John Ray v. Duncan MacLaren

Filing

OPINION filed : We VACATE in part the district court's denial of habeas relief and REMAND for further proceedings. Decision not for publication. Karen Nelson Moore and Deborah L. Cook, Circuit Judges; and Benita Y. Pearson (AUTHORING), U.S. District Judge for the Northern District of Ohio, sitting by designation. *A formatting error in the footnotes has been corrected.--[Edited 07/05/2016 by CL]--[Edited 07/05/2016 by CL]

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0374n.06
No. 14-2016
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

FILED
JOHN HENRY RAY,
Petitioner-Appellant,
v.
DUNCAN MACLAREN, Warden,
Respondent-Appellee.

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Jul 05, 2016
DEBORAH S. HUNT, Clerk
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF MICHIGAN

BEFORE: MOORE and COOK, Circuit Judges; PEARSON, District Judge.*
PEARSON, District Judge.

Petitioner John Henry Ray is serving a life sentence

without the possibility of parole for convictions of murder, killing an unborn child, assault,
armed robbery, home invasion, and being a felon in possession. Prior to trial, Ray had reason to
believe that one of the complaining witnesses had an ongoing relationship with the police
department that investigated his case. When Ray sought production of evidence to substantiate
his belief, the prosecutor requested that the trial judge review the evidence ex parte and in
camera. Neither Ray nor his counsel were present during the review of the evidence. Following
the ex parte review, the trial judge ruled that there was no relevant relationship between Ray’s
case, the complaining witness, and the police department. Consequently, Ray was denied access
to the evidence reviewed and the transcript of the in camera review.
Appealing from the district court’s denial of his petition for a writ of habeas corpus, Ray
raises two grounds for granting his petition. He argues that he was deprived of counsel during a

*

The Honorable Benita Y. Pearson, United States District Judge for the Northern District of Ohio, sitting
by designation.

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critical stage when his counsel was not permitted to attend the in camera hearing. He also argues
that his appellate counsel was ineffective for failing to raise that critical stage issue on direct
appeal. For the reasons set forth below, we VACATE in part the district court’s denial of habeas
relief and REMAND the case for further proceedings.
Factual and Procedural Background
In 2004, Ray was tried alongside two co-defendants, Jarius Perkins and Juanita Elam, for
multiple felonies arising out of a robbery of a known drug dealer. The following facts are
adduced from Ray’s state court proceedings, and presumed correct here. 28 U.S.C. § 2254(e)(1).
On direct review, the Michigan Court of Appeals set forth the following facts:
Defendant Perkins, aged twenty-one, his girlfriend, defendant Elam, aged twentyeight, and defendant Ray, aged thirty-eight, were involved in the killing of a man,
Deshone Douglas Moore, aged twenty-eight, and a pregnant woman, Amanda
Zarbaugh, aged twenty, and her unborn child, during the course of an armed
robbery at Zarbaugh’s residence in Romulus, Michigan in July 2004. Defendant
Elam was already in the house with the two victims when defendants Perkins and
Ray arrived with guns. Defendant Perkins and Ray encountered Christopher
Straughter and Ebonie Booker exiting the house when they arrived. Defendant
Perkins ran into the house just prior to fatal shots being heard, and defendant Ray
stayed outside and held the witnesses at gunpoint.
People v. Perkins, No. 259865, 2006 WL 1330320, at *1 (Mich. Ct. App. May 16, 2006) (per
curiam).1 The following additional facts were included in the state trial court’s opinion denying
Ray relief from judgment:

This case arises from the planned armed robbery of Christopher Straughter
by Juanita Elam, her boyfriend Jarius Perkins and friend John Ray. Straughter was
a robbery target because the defendants believed he was a dope dealer who

1

The Rule 5 Materials submitted to the district court did not include the even-numbered
pages of this opinion. The district court relied on the opinion available on Westlaw.
2

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carried large sums of cash.
Defendant Ray (twenty one years old) and two co-defendants Elam
(twenty eight) and Perkins (thirty eight)2 went to Amanda Zarbaugh’s house to
rob Straughter. Zarbaugh was pregnant with an unborn child and was in the house
with Deshone D. Moore.
Elam knew both Straughter and Zarbaugh. Elam went to Zarbaugh’s
alone. Elam enticed Straughter via phone to come to Zarbaugh’s house under the
guise that she wanted to buy drugs and to talk business with him. Elam became
insistent that Straughter come to Zarbaugh’s house. She said she would remain
there until Straughter arrived.
Elam then called Perkins’ cell phone. The inference from that call is that
Elam alerted Perkins and Ray to come to the house.
Straughter came to the house and entered with Ebonie Booker. They spoke
with Elam. Elam also spoke with Moore, who was in the house with Zarbaugh.
Straughter and Booker headed out the front door. They encountered Perkins and
Ray, who were waiting outside the house with guns. Perkins and Ray rushed
Straughter and Booker with drawn handguns. Perkins and Ray robbed Straughter
and Booker at gunpoint and forced them to the ground.
Ray stood over Straughter and Booker at gunpoint outside the house while
Perkins went into the house. Elam, Zarbaugh and Moore were still inside the
house. Shots were fired. Perkins and Elam came out of the house.
Zarbaugh and Moore were discovered executed, as was Zarbaugh’s
unborn child. Cash was also taken.
Straughter and Booker were threatened as they lay on the ground. They
overheard discussions about killing them. They got up and ran. Straughter and
Booker were shot at, but the guns did not discharge because they were either
empty or jammed. Straughter and Booker continued to run from the scene. All
three perpetrators, Elam, Ray and Perkins, fled the scene in Perkins’ silver
Explorer.

2

The trial court incorrectly stated Ray’s age (thirty-eight) as Perkins’s age (twenty-one)
and vice versa. The Michigan Court of Appeals accurately states Ray as thirty-eight years old.
3

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The State’s case against Ray relied on the testimony of Straughter to identify Ray as one
of the participants in the robbery. Ray’s counsel sought to discredit Straughter through evidence
of an ongoing relationship between Straughter and the Romulus Police Department. Counsel
thought that Straughter and the Police Department had a history because of a note, written by one
of the Department’s detectives, that stated that “Straughter continues to call [the detective] for
money.” When asked about this evidence, the prosecutor requested to discuss the issue in
camera with the judge. Ray’s counsel did not attend the in camera proceeding. Following the
proceeding, the judge ruled on the record that there was “no relevant relation between this case
and Mr. Christopher Straughter and the Romulus Police Department.”
Before the start of trial, Ray’s counsel sought to strike Straughter’s testimony if his client
was not permitted to review the transcript of the in camera proceeding. Unsuccessful in this
attempt, Ray’s counsel argued throughout trial that Ray’s guilt could not be established through
the testimony of Straughter because of Straughter’s lack of credibility and because Straughter
was lying to cover for his association with the robbed drug house.
The jury found Ray guilty under an aiding and abetting theory of two counts of firstdegree felony murder, two counts of second-degree murder, one count of killing an unborn child,
two counts of assault with intent to do great bodily harm less than murder, two counts of armed
robbery, one count of first-degree home invasion, and one count of being a felon in possession of
a firearm and possession of a firearm while committing a felony. For these crimes, Ray was
sentenced to life in prison without parole.
Ray appealed his conviction. Through different counsel, Ray raised four substantive
claims on direct appeal: the adequacy of jury selection, prosecutorial misconduct, the
4

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insufficiency of the evidence, and a Double Jeopardy challenge due to Ray’s conviction of both
felony murder and the underlying felony of home invasion. Ray prevailed on the Double
Jeopardy challenge. The Michigan Court of Appeals remanded the case to correct the home
invasion judgment, but otherwise affirmed Ray’s conviction. Perkins, 2006 WL 1330320, at
*18–19. Ray did not object to the ex parte proceeding either through counsel, or through a
separately-filed pro per brief.3
Ray filed a pro per application for leave to appeal to the Michigan Supreme Court, and
presented eleven questions for review—none of which are at issue in this appeal. The Michigan
Supreme Court denied leave to appeal, believing that the questions presented did not warrant
review.
Ray then initiated state collateral proceedings by filing a pro per motion for relief from
judgment with the Wayne County Circuit Court. Later, Ray was appointed counsel for purposes
of his collateral proceedings. Ray filed a motion for relief from judgment through his attorney,
and filed a supplemental brief in pro per. In his pro per brief, Ray raised for the first time his
argument that he was denied counsel at a critical stage of trial when the in camera proceeding
was conducted outside the presence of his counsel. The trial court characterized the issue in the
following way:
The court erred in failure [sic] to provide Straughter’s relation with Romulus
Police as an informant as revealed in an in-camera proceeding (raised in
defendant’s pro per supplemental motion, Oct. 16, 2008).

3

In Michigan, an indigent criminal defendant “who insists that a particular claim or
claims be raised on appeal against the advice of counsel” has the right, under Standard 4 of
Administrative Order 2004-6, 471 Mich. cii (2004) to file a brief presenting the claims within
84 days of the appellant’s brief filed by his attorney.
5

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The trial court rejected Ray’s critical stage argument:
The defendant alleges error because evidence of Straughter’s relationship with the
Romulus Police as an informant was not introduced into evidence. MCR 6.508(D)
provides that this court may not grant relief on a ground raised and decided
against the defendant on a prior appeal. This ground was raised by the defendant
on a prior appeal. See Opinion, Court of Appeals, People v. Ray, III, Defendant
Ray, paragraph B, page 14. Moreover, Straughter’s relationship with the police,
informant or not, has not been shown by defendant to be relevant to any issue at
trial. Irrelevant evidence is not admissible for any purpose. MRE 401. Because
this ground was raised on appeal, relief on this ground is denied.
To Ray’s claim for ineffective assistance of appellate counsel, the trial court answered:
The defendant also has the right to effective assistance of counsel on
appeal. See Evitts v Lucey, 468 US 387 (1985). Defendant asserts he was deprived
of effective assistance of appellate counsel. The issue that defendant was deprived
of counsel on appeal is unsupported by any fact of record.
The test of ineffective assistance of appellate counsel is whether counsel’s
performance was so deficient that he could not have been functioning by counsel
[sic] required by the Sixth Amendment. That is, whether the conduct of counsel
on appeal so undermined the functioning of the process that it did not produce a
just result. The presumption on appeal is that counsel was effective. See US v
Cronic, 466 US 648 ([1]984); Strickland v Washington, 466 US 668 (1984).
On appeal, counsel may make strategic decisions as to which issues are to
be raised on appeal. Counsel does not have a[] duty to raise every non-frivolous
issue demanded by defendant on appeal. Jones v Barnes, 463 US 745 (1983);
People v Pickens, 446 Mich 298; 520 NW2d 797 (1994).
Counsel was not ineffective for not raising the issues presented in this
motion on appeal. Defendant has not demonstrated he is entitled to relief. MCR
6.508(D). Relief on this ground is denied.
Both the Michigan Court of Appeals and Michigan Supreme Court rejected Ray’s
applications for leave to appeal, without further elaboration, because he had failed to establish
entitlement to relief under Mich. Ct. R. 6.508(D).

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Ray filed a pro se petition for a writ of habeas corpus on March 16, 2011. One of the
eighteen grounds for relief asserted by the petition was Ray’s belief that he was deprived of the
right to counsel at a critical stage when the trial court conducted the in camera proceeding
outside the presence of his counsel. Ray also asserted ineffective assistance of appellate counsel
for failing to raise the critical-stage error on direct appeal.
The district court denied the petition in its entirety.4 Relevant to the instant appeal, the
district court rejected both Ray’s critical-stage and related ineffective-assistance-of-appellatecounsel arguments. As to the critical-stage claim the district court said:
In his seventeenth claim, the petitioner alleges that he was deprived of
counsel at a “critical stage of the proceedings due to an ex parte communication
between the trial court and prosecutor during an in-camera review to determine
whether to admit evidence of prior instances of cooperation between Christopher
Straughter and the Romulus Police Department. After conducting this in-camera
review, the trial judge indicated on the record that there was no relevant relation
between this case and Mr. Straughter and the Romulus Police.
The complete denial of counsel during a critical stage of a judicial
proceeding mandates a presumption of prejudice. United States v. Cronic,
466 U.S. 648, 659 (1984). However, the Supreme Court never has held that an
improper ex parte conference between a judge and a prosecutor during trial
amounts to a Cronic error. See Hereford v. Warren, 536 F. 3d 523, 529 (6th Cir.
2008). The Sixth Circuit has “refused to label ex parte communications critical
stages in all cases.” Id. at 530 n.4 (citing United States v. Carmichael, 232 F.3d
510, 517 (6th Cir. 2000) (holding that ex parte discussions between a prosecutor
and a judge concerning the contents of Title III wiretap transcripts is not a critical
stage)). In United States v. Minsky, 963 F.2d 870 (6th Cir.1992), the court implied
that an ex parte discussion between a judge and prosecutor as part of an in camera

4

After noting that the State had asserted both statute of limitations and procedural default
as bars to review, the district court proceeded to resolve the petition on the merits in the interests
of judicial economy. See Hudson v. Jones, 351 F.3d 212, 215 (6th Cir. 2003) (noting that a
district court need not resolve procedural issues “before deciding against the petitioner on the
merits”). On appeal, the State has not objected to the district court’s approach, and has confined
its arguments to the merits of Ray’s habeas petition.
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review of FBI investigation forms is a critical stage. Although the court held that
an ex parte conference can only be justified if there are “compelling state
interests,” Minsky, 963 F.2d at 874, “the language found in Minsky is not a
Supreme Court holding that reflects clearly established federal law.” Heresford,
536 F. 3d at 532. “Clearly established Federal law for purposes of § 2254(d)(1)
includes only the holdings, as opposed to the dicta, of [the Supreme] Court’s
decisions.” White v. Woodall, --- U.S. ---, 134 S. Ct. 1697, 1702 (2014) (internal
quotation marks and citations omitted). Therefore, habeas relief cannot be
grounded on Minsky’s rationale.
As to the ineffective-assistance-of-appellate-counsel claim, the district court stated:
In his fifteenth and sixteenth claims, the petitioner contends that his
appellate counsel was ineffective by failing to raise some of his claims on his
direct appeal. Not so. The petitioner was not entitled to compel his appointed
attorney to raise all nonfrivolous claims on appeal if counsel, as a matter of
professional judgment, elected not to raise the claims. Jones v. Barnes, 463 U.S.
745, 751 (1983). In fact, “the process of winnowing out weaker arguments on
appeal and focusing on those more likely to prevail . . . is the hallmark of
effective appellate advocacy.” O’Sullivan v. Boerckel, 526 U.S. 838, 858 (1999)
(quotation marks and citations omitted).
The Court has found no merit in the claims advanced here by the
petitioner. Therefore, there is no reasonable probability that, but for appellate
counsel’s failure to raise those claims, the petitioner would have prevailed on
appeal. Appellate counsel was not constitutionally ineffective. See Shaneberger v.
Jones, 615 F.3d 448, 452 (6th Cir. 2010) (explaining that “[a]ppellate counsel
cannot be found to be ineffective for ‘failure to raise an issue that lacks merit’”
(quoting Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir. 2001))); see also Fuller v.
Lafler, 826 F. Supp. 2d 1040, 1065 (E.D. Mich. 2011) (concluding that, because
there was no reasonable probability that the petitioner would have prevailed on
appeal were it not for appellate counsel’s failure to raise the claims, “the
petitioner’s right to competent counsel on appeal was not violated, and the state
court’s adjudication of the petitioner’s claim was not contrary to or an
unreasonable application of Strickland”).
The district court certified Ray’s critical-stage issue for appeal, noting that “reasonable
jurists could debate whether the claim that the petitioner was deprived of counsel at a critical
stage due to ex parte communications between the trial court and prosecutor should have been
resolved in a different manner.” On March 13, 2015, this Court expanded the issues on appeal to
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include Ray’s ineffective-assistance-of-appellate-counsel claim grounded in his contention that
counsel should have raised the critical-stage error on direct appeal.
Standard of Review
A habeas petitioner may not obtain relief in federal court on claims adjudicated on the
merits in state court 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 of the United States,” or “was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).
“This standard . . . is difficult to meet.” White v. Woodall, 134 S. Ct. 1697, 1702 (2014) (quoting
Metrish v. Lancaster, 133 S. Ct. 1781, 1786 (2013)) (internal quotation marks omitted).
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 it “confronts facts that are materially indistinguishable from a relevant Supreme Court
precedent” and arrives at an opposite result. Williams v. Taylor, 529 U.S. 362, 405 (2000). For
purposes of AEDPA, “clearly established Federal law” means only the holdings from Supreme
Court cases, not its dicta, Howes v. Fields, 132 S. Ct. 1181, 1187 (2012), nor precedent from the
federal courts of appeals, see Marshall v. Rodgers, 133 S. Ct. 1446, 1450−51 (2013) (noting that
circuit precedent may not be used to refine a general principle from a Supreme Court decision
into a more specific legal rule not yet announced by the Supreme Court).
A decision is an unreasonable application of clearly established federal law when the
state court “correctly identified the correct legal principle from Supreme Court precedent but
unreasonably applied that principle to the facts of the case before it.” Dennis v. Mitchell,
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354 F.3d 511, 517 (6th Cir. 2003) (citing Williams, 529 U.S. at 412−13). Relief will not be
granted unless the petitioner can “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).
Analysis
A. Ray’s Cronic Claim
The right to counsel under the Sixth Amendment secures for a criminal defendant the
right to a fair trial. United States v. Wade, 388 U.S. 218, 226 (1967). The right to counsel
guarantees that the accused will have representation at all critical stages of the criminal process.
Iowa v. Tovar, 541 U.S. 77, 87 (2004). When counsel is either totally absent from, or prevented
from assisting the accused during, a critical stage of trial, the Supreme Court presumes that the
accused has suffered constitutional error without requiring a corresponding showing of prejudice.
United States v. Cronic, 466 U.S. 648, 659 & n.25 (1984) (concluding that a trial is unfair if the
accused is deprived of counsel during a critical stage of trial).
The Supreme Court has offered various general characterizations of what constitutes a
critical stage. In Hamilton v. Alabama, 368 U.S. 52, 54 (1961), the Supreme Court defined
“critical stage” as a phase of trial in which “[a]vailable defenses may be . . . irretrievably lost, if
not then and there asserted.” In White v. Maryland, 373 U.S. 59, 60 (1963) (per curiam), the
Supreme Court, without explicitly adopting it, repeated an appellate court’s description of “a
critical stage in a criminal proceeding” as one “where rights are preserved or lost.” And, in Bell
v. Cone, 535 U.S. 685, 696 (1984), the Supreme Court defined “critical stage” as “a step of a
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criminal proceeding . . . that [holds] significant consequences for the accused.” Nonetheless, the
precise contours of Cronic remain unclear. Woods v. Donald, 135 S. Ct. 1372, 1377 (2015).
Ray advances two theories upon which this Court could grant habeas relief. Initially, Ray
argued that the state court decision unreasonably applied Cronic to the facts of his case. In his
reply brief, however, Ray raised for the first time both that the state court decision was contrary
to clearly established federal law and that the state court neglected to adjudicate the merits of his
Cronic claim at all.5 Ray’s last argument is his most persuasive.
Because the deference owed to a state court decision can be dispositive of the claim, a
federal court reviewing a habeas petition must first address this “threshold question of the proper
standard of review”—specifically, whether AEDPA deference or de novo review applies.
Robinson v. Howes, 663 F.3d 819, 822 (6th Cir. 2011). In order for AEDPA’s deferential
standard of review to apply, a petitioner’s claims must have been “adjudicated on the merits in
State court proceedings.” 28 U.S.C. § 2254(d); see also English v. Berghuis, 529 F. App’x 734,
740 (6th Cir. 2013) (“Before a reviewing court reaches the question of the reasonableness and
conformity to relevant precedent of the state court adjudication, however, it must first confront a

5

During oral arguments, the State objected to Ray raising this argument in reply and
urged this Court to consider it waived. “As a general rule, this Court does not entertain issues
raised for the first time in an appellant’s reply brief.” United States v. Demjanjuk, 367 F.3d 623,
637 (6th Cir. 2004). There are exceptions to this rule. “[A] party cannot ‘waive’ the proper
standard of review by failing to argue it.” Brown v. Smith, 551 F.3d 424, 428 n.2 (6th Cir. 2008),
abrogated on other grounds as recognized by Williams v. Lafler, 494 F. App’x 526, 529 (6th Cir.
2012); see also Moritz v. Lafler, 525 F. App’x 277, 285 n.5 (6th Cir. 2013) (“[N]othing suggests
that Brown’s ruling on waiver of the AEDPA standard of review is any less persuasive.”). Ray’s
belatedly raised argument, in part, discourages the Court from applying the deferential standard
of review under AEDPA and, as such, is not waived. As will be explained below, however, the
State will have the opportunity to respond to this argument in the first instance before the district
court.
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more primal question: whether the defendant’s claim was actually adjudicated by the state
courts.”). “Claims that were not ‘adjudicated on the merits in State court proceedings’ receive
the pre-AEDPA standard of review: de novo for questions of law (including mixed questions of
law and fact), and clear error for questions of fact.” Robinson, 663 F.3d at 823 (citing Brown v.
Smith, 551 F.3d 424, 428, 430 (6th Cir. 2008)). It is presumed that the state court adjudicated on
the merits all claims presented to it, absent indicia to the contrary. Harrington, 562 U.S. at 99.
That presumption may be overcome, however, “when there is reason to think some other
explanation for the state court’s decision is more likely.”

Id. at 99−100 (citing Ylst v.

Nunnemaker, 501 U.S. 797, 803 (1991)).
In this case, the record indicates that Ray may be able to rebut the presumption that his
Cronic claim was adjudicated on the merits in state court. Ray raised his critical stage claim in
his state habeas petition and a supplemental motion.

Specifically, Ray argued in his

Supplemental Motion for Relief that his “defense was irretrievably lost by the trial court’s failure
to allow defense counsel’s presence at the in-camera review, as well as the denial of the request
for review of the record, as was requested by trial counsel . . . At that period, moment, and event
in the course of his criminal proceeding was a ‘CRITICAL STAGE.’” The Wayne County
Circuit Court characterized this claim as follows: “The court erred in failure to provide
Straughter’s relation with Romulus Police as an informant as revealed in an in-camera
proceeding (raised in defendant’s pro per supplemental motion, Oct. 16, 2008) . . . .” It then
denied Ray’s claim without any discussion of Cronic, the Sixth Amendment, or critical stage

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jurisprudence.6 Instead, the state court rejected Ray’s argument based on its conclusion that, as a
matter of state evidentiary law, Straughter’s relationship with the police was irrelevant.
Relevance, however, is not the proper inquiry for a constitutional claim under Cronic; as
mentioned above, the Cronic analysis turns on whether an individual was denied counsel during
a critical stage of trial. Cronic, 466 U.S. at 659. The state court’s analysis of Ray’s Cronic
claim, therefore, strongly suggests that the claim “was inadvertently overlooked in state court.”
Johnson v. Williams, 133 S. Ct. 1088, 1097 (2013).
There is another strong reason to conclude that the Wayne County Circuit Court failed to
adjudicate Ray’s Cronic claim on the merits. In rejecting Ray’s Cronic claim, the Wayne
County Circuit Court wrote: “This ground was raised by the defendant on a prior appeal. See
Opinion, Court of Appeals, People v. Ray, III, Defendant Ray, paragraph B, page 14.” That
statement and the citation supporting it are both erroneous. Ray did not raise a Cronic claim in
his direct appeal to the Michigan Court of Appeals. He did, however, raise a related Brady
claim: in his Pro Per Supplemental Brief, Ray argued that the prosecution improperly withheld
exculpatory impeachment evidence when it failed to disclose information about Straughter’s
relationship with the Romulus Police Department—information, Ray wrote, that the trial court
had reviewed in camera.

6

Although a state court decision need not expressly mention clearly established federal
law to receive AEDPA deference, see Early v. Packer, 537 U.S. 3, 8 (2002), nothing else about
the decision reveals that the court adjudicated the Cronic claim on its merits. The absence of any
discussion of Cronic, therefore, is not a reason for concluding that the state court’s adjudication
of the Cronic claim was contrary to clearly established federal law, but rather reason to doubt
that the Cronic claim was adjudicated on the merits at all.
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The Michigan Court of Appeals—in paragraph B, on page *13 of its 2006 opinion—
rejected this Brady claim. Perkins, 2006 WL 1330320, at *13. It thus appears that the Wayne
County Circuit Court confused Ray’s Brady claim (which he raised in his appeal as of right) with
his Cronic claim (which he raised on state collateral review). That explains why the Wayne
County Circuit Court did not cite Cronic or its progeny in its opinion. Put simply, the Wayne
County Circuit Court’s treatment of Ray’s Cronic claim “leads very clearly to the conclusion
that” that court “inadvertently overlooked” this claim. Williams, 133 S. Ct. at 1097.
Despite the strong reason to believe that Ray can rebut the presumption that the state
court adjudicated the merits of his Cronic claim, the district court analyzed Ray’s Cronic claim
with AEDPA deference without making the preliminary determination that the deferential
standard should be applied. This omission was understandable. Ray was pro se before the
district court, and the notion that the state court decision failed to adjudicate Ray’s Cronic claim
on the merits was first raised by appointed counsel in Ray’s reply brief on appeal. Nonetheless,
the district court’s decision omitted a crucial, preliminary analytical step, one that carries serious
implications for the merits of Ray’s petition. See Olson v. Little, 604 F. App’x 387, 390 (6th Cir.
2015) (recognizing the importance of determining whether to apply “§ 2254’s deferential
standard of review . . . ‘[b]ecause the requirements of § 2254(d) are difficult to meet.’” (quoting
Johnson, 133 S. Ct. at 1091)), cert. denied, 136 S. Ct. 551 (2015).
We hold that the district court committed reversible error in failing to determine whether
Ray’s Cronic claim was adjudicated on the merits before applying AEDPA deference to the state
court decision. Rather than performing a de novo review of Ray’s claim, however, we remand
the case to the district court to allow it to analyze whether there was an adjudication on the
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merits. An argument concerning the standard of review cannot be waived. Brown, 551 F.3d at
428 n.2. The fact remains, however, that the State has not been afforded the opportunity to
respond to Ray’s non-waivable yet belatedly raised argument. Remanding the case will afford
the State that opportunity, and will permit the issue of whether an adjudication on the merits
occurred to receive full consideration by the court better situated to make the determination in
the first instance. See, e.g., Rosebrough v. Buckeye Valley High Sch., 690 F.3d 427, 433 (6th Cir.
2012) (remanding to the district court to consider in the first instance elements of the plaintiff’s
prima facie case neither party briefed on appeal); Zambetti v. Cuyahoga Cmty. Coll., 314 F.3d
249, 261−62 (6th Cir. 2002) (remanding the case to the district court and permitting the district
court to consider in the first instance an argument raised by plaintiff on appeal). This is true
even in cases in which the issue to be decided on remand involves a question of law. See, e.g.,
Adkisson v. Jacobs Eng’g Grp., Inc., 790 F.3d 641, 649 (6th Cir. 2015), cert. denied, 136 S. Ct.
980 (2016) (remanding to the district court for considering in the first instance whether the
defendant was entitled to government-contractor immunity as a matter of law); Sorrell v. Rinker
Materials Corp., 395 F.3d 332, 338 (6th Cir. 2005) (remanding for considering in the first
instance whether a legal duty under 29 C.F.R. § 825.305(d) was triggered). Habeas corpus is no
exception. See, e.g., In re Smith, 690 F.3d 809, 810 (6th Cir. 2012) (remanding to the district
court for determination in the first instance whether a habeas petition raised successive claims
within the meaning of 28 U.S.C. § 2244(b)). We therefore vacate the portion of the district
court’s decision denying Ray relief on his Cronic claim, and remand the case to the district court
with instructions to allow the parties to brief (1) whether there was an adjudication on the merits

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as to Ray’s Cronic claim, and (2) whether Ray is entitled to relief under the appropriate standard
of review.
B. Ray’s Ineffective Assistance of Appellate Counsel Claim
To establish ineffective assistance of counsel, Ray must satisfy two requirements:
First, the defendant must show that counsel’s performance was deficient.
This requires showing that counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.
Second, the defendant must show that the deficient performance
prejudiced the defense. This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Unless a defendant makes both showings, it cannot be said that the conviction or
death sentence resulted from a breakdown in the adversary process that renders
the result unreliable.
Strickland v. Washington, 466 U.S. 668, 687 (1984). Counsel’s performance is deficient when
the representation falls below an “objective standard of reasonableness.” Id. at 688. Ray must
overcome the strong presumption that counsel’s conduct fell “within the wide range of
reasonable professional assistance,” and that “the challenged action ‘might be considered sound
trial strategy.’”

Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).

To

demonstrate prejudice, Ray “must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at
694.
Although the failure to raise an issue on appeal can amount to constitutionally ineffective
assistance, appellate counsel does not have an obligation to raise every possible claim that a
client may have. McFarland v. Yukins, 356 F.3d 688, 710 (6th Cir. 2004) (citing Jones v.
Barnes, 463 U.S. 745, 751–54 (1983)). The decision of which issues to pursue is typically left to

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counsel’s professional judgment; “‘winnowing out weaker arguments on appeal and focusing on’
those more likely to prevail, far from being evidence of incompetence, is the hallmark of
effective appellate advocacy.” Smith v. Murray, 477 U.S. 527, 536 (1986) (quoting Jones,
463 U.S. at 751–52).
In determining whether appellate counsel’s performance was deficient, the Sixth Circuit
has identified the following factors as useful for analysis:
(1) Were the omitted issues “significant and obvious”? (2) Was there arguably
contrary authority on the omitted issues? (3) Were the omitted issues clearly
stronger than those presented? (4) Were the omitted issues objected to at trial?
(5) Were the trial court’s rulings subject to deference on appeal? (6) Did appellate
counsel testify in a collateral proceeding as to his appeal strategy and, if so, were
the justifications reasonable? (7) What was appellate counsel’s level of experience
and expertise? (8) Did the petitioner and appellate counsel meet and go over
possible issues? (9) Is there evidence that counsel reviewed all the facts?
(10) Were the omitted issues dealt with in other assignments of error? (11) Was
the decision to omit an issue an unreasonable one which only an incompetent
attorney would adopt?
McFarland, 356 F.3d at 711 (quoting Mapes v. Coyle, 171 F.3d 408, 427–28 (6th Cir. 1999)).
“Counsel’s performance is strongly presumed to be effective,” see McFarland, 356 F.3d at 710
(quoting Scott v. Mitchell, 209 F.3d 854, 880 (6th Cir. 2000)), and “‘only when ignored issues
are clearly stronger than those presented, will the presumption of effective assistance of
[appellate] counsel be overcome,’” Joshua v. DeWitt, 341 F.3d 430, 441 (6th Cir. 2003)
(alteration in original) (quoting Monzo v. Edwards, 281 F.3d 568, 579 (6th Cir. 2002)).
Ray argues that appellate counsel was deficient in two respects. He urges that appellate
counsel was deficient for missing the “significant and obvious” Cronic error by ignoring both
clearly established Supreme Court and Sixth Circuit law and trial counsel’s objections to not
having the evidence reviewed during the in camera hearing. Ray also contends that the omitted
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claim was significantly stronger than the others raised on direct appeal. These arguments are all
logically dependent on the merits of the underlying Cronic claim—an issue we do not reach
today. Ivory v. Jackson, 509 F.3d 284, 294 (6th Cir. 2007) (“Whether raising the issue might
have changed the result of the appeal, in turn, goes to the merits of the claim itself.”).
Accordingly, we also vacate the district court’s denial of habeas relief on Ray’s ineffectiveassistance-of-appellate-counsel claim, and remand to the district court to consider the claim in
light of its resolution of Ray’s Cronic claim on remand.
Conclusion
For the foregoing reasons, we VACATE in part the district court’s denial of habeas relief
and REMAND the case for further proceedings consistent with this opinion.

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