NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a0234n.06 No. 07-2089 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

EUGENE BROWN, P etitioner -Appellant,

v. KENNET H T. MCKEE, Warden, Respondent-Appellee.

_______________________________________ ) ) ) ) ) ) ) ) ) ) ON AP P EAL FROM THE UNI TED STATES DI STRI CT COURT FOR THE E ASTERN DI STRI CT OF MI CHI GAN

O P I N I O N

Before: COLE and MERRITT, Circuit Judges, and VARLAN, D istrictJudge. * THOMAS A. VA RL AN, District Judge. Petitioner Eug ene Br own (“Petitioner” ) was convicted of first-deg ree felony murder and felony firea rm. He was sentenc ed to life imprisonment without parole for the first-degree felony murder conviction plus two y ear s for the felony firea rm conviction. Petitioner appea le d h is convictions to the Michig an Court of Appea ls, raising ineffe ctive assistance of counsel. He also filed a motion reque sting that the Michig an Court of Appea ls rema nd his case t o the trial court for development of a fac tual rec ord and initial deter mination on his ineffe ctive-a ssistance-of

-counse l claim. After the Michig an Court of Appea ls denied both reque sts, Petitioner then unsucce ssfully soug ht leave from the Michi gan S u p reme Court to appea l the decisions of the Michig an Court of Appe als.

The Honora

ble Thomas A. Var lan, United States District J udg e for the Easter

n District of * Tenne ssee, sitting by

desig nation.No. 07-2089

Eugene Brown v. Kenneth T. McKee , W arden

Petitioner subsequently filed a writ of h abea s corpus in the district court pursuant to 28 U.S.C. § 2254, arguing that he was denied the constitutional rig hts to eff ective assistance of counsel and due proces s . T he district court denied relief on both g rounds, but g rante d a cer tificate of ap p ealability with respe ct to the following : “Whether Petitioner’s Six th Amendment rig ht to eff ective assistance of trial counsel was violated when his trial counsel failed to investigate and raise the issue of competenc y to stand trial and the defe nse of insanity .” Petitioner then filed an appea l. For the re asons explained here in, we af firm the judg ment of the district cour t. I. BACKG ROUND Petitioner’s conviction arises from the robber y and fata l shooting of J eff rey Bur da (“B urda” ),

an ice cre am delivery person, in Detroit, Michig an, on Dec ember 23, 1999. J am es J ett (“Jett”), L acoy Adrow ( “Adr ow”) , and Petitioner we re a ccuse d of having been involved in the c rime. Petitioner was arre sted on J anuar y 1, 2000, and charg ed with homicide felony murder and felony firea

rm. Following his arr est, the 36th District Court ref err ed him to the Third Circuit CourtCriminal Division Psy chiatric Clini c for a competenc y evalua tion. On Marc h 2, 2000, Dr. Ronald E. Kolito found Petitioner competent to stand trial, and at a hearing on May 3, 2000, acc ording to the 36th District Court docket shee t, Petiti oner w as found c ompetent. A preliminary examination

was h el d i n J u ne 2000, and for purposes of the preliminary examination, Petitioner’s counsel stipulated that Petiti oner w as compe tent to stand trial. On Marc h 15, 2000, the 36th District Court issued an order for an expedited examination to deter mine whether Petitioner was competent to waive his Miranda rig hts. On August 10, 2000, the

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Eugene Brown v. Kenneth T. McKee , W arden

W ay n e C ounty Circuit Court signe d an order for appointment of an independe nt psy cholog ist to deter mine whether Petitioner was competent to waive his Miranda rig hts, but a revie w of the rec ord indicates that a

n independe nt examination was never obta ined. Petitioner’s first court-a

ppointed attorney , Richard Glanda (“G landa” ), was permit t ed to wi t hdraw as counsel on J anuar y 30, 2001. The same day , L awr ence Wil liams (“William s ”) wa s appointed to re prese nt Petiti oner, a nd continued re prese nting Petitioner throug h his trial. Prior to trial, Wil liams moved to suppress Petitioner’s confe ssion on the g rounds that Petitioner had invoked his rig ht to remain silent by reque sting a

n attorney afte r being arr ested a

nd that Petitioner was too intox icated to knowing ly and intelligently waive his Fifth Amendment rig hts,

as he was arr ested on New Yea r’s Day and had inge sted larg e quantities of alcohol and mar ijuana. Acc ording ly , a hea

ring known as a W

alker hear ing was c onducted.

1 The Michig an Court of Appea ls , t h e l ast state court to rule on Petitioner’s claims, summarized the fac ts adduce d at the W alker hear ing a s follows: A W alker hear ing was also held to deter mine whether [P etitioner’s] confe ssion should be suppressed. Fr om the context of the test i m o n y , it is appar ent that the hear ing did not raise the i s s u e of competenc y , but rathe r examined whether [P etitioner’s] waiver

was knowing ly

and intellige ntly

g iven. Shandaly n Wil son was called as a witness at t he W alker hear ing. Wi lson indicated that [P etitioner] was the fathe r of her child. On New Yea r’s Eve, 1999, she was with [P etitioner] from approximately 8:00 p.m. until approximately 2:00 a.m. on New Yea r’s Day , 2000. Wil son testified that during that time [P etitioner] was “h i gh ”; Wil son observe d [P etitioner] smoke tw o b l u nts, as well as drink half of a bott le of

A W alker hear ing is a hear ing held in Michig an state courts, outside the prese nce of the jury , 1 to deter mine whether a confe ssion was voluntarily made. People v. W alker , 132 N.W.2d 87 (1965). 3No. 07-2089

Eugene Brown v. Kenneth T. McKee , W arden tequila. The following afte rnoon Wil son went to [P etitioner’s] house, wher e she saw him smoki ng more mar ijuana and dr inking br andy

. Ba rbar a Simon, an investigator with the Detroit police depar tment, testified that she interviewe d [P etitioner] on J anuar y 1, 2000. Simon observe d [P etitioner’s] phy sical condition and stated that he appea red “fine , normal.” Simon saw nothing to make her think [P etitioner] was under the influence of any sort of drug or alcohol. [P etitioner’s] ey es wer e neither bloodshot nor g lassy , and his speec h was not slurred. Simon added there was nothing to sugg est any sort of phy sical injury

. I n talking with [P etitioner], Simon lear ned he was nineteen y ear s of ag e, and that he was enrolled in the twelfth g rade at Osborn Hig h School. Simon had [ P et i tioner] rea d his constitutional rig hts aloud to ensure he could rea d and wr i t e. [ P etitioner] indicated that he understood, initialed ea ch rig ht, a nd signe d the form. [Petit ioner] did not indicate that he had any questions, and he did not ask for an attorney

. Simon took a statem en t fr o m [P etitioner], which he rea d to ensure acc urac y , and then he signe d the statement. [P etitioner] testified that he was a rre sted on J anuar

y 1, 2000. On New Yea

r’s Eve, [ P eti tioner] was at his mother’s house drinking tequila and brandy

. [P etitione r] estimated t hat he consumed a fifth of tequila, and a portion of a pint of b ra n d y . I n addition, [P etitioner] had approximately five “blunts” or marijuana cig ar s . That evening he drove to his house to sleep; when he woke up the following morning , he resumed drinking the rema inder of the brandy , as well as smoking “blunts.” A “short time” later, [P etitioner] was arr est ed an d taken to police headqua rters. [P etitioner] testified that he asked for an attorney wh en h e was arr ested, as well as when he arr ived at police headqua

rters. On cross-e x amination, [P etitioner] acknow ledg ed a constitutional rig hts form bear ing his initials. Moreove r, [P etitioner] noted that he had been ar

rested a y ear prior for car rying a conce aled weapon. When [P etitioner] was arr ested for that offe nse, he was advised of his rig hts, and he waived his rig ht to counsel. J ames Fisher , an investiga tor with the Detroit police depar tment testified that he did not smell alcohol on [P etitioner’s] breath. Clifford J ordan, also of the Detroit police depar tment, testified that he assisted in ar resting [P etitioner] and that [P etitioner] never reque sted an att orney . Terr ell Shaw, of the Detroit police depar tment, corr oborate d that [P etitioner] never asked for an attorney

. Moreove r, Shaw did not smell marijuana or

alcohol whe n he ar

rested [Petitioner].

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Eugene Brown v. Kenneth T. McKee , W arden

After hear ing the arguments of the parties, the t ri al court ruled that [P etitioner’s] statements to the police wer e admissible. The trial court found that [P etitioner] did not ask for an attorney , and that he was not intox icated. The trial court believed that [P etitioner] would not have been ab l e t o function had he consumed as much as he indicated. Acc ording ly , the trial court deter mined that [P etitioner’s] confe ssion was “knowing ly , fre ely

and voluntarily

g iven.” People v. Brown , No. 2394 6 6 , 2 0 0 3 W L 22681550, at *4–5 (Mich. Ct. App. Nov. 13, 2003) (unpublished). Petitioner was tried with J ett, and the trial spanned nine day s. Adrow, on the other hand, pled g uilty to a re duced c harg e of se cond-de g ree murder. During th e t ri al , Petitioner’s statement was rea d into the record by Offic er Bar bara Simon (“O ffice r S i m o n ”)

. I n his statement, Petitioner told Offic er Simon that he, J ett, and Adrow g ot toge ther ear ly Dec ember 23, 1999, that he wa s driving the van, which was stolen, and that they spotted the ice cre am truck. He also stated that J ett and Adrow g ot out of the van and went over to the victim. Adrow hit the victim, who started to run, and then J ett shot the victim. J ett and Adrow then returne d to the van, and Petitioner drove off, but Petitioner later jumped out of the van. Petitioner further told Offic er Simon that the robber y was J ett’s idea and that the murder wea pon was

a .38 caliber handgun, which belong ed to Petitioner. Upon inquiry of Offic er Simon about the g un, Petitioner said he “lef

t [t he g un] at the house, the wee d house,” which was on Wil fre d, “bec ause the g un was hot” and J ett had jus t shot someone with it. (R. 26-4 at 25). He denied be ing thr eate ned

or promised any

thing to make a statement or answe r any q u es t i o n , an d when asked whether the
statement he had g iven was true, he replied, “Ye s, I ’m sorry that the man g ot shot. Thing s just g ot

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Eugene Brown v. Kenneth T. McKee , W arden

out of hand. [J ett] should not have shot the man.” ( Id

. at 26). Petitioner had an opportunity to revie w the stateme nt, and sig ned his name throug hout the statement. Adrow also testified at trial. He testified that he had a conver sation with Petitioner and J ett about committing a robber y . He further testified that Petitioner provided the wea pon, a .38 caliber handg un, which was black and short, and that a stolen van was driven by Petitioner to a Detroit g as station wher e Bur da was spotted. Adrow testified that J ett g ot out of the van first and beg an robbing Bur da. Adrow then g ot out of the van and struck Bur da. As Bur da attempted to esca pe, J ett shot and killed him. Adrow also testified t h at J et t s h o t at sever al other individuals in the are a, hitting and injuring one of them. J ett and Adrow then returne d to the van, which Petitioner drove awa y . Adrow further testified that J ett g ave th e g un back to Petitioner, and the three went to “[t] he wee d spot,” which wa s “[t] he house on Wilfred.” (R. 27-3 at 15). Severa l other individuals testified as well. Aar on Gilmore testified that he hear d shots, ran, and then was shot in the back of his shoulder. He further testified that he later saw the victim ly ing

on the g round and that the man who pointed a g un at him had on a ski mask. Ray vnne Gilmore then testified to witnessing the shooting and hear ing the van or a vehicle speed off, but he could not identify the driver of the van. Anthony Billing s testified that he saw two men i n ski masks, appea ring to rob the victim. After the victim collapsed, he stated that the two men he aded toward the van parke d near

by

. He a lso saw a man sitting behind the drive r’s seat of the van, but he could
not see a ny thing about his appea

ranc e. After the t wo men ente red the van, it quickly sped off . He further testified that the g un used was a revolve r, which was black and big. Edwar d Thomas, who

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Eugene Brown v. Kenneth T. McKee , W arden

was with Anthony Billing s on the day in question, testified that he hear d someone say “g ive me the m-f-ing money ” in a demanding way and a person reply t h at h e d id not have any money , that he hear d shots, and that he saw a man with a mask shooting at him and Anthony Billing s, who was shot. (R. 25-2 at 11). Edwar d Thomas testified as well, and stated that he saw another man with a mask

on. Darlene Dorsette testified, and she descr ibed how her van had been stolen just prior to the incident. I n addition, various office rs and investigators , as we l l as the doctor who perf ormed the autopsy on Bur da, testified. One such office r was Offic er Craig Stewart, who testified that he went to the hospital and was g iven a nine millimeter slugfrom the c omplainant. Petitioner’s defe nse was that there was no cre dible evidenc e to e s ta b li s h Pe ti ti o n e r k

nowing ly took part in the robber

y and murder. Counsel attacke d Adrow’ s testimony in his opening and closing arg uments as we l l as t h roug h cross-e x amination by arguing that Adrow was testify ing ag ainst Petitioner solely beca

use he had bee n offe red to plea d g uilty to a reduc ed char g e of second- deg ree murder. He exposed tha t A drow had made two contra dictory statements to the police, that neither
statement mentioned Petitioner being involved in the shooting, and t h at ev en i f Adrow was to be believed, t h er e wa s n o evidenc e that Petitioner knew J ett was g oing to shoot and kill the victim. Counsel also elicited testimony from the various ey ewitnesses that they could not identify Petitioner. I n addition, Pe ti tione r’s counsel elicited testimony from Offic er Simon that Petitioner did not initial the part of the constitutional rig hts form that stated he had not been threa tened by the police. Co u n s e l a ls o challeng ed Offic er Simon’s testimony by obtaining admissions from O f f ic e r Si mo n th a

t P et i t ioner’s statement had not been videotaped or audiotaped or written by Petitioner in h i s o wn

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Eugene Brown v. Kenneth T. McKee , W arden

handwr iting. Offic er Simon acknow ledg ed that there wer e no witnesses to corr oborate Petitioner’s confe ssion and that, althoug h Petitioner admitted to driving the van, she did not ask Petitioner if he

was the g etawa

y driver or

a lookout. Offic er Simon also conce ded that she never asked Petitioner whether the robber

y was pre- planned. Petitioner’s counsel moved for a direc ted verdic t on the count of fe lony murder, w hich was de nied. The jury returne d a verdic t of g uilty as to both char g es ag ainst Petitioner. He was sentenc ed
to life in prison without parole for the first-degree -murder char g e and a consec utive two y ear s’ imprisonment for the fe lony -fire arm c harg e. Petitioner there afte r filed a direc t appea l with the Michig an Court of Appea ls, raising the following issue: Was Def endant denied his state and fede ral constitutional ri gh t s to the eff ective assistance of trial counsel wher e counsel failed to investigate a nd raise the issue of competenc y to stand trial and to waive his Miranda rig hts and the defe nse of insanity , both at t h e W

a lker hear ing and at trial, and prese nted no defe nse at trial, no witnesses, no evidenc e of any kind, including no evidenc e of defe ndant’s psy chiatric h o s p italiz ations and trea tment, mental illness and signific ant mental reta rdatio n , which would not only support a defe nse of insanity or lack of competenc y , but would also cast gra

ve doubt upon the s tatement he a lleg edly made to the police , and even told the defe ndant not to testify ? (R. 33, P et ’r ’s App. Br

. at 3). Petitioner’s conviction, howeve r, was aff irmed. Brown , 2003 WL 22681550. Petitioner also filed a motion to remand pursuant to Mic h. Ct. R. 7.211, commonly known

as a Ginther m otion, with the M ichig an C ourt of Appeals. Petitioner soug ht an order remanding 2

See P eople v . Ginther , 212 N.W.2d 922 (Mich. 1973). 2 8No. 07-2089

Eugene Brown v. Kenneth T. McKee , W arden

his case to the trial court for h ea ri n g, development of a fac tual rec ord, and initial decision on his claim for ineffe ctive assist ance of counsel. The Michigan Court o f Ap p ea ls denied the motion to

rema nd “for failure to persuade the Court of the ne ed to re mand at this time.” (R. 2-2 Ex. 2). Petitioner then soug ht leave from the Michig an Supreme Court to appea l the decisions of the Michig an Court of Appea ls a ffirming his c onviction a nd denying his motion to rema nd. People v. Brown , 470 Mich. 873 (2004). The reque st was denied, althoug h two justices indicated they would have rema

nded the case for an evidentiar y hear ing on Petitioner’s claim of ineffe ctive assistance of trial counsel. Id. Pursuant to 28 U.S.C. § 2254, Petitioner subsequently filed a petition for wri t o f habea s corpus, raising two claims: denial of the constitutional right to eff ective assistance of counsel and the constitutional rig ht to due proce ss of law. The district court denied habeas relief on both g rounds. Petitioner then filed notice of appea l and a motion for cer tificate of appea lability

. Petitioner soug ht a cer

tificate of appea lability with r espec t to his ine ffe ctive-a ssistance-of -counse l claim and his due-pr ocess claim, but the district court g rante d a ce rtificate of appe alability only with respe ct to the following : “Whether Petitioner’s Six th Amendment rig ht to eff ective assistance of trial counsel wa s violated when his trial counsel failed to inve stiga te and raise the issue of compe tency to stand trial and the de fense of insanity .” (R. 45). Upon reque st by Petitioner, this Court denied Petitioner a cer tificate of appea lability on the due proce ss issue, finding the district court corr ectly held that there is no fede ral constitutional rig ht

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to appea l a state-c ourt conviction. (Orde r Den. Appl. for Partial Certifica te of Appea lability , Mar. 18, 2008). Fur

ther, this Court noted violations of state law and proce dure that do not infring e upon specific constitutional protec tions are not cog nizable in a fede ral habea s corpus action. ( Id .). This Court also denied Petitioner’s motion to rec onsider the Court’s order denying Petitioner a cer tificate of appe alability . (Orde r De n. Mot. To Recons., J une 23, 2008). II. ST ANDAR

D OF REVIEW This Court revie ws de novo the leg al conclusions for a district court’s dismiss al of a habea s petiti o n . Da vi s v. Coyle , 475 F.3d 761, 766 (6th Cir. 2007). The fac tual finding s underly ing the d i s t rict court’s analy sis, on the other hand, will not be set aside unless those finding s are clea rly

err oneous. Id

. Be cause Petitioner filed his petition for a writ of habea s corpus afte r the eff ective date of the Antiterror ism and Effe ctive Death Penalty Act (“A EDPA”), that statute g overns this Court’s revie w of the case . A writ of habea s co rp us may not be g rante d under AEDPA for any claim that was adjudicate d on the merits in state cour t unless the adjudication of tha t claim: (1) resulted in a decision that was co n t ra ry t o , or involved an unrea sonable application of, clea

rly established Fe dera l law, as deter mined by the Supreme Court of the United States; or (2) resulted in a d ec i s i o n that was based on an unrea sonable deter mination of the fac ts in li g ht of the evide nce pr esente d in the State court proc eeding

. 28 U.S.C. § 2254(d)( 1)–(2)

. For the purposes of AEDPA, this Court revie ws the last state-c ourt decision on the m erits, which in this case is the dec ision of the Michig an C ourt of Appeals. Dye r

v. Bowlen , 465 F.3d 280, 284 (6th Cir. 2006) (citation omitted). The Supreme Court has rec og nized 10No. 07-2089

Eugene Brown v. Kenneth T. McKee , W arden

that “AED PA imposes a ‘hi g hly defe rential standard for evalua ting state-c ourt ruling s,’ and ‘dema nds that state-c ourt decisions be g iven the benef it of the doubt.’” Renico v. Lett , — U.S. —, 130 S. Ct . 1855, 1862 (2010) ( footnote and c itations omi tted). Under the “contr ary to” clause of § 2254(d)( 1), a fede ral court may g rant the writ only if the state court arrive d at a c onclusion opposite to that rea ched by the S upreme Court on a question of law, or if the state court decide d a case differ ently than the Supreme Court has on a set of materia lly indisti ng uishable fac ts. W ill i a ms v. T

a ylor , 529 U.S. 362, 412–13 (2000). “I f the state-c ourt decision identifies the corr ect g overning leg al principle in exis tence at the time, [however,] a fede ral
court must assess whether the decision unrea sonably applies that principle” under the “unre asonable application” clause of § 2254(d)( 1). Cullen v. Pinholster , — U.S. —, 131 S. Ct. 1388, 1399 (2011) (citation and inter

nal quotation marks omitted). Under the “unr easona

ble application” clause , a federa l court may g rant the writ only if the
state court identified the corr ect g overning leg al principle from the Supreme Court’s decisions but

unrea sonably applied that principle to the fac ts of the petitioner’s case . W illiams , 529 U.S. at 413. When assessing unrea sonablene ss, “a fede ral habea s court may not issue the writ simply beca use that
court conclude s in its independe nt judgme nt that the rele vant state-c ourt decision applied clearly established fede ral law err oneously o r i n correctly .” Id. at 411. Rather, the application must be “objec tively

unrea sonable.” Id. at 409. I n deter mining whe ther a

state-c ourt dec ision is contrary to or an unrea sonable a

pplication of clea rly established Supreme Court prec edent, a fede ral court may look only to the holdings of the

11No. 07-2089

Eugene Brown v. Kenneth T. McKee , W arden Supreme Court’s decisions “as of the time of the rele vant state-c ourt decision.” Lockye r v. Andrade , 538 U.S. 63, 71 (2003) (citation and internal quotation mark omitted); see also Gree ne v. Fisher , — U.S. —, 132 S. Ct. 38, 44–45 (2011) (holding that clea rly established fede ral law as deter mined by the Supreme Court under AEDPA is the law at the time of the state-c ourt adjudication on the merits,
not at the time the conviction become s final). The revie wing court, howeve r, may look to decisions of lower courts of appea ls “to the extent [ they ] have alre ady revie wed a

nd interpre ted the re levant Supreme Court case law to deter mine whether a leg al principle or rig ht had been clea rly established by the Supreme Court.” Landrum v. Mitchell , 625 F.3d 905, 914 (6th Cir. 2010) (alter ation in orig inal and citation and inter nal quotation mark omitted). “A state court’s deter

mination that a claim lacks merit prec ludes fede ral habea s relief so long

as ‘fa irminded jurists could disag ree ’ on the corr ectne ss of the state court’s decision.” Harrington

v. Richter , — U.S. —, 131 S. Ct. 770, 786 (2011) (citation omitted). Fur ther, “[e]valuating whether

a rule application was unrea sonable require s considering the rule’s specific ity

. The more g ener al the rule, the more leewa

y courts have i n rea ching outcomes in case -by -ca se deter minations.” Id. (citation omitted). I n addition , fa ctual finding s of the state court are presumed corr ect unless the petitioner prese nts clea

r and convincing evidenc e to the contra ry . 28 U.S.C. § 2254(e) (1). “[A] decision ad j u d i ca t ed on the merits in a state court and based upon a fac tual deter mination will n o t b e overturne d on fac tual g rounds unless objectively unrea sonable in light of the evidenc e prese nted in

12No. 07-2089

Eugene Brown v. Kenneth T. McKee , W arden

the state-c ourt proce eding .” Aye rs v. Hudson , 623 F.3d 301, 308 (6th Cir. 2010) (bra ckets omitted) (quoting Miller-El v. Cock rell , 537 U.S. 322, 340 (2003)). Finally , the Supreme Court has rec ently clar ified “that revie w under § 2254(d)( 1) is limit ed
to the record that was before the state c ourt that adjudicate d the claim on the m erits.” Pinholster , — U.S. at —, 131 S. Ct . at 1398. III. DISCUSS ION A. P roper Scope of the Issues Petitioner soug ht a cer

tificate of appea lability with re s p ec t t o the two claims raised in his habea s petition: denial of the constitutional rig ht to eff ective assistance of counsel and denial of the constitutional rig ht to due proce ss of law. The district court g rante d a cer tificate of appea lability with respe ct to the following issue only : “Whether Petitioner’s Six th Amendment rig ht to eff ective assistance of trial counsel was violated when his trial counsel failed to investigate and raise the issue of compe tency

to stand trial and the de fense of insanity .” (R. 45). Petitioner arg

ues that, althoug h the di strict court gra nted a cer tificate of appea lability with respe ct t o Petitioner’s first claim and “re formulated” it, encompa ssed wit hin that ref ormulation is Petitioner’s argument that “trial counsel was ineffe ctive beca use he prese nted no defe nse at trial, no witnesses, no evidenc e of any kind, and, further , even told the defe ndant not to testify .” (Appe llant Br

. 2 n . 2 , 7). Petitioner also argues he should be permitted to raise his constitutional due process issue.

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Eugene Brown v. Kenneth T. McKee , W arden

The Six th Circuit has “re peate dly rec og nized” that “whe n AEDPA applies, ‘a court of appea ls will addre ss only the issues which are specifie d in the cer tificate of appea lability .’” Searcy v. C arter , 246 F.3d 515, 518 ( 6th Cir. 2001) (quoting Lyons v. Ohio Adult Parole Aut h. , 105 F.3d 1063, 1074 (6th Cir. 1997), overruled in part by Li ndh v. Murphy , 521 U.S. 320 (1997)) ; see also 28 U.S.C. § 2253(c) ; Chavis-Tucke r v. Hudson , 348 F. Ap p ’x 125, 132 n.6 (6th Cir. 2009) (“A

cer tificate of appea lability only vests jurisdiction in the appellate court to consider issues specifie d in the certificate .” (citations omitted)); Valentine v. Francis , 2 7 0 F. 3d 1032, 1035 (6th Cir. 2001) (limiti ng revie w of the dismiss al of a habea s petition as time-barr ed to the particula r claim cer

tified for appea lability ). Despite the dist ri ct court’s rec og nition that Petitioner’s first claim included

sever al points, including, for exam p l e, t h at trial counsel was ineffe ctive for failing to prese nt any defe nse whatsoeve r, the district court’s order expressly limit s the i s s u e subject to appea l to “inef fec tive assistance of trial counsel for failure to investigate and raise the issue of competenc y to stand trial and the defe nse of insanity .” (R. 45). The dist rict court’s order further provides that it “does not find the rema ining issues raised in the petition debata ble among jurists of rea son.” ( Id .). Also, this Court previously denied Petitioner’s reque st for a cer tificate of appea lability with respe ct to the du e- p roce ss claim and subsequently denied Petitioner’s motion for rec onsideration of that decision. Acc o rdi ng ly , with respe ct to Petitioner’s ineffe ctive of assistance claim, the Court considers only

those issues set forth in the cer tificate of appe alability ; that is, whether Petitioner’s Six th Amendment rig ht to eff ective assistance of counsel was violated when his trial counsel failed
to investigate and raise the issue of competenc y to stand trial and the defe nse of insanity

. L ikewise,

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Eugene Brown v. Kenneth T. McKee , W arden

the C ourt finds that Petitioner’s due-pr ocess claim is not proper ly befor e it as the claim is not specifie d in the cer

tificate of appea lability , and this Court decl i n ed to issue a cer tificate of appea lability

for this claim. 3 B. Ineff

ect ive Assistance of Counsel The S ix th Amendment to the Unit ed S tates C onstitut ion , wh i ch is applicable to the S tates throug h the Four

teenth Amendment, provides that “[i] n all criminal prosec utions, the acc used shall enjoy the rig ht

. . . to have the Assistance of Counsel for h i s defe nce.” U.S. Const. Amend. VI ; Gideon v. W

ainwright , 372 U.S. 335, 342–43 (1963). “A rig ht to the assistance of someone with a law deg ree does not by itself suffice .” Couch v. Booke r , 632 F.3d 241, 245 (6th Cir. 2011). Rather, “[o] nly a ri gh t t o ‘e ffective assist ance of counsel’ serve s the guar antee .” Id. (quoting McM ann v. Richardson , 397 U.S. 759 , 771 n.14 (1970))

. To establish a claim for ineffe ctive assistance of counsel, a defe ndant m u s t demonstrate that “counse l’s repr esenta tion fell below an objective standard of rea sonablene ss,” Strickland v. W ashington , 466 U.S. 668, 688 (1984), and that “ther e is

a rea sonable proba b i l i t y t h at, but for counsel’s unprofe ssional err ors, the result of the proce eding would have b ee n differ ent,” id. at 694. “A rea sonable probability is a probability sufficie nt to undermine confide nce in t h e outcome.” Id. I t require s a “substantial, not just conce ivable,” likelihood of a diffe rent outcome

. Richter , — U.S. at —, 131 S. Ct . at 792 (c itation omit ted).

Petitioner argues he is entitled to a hearing on his i n eff ective assistance claim beca use he 3 has exercise d due diligenc e. The evidentiar y hear ing issue, howeve r, is me rely a reiter ation of the due-pr ocess c laim.

15No. 07-2089

Eugene Brown v. Kenneth T. McKee , W arden

Wit h respe ct to deter

mining whether counsel’s repr esenta tion fell belo w an objective stand a r d o f r e a s o n a

b le n e s s , c o u

n s el’s perf

ormanc e is viewed “under preva iling profe ssional norms.” Strickland , 466 U.S. at 688. “The rea sonablene ss of counsel’s actions must be judge d on the fac ts of the p et i t i o n er ’s case , viewed as of the time of counsel’s conduct, rec og nizi ng that counsel ‘is
stron gl y presumed to have rende red adequate assistance and made all signific ant decisions in the exercise of rea sonable profe ssional judgme nt.’” Smith v. Lafler , 175 F. App’x 1, 4 (6th Cir. 2006) (q u o t ing Strickland , 466 U.S. at 690). Moreove r, in revie wing ineffe ctive assistance of couns el claims, a court must beg in with the premise that “under the circ umstances, the challeng ed action [s] might be considere d sound trial strateg y .” Pinholster , — U.S. at —, 131 S. Ct . at 1404 (alter ation in orig inal) (quoting Strickland , 4 6 6 U. S

. at 689); see also Y arborough v. Gentry , 540 U.S. 1, 8 (2003) (“[T]here is a strong presumption that [counse l took cer tain actions] for tactica l rea sons rathe r than throug h sheer neg lect.” (citation omitte d ))

. P u t another way , it is the challeng er’ s burden to demonstrate “that counsel made err ors so serious that counsel was not functioning as the ‘counse l’ g uara nteed the de fenda

nt by the Six th Amendment.” Strickland , 466 U.S. at 687. “Establishing that a state court’s application of Strickland was unrea sonable under § 2254(d) is all the more difficult,” as “[t] he standards cre ated by Strickland and § 2254(d) are both ‘hig hly defe rential.’” Richter , — U.S. at —, 131 S. Ct. at 788 (citations omitted). “[W ]hen the two apply in tandem, revie w is ‘doubly ’” defe rential. Id. (citation omitted). Moreove r, the Strickland standard is a g ener al standard, “so the rang e of rea sonable applications is substantial.” Id. (citation omitted);

see a l s o K n o w les v. Mirzayance , 556 U.S. 111, —, 129 S. Ct. 1411, 1420 (2009) (“[B]ecause the

16No. 07-2089

Eugene Brown v. Kenneth T. McKee , W arden

Strickland standard is a g ener al standard, a state court has even more lati t u d e to rea sonably deter mine that a defe ndant h as not satisfied that standard.” (citation omitted)). “F eder al habea s courts must g uard ag ainst the dang er of equatin g u nrea sonablene ss under Strickland with

unrea sonablene ss under § 2254(d).” Rich t er , — U. S

. at —, 131 S. Ct. at 788. “When § 2254(d) applies, the que stion is not whether counsel’s actions wer e reasonable [, but ] . . . . whether ther e is any rea sonable a

rg ument that counsel satisfied Strickland ’s def ere ntial standard.” Id. I n denying Peti tioner’s claim for ineffe ctive assistance of counsel, the Michig an Court of Appea ls determined tria l counsel’s a ctions were strateg ic. I n rele vant par

t, the court stated: [P etitioner] first argues that his trial counsel failed to look at the court file afte r being substitut ed as counsel. [P etitioner] contends that his counsel failed to investigate and pursue a claim not only of lack of competenc y to stand trial and lack of competenc y t o wa i v e h is Miranda rig hts, but of leg al insanity

. We find, howeve r, that thes e asser tions a re not suppor

ted by the rec ord. There is nothing appa rent fr om the trial court file to sug g est that [P etitioner’s] counsel failed to inspect the court file. As for [P etitioner’s] contention that his trial counsel failed to asser t that [P etitioner] lacke d the competenc y to waive his Miranda rig hts, the trial court file re v ea l s t h at [P etitioner’s] c ounsel did pur sue such a psy cholog ical examination. The examiner conclude d that [P etitioner] was compete nt to waive his Miranda rig hts. Ba sed on our revie w o f the rec ord, we believe [P etitioner’s] argument that his counsel was ineffe ctive for failing to raise the issue of [P etitioner’s] mental state fails beca use we conclude that his counsel’s actions wer e actua lly strateg ic. The decision whether to prese nt an insanity defe nse can be an issue of strateg y . The rec ord ref lects that afte r the deter

mination that [P etitioner’s] counsel arg ued t h at h is client was intox icated at the time of his confe ssion

. . . . [P etitioner] testified that he consumed a considera

ble amount of alcohol and sever al marijuana cig are ttes on the day of his arr est and confe ssion. [Petiti oner’ s] counse l a ppare ntly conclude d that intox ication was a better means to exclude the confe ssion than [P etitioner’s] state of mind, espec ially in light of the psy cholog ical repor t deter mining [P eti t i o n er] was competent. Although we rec og nize that the leg al standards for competenc y to stand trial are differ ent from the standards to waive Miranda rig hts, [P etitioner’s] trial counsel appar ently deter

mined that if he could not show that [P etitioner] lacke d the

17No. 07-2089

Eugene Brown v. Kenneth T. McKee , W arden

s t at e o f m i n d to waive his Miranda rig hts, he may not be able to have [P etitioner] deeme d incompetent to s t an d trial, and that an insanity defe nse was likely unprovable

. Brown , 2003 WL 22681550, at *7. Petitioner now argues that the Michig an Court of Appea ls err ed in finding trial counsel’s actions wer e st rate g ic because t ri al co unsel’s st rate g y was predicate d on inadequate prepa

ration or failure to make a rea sonable investiga tion. More particula

rly , Petitioner arg ues his trial counsel’s perf ormanc e could not have been strateg ic beca use he failed to seek an independe nt psy chiatric evaluation, failed to speak to Petitioner ’s fa mily , failed to secur e rec ords rela ting to Petitioner’s competenc y , and did not know that a competenc y evalua tion and repor t was conducte d and issued.

1. The State Court’s Det erm ination that Trial Counsel’s P erform ance was Strate gic was not an Unreasonable Appli cation of Clearly Establi s hed F ederal Law Petitioner argues that materia l co n tained in Dr. Kolito’s repor t would have trig g ere d an investigation into the defen d an t ’s mental history

. Petitioner specific ally points to the following
matters conta ined in that repor t: (a) Def

endant had a history of psy chiatric hospitaliz ations and outpatient trea tment, including Northea st Guidance Center, Eastwood C linic, Detroit Rece iving Hospital, Have n wy ck Hospital, King swood Hospital, Children’s Center, Butzel Family Ce n t er, and Special Educa tion assessments in Detroit. (b) He ha d a history

of hallucina tions, anx iety and depr ession. (c) He wa s afr aid to sign a ny more a uthorizations. (d) He ha d attempted suicide thre e times.

18No. 07-2089

Eugene Brown v. Kenneth T. McKee , W arden (e) The test results, which the examiner did not fee l wer e valid, showed functioning in the mildly

mentally reta rded r ang e. (f) Def

endant claimed that he did not understand the functions of most court officia ls, did not know what his lawy er was supposed to do, and did not know the function of the judge , jury or wha t ple a barg aining was. (g ) De fe n d an t cl ai med he was i l l i t er at e an d co u l d n o t re ad t h e questionnaires, denied knowledg e of the meaning of very commonly used words, said he did not know his phone number, wh er e he was born, his heig ht, weig ht and other c ommon facts. (h) Def

endan t s t at ed t h at h e did not know what the statement was he signe d, that he could not rea d it and was tricked into signing and into initialing his rig hts. (Appe llant Br

. 12–13). Petitioner also submits trial counsel was not even awa re that a competenc y evaluation had been conducte d, nor a repor t issued. Thus, without knowing about any competenc y

exam or repor

t, Petitioner claims trial counsel’s actions in not pursuing the issue of competenc y to stand trial and the defe nse of insanity could not have b ee n s t ra teg ic. Fur ther, Petitioner arg ues counsel’s perf

ormanc e could not have been st ra t egi c b ec ause counsel failed to secur e rec ords of Petitioner’s psy chiatric hospitaliz ation and trea tment rec ords, to secur e school rec ords indicating Petitioner’s alleg ed mental reta rdation, to obtain an independe nt psy chiatric evalua t i o n , and to interview Petitioner’s family members. Wit h reg ard to the latter, he points to his habea s counsel’s affidavit, which provides that Petitioner’s aunt attempted to speak with Petitioner’s trial counsel

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Eugene Brown v. Kenneth T. McKee , W arden

about Petitioner ’ s b a c k g r o u n d , p s yc h ia

tric p r o b le ms, mental illness, and psy chiatric hospitaliz ations, but Petiti oner’ s trial counsel would not speak with her. 4 I n Strickland , the Supreme Court outlined the para meters of what it descr ibed as “counse l’s duty to investiga te”: [S ]t rate g ic choice s made afte r thoroug h investigation of law and fac t s re l evant to plausible options are virtually unchalleng eable ; and strateg ic choice s made afte r less than complete investigation are rea sonable prec isely to the extent that rea sonable profe ssional judgme nts support the limit ations on investigation. I n o t h er words, counsel has a duty to make rea sonable investi gat i ons or to make a rea sonable decision that make s particular investigations unnecessa ry . 466 U.S. at 6 9 0

– 9 1 (emphasis added)

. “Unde r this standard, counsel is require d to conduct investigation at least to the extent nece ssary to deter mine that no further investigation is nece ssary . I t does not allow counsel to fail to conduct any investigation at all.” Storey v. Vasbinder , 657 F.3d

The district cour

t appropria

tely summarized the aff

idavit as follows: 4 Petitioner’s curr ent habea s counsel, Samuel Posner, who also repr esente d Petitioner on his state appea l, has provided the Court with an aff idavit, in which he claims that he spoke with Petitioner’s trial counse l, Mr. Wil liams. Accor ding to this a ffidavit, Mr. Wil liams told Mr. Posner “tha t h e was not awa re that there had been a competenc y hear ing and competenc y evalua tion befor e the preliminary examination in the 36th District Court, was unawa re of any competenc y repor t and had never seen it, and that he was unawa re that [P et itioner] had had any history of psy chiatric problems, mental illnesses, or psy chiatric hospitaliz ations.” Mr. Posner also claims that Petitioner informed him that he wanted to testify at trial, but that Mr. “Willi ams told him not to testify and to say that he did not want to testify if asked by the court.” Finally , Mr. Posner claims that Petitioner’s family told him that they wished to speak with Mr. Wil liams about Petitioner’s history of mental illnesses an d p sy chiatric hospitaliz ations, but claimed that Mr. Willi ams would not speak with them. Brown v. McKe e , No. 05-72156, 2007 WL2050350, at *9 (E.D. Mic h. J uly 17, 2007). 20No. 07-2089

Eugene Brown v. Kenneth T. McKee , W arden
372, 390 (6th Cir. 2011) (Clay , J ., dissenting) (citing W illiams v. Taylor , 529 U.S. 362 (2000))

. This Court has rec ently

stated this principle in the following way : To make a rea soned judgme nt about whether evidenc e is worth prese nting, one must know what it say s. Whil e the point of the Six th Amendment is not to allow Monday

morning quarte rbac king of defe nse counsel’s strateg ic decisions, a lawy er cannot make a protec ted strateg ic dec ision without investigating the pote ntial bases for it. Couch , 632 F.3d at 246 (citing Strickland , 466 U.S. at 690–91). Petitioner submits , as he submitted to the Michig an Court of Appea ls, that his second trial counsel did not know that a competenc y evalua tion was conducte d, nor a repor t issued. I ndeed, the

rec ord ref lects that it wa s Petiti oner’ s orig inal trial counsel, Glanda, who initiated the competenc y evaluation and who stipulated competenc y for purposes of the preliminary examination. Thus, it is plausible that Petitioner’s seco n d t ri al counsel, Wil liams, would not have known about the evaluation and re p o rt

. Further, it seems as though, had Wil liams revie wed the file, including the competenc y repor

t, it would have sug g ested to h i m t h at Petitioner may have had some history of mental illness and would have prompted an investigation to deter mine whether he should raise the issue of competenc y to stand trial or the defe nse of insanity

. For example, the repor t provided that Petitioner had a history of psy chiatric hospitaliz ations and outpatient trea tment and that test results showed func tioning in t he mi ldly mentally reta rded rang e. Eve n more, Petitioner submits that his aunt attempted to speak to Willi ams about his family and mental history , but that Wi lliams would
not speak with her. I n light of all of t his, it appea rs W illiams’s actions m ay h av e fa l l en b elow an objective standard of rea sonablene ss. Acc ord Couch , 632 F.3d at 246 (“I t is particula rly

unrea sonable to fail to tr ack down rea dily available and likely useful evidenc e that a client himself 21No. 07-2089

Eugene Brown v. Kenneth T. McKee , W arden

asks his counsel to obtain.” (citation omitted)); Lafler , 175 F. App’x at 4–5 (finding counsel’s failure
to investiga

te complainant’s daug hter’s stay at a psy chiatric fac ility was not based upon a rea sonable profe ssional j u d gm en t b eca use he never attempted to asce rtain the contents of a rela ted repor t); Profitt v. W

a l d r o n , 831 F.2d 1245, 1248–50 (5th Cir. 1987) (finding trial counsel ineffe ctive for, among other re asons, fa iling to investig ate the r easons the de fenda nt was in a menta l insti tution). I n reje cting Petitioner’s argument that his trial counsel was ineffe ctive for failing to investigate and pursue the claims of lac k of compe tency to stand trial and leg al insanity , howeve r, the Michig an Court of Appea ls found “nothing appar ent from the trial court fi l e t o s u ggest that [P etitioner’s] counsel faile d t o i n s p ec t the court file.” Brown , 2003 WL 22681550, at *7. The Michig an Court of Appea ls then went on to deter mine that tri al co u n s el satisfied Strickland ’s standard beca

use h e “appare ntly conclude d that intox ication was a better means to exclude the confe ssion than [P etitioner’s] state of mind,

. . . i n l i g ht of the psy cholog ical repor t deter mining [P etitioner] was competent,” and that “if he could not show that [P etitioner] lacke d the state of mind
to w aive his Miranda rig hts, he may not be able to have [Petit ioner] deemed inc ompetent to stand trial, and that a

n insanity defe nse wa s likely

unprovable .” Id. AEDPA, in conjunction with Strickland , require s this Court to g ive double defe renc e to the finding s of the Michig an Court of Appea ls, and the Court must deter mine whether the state court’s application of Strickland was unrea sonable, not whether defe nse counsel’s perf ormanc e fell below the Strickland standard. Richter , — U.S. at —, 131 S. Ct

. at 7 8 5 , 788. As there is nothing in the

rec ord that sug g ests Wil liams fa i l ed t o i nspect the file, aside from the hear say statements in

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Eugene Brown v. Kenneth T. McKee , W arden

Petitioner’s habea s counsel’s aff idavit, the decision of the Michig an Court o f Ap peals is not

unrea sonable. I n sum, althoug h it a

ppear s trial counsel’s perf ormanc e may have been defic ient for failing
to conduct a rea sonable investigation into Petitioner’s mental state and whether to raise competenc y to stand trial and an insanity defe nse, the Michig an Court of Appea ls’s application of Strickland was not unrea sonable, and at best, fairminded jurists could disag ree on the corr ectne ss of the state court’s decision. Thus, Petitioner is not entitled to ha beas relief

. Richter , — U.S. a

t —, 131 S. Ct. at 786 (“[E]ven a strong ca s e for relief does not mean the state court’s contra ry conclusion was

unrea sonable.” (citation omitted)); see also id. (“A state court’s deter mination that a claim lacks merit prec ludes fede ral habea s relief so long as ‘fa irminded jurists could disag ree ’ on the corr ectne ss of the state c ourt’s dec ision.” (citation omitted)).

2. P etitioner was Not P rej udi ced Even assuming trial coun s el’s perf ormanc e was defic ient and that the Michig an Court of Appea ls’s application of Strickland was unrea sonable, Petitioner was not prejudice d. The Michig an Court of Appea ls did not addre ss this prong of the Strickland test, see Brown , 2003 WL 22681550,
at *7; hence , the Court must revie w this prong de novo , see W igg i n s v. Smith , 539 U.S. 510, 534 (2003) (holding that the Supreme Court’s revie w was “not circ umscribed by a state court conclusion with respe ct t o prejudice , as neither of t he st ate courts belo w re ac h ed this prong of t he Strickland analy sis”).

23No. 07-2089

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Under this prong , “[t] he defe ndant must show that there is a rea sonable probability that, but for counsel’s unprofe ssional err ors, the result of the proce eding would have been differ ent.” Strickland , 4 6 6 U. S. at 694. “A rea sonable probability is a probability sufficie nt to undermine confide nce in the outcome.” Id. I t r equire s a “substantial,” not just “conc eivable,” likelihood of a differ ent outcome. Richter , — U.S. at —, 131 S. Ct . at 792. Petitioner argues the defic iencies of his trial counsel sever ely prejudice d him beca use there is a g reat probability that he would have been acquitted had hi s t ri al counsel known about his psy chiatric history , mental illness, and reta rdation, had proper ly investigated all fac ts and defe nses rela ted t here to, had sought an independent ps y chiatric evalua tion, and raised t he ins anity defe nse. He submits that, at the minimum , there would have been doubt cast on the reliability of Petitioner’s
statement to the police and the jury may either not have believed its vera city or acc orded it so littl e weig ht that Petiti oner w ould have be en ac quitted. Petit ioner submitt ed to the Michig an Court of Appea ls the aff idavit of Dr. Miller, which indicates that Dr

. Miller revie wed various psy chiatric and psy cholog ical records of Petitioner and the re port of Dr . Kolito. Dr. Miller, howe ver, did not per sonally interview Petit ioner. Dr. Miller 5

The district cour

t appropria

tely summarized the aff

idavit as follows: 5 After Petitioner’s conviction and s en t en ce, Dr. Steven Miller revie wed various psy chiatric and psy cholog ical rec ords of Petitioner, as well as the repor t prepa red by Dr. Kolito, which ha d found Petitioner compete nt to stand trial. Dr. Miller di d not p er sonally interview Petitioner. I n his aff idavit, Dr. Miller indicated that aft er r e v ie w in g Pe titioner’s prior psy chiatric rec ords, he was unable to “surm is e , s p e c u la te , and/or conclude ” the following about Petitioner’s “possible n eu ro logic al status, psy cholog ical adjustment and mental status at the time of his alleg ed crimes and prior 24No. 07-2089

Eugene Brown v. Kenneth T. McKee , W arden

was able to “surmise, s p ec ulate and/or conclude the following about [P etitioner’s] possible neurolog ical status, psy cholog ical adjustment and mental status at the time of his alleg ed crimes and prior to and during his trial, and his o v e rall developmenta l and cog nitive functioning capa cities”: that “ther e are very strong indications that [P etitioner] suffe rs from what is leg ally define d as a ‘mental illness,’” and that Petitioner, “quite possibly , s u ff ers from ‘Mental Retarda tion’ as this term is define d by law” (R

. 2 E x . 3 A ¶¶ 3–5). In addition, Dr. Miller found that Petitioner’s “mental functioning at the time of the alleg ed commission of these offe nses may have rende red him unable
to appre ciate the nature of the wrong fulness of his conduct and/or resulted in his lack of capa city to confor m his behavior to the re quirements of the law.” ( Id . ¶ 4; see also id. ¶ 5).

a. Insan ity Defense Under Michig an law, leg al ins an i t y i s deter mined with respe ct to the moment wher e the defe ndant “commit[s] the acts constituting the offe nse.” Mich. Comp. L aws § 768.21a. The defe nse of insanity “re quir[es] proof that, as a result of mental illness or being mentally reta rded as define d

to and during his trial, and his overa ll developmenta l cog nitive functioning capa cities (i.e., basis intelligenc e, attention and mental focus, memory , judgme nt, decision making abilities, aff

ective stability , behavior contro l capa city , lear ning capa city , rea lity testing, and over- all social and emotional adjustment).” Dr. Miller conclude d “that there are very strong indications that [P etitioner] suffe rs from wh at i s l egally define d as ‘mental illness,’” that Petitioner “quite possi b l y , suffe rs form ‘Mental Retarda tion’ as this term is define d by law,” and that Petitioner’s mental functioning “may have rende red him un ab l e to appre ciate the nature and wrong fulness of his conduct and/or resulted in his lack of capa city to confor m his beh av i o r t o t he require ments of the law.” Brown v. McKe e , 2007 WL 2050350, at *8 (a lteration in orig inal and citations omitted). 25No. 07-2089

Eugene Brown v. Kenneth T. McKee , W arden

in the mental health code, the defe ndant lacke d ‘substantial capa city either to appre ciate the nature and q uality of the wrong fulness of his or her conduct or confor m his or her conduct to the require ments of the law.’” People v. Carpenter , 627 N.W.2d 276, 280 (Mich. 2001) (citation omitted). “The defe ndant has the burden of proving the defe nse of insanity by a preponde ranc e of the evidenc e.” Mic h. Comp. L aws § 768.21a (3). To war rant ha beas relief, Petit ioner must “show that he had a substantial defe nse, and tha t failure to prese nt that defe n s e re n d ered the trial fundame ntally unfair or unreliable .” W alker v. Mc Qu i g g a n , 656 F.3d 311, 321 (6th Cir. 2011) (citations and footnote omitted). Dr. Mille r’ s conclusions reg arding Petitioner’s mental functioning at the time o f th e o f f e n s es are not unequivoca l,

see Fisher v. Smith , 126 F. App’x 275, 282 (6th Cir. 2005) (finding the equivoca l testimony of the

same doctor reg arding th e petitioner’s alleg ed insanity “insuffic ient to establish a rea sonable probability that, but for trial counsel’s defi ci en t p er fo rmanc e, the outcome of the t rial m ight have been differ ent”) , and indeed, he did not persona lly revie w Petitioner

. Moreove r, Petitioner’s
statement to the police that he “wa s sorry the man g ot shot” indicates that Petitioner could appre ciate the wrongf

ulness o f h i s conduct. This statement alone could have undermined any claim of leg al insanity

. I n sum, althoug h it is conce ivab l e that there may have been a differ ent result had trial counsel investiga

ted and raised the insanity defe nse, Petitioner has not demonstrated that there was a substantial likelihood of a diff ere nt outcome had he done so.

26No. 07-2089

Eugene Brown v. Kenneth T. McKee , W arden

b. Com petency t o Stand Trial Under Michig an law , a d ef en d ant is presumed competent to stand trial and “shall be deter mined incompetent to stand trial only if he is incapa ble beca use of his mental condition of understanding the nature and object of the proce eding s ag ainst him or of assisting in his defe nse in

a rational manner .” Mich. Comp. L aws § 330.2020(1). A defe ndant “is not prejudice d by counsel’s failure to se ek a competenc y evaluation, absent an actua l basis to support a claim of incompetenc y at the time of the proce eding .” Bair v. P h i l l i p s , 106 F. Supp. 2d 934, 941 (E.D. Mich. 2000) (citations omitted). Petitioner has offe red no evidenc e that he was acting abnorma lly during the pre- trial or trial proce eding s. See Bair , 106 F. Supp. 2d at 942. Moreove r, a revie w of the transcr ipt from the W alker hear ing reve als that Petitioner testified rationally and clea rly reg arding the circ umstances surrounding the taking of his statement to the police. Fur ther, Dr. Kolito found Petitioner competent to stand trial, and his conclusion was based upon his interview of Petitioner and numerous psy cholog ical tests perf

ormed on Petitioner. Although he noted Pet i t i oner was “maling ering ” at times, he also noted that Petitioner’s phy sical movements wer e well coordina ted, that he spoke easily and flue ntly , that his thought patter ns were coher ent and his r esponses dire ct and to the point, that his attention and conce ntration wer e undisturbed, and that he was proper ly oriented as to time, place , and persons, and in his rela tion to rea lity

. He noted Petitioner could discuss his statement, and that he understood his leg al situation, issues, and proce dures. Thus, at the time of the proce eding , there

was no actua l basis to support a claim of incompetenc y . See , e.g. , Bainter v Trickey , 932 F.2d 713,

27No. 07-2089

Eugene Brown v. Kenneth T. McKee , W arden

716 (8th Cir. 1991) (finding habe as petitioner unable to establish prejudice as a result of his trial counsel’s failure to raise competenc y befor e the state court beca use petitioner’s trial testimony was “lucid[,]

. . . minutely detailed

. . . and responsive” (alter ation in orig inal)). Petitioner, there fore , was not prejudice d by

counsel’s f

ailure to investig ate a

nd raise c ompetency

to stand trial. III. CONCLUSION For the re asons explained here in, we AF F IRM the judg ment of the district cour t.

28No. 07-2089

Eugene Brown v. Kenneth T. McKee , W arden
MERRITT, Circuit Judge, concurring. I concur in the court’s opinion beca use Article I I I judge s have so littl e room left for judgme nt now under the AEDPA standard which a unanimous Supreme Court has rec entl y d es cribed as allowing habea s only “as a g uard ag ainst extreme malfunctions in the state criminal justice sy stems and not as a me ans of err or corr ection.” Gree ne

v. Fisher , 1 3 2 S

. C t

. 3 8 , 43 (2011) (interna l quotation marks omitted). Thus, the fac t that the petitioner did not rec eive eff ective counsel must a lso rise to the level of an “extreme malfunction” of t he sy stem of criminal justice. I assume that this now means not only a constitutional err or but also an unc onscionable r esult. The ca se does not rise to that leve l.

29No. 07-2089

Eugene Brown v. Kenneth T. McKee , W arden
COLE, Circuit Judge. Concurs i n b o t h the opinion of the court and in the separ ate

concur renc e.

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