold only that the state trial court’s application

of federal law was not unreasonable. 

Turning then to petitioner’s second ground for habeas relief, Hardaway was

prejudiced by his appellate counsel’s deficient performance, because the failure to file

an appellate brief rendered Hardaway’s direct appeal “entirely nonexistent.” See Roe

v. Flores-Ortega, 528 U.S. 470, 484 (2000). In such circumstances, prejudice is

presumed under Flores-Ortega, and Michigan’s collateral post-conviction proceeding

is not an adequate substitute for a direct appeal of right. 

As the district court held below, Hardaway’s appellate counsel’s failure to file

a timely appellate brief constituted deficient performance under the first prong of

Strickland v. Washington, 466 U.S. 668 (1984), and the state does not argue to the

contrary. Cf. Deitz v. Money, 391 F.3d 804, 810 (6th Cir. 2004); White v. Schotten, 201

F.3d 743, 752 (6th Cir. 2000). 

Moreover, Hardaway was prejudiced by counsel’s deficient performance because

the deficiency “deprived [Hardaway] of the appellate proceeding altogether.” See

Flores-Ortega, 528 U.S. at 483-84. In Flores-Ortega, the Supreme Court held that the

defendant was entitled to a presumption of prejudice “with no further showing . . . of the

merits of his underlying claims when the violation of the right to counsel rendered the

proceeding . . . entirely nonexistent.” Id. at 484. Similarly, in Rodriquez v. United

States, 395 U.S. 327, 330 (1969), the Court held that counsel’s failure to file a notice of

appeal entitled the defendant to a new appeal without any further showing. 
No. 08-1156 Hardaway v. Robinson Page 7

1

Under Harrington v. Richter, — U.S. —, 131 S. Ct. 770, 784-85 (2011), AEDPA deference

applies in this case.

 The district court ruled below that Hardaway’s collateral motion for relief from

judgment—which was addressed on the merits of Hardaway’s claims—along with

appellate review of the denial of such collateral relief, was an adequate substitute for his

direct appeal. We do not reject the idea that a state court could correct for an

unconstitutional denial of effective counsel on direct appeal by providing for the

constitutional equivalent of a new direct appeal. The appeal from the denial of collateral

review in this case, however, could not be deemed a sufficient substitute, even under the

deferential standard imposed by AEDPA.1

The strongest argument that there was a sufficient substitute for a counseled

direct appeal in this case is that it was provided by the appeal from the merits-based

denial of collateral review. But appeal from the denial of collateral relief in Michigan

is different from a direct appeal from a conviction. A defendant must apply for leave to

appeal from the denial of a motion for relief from judgment. See Mich. Ct. R. 6.509.

The disposition of an application for leave to appeal is within the discretion of the

Michigan Court of Appeals, and is a preliminary step to having the case proceed as an

appeal of right. See Mich. Ct. R. 7.205(D)(2), (3). The Court of Appeals may respond

to a leave application in several different ways: it “may grant or deny the application;

enter a final decision; grant other relief; request additional material from the record; or

require a concise statement of proceedings and facts from the court . . . whose order is

being appealed.” Id. Only if the leave application is granted will the case proceed as an

appeal of right. See Mich. Ct. R. 7.205(D)(3).

Furthermore, unlike the appellant in an appeal of right, the applicant denied leave

to appeal does not receive the benefit of oral argument. See Mich. Ct. R. 7.205(D)(1).

Nor does the defendant have a right to appointed counsel on post-conviction review,

although Hardaway was represented by counsel on his collateral appeal in this case. See

People v. Walters, 624 N.W.2d 922, 923-24 (Mich. 2001). Taken together, these
No. 08-1156 Hardaway v. Robinson Page 8

differences render Michigan’s collateral post-conviction proceeding too unlike an appeal

of right to constitute a sufficient substitute.

The Supreme Court emphasized the importance of the first level of direct review

in Douglas v. California, 372 U.S. 353, 356-57 (1963), explaining that such an appeal

entails adjudication on the merits, and that it differs from subsequent appellate stages “at

which the claims have once been presented by a lawyer and passed upon by an appellate

court.” Likewise in Halbert v. Michigan, 545 U.S. 605, 618 (2005), the Court

distinguished first-tier direct review in the Michigan Court of Appeals from review in

the Michigan Supreme Court, noting that the purpose of first-tier appellate review is to

correct errors in the lower court, while the Michigan Supreme Court sits primarily to

decide matters of “significant public interest.” See Mich. Ct. R. 7.302(B)(2). The

policies underlying these distinctions between first-tier and second-tier appeals do not

support substituting a discretionary appeal—with tougher procedural hurdles—in place

of an appeal of right. This is particularly true where these additional obstacles would be

imposed on defendants simply because counsel failed entirely to perfect a direct appeal.

We reached a similar conclusion in Dorn v. Lafler, 601 F.3d 439, 445 (6th Cir.

2010), a case that involved a right of access claim rather than an ineffective assistance

claim. The petitioner in Dorn argued that the prison’s mishandling of his appeal papers

caused him to lose his appeal of right, violating his Fourteenth Amendment right of

access to the courts. Id. at 443. We applied Flores-Ortega in holding that the petitioner

was entitled to a presumption of prejudice. Id. at 445. We also rejected the argument

that a delayed application for leave to appeal was an adequate substitute for a direct

appeal, because of the additional hurdles that those collateral proceedings impose on

prisoners. Id.

Our decision today does not address the situation that would have arisen had the

Michigan Court of Appeals granted rather than denied the application for leave to

appeal, insured that petitioner had a right to appellate counsel, permitted the case to

proceed as an appeal of right under Mich. Ct. R. 7.205(D)(3), and disposed of the merits

to the same extent that it would have on a direct appeal. That is not the case before us.
No. 08-1156 Hardaway v. Robinson Page 9

The district court below relied on Abela v. Martin, 380 F.3d 915, 923 (6th Cir.

2004), in concluding that the Michigan Court of Appeals’ one-sentence denial of relief

“for lack of merit in the grounds presented” was a merits determination, and therefore

that Hardaway’s post-appeal review was the functional equivalent of a direct appeal.

But Abela stands for the proposition that a dismissal “for lack of merit in the grounds

presented” does not unambiguously invoke a procedural bar, not that the same onesentence order is an “adequate substitute” for a direct appeal. See id. at 922-24;

Guilmette v. Howes, 624 F.3d 286 (6th Cir. 2010) (en banc). These cases address the

distinction between an order that enforces a procedural rule barring the claim and an

order that rejects the claim on its merits, not the issue of whether an unexplained order

reflects the result of a proceeding that is an adequate substitute for a direct appeal.

Respondent argues that there is no reasonable probability that the result of

Hardaway’s direct appeal would have been different if counsel had filed a timely

appellate brief. Under Flores-Ortega, that is beside the point. The purpose of

presuming prejudice is to eliminate the need for a prisoner to make any further showing

beyond establishing that the lost proceeding was “entirely nonexistent.” See FloresOrtega, 528 U.S. at 483-84; Rodriquez, 395 U.S. at 330. 

For these reasons, we reverse the denial of habeas relief and remand to the

district court with instructions to issue a conditional writ directing the state to afford

Hardaway a direct appeal.