Ambrose v. Romanowski

Filing 74

OPINION and ORDER rejecting 71 REPORT AND RECOMMENDATION; Sustaining in Part and Overruling in Part 72 Objection; and Denying Claim 11 of 1 Petition for Writ of Habeas Corpus filed by Samuel Ambrose. Signed by District Judge Thomas L. Ludington. (SGam)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
SAMUEL AMBROSE,
Petitioner,

Case No. 08-cv-12502

v

Honorable Thomas L. Ludington
Magistrate Judge Charles E. Binder

KENNETH ROMANOWSKI,
Respondent.
__________________________________________/
ORDER REJECTING REPORT AND RECOMMENDATION, SUSTAINING IN PART
AND OVERRULING IN PART RESPONDENT’S OBJECTIONS, AND DENYING
CLAIM 11 OF PETITIONER’S PETITION FOR HABEAS CORPUS
Samuel Ambrose seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. §
2254. Ambrose challenges his conviction for second-degree murder, asserting twelve claims for
relief. Claim 11 alleges that his trial counsel failed to inform him of an offer for a plea agreement
that would have limited his sentence to 5-15 years if Ambrose pleaded guilty to manslaughter.
After conducting an evidentiary hearing on Claim 11 only, the magistrate judge
recommended granting Ambrose’s petition for habeas corpus. Because Ambrose has not shown
he is entitled to relief under AEDPA’s deferential standard, the magistrate judge’s report and
recommendation will be rejected, and Ambrose’s petition for habeas corpus with respect to
Claim 11 only will be denied.
I
On April 17, 1979, Ambrose injured a man named Kenneth Brown outside a Detroit bar.
ECF No. 67 at 1. After Brown died from his injuries, Ambrose was charged with second-degree

murder. Ambrose was convicted after a jury trial in the Recorders Court of the City of Detroit,
and the Recorder’s Court Judge sentenced Ambrose to life without parole.
According to Ambrose, before trial the prosecution offered him a plea agreement, which
his trial counsel failed to communicate to him: “Petitioner later failed to secure the plea
agreement of 5 years minimum to 15 years maximum to the reduced charge of manslaughter.”
ECF No. 1 at 57. To support his claim that the prosecution had offered him a plea agreement,
Ambrose located a notation Judge Samuel Gardner made on the “Re-pretrial Notice.” Near the
top of the re-pretrial notice, Judge Gardner had written “manslaughter” and “5-15 yrs.” ECF No.
2 at 37. Ambrose believes that the judge was summarizing an offer by the prosecutor, and
Ambrose claims that he would have accepted the offer to plead to manslaughter if his trial
counsel had informed him of the offer. This alleged failure to communicate the plea offer
constitutes the primary focus of Ambrose’s appeals.
A
Following his conviction, Ambrose began a lengthy and aggressive appeals process in the
Michigan state courts. Ambrose’s conviction was upheld by both the Michigan Court of Appeals
and the Michigan Supreme Court in 1981 and 1983, respectively. In 1994, Ambrose’s motion for
relief from judgment was denied by the Recorders Court.
Ambrose then began his attempts to appeal his conviction based on ineffective assistance
of counsel. In 1996, Ambrose filed three motions for relief from judgment, arguing that his trial
counsel failed to communicate a plea offer. He also filed a motion for new trial based on the
same grounds, which the Recorders Court Judge denied on September 3, 1996.1

1

In response to the Recorders Court Judge’s denial, Petitioner filed a motion for reconsideration, an appeal of the
denial, and two motions for superintending control with the Michigan Supreme Court of Appeals. All of these
motions were denied.

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In 1998, Ambrose filed a motion for new trial based on his trial counsel’s alleged failure
to communicate a plea offer. Around this time, Ambrose corresponded with Judge Garner, the
judge who handled the pre-trial proceedings in his case. After Ambrose provided Judge Garner a
copy of the pre-trial notice, Judge Garner wrote that he had no memory of Ambrose’s case, but
that “the writing appears to be my writing.” Ambrose then filed a motion to supplement the
record and reiterated his claim that he was denied effective assistance of counsel.
In 2005, Ambrose began another round of appeals in the state courts. On November 24,
2005, he filed an amended motion for relief from judgment based on his assertion that his trial
counsel was ineffective. After his amended motion was denied, Ambrose filed a motion for
delayed appeal of the denial and a motion to remand based on his claim that his trial counsel was
ineffective.
On June 18, 2007, the Michigan Court Appeals denied Ambrose’s motions for delayed
appeal and to remand in a summary order: “The motion to remand is DENIED. The delayed
application for leave to appeal is DENIED for failure to meet the burden of establishing
entitlement to relief under MCR 6.508(D).” People v. Samuel Lee Ambrose, Dkt. No. 275571
(Mich. Ct. App. June 18, 2007). Ambrose filed a motion for reconsideration, which the Michigan
Court of Appeals also denied. People v. Samuel Lee Ambrose, Dkt. No. 275571 (Mich. Ct. App.
July 24, 2007).
Following the Michigan Court of Appeals denial of his claims, Ambrose filed an
application for leave to appeal and a motion to remand with the Michigan Supreme Court, again
claiming that his trial counsel was constitutionally ineffective. On December 28, 2007, the
Michigan Supreme Court issued a one-page summary denial of Ambrose’s ineffective assistance
of counsel claim: “On order of the Court, the application for leave to appeal the June 18, 2007

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order of the Court of Appeals is considered, and it is DENIED, because the defendant has failed
to meet the burden of establishing entitlement to relief under MCR 6.508(D).” People v. Samuel
Lee Ambrose, Dkt. No. 134777 (Mich. Dec. 28, 2007). Ambrose filed a motion for
reconsideration, which the Michigan Supreme Court denied. People v. Samuel Lee Ambrose,
Dkt. 134777 (Mich. March 24, 2008).
B
On June 11, 2008, Ambrose filed a petition for habeas corpus in this Court, which was
initially dismissed as untimely. ECF No. 19. However, the Sixth Circuit vacated the opinion and
remanded the case, noting that Ambrose might be able to respond with a colorable showing that
equitable tolling should apply. ECF No. 27. After Rule 5 material were filed, Respondent
conceded that equitable tolling should apply and that Ambrose’s habeas corpus petition should
be considered timely. ECF No. 33 at 3.
On June 29, 2012, this Court referred the case to a magistrate judge to hold an evidentiary
hearing, limited to Ambrose’s claim that he was denied his right to effective assistance of
counsel when his attorney failed to communicate a plea offer. ECF No. 44 at 14. The magistrate
judge conducted an evidentiary hearing on May 1, 2013. Afterwards, additional Rule 5 materials
were submitted and both parties filed supplemental briefs. See ECF Nos. 67, 68, 70.
On December 23, 2013, the magistrate judge issued a report recommending that
Ambrose’s petition for writ of habeas corpus be granted. ECF No. 71. The magistrate judge
concluded that AEDPA deference did not apply to Ambrose’s claim, and therefore he reviewed
the evidence de novo. Given the evidence adduced at the evidentiary hearing, the magistrate
judge believed that Ambrose had proffered enough evidence to suggest that the prosecution had
made a plea offer for manslaughter, that trial counsel had failed to inform Ambrose of the offer,

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and that he had suffered prejudice as result of that failure. The magistrate judge therefore
recommended granting Ambrose’s habeas petition based on his trial counsel’s constitutional
ineffectiveness. On January 6, 2014, Respondent timely filed objections to the magistrate judge’s
report and recommendation.
II
Pursuant to Federal Rule of Civil Procedure 72, a party may object to and seek review of
a magistrate judge’s report and recommendation. See Fed. R. Civ. P. 72(b)(2). If objections are
made, “[t]he district judge must determine de novo any part of the magistrate judge’s disposition
that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). Objections must be stated with
specificity. Thomas v. Arn, 474 U.S. 140, 151 (1985) (citation omitted).
De novo review requires at least a review of the evidence before the magistrate judge; the
Court may not act solely on the basis of a magistrate judge’s report and recommendation. See
Hill v. Duriron Co. 656 F.2d 1208, 1215 (6th Cir. 1981). After reviewing the evidence, the Court
is free to accept, reject, or modify the findings or recommendations of the magistrate judge. See
Lardie v. Birkett, 221 F. Supp. 2d 806, 807 (E.D. Mich. 2002). If the Court accepts a report and
recommendation, the Court is not required to state with specificity what it reviewed; it is
sufficient for the Court to state that it engaged in a de novo review of the record.
Here, Respondent raises three objections. First, Respondent argues that Ambrose’s
ineffective assistance of counsel claim was procedurally defaulted. Second, Respondent contends
that, if the ineffective assistance claim is not procedurally defaulted, the Michigan appellate
courts’ rulings on the issue warrant AEDPA deference. Finally, Respondent disputes the
magistrate judge’s conclusions that Ambrose proffered sufficient evidence to conclude that the

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prosecution made a plea offer, that trial counsel was constitutionally ineffective for failing to
inform Ambrose of the offer, and that Ambrose suffered a prejudice as a result of that failure.
III
Under 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), a habeas corpus petition that includes a claim that was previously
adjudicated on the merits in state court proceedings will be “denied unless the state court
decision was contrary to, or involved an unreasonable application of, clearly established federal
law as determined by the Supreme Court, or based on an unreasonable determination of the facts
in light of the evidence presented to the state courts.” Cullen v. Pinholster, 131 S. Ct. 1388, 1389
(2011). This standard is “difficult to meet,” “highly deferential,” and “demands that state-court
decisions be given the benefits of the doubt.” Dixon v. Houk, 737 F.3d 1003, 1007 (6th Cir.
2013) (quoting Cullen, 131 S. Ct. at 1398 (2011)).
A
Respondent first objects that Ambrose has procedurally defaulted his ineffective
assistance of counsel claim. The doctrine of procedural default bars consideration of a federal
claim on habeas review if the last state court rendering a judgment in the case clearly and
expressly stated that its judgment rested on a state procedural bar. Harris v. Reed, 489 U.S. 255,
263 (1989). “A claim may become procedurally defaulted in two ways.” Williams v. Anderson,
460 F.3d 789, 806 (6th Cir. 2006). First, a claim is procedurally defaulted when the petitioner
failed to exhaust state court remedies, and the remedies are no longer available at the time the
federal petition is filed. Id. Second, a claim is procedurally defaulted when state-court remedies
have been exhausted within the meaning of § 2254, but the last reasoned state-court judgment
declines to reach the merits because of a petitioner’s failure to comply with a state procedural

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rule. Id. Although a federal court is not obligated to decide a procedural-default issue before
deciding a claim on the merits, Hudson v. Jones, 351 F.3d 212, 215-16 (6th Cir. 2003), the Court
will address Respondent’s first objection.
Here, Respondent argues that Ambrose procedurally defaulted his ineffective assistance
of counsel claim because it was never fairly presented to the state courts—implicating the first
type of procedural default. But Ambrose did raise his claim in state court: he raised it in his 2005
motion for relief from judgment; in his 2007 motion for delayed appeal and motion for remand
before the Michigan Court of Appeals; and in his 2007 motion for delayed appeal and motion for
remand before the Michigan Supreme Court. Claims not exhausted on direct appeal in the state
courts may be exhausted through a properly raised and appealed application for state
postconviction relief. See Lovins v. Parker, 712 F.3d 283, 295 (6th Cir. 2013). Ambrose
exhausted his Strickland claim by raising it in his 2005 motion for relief from judgment and
appealing the initial denial of relief to the Michigan Supreme Court, thereby “invoking one
complete round of the State’s established appellate review process. Id.
Because Ambrose exhausted his Strickland claim, this Court can review the merits of his
Stickland claim—unless the last reasoned state-court judgment rests on a procedural state-law
ground. Coleman v. Thompson, 501 U.S. 722, 729-30. In other words, if the state court denied
his Strickland claim because he violated a procedural rule in the Michigan state courts, this Court
would be barred from reviewing the claim’s merits.
A federal habeas claim is procedurally defaulted when:
(1) the petitioner fails to comply with a state procedural rule; (2) the state courts
enforce the rule; (3) the state procedural rule is an adequate and independent state
ground for denying review of a federal constitutional claim; and (4) the petitioner
cannot show cause and prejudice excusing the default.

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Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir. 2010) (en banc). The second prong of this test
requires that the state courts “actually enforce[]” the state procedural rule in denying relief. Stone
v. Moore, 644 F.3d 342, 346 (6th Cir. 2011). In other words, “it is not sufficient that the state
court could have applied a procedural default under state law; it must actually have done so.”
Lovins, 712 F.3d at 296 (emphasis original).
In determining whether a state court actually enforced a procedural rule, we apply the
“plain statement” rule of Michigan v. Long, 463 U.S. 1032 (1983). Because a plain statement is
required, “a procedural default does not bar consideration of a federal claim on either direct or
habeas review unless the last state court rendering a judgment in the case clearly and expressly
states that its judgment rests on the procedural bar.” Harris, 489 U.S. at 263 (emphasis added).
While Respondent requests that we apply the procedural default doctrine to Ambrose’s
Strickland claim, it does not argue that the Michigan appellate courts’ decision “clearly and
expressly” denied relief to Ambrose based on a state procedural bar. Both the Michigan Court of
Appeals and the Michigan Supreme Court denied Ambrose’s claims in one-page summary
denials, explaining that Ambrose “failed to meet the burden of establishing entitlement to relief
under MCR 6.508.” See Guilmette, 624 F.3d at 291 (the Sixth Circuit, in an en banc decision,
held that the brief form orders by the Michigan appellate courts invoking Mich. Ct. R. 6.508 are
“ambiguous as to whether they refer to procedural default or denial of relief on the merits.”) The
Michigan Supreme Court’s decision contains no express discussion of waiver, procedural
default, or of any specific Michigan procedural rule. Absent an unambiguous statement by state
appellate courts that their decisions rested on a procedural bar, this Court may not treat a state
court order as relying on a procedural bar. Peoples v. Lafler, 724 F.3d 503, 512 (6th Cir. 2013).

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In sum, Ambrose exhausted his Strickland claim by raising it with the Michigan appellate
courts, and the judgments in the state courts are silent regarding the question of procedural
default. Accordingly, because the Michigan courts did not “clearly and expressly” enforce a state
procedural rule in denying Ambrose relief, the procedural default doctrine does not bar federal
habeas review of the merits of Ambrose’s Strickland claim. Respondent’s first objection will
therefore be denied.
B
The parties dispute whether Ambrose’s claim was adjudicated on the merits and,
accordingly, whether AEDPA’s deferential standard of review applies. The Michigan Supreme
Court denied Ambrose’s ineffective assistance of trial counsel claim in his application for leave
to appeal because “he failed to meet the burden of establishing entitlement to relief under MCR
6.508(D).” Ambrose argues that the Michigan Supreme Court’s one-page summary order
denying his habeas request was not an adjudication on the merits in light of the fact that he was
denied an evidentiary hearing in the Michigan courts. Resp. at 7. Respondent objected to the
magistrate judge’s conclusion that AEDPA deference does not apply to the state appellate courts’
rulings.
In Harrington v. Richter, the Supreme Court explained that there is a presumption that a
state appellate court adjudicated a petitioner’s claim on the merits: “When a federal claim has
been presented to a state court and the state court has denied relief, it may be presumed that the
state court adjudicated the claim on the merits in the absence of any indication or state-law
procedural principles to the contrary.” 131 S.Ct 770, 784-85 (2011). When a state appellate court
issues a summary order, that “unexplained summary order is an adjudication on the merits for
AEDPA purposes.” Werth v. Bell, 692 F.3d 486, 493 (6th Cir. 2012).

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The only exception to the presumption that summary orders are adjudications on the
merits occurs when a lower court’s opinion expressly states that the claim is procedurally
defaulted. When a lower court clearly issued an explained decision and expressly invoked
procedural default, later state-court appellate decisions under Mich. Ct. R. 6.508(D) are deemed
to have been affirmed on the same procedural-default grounds. McClellan v. Rapelje, 2013 WL
135362, at *4 (6th Cir. 2013); see also Milstead v. Sherry, 525 F. App’x 323, 325 (“We presume
that the Michigan appellate court’s summary order denying leave to appeal ‘for lack of merit in
the grounds presented’ was an adjudication ‘on the merits’ and apply AEDPA deference, ‘absent
some indication or Michigan procedural principle to the contrary.”) (citing Werth v. Bell, 692
F.3d at 493-94) (emphasis original).
Here, the Michigan Supreme Court denied Ambrose’s August 17, 2007 application for
leave to appeal the June 18, 2007 Court of Appeals order: “On order of the Court, the application
for leave to appeal the June 18, 2007 order of the Court of Appeals is considered, and it is
DENIED, because the defendant has failed to meet the burden of establishing entitlement to
relief under MCR 6.508(D).” This one-page summary order does not explain the Michigan
Supreme Court’s reasoning for denying Ambrose’s claim. Therefore, pursuant to the
presumption established in Harrington, the Michigan Supreme Court will be presumed to have
denied Ambrose’s ineffective assistance of counsel claim on the merits, absent some indication
to the contrary.
Here, there is no indication that the Michigan Supreme Court denied Ambrose’s claim on
procedural grounds rather than on the merits. The Michigan Court of Appeals similarly denied

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Ambrose’s claim “for failure to meet the burden of establishing entitlement to relief under MCR
6.508(D).”2 People of MI v. Samuel Lee Ambrose, Docket # 275571 (Jun. 18, 2007).
Ambrose relies on the Sixth Circuit’s opinion in McClellan v. Rapelje to support his
contention that the Michigan appellate courts did not decide his claims on the merits. The
McClellan opinion stated that the Harrington presumption may be overcome if an analysis of the
procedural history and factual underpinnings of a petitioner’s case indicates that there is a
“reason to think some other explanation for the state court’s decision is more likely.” McClellan,
703 F.3d at 349.
Here, Ambrose’s situation is distinguishable from the McClellan petitioner’s situation. In
McClellan, the lower state appellate courts had explicitly rejected the petitioner’s claim on
procedural grounds. Accordingly, the Sixth Circuit presumed that the later Michigan Supreme
Court affirmation of the Michigan Court of Appeals decision rested on the same procedural
grounds. Here, there is no evidence that the Michigan Court of Appeals denied Ambrose’s claim
on procedural grounds, as it did in McClellan. Therefore, Ambrose has not provided a reason to
think that state courts’ decisions rested on procedural grounds rather than on the merits.
Contrary to Ambrose’s assertions, the lack of reasoned state court opinions does not
mean that the Harrington presumption has been overcome. Rather, in light of the dearth of
information regarding the Michigan appellate courts’ reasoning for denying Ambrose’s claims,
this Court must presume that the Michigan appellate courts denied Ambrose’s ineffective
assistance of counsel claims on the merits. Accordingly, Respondent’s objection that AEDPA
deference applies will be sustained.

2

The Michigan Court of Appeals also summarily denied Ambrose’s motion for reconsideration of its June 18, 2007
order: “The Court orders that the motion for reconsideration is DENIED.” People of MI v. Samuel Lee Ambrose,
Dkt. No. 275571 (July 24, 2007).

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C
If a claim has been adjudicated on the merits by a state court, a federal habeas petitioner
must overcome the limitation of § 2255(d)(1) on the record that was before [the] state court.
Sanders v. Curtin, 529 F. App’x 506, 517 (6th Cir. 2013) (quoting Pinholster, 131 S. Ct. at 400).
Because Ambrose’s ineffective assistance of counsel claim was adjudicated on the merits by the
Michigan state courts, the “evidence introduced in federal court has no bearing on § 2254(d)(1)
review.” Id. Because AEDPA deference applies, the Court’s review is limited to the state-court
record. Keeling v. Warden, Lebanon Correctional Inst., 673 F.3d 452, 464 (6th Cir. 2012) (citing
Pinholster, 131 S. Ct. at 1398). Therefore, the evidence adduced at the evidentiary hearing
conducted on May 1, 2013, is irrelevant and will not be considered in deciding the merits of
Ambrose’s petition.
The Court notes that this conclusion essentially nullifies its earlier opinion granting an
evidentiary hearing, ECF No. 19. The issue of whether AEDPA deference applies, and thus
whether an evidentiary hearing is available, was not addressed until the parties filed post-hearing
supplemental briefs—after the Magistrate Judge conducted the thorough evidentiary hearing.
Despite the fact that the Magistrate Judge was complying with the directives in this Court’s
earlier opinion and order by holding an evidentiary hearing, the evidence produced at the
evidentiary hearing will not be considered by this Court.
D
The next question is whether the state appellate court’s treatment of Ambrose’s
ineffective assistance of counsel claim was “so lacking in justification” as to warrant habeas
relief. See Harrington, 131 S.Ct. at 786. AEDPA imposes a “highly deferential standard for
evaluating state-court rulings” and demands that federal courts give state-court decisions the

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benefit of the doubt. Renico v. Lett, 559 U.S. 766 (2010). Accordingly, relief is warranted only if
the state appellate court’s decision was contrary to, or involved an unreasonable application of,
clearly-established federal law, or if the decision was based upon an unreasonable determination
of the facts in light of the evidence. See Slagle v. Bagley, 457 F.3d 501, 513 (6th Cir. 2013)
(citing 28 U.S.C. § 2254(d)). AEDPA deference requires habeas courts to withhold relief so long
as “fairminded jurists could disagree on the correctness of the state court’s decision.”
Harrington, 131 S. Ct. at 786. Thus, to obtain relief, Ambrose must show that the state appellate
court’s rejection of his claim “was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fairminded agreement.”
Id.
When, as here, the state court summarily denied the state habeas petition without a
reasoned opinion, Ambrose can satisfy the “unreasonable application” prong of § 2254(d)(1)
only by showing that “there was no reasonable basis” for the Michigan appellate court’s
decision. Pinholster, 131 S.Ct. at 1402. In other words, when a state court issues a summary
denial, “a habeas court must determine what arguments or theories . . . could have supported[]
the state court’s decision . . . .” Harrington, 131 S. Ct. at 786. Section 2254(d) precludes habeas
relief if there are “arguments that would otherwise justify the state court’s result.” Id.
A summary holding rejecting an ineffective assistance claim necessarily reveals that the
state court relied on at least one Strickland prong but gives no indication as to whether the
holding was based on deficiency or prejudice or both. In such situations, it makes sense under
Harrington for a habeas court to review both prongs pursuant to AEDPA to assure proper
deference to the unspoken holding(s) actually relied upon by the state court. Rayner v. Mills, 685
F.3d 631, 638 (6th Cir. 2012).

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i
Ambrose claims that his trial counsel provided constitutionally ineffective assistance
when they failed to convey the 5-15 year manslaughter plea offer. The state disputes the
existence of such an offer, arguing that the handwriting on the “pre-trial notice” is insufficient to
show that the prosecution made a formal plea offer to Ambrose’s trial counsel.
The Sixth Amendment guarantees the accused in a criminal prosecution the right to the
effective assistance of counsel. Strickland v. Washington, 466 U.S. 668 (1984). Strickland sets
forth a two-part test for assessing claims of ineffective assistance. First, counsel must make
errors “so serious that counsel was not functioning as the counsel guaranteed by the Sixth
Amendment.” Id at 687. To establish deficient performance, the defendant must show that his
counsel’s representation “fell below an objective standard of reasonableness.” Id. at 688. Second,
the defendant must have been prejudiced by counsel’s deficient performance. To meet the
prejudice standard, a “defendant must show 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.”3 Id. at
694.
The Supreme Court has confirmed that a federal court’s consideration of Strickland
claims arising from state criminal proceedings is quite limited on habeas review due to the
deference accorded trial attorneys and state appellate courts reviewing their performance. “The
standards created by Strickland and § 2254(d) are both ‘highly deferential,’ and when the two

3

A summary holding rejecting an ineffective assistance claim necessarily reveals that the state court relied on at
least one Strickland prong but gives no indication as to whether the holding was based on deficiency or prejudice or
both. In such situations, it makes sense under Harrington for a habeas court to review both prongs pursuant to
AEDPA to assure proper deference to the unspoken holding(s) actually relied upon by the state court. Rayner v.
Mills, 685 F.3d 631, 638 (6th Cir. 2012).

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apply in tandem, review is ‘doubly’ so.” Harrington, 131 S. Ct. at 788 (internal and end citation
omitted).
The Sixth Amendment right to the assistance of counsel during criminal proceedings
extends to the plea-bargaining process. See Missouri v. Frye, 132 S. Ct. 1399, 1405 (2012).
Thus, criminal defendants are “entitled to the effective assistance of competent counsel” during
that process. Lafler v. Cooper, 132 S. Ct. 1376, 1384 (2012). “If a plea bargain has been offered,
a defendant has the right to effective assistance of counsel in considering whether to accept it. If
that right is denied, prejudice can be shown if loss of the plea opportunity led to a trial resulting
in a conviction on more serious charges or the imposition of a more severe sentence.” Id. But,
“[i]f no plea offer is made . . . the issue raised here simply does not arise.” Id. Therefore, the
Court must determine whether Ambrose has offered sufficient proof of the existence of a plea
agreement.
ii
Applying the “double-deference” accorded to the Michigan appellate courts, Ambrose
has not offered sufficient evidence to show that the prosecution ever offered his trial counsel a
plea offer. The single piece of evidence proffered was a “pre-trial notice” on which Judge
Gardner may have written “5-15 yrs” and “manslaughter.”
The Michigan appellate court’s possible interpretation that Judge Gardner’s notation was
not evidence of a formal plea offer is not objectively unreasonable. Ambrose has not provided
any context for the notation, and therefore there could be many interpretations of the note. The
note could reflect informal, non-binding plea discussions between the parties, or it could reflect
Judge Gardner’s recommendation for a plea offer. But nothing in the record indicates that the
prosecution ever made or was willing to make a formal plea offer to Ambrose’s trial counsel. A

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defendant does not have a right to be offered a plea, or to have a judge accept it. Lafler v.
Cooper, 132 S. Ct. 1376, 1388 (2012). It was not objectively unreasonable for the Michigan
appellate court to conclude that the prosecution did not offer Ambrose a formal plea offer, and
therefore Ambrose’s trial counsel was not ineffective for failing to communicate a non-existent
plea offer.
Ambrose has not overcome the burden established by AEDPA. The Michigan Supreme
Court’s conclusion that Ambrose was not denied effective assistance of counsel is not
objectively unreasonable. Ambrose has not proffered sufficient evidence that a formal plea offer
was ever offered by the prosecution, and therefore his trial counsel was not ineffective for failing
to communicate the alleged plea offer to him. Respondent’s third objection, that Ambrose’s
Strickland claim is meritless, is sustained.
IV
Accordingly, it is ORDERED that the magistrate judge’s report and recommendation
(ECF No. 71) is REJECTED.
It is further ORDERED that Respondent’s objections are SUSTAINED IN PART AND
OVERRULED IN PART.
It is further ORDERED that Claim 11 of Petitioner’s Petition for a Writ of Habeas
Corpus (ECF No. 1) is DENIED. This Order does not affect the other claims in Petitioner’s
Petition for a Writ of Habeas Corpus.
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: February 10, 2014

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PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on February 10, 2014.
s/Tracy A. Jacobs
TRACY A. JACOBS

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