Kajuan Hale v. Sherry Burt

Filing

OPINION filed : We AFFIRM the district court s denial of Hale s petition for a writ of habeas corpus, decision not for publication. Damon J. Keith, Circuit Judge; Deborah L. Cook, Circuit Judge and David W. McKeague, (Authoring) Circuit Judge.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0207n.06

FILED

Case No. 14-1563
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

KAJUAN D. HALE,
Petitioner-Appellant,
v.
SHERRY BURT,
Respondent-Appellee.

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Apr 13, 2016
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF MICHIGAN

OPINION

BEFORE: KEITH, COOK, and McKEAGUE, Circuit Judges.
McKEAGUE, Circuit Judge. Kajuan Hale was convicted in state court of possession of
a firearm during the commission of a felony and of second-degree murder for killing a man
during a bar fight. He now brings three claims for habeas relief: (1) a due process violation for
prosecutorial misconduct; (2) ineffective assistance of trial counsel for failing to object to the
prosecutorial misconduct; and (3) ineffective assistance of appellate counsel for failing to raise
these two issues in his second, discretionary appeal and for failing to consult with Hale about the
“pros and cons” of filing such an appeal.
Hale did not object to the alleged prosecutorial misconduct at trial, and so his first claim
is procedurally defaulted. Hale asserts ineffective assistance of trial counsel as cause to excuse
the procedural default, but his ineffective assistance of trial counsel claim is itself procedurally

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defaulted. Hale asserts ineffective assistance of appellate counsel as cause to excuse this second
procedural default. However, because his trial counsel’s failure to object to the prosecutor’s
closing argument did not prejudice Hale’s defense, Hale cannot excuse either of the procedural
defaults. And because Hale had no right to counsel during his second, discretionary appeal, he
could not be unconstitutionally deprived of the effective assistance of appellate counsel by his
attorney’s failure to seek leave to appeal from the Michigan Supreme Court. Accordingly, we
affirm the district court’s denial of habeas relief.
I. Background
The Crime. The underlying crime involves the fatal shooting of Nelson Hardiman by
Kajuan Hale on March 16, 2001, in the City of Detroit. Hale and his friend Rej were playing
pool at the Tippin Inn Lounge. Hardiman was also at the Tippin Inn Lounge with his cousins,
Antonio Vernon and Reginald Marshall, and his friend, Steve Gresham.

A dispute arose

between Hale and Rej and two women at the bar over whose turn it was to play next on the pool
table. Hardiman stepped into the dispute, arguing that it was the women’s turn. Hale responded
by pounding both of his fists on the pool table and suggesting that they take things outside.
Hale and Hardiman left the bar. Their friends soon followed. When they got outside,
Vernon and Marshall saw that Hale had a gun in his hand and that Hardiman was attempting to
calm Hale down. Marshall retrieved Vernon’s pistol from Hardiman’s car. Hale got into his
van, keeping his gun on his lap, while Hardiman and Gresham continued to try to calm Hale
down through the passenger-side window.
Vernon went into the bar to get his belongings. When he returned, he saw Hardiman and
Hale standing in the middle of the street. He believed that the situation had ended and that
everything was all right between them. Hardiman asked his cousin Marshall for his keys.

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Marshall reached out to give Hardiman his keys, but when Hardiman saw that Marshall was still
holding a gun, he took the gun and pistol-whipped Hale in the head. Hardiman and Hale began
to fight.
Rej fired a shot into the air. Hardiman got up and started to run away, leaving Hale on
the ground behind him. Hale then drew his gun and fired several shots at Hardiman. Hardiman
fell to the ground. Hale stood up, walked over to Hardiman, and shot him several more times.
Vernon testified that he saw Hale spit on Hardiman. Vernon and Marshall both testified that,
when Hale drove away, it looked like Hale tried to run over Hardiman’s body. A forensic
pathologist examined Hardiman’s body and identified seven gunshot wounds: three in his back,
one in his left arm, two in his left leg, and one in the top of his head.
Hale’s Trials. Hale was charged with first-degree premeditated murder and felonyfirearm. Mich. Comp. Laws §§ 750.316, 750.227b. At his first trial, the jury was unable to
reach a verdict, and the judge declared a mistrial. At his second trial, the jury found Hale guilty
of the lesser-included offense of second-degree murder and of felony-firearm. Mich. Comp.
Laws §§ 750.317, 750.227b. He was sentenced to thirty-five to sixty years’ imprisonment for his
second-degree murder conviction and two years’ imprisonment for his felony-firearm conviction,
running consecutively.
Hale’s Direct Appeals. Hale appealed as of right to the Michigan Court of Appeals,
challenging his conviction due to prosecutorial misconduct during closing argument and his
sentence as disproportionate and improperly exceeding the sentencing guidelines. The Michigan
Court of Appeals affirmed his conviction but remanded for resentencing on the second-degree
murder conviction. Neither Hale nor the government sought leave to appeal this decision to the
Michigan Supreme Court.

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Hale was resentenced to twenty-eight to sixty years’ imprisonment for his second-degree
murder conviction; a sentence that still exceeded the guidelines’ range. Hale appealed, but the
Michigan Court of Appeals upheld his sentence. Hale sought leave to appeal to the Michigan
Supreme Court, but was denied. He did not seek certiorari from the United States Supreme
Court.
Post-Conviction Proceedings. Hale filed a petition for a writ of habeas corpus in federal
district court on September 15, 2006, claiming that the trial court violated his rights to due
process and trial by jury when it sentenced him above the guidelines’ range. He then filed a
motion to stay his petition so that he could exhaust several other claims in state court. The
district court granted the motion.
Hale sought state collateral review of his convictions for second-degree murder and
felony-firearm by filing a motion for relief from judgment in state trial court. See Mich. Ct. R.
§§ 6.501–.509. He brought several claims, including claims for prosecutorial misconduct and
ineffective assistance of trial and appellate counsel. Under Michigan law, when a claim could
have been raised on direct appeal, a criminal defendant seeking collateral review must establish
actual prejudice (among other things) to avoid the state’s bar against granting post-judgment
relief. Mich. Ct. R. § 6.508(D)(3). The state trial court noted that Hale had unsuccessfully
raised his prosecutorial misconduct claim on direct review and so held that Hale had not shown
actual prejudice. The Michigan Court of Appeals denied his application for leave to appeal
“because defendant has failed to meet the burden of establishing entitlement to relief under MCR
6.508(D).” R. 50-1, State Post-Conv. Ct. App. at 1, Page ID 1829. The Michigan Supreme
Court denied Hale’s application for leave to appeal for the same reason.

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Hale returned to federal court with an amended petition for a writ of habeas corpus. On
the recommendation of the magistrate judge, the district court denied Hale’s habeas petition and
denied him a certificate of appealability. Hale appealed, and this Court granted a certificate of
appealability.
II.

The Standard of Review

Hale’s habeas petition is governed by the Antiterrorism and Effective Death Penalty Act
(AEDPA). 28 U.S.C. §§ 2241–2266. The district court denied Hale’s petition for a writ of
habeas corpus. In an appeal of a § 2254 habeas action, we review the district court’s legal
conclusions de novo. Cristini v. McKee, 526 F.3d 888, 897 (6th Cir. 2008) (citing Dyer v.
Bowlen, 465 F.3d 280, 283–84 (6th Cir. 2006)). “Factual determinations are generally reviewed
for clear error, except where the district court has made factual determinations based on its
review of trial transcripts and other court records.

In such cases, because no credibility

determination or findings of fact are required, factual conclusions are reviewed de novo.” Dando
v. Yukins, 461 F.3d 791, 796 (6th Cir. 2006) (internal quotation and citations omitted).
A writ of habeas corpus cannot be granted with respect to any claim that was adjudicated
on the merits in the state courts unless the adjudication resulted in a decision that was contrary
to, or involved an unreasonable application of, clearly established federal law as determined by
the Supreme Court; or was based on an unreasonable determination of the facts in light of the
evidence presented to the state courts. 28 U.S.C. § 2254(d). A state court decision is “contrary
to” clearly established federal law “if the state court arrives at a conclusion opposite to that
reached by [the Supreme Court] on a question of law or if the state court decides a case
differently than [the Supreme Court] has on a set of materially indistinguishable facts.” Williams
v. Taylor, 529 U.S. 362, 412–413 (2000). A state court decision involves an “unreasonable

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application” of clearly established federal law if the state court “identifies the correct governing
legal principle from [the Supreme Court’s] decisions but unreasonably applies that principle to
the facts of the prisoner’s case.” Id. at 413. “[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.” Harrington v. Richter, 562 U.S. 86, 103 (2011).
III.

The Statute of Limitations

As an initial matter, the government argues that Hale’s claims are barred by AEDPA’s
one-year statute of limitations. Under AEDPA, the statute of limitations period begins to run
from the latest of four possible dates, the relevant one here being the “date on which the
judgment became final by the conclusion of direct review or the expiration of the time for
seeking such review.” 28 U.S.C. § 2244(d)(1)(A). The Michigan Supreme Court denied Hale’s
application for leave to appeal on December 27, 2005. Hale then had ninety days to seek
certiorari from the United States Supreme Court. Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir.
2000); Sup. Ct. R. 13.1. Hale did not seek certiorari from the United States Supreme Court.
Thus, his one-year statute of limitations period began to run on March 27, 2006.
Hale filed his original habeas petition on September 15, 2006. His original petition only
raised one claim: a challenge to his sentence. He subsequently filed a motion to stay, asking the
district court to hold his habeas petition in abeyance so that he could exhaust additional claims in
state court. The government points out now that the district court marked Hale’s motion to stay
as filed on March 28, 2007, one day after his statute of limitations period ended. However, Hale
is a prisoner who, at the time, was representing himself. Pursuant to the federal pro se prisoner
mailbox rule, Hale’s motion is considered to have been filed at the time Hale delivered it to the

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prison authorities for filing in the federal courts. See Houston v. Lack, 487 U.S. 266, 270–72
(1988); Scuba v. Brigano, 527 F.3d 479, 484 (6th Cir. 2007); Cook v. Stegall, 295 F.3d 517, 521
(6th Cir. 2002) (“The rationale for the rule is that the date the prisoner gives the petition to the
prison can be readily ascertained, and any delays in receipt by the court can be attributed to the
prison, and pro se litigants should not be penalized for a prison’s failure to act promptly on their
behalf.” (citing Lack, 487 U.S. at 275–76)). Although his motion was not marked as filed until
March 28, 2007, Hale swore in his certificate of service under penalty of perjury that his motion
was sent via U.S. Mail on March 20, 2007. Hale then returned to federal court with an amended
petition, raising his sentencing challenge and bringing new claims, including the three claims on
this appeal. Thus, Hale’s claims are not barred by the statute of limitations.
IV.

Hale’s Prosecutorial Misconduct Claim

Hale claims that his right to due process was violated by the prosecutor’s argument to the
jurors that it was their civic duty to convict Hale. During her closing argument, the prosecutor
decried the “epidemic of violence in this country[,] . . . especially young African-American men
killing other young African-American men about nothing.” R. 25-4, Trial Tr. at 2, Page ID
1217. She stated that “[e]very part of that poison that’s going on in society, it all adds up. It all
makes it all go round. This is the part you’re responsible for, is this man murdering another man
over nothing.” Id. at 2–3, Page ID 1217–18.
“[A] criminal conviction is not to be lightly overturned on the basis of a prosecutor’s
comments standing alone.” United States v. Young, 470 U.S. 1, 11 (1985). For a due process
claim on the basis of prosecutorial misconduct, “it is not enough that the prosecutor’s remarks
were undesirable or even universally condemned.” Darden v. Wainwright, 477 U.S. 168, 181
(1986) (internal quotation marks omitted). The misconduct must have “so infected the trial with

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unfairness as to make the resulting conviction a denial of due process.” Id. (citing Donnelly v.
DeChristoforo, 416 U.S. 637 (1974)).
A. Hale’s Civic Duty Argument includes the Prosecutor’s Race-Based Statement
The government argues that the prosecutor’s race-based statement (“especially young
African-American men killing other young African-American men about nothing”) serves as the
basis of a separate prosecutorial misconduct claim—one that had never been raised in any state
court or in the district court below.

However, the prosecutor’s race-based and civic duty

statements are not as neatly severed as the government asserts.
It is true that Hale made no specific race-based arguments before the state courts or in his
habeas petition, and he did not quote the race-based statement until he filed his federal appellate
briefs. Rather, he evidenced his prosecutorial misconduct claim by quoting the prosecutor’s
improper statement as: “We’ve got something going on in this society, if you watch the news, if
you read the newspaper, unless your head’s in the sand, you know that there is an epidemic of
violence in this country . . . that’s what this is, in the grand scheme of things.” R. 30, Mich. Ct.
App. Br. at 25, Page ID 1506 (omission in original). The prosecutor’s complete statement,
however, was:
We, unfortunately, we’ve got something going on in this society, if you watch the
news, if you read the newspaper, unless your head’s in the sand, you know that
there is an epidemic of violence in this country. Unfortunately, especially young
African-American men killing other young African-American men about nothing,
because that’s what this is, in the grand scheme of things.
R. 25-4, Trial Tr. at 2, Page ID 1217 (emphasis added). By reading the prosecutor’s statement in
its entirety, it becomes clear that “what this is” is the prosecutor’s reference to black-on-black
violence. Thus, we read the prosecutor’s race-based statement as further evidence of Hale’s
civic duty argument, not as serving as the basis of a different claim.

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Notably, on direct appeal the Michigan Court of Appeals looked at the entirety of the
prosecutor’s statements about civic duty, including the race-based statement, even though Hale’s
brief omitted the race-based statement in quoting the prosecutor’s remarks. And, in denying
habeas relief, the district court below quoted the prosecutor’s closing argument inclusive of the
prosecutor’s race-based statement. Because the race-based statement is part of the prosecution’s
civic duty argument and because a state court evaluated the prosecutor’s statements in their
entirety, we will consider the race-based statement in evaluating Hale’s prosecutorial misconduct
claim, but only in the context of the prosecution’s civic duty argument.
B. Procedural Default
“Generally, in order to respect state court rulings and preserve federalism principles,
before a federal court rules on the merits of a petitioner’s § 2254 petition: (1) the petitioner must
have exhausted his available state remedies, and (2) the petitioner’s claims must not be
procedurally defaulted.”

Atkins v. Holloway, 792 F.3d 654, 657 (6th Cir. 2015) (citations

omitted). A procedural default occurs where “the last state court to render a judgment in the case
rejected the claim because it was not presented in accordance with the state’s procedural rules.”
Hargrave-Thomas v. Yukins, 374 F.3d 383, 387 (6th Cir. 2004).
Pursuant to Michigan’s contemporaneous objection rule, where a defendant failed to
object to the prosecutor’s statement in the trial court, the claim will be treated as waived and
reviewed by the state appellate court only for plain error. See Hall v. Vasbinder, 563 F.3d 222,
236 (6th Cir. 2009). Here, the state court applied this rule to Hale’s prosecutorial misconduct
claim. People v. Hale, No. 243733, 2003 WL 22961696, at *1 (Mich. App. 2003). Accordingly,
Hale’s prosecutorial misconduct claim was procedurally defaulted by his failure to object to the
prosecutor’s remarks during closing argument. See id.; see also Taylor v. McKee, 649 F.3d 446,

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451 (6th Cir. 2011) (“Michigan’s contemporaneous-objection rule is both a well-established and
normally enforced procedural rule.”). However, a “[p]rocedural default can be avoided if a
habeas petitioner can show” both “cause for the default and prejudice resulting from the
default[.]” Taylor, 649 F.3d at 451. Thus, we must determine whether Hale can show cause and
prejudice excusing this default. Wainwright v. Sykes, 433 U.S. 72, 87 (1977).
“To show cause, a petitioner must show that ‘some objective factor external to the
defense impeded . . . his efforts to comply with the State’s procedural rule.’” Burroughs v.
Makowski, 411 F.3d 665, 667 (6th Cir. 2005) (per curiam) (quoting Murray v. Carrier, 477 U.S.
478, 488 (1986)). Hale argues that his procedural default should be excused because his trial
counsel was constitutionally ineffective for failing to object to the prosecutor’s remarks during
closing argument.1
“An argument that ineffective assistance of counsel should excuse a procedural default is
treated differently than a free-standing claim of ineffective assistance of counsel. The latter must
meet the higher AEDPA standard of review, while the former need not.” Hall, 563 F.3d at 236–
37 (citations omitted). Thus, we review this claim de novo.

1

“Ineffective assistance of counsel can supply the cause that, together with prejudice, would
excuse a procedural default.” McFarland v. Yukins, 356 F.3d 688, 699 (6th Cir. 2004).
However, the government correctly identifies that the state court procedurally defaulted the
ineffective assistance of trial counsel claim under Michigan Court Rule 6.508(D)(3)(b) because
Hale should have raised the claim on direct appeal. See Taylor, 649 F.3d at 452 (“[D]efendants
in Michigan may bring ineffective-assistance claims on direct appeal[.]”). In other words, Hale’s
ineffective assistance of trial counsel claim is itself procedurally defaulted. Hale argues that his
appellate counsel was constitutionally ineffective for failing to bring this claim, and so he has
cause and prejudice to excuse the default. A counsel’s “failure to raise an issue on appeal” does
not amount to ineffective assistance unless “there is a reasonable probability that inclusion of the
issue would have changed the result of the appeal.” McFarland, 356 F.3d at 699. Therefore, this
ineffective assistance of appellate counsel argument depends on the success of his ineffective
assistance of trial counsel claim, and so we evaluate the merits of his ineffective assistance of
trial counsel claim. See id.; see also Altman v. Winn, No. 14-2334, 2016 WL 1254049, at *4 (6th
Cir. Mar. 31, 2016).
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To establish ineffective assistance of trial counsel, Hale must show that (1) his counsel’s
performance “fell below an objective standard of reasonableness,” and (2) the deficient
performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687–688 (1984).
However, “[a] court need not assess counsel’s deficient performance before considering
prejudice, where the latter inquiry is an easier one.” Altman v. Winn, No. 14-2334, 2016 WL
1254049, at *4 (6th Cir. Mar. 31, 2016) (citing Strickland, 466 U.S. at 697).
To show prejudice, Hale must establish that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694.

Hale has not shown that, had his counsel objected to the

prosecutor’s remarks, there is a reasonable probability that the result of the proceeding would
have been different. The jury was instructed that the attorneys’ closing arguments were not
evidence. Additionally, there was substantial evidence against Hale. See id. at 695 (instructing
courts to consider “the totality of the evidence before the . . . jury”).
Jury Instructions. As the Michigan Court of Appeals noted, “any undue prejudice to
defendant’s trial was cured by the trial court’s instructions to the jury that the questions and
statements of the lawyers are not evidence and that the prosecutor must prove each element of
the crime beyond a reasonable doubt.” R. 30, Mich. Ct. App. at 4, Page ID 1435. The
prosecutor’s statements were not so extreme that the instructions given could not cure any
prejudice that may have resulted from the prosecutor’s closing argument. See Johnson v. Bell,
525 F.3d 466, 484–85 (6th Cir. 2008) (holding that the trial court’s general instruction that
closing arguments were not evidence was sufficient to cure any prejudice from the prosecutor’s
statements that his daughter attended the same school as the victim, that it “could have been my

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little girl that was in that store,” and that the victim could easily have been any of the jurors or
their children “if we decided that we wanted to buy something from” that store).
Substantial Evidence of Guilt.

The evidence presented at trial was substantial in

establishing that Hale was not acting in self-defense. The evidence showed that Hale and his
friend Rej got into a verbal dispute with Hardiman and his cousins and friend. The two parties
continued the dispute outside, at which point both men became armed. Eventually, Hardiman
pistol-whipped Hale in the head and the two fought. Rej fired a shot into the air, and Hardiman
started to run away, leaving Hale on the ground. Hale then drew his gun and fired several shots
at Hardiman, who fell to the ground. Hale stood up, walked over to Hardiman, and shot him
several more times.
Hale argues that the hung jury in his first trial demonstrates that the evidence against him
was not substantial. However, the central question during Hale’s trial was whether or not he had
acted in self-defense.

See, e.g., R. 30-2, Mich. Ct. App. Br. at 18–19, Page ID 1500

(characterizing the incident as “Defendant, fearing for his life, shot the armed deceased after the
deceased got up off of him. Because the deceased was armed and had attacked him, Defendant,
in self defense, shot at him several times”). Therefore, it is plausible that “the first jury was hung
between first-degree and second-degree murder,” not “between guilt and innocence.” Appellee
Br. 38–39.

This is particularly true given the strength of the evidence against Hale.

Additionally, the jury in Hale’s second trial convicted him of second-degree murder, and not
first-degree murder as the prosecution sought, which provides evidence that the jury decided the
case based on the evidence before them and not on the prosecutor’s remarks during closing
argument.

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Thus, Hale has not demonstrated that he was prejudiced by his trial counsel’s failure to
object to the prosecutor’s statements during closing argument. Because his ineffective assistance
of trial counsel claim fails, Hale does not have cause and prejudice to excuse the procedural
default of his prosecutorial misconduct claim.
V.

Hale’s Ineffective Assistance of Trial Counsel Claim

In his habeas petition and on appeal, Hale also brings his claim of ineffective assistance
of trial counsel for failure to object to the prosecutor’s closing argument as a freestanding claim.
As discussed above, Hale’s ineffective assistance of trial counsel claim is procedurally defaulted
because Hale did not raise the claim on direct appeal. See supra note 1; Taylor, 649 F.3d at 452.
Hale argues that this procedural default should be excused because his appellate counsel was
ineffective for failing to bring this claim. However, because he cannot show that he was
prejudiced by his trial counsel’s failure to object, his appellate counsel was not ineffective on
direct appeal for failing to raise the issue. See McFarland, 356 F.3d at 699. Therefore, Hale
does not have cause and prejudice to excuse the procedural default of his ineffective assistance
of trial counsel claim.
VI.

Hale’s Ineffective Assistance of Appellate Counsel Claims

Hale also raised two claims of ineffective assistance of appellate counsel as independent
grounds for habeas relief: (1) his appellate counsel did not appeal his prosecutorial misconduct
claim to the Michigan Supreme Court on direct review; and (2) his appellate counsel failed “to
consult with Hale about the pros and cons of [filing this discretionary appeal].” Reply Br. 13;
see R. 41, Amended Petition at 11–12, Page ID 1721–22. 2

2

In addition, Hale argues that these two claims of ineffective assistance of appellate counsel
excuse the procedural default of his prosecutorial misconduct claim for failing to appeal to the
Michigan Supreme Court on direct review, advocating for an extension of Martinez v. Ryan, 132
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Failure to File. Hale claims that his appellate counsel was constitutionally ineffective for
failing to seek leave to appeal his prosecutorial misconduct claim to the Michigan Supreme
Court on direct review. However, a criminal defendant does not have a constitutional right to
counsel to pursue second, discretionary state appeals. Ross v. Moffitt, 417 U.S. 600, 610, 612
(1974). Because Hale had no constitutional right to counsel, he could not be deprived of the
effective assistance of that counsel. Wainwright v. Torna, 455 U.S. 586, 587–88 (1982).
Failure to Advise. Hale also claims that his appellate counsel was unconstitutionally
ineffective for failing to advise him on the merits of seeking leave to appeal his prosecutorial
misconduct claim to the Michigan Supreme Court on direct review.

“There can be a

constitutional claim of ineffective assistance of counsel only at a stage of the proceedings when
there is a right to counsel under the Sixth Amendment.” Smith v. Ohio Dep’t of Rehab. & Corr.,
463 F.3d 426, 433 (6th Cir. 2006) (citing Coleman v. Thompson, 501 U.S. 722, 752 (1991)).
Hale had no constitutional right to have his appellate counsel advise him on the merits of seeking
leave to appeal to the Michigan Supreme Court. See Torna, 455 U.S. at 587–88. There is no
principled difference between having counsel represent a defendant during a second,
discretionary appeal and having counsel advise a defendant on whether or not to seek a second,
discretionary appeal, and a criminal defendant does not have a constitutional right to counsel to
pursue second, discretionary state appeals. Ross, 417 U.S. at 612. None of the cases that Hale
cites indicate that he had a freestanding constitutional right to have his appellate counsel advise
him of “the pros and cons of” filing a second, discretionary appeal. See Gunner v. Welch, 749

S. Ct. 1309 (2012). See Reply Br. 11–15. We need not address these arguments, however,
because as discussed above his prosecutorial misconduct claim is procedurally defaulted by his
trial counsel’s failure to object.
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F.3d 511, 519 (6th Cir. 2014); Johnson v. United States, 364 F. App’x 972, 975 (6th Cir. 2010);
Smith, 463 F.3d at 433.
Because Hale did not have a constitutional right to have his appellate counsel advise him
on the pros and cons of seeking leave to appeal to the Michigan Supreme Court, we reject this
ineffective assistance of appellate counsel claim.
***
For the above reasons, we AFFIRM the district court’s denial of Hale’s petition for a writ
of habeas corpus.

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