Ivory v. Jackson

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 07a0454p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

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Petitioner-Appellant, -
CEDRIC IVORY,
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-
-
Nos. 05-1672; 06-2294
v.
,
>
ANDREW JACKSON, Warden, -
Respondent-Appellee. -
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Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 04-71279—Victoria A. Roberts, District Judge.
Argued: September 17, 2007
Decided and Filed: November 15, 2007
Before: BATCHELDER and GILMAN, Circuit Judges; STAFFORD, District Judge.*
_________________
COUNSEL
ARGUED: Christina J. Moser, BAKER & HOSTETLER, Cleveland, Ohio, for Appellant. Debra
M. Gagliardi, OFFICE OF THE ATTORNEY GENERAL, Lansing, Michigan, for Appellee.
ON BRIEF: Christina J. Moser, Thomas D. Warren, Stephan J. Schlegelmilch, BAKER &
HOSTETLER, Cleveland, Ohio, for Appellant. Debra M. Gagliardi, OFFICE OF THE
ATTORNEY GENERAL, Lansing, Michigan, for Appellee.
_________________
OPINION
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RONALD LEE GILMAN, Circuit Judge. In January of 1998, Cedric Ivory was charged with
the murder of his girlfriend, Alanna Napier. Following a bench trial before a Michigan state court
later that year, Ivory was convicted of second-degree murder and a related firearm offense. He was
sentenced to a lengthy term of imprisonment on the two charges. Ivory then petitioned for state
postconviction relief, but was turned down at all levels of the state judiciary. He subsequently filed
a motion for federal habeas corpus relief, with his principal argument being that his trial counsel
provided ineffective assistance due to counsel’s addiction to drugs and alcohol. The district court
determined that Ivory’s ineffective-assistance-of-counsel claim was procedurally defaulted and, in

*
The Honorable William H. Stafford, Jr., United States District Judge for the Northern District of Florida, sitting
by designation.

1
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any event, without merit. For the reasons set forth below, we AFFIRM the judgment of the district
court.
I. BACKGROUND
A. Factual background
1. Ivory’s conviction
The district court summarized the facts of Ivory’s case as follows:
Petitioner’s convictions stem from the shooting death of his girlfriend,
Alanna Napier, on Ilene Street in Detroit, Michigan on July 28, 1996. At trial,
Dwayne Glen testified that he was at his home on Ilene Street at 3:00 p.m. on July
28, 1996 when he heard a female voice say, “you want to fight, you want to fight.”
He looked outside and saw Napier walking on the sidewalk toward his home
conversing with Petitioner who was following her in a burgundy Buick LaSabre. As
they neared Glen’s home, Petitioner got out of the car, took a few steps, and fired
five to seven shots at Napier who fell to the ground. Petitioner was 10 to 12 feet
from Napier when he fired the gun. Glen did not see Napier approach Petitioner or
make threatening gestures toward him. He could not recall whether Napier had
anything in her hands, but said she might have had a purse. After the shooting, Glen
called 911 and went outside. Two other neighbors, Janet Edwards and William Carr,
also came outside. Glen also testified that he recognized Petitioner and Napier from
his place of employment, where they worked different shifts.
William Carr testified that he was at home on Ilene Street when he heard
shooting outside his home. He looked outside and saw a woman lying on the ground.
He went outside to help her and asked if she knew who shot her. She responded that
it was Cedric Bernard Ivory. Mr. Carr also testified that the shooting caused damage
to his home. The police investigated bullet holes in his windows, a bullet on his
floor, and a bullet lodged in his wall.
Detroit Police Officer John Harvin testified that he investigated the shooting
scene. When he arrived, he observed the victim lying on the ground. An anti-car
theft “club” which was about 10 feet away from the victim and a woman’s purse
were taken into evidence.
The medical examiner’s report indicated that Alanna Napier was 22 years
old, was five feet five inches tall, and weighed 129 pounds at the time of her death.
She died from two gunshot wounds–one to the face and one to the upper left buttock,
which caused severe internal injuries. There was not evidence of close range firing.
The manner of death was homicide.
The parties stipulated that Petitioner’s mother, Pearl Ivory, would testify that
Petitioner borrowed her burgundy Buick on the day of the shooting around noon and
that he did not return home at 2:00 p.m. as expected. When she was outside her Ilene
Street home around 3:00 p.m., she heard five or six gunshots from down the street.
The police came to her home 20 minutes later and said they were looking for
Petitioner in connection with the shooting. She knew Napier as her son’s friend or
girlfriend. Petitioner never returned home. The next day, she received a call from an
unidentified male telling her where her car could be located.
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Petitioner did not testify at trial, but his statement to police was read into the
record. In that statement, Petitioner acknowledged shooting Napier, but claimed that
he was provoked and/or that he acted in self-defense. Specifically, Petitioner stated
that Napier had been his girlfriend for about one year before the shooting. On that
day, he was driving in a burgundy Buick LaSabre with Napier, drinking and smoking
marijuana, when they got into an argument and started hitting each other. Napier
pulled out a gun and he took it from her. He then pulled the car over and put the gun
in the trunk. He returned to the car. They began to argue again and she hit him with
an anti-theft club. Petitioner pulled the car over and told Napier that he loved her.
She responded that she did not love him and had given him AIDS. Petitioner then
“lost it” and jumped out of the car. He did not know how many times he fired the
gun at Napier or if she said anything before he shot her. Petitioner stated that he left
the gun at the scene and fled in his car. Later that day, he learned that Napier had
died. He left town two days later because he was confused and wanted to get money
for a lawyer. He testified negative for AIDS in August or September, 1996.
At the close of trial, the court found Petitioner guilty of second-degree
murder and felony firearm. In reaching this conclusion, the trial court relied upon
the eyewitness testimony and rejected Petitioner’s assertions of provocation and
self-defense.
The trial court subsequently conducted a sentencing hearing. At that hearing,
Petitioner raised no material objections to the pre-sentence report. The victim’s
mother (Mrs. Napier), brother (Mr. Jones), and grandmother (Mrs. Pierson) gave
victim impact statements. Petitioner also made a statement. The trial court then
sentenced Petitioner within the sentencing guidelines to a term of 20 to 40 years
imprisonment on the murder conviction and a consecutive term of five years
imprisonment on the firearm conviction.
Ivory v. Jackson, No. 04-CV-71279-DT, 2005 WL 1030325, *1-2 (E.D. Mich. April 27, 2005).
The bench trial lasted just three hours, and the state presented only three witnesses: Carr,
Glen, and Officer Harvin. Joshua Gordon, Ivory’s court-appointed attorney, cross-examined two
of the state’s witnesses, stipulated to the entry of several items of evidence (including Ivory’s
statement to the police), moved for a judgment of acquittal at the close of the state’s case, and gave
a closing argument.
In support of his present appeal, Ivory sets forth various facts concerning Gordon’s
preparation for trial and trial performance, as well as his counsel’s personal history. The state trial-
court record reflects that, on Gordon’s advice, Ivory agreed to waive his right to a jury on the
morning set for trial. Gordon also waived the opportunity to present an opening statement and called
no witnesses on Ivory’s behalf. Furthermore, Ivory complains that Gordon asked the state’s
witnesses only “a few questions.” The transcript reveals that Gordon questioned both Carr and Glen,
but neither cross-examination covers more than a few transcript pages. According to Ivory, Gordon
“seemed to be under the influence of drugs or alcohol” during the trial.
Ivory also submitted an affidavit setting forth what he alleged to be Gordon’s inadequate trial
preparation. In his affidavit, Ivory asserted that Gordon met with him only twice in the months
before trial, and that Gordon ignored Ivory’s requests for updates, documents, and strategy
discussions. According to Ivory, when Gordon did meet with him, Gordon appeared to be under the
influence of drugs or alcohol, was dressed improperly, and asked Ivory for “something sweet to eat”
or for “candy,” which Ivory alleges are slang terms for drugs. Ivory also alleged that Gordon “told
me that he was not going to call me to testify,” but “did not discuss this with me.” Similarly, Ivory
Nos. 05-1672; 06-2294 Ivory v. Jackson Page 4

claimed that Gordon “told me that I was going to waive my right to a jury. I did as he told me, but
I wish I hadn’t.”
2. Gordon’s disciplinary proceedings
Unhappy with Gordon’s allegedly ineffective assistance at trial, Ivory filed a grievance
against Gordon with the Michigan Attorney Grievance Commission in September of 1998.
Commission records, as it turns out, confirm that four other of Gordon’s former clients had also filed
grievances against him in the same time period. Counsel for Gordon conceded during the grievance
proceedings that, due to heavy substance abuse, Gordon “simply gave up and stopped responding
not only to the [Grievance] Commission, but also, pretty much, all the duties in his life.”
Furthermore, counsel commented that, during the relevant time period, Gordon “gave up his office
and he had difficult personal living circumstances and became a bit of a vagabond for a while.”
Gordon’s addiction problems became sufficiently obvious to the Michigan Third Circuit trial
judges before whom he practiced that 10 of them arranged an “intervention” for him in February of
2000. The judges at that time demanded that Gordon immediately enter an in-patient treatment
program or face revocation of his Third Circuit criminal-practitioner certification. Ultimately,
Gordon pled no contest to the disciplinary charges brought against him in connection with the
grievances and received a 180-day suspension of his law license that began in March of 2001.
B. Procedural background
Ivory, represented by newly appointed counsel Frederick Finn, timely appealed his
conviction. Finn filed an appellate brief on behalf of Ivory in May of 1999, but the only issue raised
was a claim that insufficient evidence supported Ivory’s conviction. Thus, Finn did not raise the
issue of ineffective assistance of trial counsel, nor did he request an evidentiary hearing despite the
grievance that Ivory himself had filed against Gordon eight months earlier. The Michigan Court of
Appeals affirmed Ivory’s conviction. People v. Ivory, 2000 WL 33401851 (Mich. App. Nov. 17,
2000). His application for leave to appeal to the Michigan Supreme Court was also denied.
Ivory then initiated state postconviction proceedings by filing a pro se motion for relief from
judgment. In November of 2002, the trial court denied Ivory’s postconviction petition for relief on
all grounds. Both the Michigan Court of Appeals and the Michigan Supreme Court summarily
denied Ivory’s postconviction appeals in one-sentence orders, citing Mich. Ct. Rule 6.508(D)
(barring the court from granting relief under various circumstances, including procedural default).
Having exhausted his state court remedies, Ivory filed a timely pro se petition for federal
habeas corpus relief with the United States District Court for the Eastern District of Michigan in
April of 2004. His petition sought an evidentiary hearing and set forth the following five grounds
for relief: (1) that insufficient evidence supported his conviction, (2) that the trial court erred when
it found that Ivory had insufficient legal justification for the homicide, (3) that Ivory’s presentence
report contained incorrect information, (4) that irregularities occurred in connection with one of the
victim-impact statements presented, and (5) that Ivory received the ineffective assistance of counsel
both at trial and on direct appeal.
The district court denied Ivory’s first two claims on the merits, and ruled that his final three
claims were procedurally defaulted because Ivory had failed to raise them on direct appeal. Ivory,
2005 WL 1030325, at *7-9. Despite finding the final three claims procedurally barred, the court
went on to determine that, even if it were to address the claims, it would deny each of them on the
merits. Id. at *9-11. The court also denied Ivory’s request for a Certificate of Appealability (COA).
Ivory then appealed both the denial of his habeas petition and the denial of his motion for
reconsideration of his ineffective-assistance-of-counsel claim. This court granted Ivory a blanket
Nos. 05-1672; 06-2294 Ivory v. Jackson Page 5

COA as to all of his claims, but he has limited his appeal to the issues of whether his trial and
appellate counsel were constitutionally ineffective.
II. ANALYSIS
A. Standard of review
In a habeas corpus appeal, we review the district court’s legal conclusions de novo, but will
not set aside its factual findings unless they are clearly erroneous. Dyer v. Bowlen, 465 F.3d 280,
283-84 (6th Cir. 2006). The standard for reviewing state-court determinations on habeas, by
contrast, is governed by the Antiterrorism and Effective Death Penalty Act (AEDPA), codified at
28 U.S.C. § 2254(d). Under the AEDPA standard, a federal court
may not grant a writ of habeas to a petitioner in state custody with respect to any
claim adjudicated on the merits in state court unless (1) the state court’s decision was
contrary to, or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court . . . or (2) the state court’s decision was
based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceedings.
Taylor v. Withrow, 288 F.3d 846, 850 (6th Cir. 2002) (quoting 28 U.S.C. § 2254(d)) (quotation
marks omitted).
A state-court decision is considered “contrary to . . . clearly established federal law” if it is
“diametrically different, opposite in character or nature, or mutually opposed.” Williams v. Taylor,
529 U.S. 362, 405 (2000) (quotation marks omitted). Alternatively, to be deemed an “unreasonable
application of . . . clearly established Federal law,” a state-court decision on the merits must be
“objectively unreasonable,” not simply erroneous or incorrect. Id. at 409-11. The state court’s
findings of fact are presumed to be correct unless they are rebutted by “clear and convincing
evidence.” Benge v. Johnson, 474 F.3d 236, 241 (6th Cir. 2007).
B. Ivory’s ineffective-assistance-of-trial-counsel claim is procedurally defaulted
As noted above, the district court determined that Ivory’s claim regarding the alleged
ineffective assistance of his trial counsel was procedurally defaulted. This court has adopted a four-
part test to determine whether a claim has been procedurally defaulted:
(1) the court must determine that there is a state procedural rule with which the
petitioner failed to comply; (2) the court must determine whether the state courts
actually enforced the state procedural sanction; (3) the state procedural rule must
have been an adequate and independent state procedural ground upon which the state
could rely to foreclose review of a federal constitutional claim; and (4) if the court
has determined that a state procedural rule was not complied with and that the rule
was an adequate and independent state ground, then the petitioner must demonstrate
that there was cause for his failure to follow the rule and that actual prejudice
resulted from the alleged constitutional error.
Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002).
Whether a state court has actually enforced a procedural sanction depends on whether “the
last state court from which the petitioner sought review . . . invoked the stated procedural rule as a
basis for its decision to reject reviewing the petitioner’s federal claims.” Abela v. Martin, 380 F.3d
915, 921 (6th Cir. 2004) (citing Coleman v. Thompson, 501 U.S. 722, 729-30 (1991)). In Ylst v.
Nunnemaker, 501 U.S. 797, 803 (1991), the Supreme Court held that, where the last state court
Nos. 05-1672; 06-2294 Ivory v. Jackson Page 6

decision is silent or unexplained as to its reasons for not granting relief, the federal court may “look
through” that judgment and assume that it relied on the last reasoned judgment issued in the course
of the petitioner’s state appeals. That prior judgment’s rationale is then taken as the state court’s
basis for denying relief. Id.
The last state court to review Ivory’s postconviction claims was the Michigan Supreme
Court. In January of 2004, the Court issued an order stating, in its entirety: “On order of the Court,
the application for leave to appeal the August 31, 2003 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 court has previously held that Mich. Ct. R. 6.508(D)(3) is an
“independent and adequate” ground to bar review of a petitioner’s federal claims. See, e.g.,
McFarland v. Yukins, 356 F.3d 688, 698 (6th Cir. 2004). Part (D) of Rule 6.508, captioned
“Entitlement to Relief,” first describes the substantive burden a petitioner must meet to qualify for
postconviction relief. The rule also contains three subparts that set forth specific procedural
requirements. Subpart 6.508(D)(3) in particular prohibits courts from granting relief, absent a
showing of cause and prejudice, on the basis of claims that a petitioner could have brought on direct
review but in fact did not.
Ivory contends that because the Michigan Supreme Court denied review based on Mich. Ct.
Rule 6.508(D) generally—rather than on subpart 6.508(D)(3) in particular—this court cannot
adequately determine whether the Michigan Supreme Court actually applied an independent and
adequate procedural sanction. Consequently, Ivory argues, this court should not attempt to “guess”
what the Michigan Supreme Court might have meant, but should instead determine that Ivory’s
claims are not procedurally barred.
Ivory’s argument relies heavily on this court’s ruling in Abela v. Martin, 380 F.3d at 921.
In that case, the Michigan Supreme Court issued an order substantially similar to the order it handed
down in Ivory’s case. The court in Abela first noted that prior Sixth Circuit decisions have held that
a denial of relief based on Mich. Ct. R. 6.508(D) provides an adequate and independent state
procedural sanction sufficient to preclude habeas review. Id. at 923-24 (citing Simpson v. Jones, 238
F.3d 399 (6th Cir. 2000), and Burroughs v. Makowski, 282 F.3d 410 (6th Cir. 2002)).
Nevertheless, the Abela court distinguished Simpson and Makowski on the ground that, in
those cases, the last reasoned state court opinion that referenced anything other than Mich. Ct. R.
6.508(D) had without question denied relief on procedural grounds. Id. at 923. The last reasoned
state-court opinion issued in Abela, in contrast, explicitly denied relief on the merits, stating that the
petitioner’s motion was “DENIED for lack of merit in the grounds presented.” For this reason, the
court in Abela concluded, the Michigan Supreme Court’s general reference to Mich. Ct. R. 6.508(D)
should be interpreted as relying on the merits-based portion of the rule, which identifies the
petitioner’s general burden, rather than on the specific procedural bars set forth in the three subparts
of the Rule.
We conclude that Ivory’s case is much closer to Simpson and Makowski than to Abela.
Never, at any point in Ivory’s postconviction proceedings, did a Michigan court address the merits
of his ineffective-assistance-of-trial-counsel claim. Instead, the postconviction trial court
specifically addressed Ivory’s four other grounds for relief and concluded that “[t]he foregoing
alleged circumstances are without merit.” The court then cited Mich Ct. R. 6.508(D)(3), explicitly
stated that “[a]ll of the legal positions submitted by defendant could have been presented to the
appellate court in his initial appeal.” It then proceeded to deny Ivory’s motion in its entirety because
he could not demonstrate cause and prejudice for the default. Significantly, the court never
addressed the merits of Ivory’s ineffective-assistance-of-counsel claim, his fifth ground for relief.
Both the Michigan Court of Appeals and the Michigan Supreme Court, as noted above, denied Ivory
postconviction relief in one-line orders that cited Mich. Ct. R. 6.508(D).
Nos. 05-1672; 06-2294 Ivory v. Jackson Page 7

Ivory makes much of the fact that the postconviction trial court did not specifically address
his ineffective-assistance-of-trial-counsel claim, and argues that this alleged oversight requires a
determination that the claim was not procedurally defaulted. We agree with Ivory’s factual
statement, but disagree with his proposed remedy. Regardless of what the state postconviction trial
court did or did not do, Ivory concedes that he failed to raise his ineffective-assistance-of-trial-
counsel claim on direct appeal. The Michigan appellate courts’ one-sentence orders—stating that
Ivory “failed to meet the burden of establishing entitlement to relief under MCR
6.508(D)”—therefore constitute orders “based on an independent and adequate state procedural
rule.” Simpson, 238 F.3d at 407 (concluding that Mich. Ct. R. 6.508(D) is an independent and
adequate procedural bar). We thus turn, in Part II.C below, to the question of whether Ivory has
demonstrated “cause and prejudice” that would excuse his procedural default.
C. Ivory cannot demonstrate cause and prejudice to excuse the default
In order to excuse the procedural default identified in Part II.B. above, Ivory must
demonstrate “good cause” for the default and must show that “actual prejudice resulted from the
alleged constitutional error.” Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002). Ivory asserts
two different grounds that he claims establish cause for the default: (1) recently discovered evidence
corroborating his ineffective-assistance-of-trial-counsel claim, and (2) the ineffective assistance of
his appellate counsel in failing to raise on direct appeal the issue of his trial counsel’s ineffective
assistance. We will address both of these grounds in turn.
1. Recently discovered evidence
Ivory asserts that the ruling of the Michigan State Bar suspending Gordon’s license and the
admissions by Gordon’s counsel at those disciplinary proceedings entitle Ivory to at least an
evidentiary hearing on the question of Gordon’s effectiveness. But Ivory himself argued, in a
grievance filed just one month after his criminal trial, that Gordon’s assistance at trial was
ineffective for multiple reasons and that Gordon “should be tested for drugs.” His September 1998
grievance thus demonstrates that Ivory was aware of both Gordon’s allegedly ineffective assistance
and his counsel’s drug use well in advance of filing a direct appeal. As Ivory acknowledges, the
newly discovered evidence he cites simply serves to “corroborate[]” his ineffective-assistance-of-
trial-counsel claim. The new evidence cannot, therefore, excuse Ivory’s failure to raise the claim
on direct appeal because he was obviously on notice of both Gordon’s alleged ineffectiveness and
the possible reasons for it prior to filing his direct appeal.
2. Ineffective assistance of appellate counsel
Whether the allegedly ineffective assistance of Ivory’s appellate counsel excuses Ivory’s
failure to raise the issue of his trial counsel’s ineffectiveness on direct appeal presents a more
complex question. As this court has held, “ineffectiveness of appellate counsel can suffice to show
sufficient cause and prejudice for failure to raise an ineffective-assistance-of-counsel claim.”
Howard v. Bouchard, 405 F.3d 459, 478 (6th Cir. 2005). Counsel’s failure to raise an issue on
appeal, however, constitutes ineffective assistance “only if there is a reasonable probability that
inclusion of the issue would have changed the result of the appeal.” Id. Whether raising the issue
might have changed the result of the appeal, in turn, goes to the merits of the claim itself. Thus, in
order to determine whether the procedural default of Ivory’s ineffective-assistance-of-trial-counsel
claim may be excused by the ineffective assistance of his appellate counsel, we must examine the
merits of his ineffective-assistance-of-trial-counsel claim.
The familiar Strickland test governing a claim of ineffective assistance of counsel has two
prongs. First, the defendant must demonstrate that counsel’s performance fell “below the objective
standard of reasonableness.” Strickland v. Washington, 466 U.S. 668, 688 (1984). The defendant
must then demonstrate that “there is a reasonable probability that, but for counsel’s unprofessional
Nos. 05-1672; 06-2294 Ivory v. Jackson Page 8

errors, the result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine the confidence in the outcome.” Id. at 694. We are also mindful,
however, of the Supreme Court’s explanation that
a court need not determine whether counsel’s performance was deficient before
examining the prejudice suffered by the defendant as a result of the alleged
deficiencies. The object of an ineffectiveness claim is not to grade counsel’s
performance. If it is easier to dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice, which we expect will often be so, that course should be
followed.
Id. at 697.
Taking Strickland to heart, we find no need to delve into Ivory’s allegations regarding his
counsel’s performance. Even if we assume for the sake of argument that Gordon’s performance fell
below an objective standard of reasonableness, the critical issue regarding Ivory’s claim is whether
he can demonstrate a reasonable probability that, but for Gordon’s alleged unprofessional conduct,
the result of the proceedings would have been different. Rather than attempting to meet this test in
the first instance, Ivory argues that Gordon’s representation was so deficient as to give rise to per
se prejudice under United States v. Cronic, 466 U.S. 648, 658-61 (1984) (suggesting that there are
circumstances when a presumption of prejudice is appropriate, but requiring the defendant in the
case before it to demonstrate that his trial counsel had made specific errors). As this court has
explained, three types of cases can lead to a presumption of prejudice under Cronic:
The first is the complete denial of counsel, in which the accused is denied the
presence of counsel at a critical stage. The second is when counsel entirely fails to
subject the prosecution’s case to meaningful adversarial testing. The third is when
counsel is placed in circumstances in which competent counsel very likely could not
render assistance.
Mitchell v. Mason, 325 F.3d 732, 742 (6th Cir. 2003) (citations and quotation marks omitted).
Ivory’s argument focuses on the second type of case, asserting that Gordon failed to subject the
government’s case to meaningful adversary testing. Such a “constructive denial of counsel is
limited to situations involving constitutional error of the first magnitude, which cannot be cured
even if no prejudice is shown.” Moss v. Hofbauer, 286 F.3d 851, 860 (6th Cir. 2002).
Ivory relies in part on this court’s decision in Mitchell to support his claim that Gordon’s
representation was per se prejudicial. But the court in Mitchell presumed that counsel’s performance
was prejudicial “because [the defendant] was denied the presence of counsel during the critical
pre-trial stage.” 325 F.3d at 742 (emphasis added). The court relied heavily on the fact that counsel
had met with Mitchell only once prior to trial for six minutes, and thus effectively made “no effort
to consult with the client.” Id. at 744.
In so holding, Mitchell distinguished the earlier case of Dick v. Scroggy, 882 F.2d 192 (6th
Cir. 1989), which held that defense counsel’s meeting with the defendant for approximately 30 to
45 minutes prior to trial precluded a finding of per se prejudice. In the present case, Ivory does not
assert that Gordon failed to meet with him. He instead claims that Gordon met with him only twice,
failed to provide documents that Ivory requested, and was likely under the influence of drugs. But
Ivory concedes that, during these meetings, Gordon discussed with him “what [Gordon] called his
‘imperfect self defense’ theory.” These allegations therefore address the quality of Gordon’s pretrial
representation, as did the allegations in Scroggy; they do not assert a virtual absence of
representation that would create per se prejudice.
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Similarly, Gordon’s alleged shortcomings at trial are not sufficient to create per se prejudice.
In Moss, 286 F.3d at 860, this court reviewed instances in which counsel had been found to be
constructively absent from proceedings and concluded that “we have applied Cronic only where the
constructive denial of counsel and the associated collapse of the adversarial system is imminently
clear.” Id. at 861 (holding that counsel’s failure to cross-examine key state witnesses was not
prejudicial per se). Examples of performance giving rise to per se prejudice that are cited in Moss
include counsel sleeping through critical proceedings, Burdine v. Johnson, 262 F.3d 336, 349 (5th
Cir. 2001), expressing contempt and “unmistakable personal antagonism” toward the client in the
presence of the jury, Rickman v. Bell, 131 F.3d 1150, 1156-60 (6th Cir. 1997), and affirmatively
declining to present a defense because of an unsound trial strategy, Martin v. Rose, 744 F.2d 1245,
1250-51 (6th Cir. 1984).
Ivory attempts to analogize Gordon’s alleged drug and alcohol abuse to such cases. The
transcript makes clear, however, that Gordon was conscious throughout the proceedings, cross-
examined the state’s witnesses, moved for a judgment of acquittal, and made a coherent closing
argument. Furthermore, though Ivory was charged with first-degree murder, the court ultimately
adopted Gordon’s argument that the evidence was insufficient to support premeditation and instead
convicted Ivory of the lesser offense of second-degree murder. Gordon was thus present at trial and
performed rationally on behalf of his client. Although this does not establish that Gordon’s
performance passes constitutional muster, it does mean that Gordon’s performance was not per se
prejudicial under Cronic. Ivory must therefore demonstrate how Gordon’s performance prejudiced
him under Strickland in order to be entitled to relief.
In this regard, Ivory’s claims fall short of the mark. Ivory’s own statement to the police
conceded that he killed Napier on July 28, 1996. He told the officers that, after Napier said “you
don’t love me. That’s why I gave you AIDS,” he simply “lost it.” Ivory then “went to the trunk
of the car . . . opened up the trunk and got the gun out of the trunk.” When Napier “started walking
towards [Ivory]” with a “club” car-security device in her hand, Ivory “started shooting her.”
According to the record, Ivory is five-feet, eleven-inches tall and weighed approximately 245
pounds at the time of the shooting, whereas Napier was five-feet, five-inches tall and weighed 129
pounds. Ivory, 2005 WL 1030325, at *1. The district court pointed out that Ivory fired five to seven
shots from a distance of 10 to 12 feet, and that Napier died from two gunshot wounds, one to the
face and one to the upper left buttock. Id. at *5.
Based on these facts, the trial court found that Ivory’s claim that he shot Napier—a woman
much smaller in stature than himself—in self-defense because she wielded a “club” car-security
device was simply not viable. The court, in so ruling, cited both the fact that Ivory himself claimed
to have disarmed Napier of the gun earlier in the evening and the fact that Ivory had a duty to retreat
in any event. Ivory’s present appeal does not assert that any of Gordon’s alleged shortcomings, from
waiving opening statement to failing to present witnesses, would have undermined this conclusion.
In fact, the trial court’s conclusion was based on the facts as asserted by Ivory in his statement to
the police. Ivory is therefore unable to demonstrate that Gordon’s ineffectiveness prejudiced him
because he cannot show a reasonable probability that, but for Gordon’s failings, the trial court would
have adopted his meritless self-defense rationale. See Strickland, 466 U.S. at 694.
After disposing of Ivory’s self-defense claim, the trial court next determined that convicting
Ivory of the reduced offense of voluntary manslaughter instead of second-degree murder was not
justified under the circumstances. In drawing this conclusion, the court relied largely on the facts
as asserted by Ivory. Although the court expressed doubts as to Ivory’s credibility, it nevertheless
assumed the truth of his story that, prior to shooting, Napier told Ivory that she had given him AIDS.
The court also adopted the version of the shooting asserted by the eyewitness Dwayne Glen—that
Ivory already had the gun with him at the time Napier made her AIDS allegation—rather than
Ivory’s story of retrieving the gun from the trunk of the car before shooting Napier. Glen’s version
Nos. 05-1672; 06-2294 Ivory v. Jackson Page 10

is actually more favorable to a manslaughter charge than Ivory’s version in that Glen’s account
reduces the time that Ivory would have had to cool down and reflect on Napier’s statement.
Nevertheless, the Michigan trial court determined that Napier’s statement was insufficient
provocation to justify Ivory’s subsequent shooting. Ivory again cannot show a reasonable
probability that, but for Gordon’s alleged shortcomings, the trial court would have resolved this
matter differently. As noted above, the trial court in fact accepted the version of the facts asserted
by Ivory, and even adopted a contrary but favorable factual conclusion that Ivory had ready access
to the gun at the time of the alleged verbal provocation by Napier.
Ivory asserts, in a footnote in his reply brief, that the “‘[p]rejudice’ in this case results from
counsel’s failure to competently present Mr. Ivory’s provocation defense (on which he bore the
burden of proof).” For this proposition, Ivory cites Commonwealth v. Yates, 818 N.E.2d 181, 184
(Mass. App. Ct. 2004). But Yates simply held that a victim’s statement to an assailant that she had
given him AIDS rendered provocation a “live issue,” so that failing to address it at the defendant’s
plea colloquy provided grounds to withdraw the plea. Id. at 184-85. In the present case, Gordon
in fact recognized that provocation was a live issue, he emphasized it at trial, and he highlighted in
his closing argument that Napier made Ivory think he “might have some life-threatening disease.”
Gordon argued that what happened was “obviously a situation that got out of hand,” and that, “if
[Ivory] had intended to murder [Napier] . . . , he could have done it in [earlier] in that car.”
The above analysis demonstrates that, despite Gordon’s alleged shortcomings, the trial court
actually adopted the factual version of the shooting that was most favorable to Ivory and his
provocation defense. Furthermore, Gordon put before the court an argument that those facts
demonstrated provocation and justified a reduced verdict of manslaughter. The trial court simply
reached a contrary determination that Napier’s statement was not an “adequate and reasonable
provocation to reduce [the charge] to manslaughter” in Ivory’s case. In addition, the Michigan Court
of Appeals affirmed on direct review that Napier’s alleged provocative statements did not justify a
finding of guilt on a reduced charge of manslaughter. Ivory, 2005 WL 1030325, at *6-7. Ivory does
not specifically assert what additional measures Gordon could have taken to sway the trial court in
this regard.
In fact, the only defense witness that Ivory claims should have been called to testify was
Pearl Ivory, his mother. The parties stipulated at trial, however, as to what Mrs. Ivory would have
said, and Ivory does not now assert that she would have testified any differently. Mrs. Ivory did
not witness the incident, and instead only heard shots fired “from down the street somewhere.” Her
testimony was thus not material to Ivory’s claim of self-defense or provocation. So even though the
allegations of Gordon’s drug use, his lack of trial preparation, and his failure to call witnesses are
troubling, Ivory has not shown a reasonable probability that, but for Gordon’s unprofessional
conduct, the result of the trial would have been any different. This means that Ivory’s claim that
appellate counsel was ineffective for failing to raise the issue of ineffective assistance of trial
counsel is without merit, which results in the claim being procedurally barred.
In sum, habeas relief might have been justified if the evidence against Ivory had been
substantially weaker than in fact it was, but such is not the case on the record before us. We are all
the more confident of our conclusion because of the deference that we are required to give the
decision of the Michigan Supreme Court under AEDPA. See 28 U.S.C. § 2254(d).
D. Ivory is not entitled to an evidentiary hearing
Ivory’s final contention is that, even if he cannot demonstrate that he is entitled to habeas
relief based on his ineffective-assistance-of-counsel claims, he is entitled to an evidentiary hearing
to develop additional relevant facts. The district court denied Ivory’s request for an evidentiary
Nos. 05-1672; 06-2294 Ivory v. Jackson Page 11

hearing, which we review under the abuse-of-discretion standard. See Bowling v. Parker, 344 F.3d
487, 512 (6th Cir. 2003).
The Warden asserts that Ivory’s lack of compliance with 28 U.S.C. § 2254(e)(2) prohibits
him from receiving an evidentiary hearing. Section 2254(e)(2) bars the grant of an evidentiary
hearing to a defendant who “has failed to develop the factual basis of a claim in State court
proceedings” unless certain exceptions are met. Id. As the Supreme Court has explained, “a failure
to develop the factual basis of a claim is not established unless there is lack of diligence, or some
greater fault, attributable to the prisoner or the prisoner’s counsel.” Williams v. Taylor, 529 U.S.
420, 432 (2000).
The Warden argues that, just as Ivory procedurally defaulted his substantive ineffective-
assistance-of-trial-counsel claim by failing to raise it on direct review, § 2254(e)(2) precludes
granting Ivory an evidentiary hearing because he failed to seek one on direct review. Ivory responds
that § 2254(e)(2) does not bar granting an evidentiary hearing because (1) he sought an evidentiary
hearing in state postconviction proceedings and was denied, (2) any default is excused by the
ineffective assistance of his appellate counsel, and (3) he is at least entitled to an evidentiary hearing
regarding the ineffectiveness of his appellate counsel because that claim is not procedurally
defaulted.
Because the sole ground upon which Ivory bases his ineffective-assistance-of-appellate-
counsel claim is appellate counsel’s failure to raise the claim of ineffective assistance of trial
counsel, the two issues are intertwined. We need not ultimately decide whether the bar of
§ 2254(e)(2) applies to either request, however, because even assuming that it does not, “the fact that
[a petitioner] is not disqualified from receiving an evidentiary hearing under § 2254(e)(2) does not
entitle him to one.” Bowling, 344 F.3d at 512. Instead, the Supreme Court recently explained that
[i]n deciding whether to grant an evidentiary hearing, a federal court must consider
whether such a hearing could enable an applicant to prove the petition’s factual
allegations, which, if true, would entitle the applicant to federal habeas relief.
Because the deferential standards prescribed by § 2254 control whether to grant
habeas relief, a federal court must take into account those standards in deciding
whether an evidentiary hearing is appropriate.
Schriro v. Landrigan, 127 S. Ct. 1933, 1940 (2007) (citation omitted).
The Court in Schriro held that one of the reasons the lower court erred in granting the habeas
petitioner an evidentiary hearing in that case was that the petitioner’s allegations of ineffective
assistance failed to demonstrate that he had suffered prejudice under Strickland. Id. at 1942.
Although the alleged factual grounds for counsel’s ineffectiveness in the present case differ from
those underlying the claim in Schriro, the same result obtains. Ivory’s ineffective-assistance-of-
counsel claim fails not because he is unable to substantiate his factual allegations regarding
counsel’s deficient performance, but because he cannot demonstrate that the deficient performance
prejudiced him under Strickland. Because none of Ivory’s arguments suggest that further factual
development would demonstrate such prejudice, an evidentiary hearing is unwarranted.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the judgment of the district court.