NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0964n.06
No. 11-2451
FILED
Nov 07, 2013
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
THOMAS SPIKES, )
)
Plaintiff – Appellant ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
v. ) DISTRICT OF MICHIGAN
)
THOMAS MACKIE, ) OPINION
)
Defendant – Appellee )
Before: MERRITT, GIBBONS, and MCKEAGUE, Circuit Judges.
MCKEAGUE, Circuit Judge. Thomas Spikes1 appeals the Eastern District of Michigan’s
denial of his habeas corpus petition, in which he asserted the following claims: (1) that his no
contest plea was involuntary and illusory; (2) that he was denied the effective assistance of trial
counsel; (3) that he was erroneously removed from the courtroom during sentencing; (4) that he was
denied the right to counsel of his choice; and (5) that he was denied the right to effective assistance
of appellate counsel. We affirm.
1
“Thomas Spikes” is an alias. In the related proceeding of the assault case, Spikes was sentenced
under the name of “Sylvester North.” At oral argument, counsel for Spikes confirmed that Spikes’
real name is “Sylvester North.” This Court will refer to Spikes by the name under which he was
prosecuted in the state of Michigan.
No. 11-2451
Spikes v. Mackie
I.
In July 2004, Thomas Spikes (“Spikes”) was charged with two sets of crimes in Wayne
County.2 In the first case, he faced two counts of Armed Robbery, Felonious Assault, and Felony-
Firearm (“the robbery case”). In the second case, Spikes faced charges of two counts of Assault
with Intent to Murder, Assault with Intent to do Great Bodily Harm, and Felony-Firearm (“the
assault case”).
At a September 3, 2004 pretrial hearing, addressing both cases, Spikes rejected a plea offer
to resolve all charges in return for concurrent 10 to 20 year sentences. The prosecutor noted at the
pretrial that if the cases proceeded to trial, he would ask for “consecutive time” and also notified the
trial court that the sentencing guidelines were “much higher than 10 to 20 [years].” R. 6-3, 9-3-04
Pretrial Tr. at 5, PageID # 153. The next pretrial hearing was held on September 24, 2004. The
prosecutor mentioned the possibility of a plea agreement in the assault case, but noted that any offer
to resolve the assault case would require “at least double digits terms of incarceration, being over
10 years, plus 2 for the firearm.” R. 6-4, 9-24-04 Pretrial Tr. at 5, PageID # 161. Spikes, once
again, notified the trial court that he was not interested in exploring such a plea bargain.
In October 2004, Spikes was tried in the assault case and found guilty of Assault with Intent
to Commit Murder, Assault with Intent to do Great Bodily Harm, and Felony-Firearm. On
December 17, 2004, Spikes was sentenced to 22 to 33 years on the Assault with Intent to Murder
2
Counsel for the State clarified in oral argument that any references to Oakland County in the
record were improper and the references should have been to Wayne County. This Court corrects
for the record the reference to the proper county where Spikes was charged.
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Spikes v. Mackie
conviction, a concurrent five to ten years on Assault with Intent to do Great Bodily Harm conviction,
and a consecutive two-year term on the firearm charge.3
On February 2, 2005, Spikes once again appeared before the trial court, this time only with
respect to the robbery case. The prosecutor informed the court that he had offered Spikes a plea
deal. The trial court asked what the sentencing guidelines were, should Spikes go to trial, and the
prosecutor responded that they topped out in the 40-year range. The trial court then stated, “[f]orty
years on the minimum, all right. And that would be consecutive, perhaps to [the sentences in the
assault case].” R. 6-8, 2-2-05 Pretrial Tr. at 3, PageID # 207. On February 7, 2005, the parties
returned to the trial court and a plea agreement was finally reached. Spikes entered a no contest plea
to two counts of Armed Robbery and one count of Felony Firearm. The prosecutor stated the final
terms of his offer to the court:
If Spikes pleads to two counts of Armed Robbery and Felony Firearm on 04-7361 with a
sentence agreement of twenty-six to forty years plus two, to run concurrently with the
previous stated term that I’ve already put on the record [in reference to the assault case], we
would dismiss the Felonious Assault count on this file, as well as all charges on 04-7355,
which is an accompanying file that he has pending.
Id. at 3, PageID # 212.
The prosecutor then stated what the sentencing guidelines would be, should Spikes proceed
to trial:
3
A petition for habeas corpus regarding the convictions in the assault case was filed and denied by
the Honorable Gerald E. Rosen on July 24, 2012. Sylvester North v. Mary Berghuis, U.S.D.C. 2:09-
cv-13071, (E.D. Mich. Jul. 24, 2012). Following the district court’s ruling, Spikes filed a notice of
appeal and a motion for a Certificate of Appealability with this Court. Sylvester North v. Mary
Berghuis, Case No. 12-2100. This Court denied Spikes’ application for a Certificate of
Appealability on February 20, 2013. Spikes then filed a motion for leave to file a petition for
hearing en banc, which this Court also denied. The assault case was closed on June 24, 2013.
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The guidelines start in the range of the bottom of the guidelines are forty, and the reason
they’re that high is because Spikes gets OV twenty-five points from the conviction that he
already has [the assault case] that he’s doing the twenty-two to thirty-three on from the
conviction, you know, from the previous conviction.
Id. at 4, PageID # 213.
The prosecutor clarified that he would seek consecutive sentences and that the sentencing
guidelines range was from a forty-year minimum to a “high end” of sixty. Id. at 5, PageID # 214.
The trial court then explained to Spikes the importance of his decision to either accept the
plea deal or proceed to trial. Id. at 5-6, PageID # 214-15. When the trial court asked Spikes whether
he understood, Spikes responded by saying “[s]o, so, you’re saying you’re giving me time to
think--.” Id. at 6, PageID # 215. The trial court responded:
No. Time is up, Mr. Spikes. Your family has been here half dozen times in the last two, three
weeks. This attorney has been here. I know he has visited you in jail. I know he has spoken
with you in the back. I don’t know what he has spoken to you about, but no more time.
We’re going to try this case and we’re going to try it very quickly from—not very quickly,
but we’re going to try it shortly from this date. And the offer is here, and I will not permit
a plea on the date of trial. You’re going to go for broke.
Id.
Following an approximately twenty minute recess, where Spikes spoke with family members
and his counsel, defense counsel informed the court that Spikes would accept the plea offer and
enter a no contest plea.
Spikes was then placed under oath, and the trial court began the plea colloquy. Spikes
indicated that he was twenty-five years old and had obtained an eleventh grade education. He
indicated that he was satisfied with his counsel’s representation and that he would like to plead no
contest. Spikes also indicated that he understood that the statutory maximum penalty for armed
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robbery was life in prison and the maximum penalty for felony firearm was two years. The trial
court then stated the exact terms of the plea agreement:
And just so we’re all clear, you’re pleading no contest to one count of Armed Robbery. I
take that back, two counts of Armed Robbery; one count of Felony Firearm. The People will
agree to dismiss the Felonious Assault count on this file and all charges on file number 04-
7355, with a sentence agreement of twenty-six to forty years on both Armed Robbery counts,
plus two years on the Felony Firearm. These terms are to run concurrently to your terms of
twenty-two to thirty years, plus two on 04-7354.
Id. at 11, PageID # 220.
Spikes then asked the court whether the plea agreement required him to serve an additional
twenty-six years to the time he was already serving in the assault case. The following discussion
occurred:
THE COURT: No. They’re going to run together, what we call concurrent, all right. So, it’s
not twenty-two plus twenty-six. While you’re doing the twenty-two the twenty-six is
running well, as well. All right? Do you understand that?
MR. SPIKES: Can I ask one more question? So, the offer for the robbery was four years,
right? Two for the charge and two for the gun?
THE COURT: Do you want to look at it that way, Mr. Trzcinski [the prosecutor]? I mean
in the final analysis if you’re talking years.
THE PROSECUTOR: Mr. Spikes, the end affect of your plea is you’re going to do twenty-
eight years that run at the same time as the other twenty-four that you’re doing. So, if you
want to think of it that you’re getting it for four years, that’s one way to look at it because
you’ve already got twenty-four in the bank. But you are pleading to twenty-six plus two,
which is twenty-eight years. But they run at the same time as your other twenty-four. All
right.
MR. SPIKES: See, I thought it was four years. I’m thinking it was just going to be four
years, two for the gun and two for the crime. I didn’t know it was going to be twenty-six to
forty.
DEFENSE COUNSEL: I always advised Mr. Spikes that it would be the time, the minimum
time that he’s doing plus four more years.
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THE COURT: Mr. Spikes, you’re doing twenty-six to forty plus the two years on the Felony
Firearm for this case. That will run concurrent to the twenty-two plus two that you’ve
already got on the other case. Take it or leave it, sir. I mean I believe and I know it to have
been explained to you every which way. We’ve been here all day. This is probably the
sixth, the half dozen time that you’ve been back here since the first of January. This isn’t
rocket scientist about this. It’s do you want it or do you not want it, yes or no?
MR. SPIKES: I’m confused, but yeah—
THE COURT: No, it’s not that you’re confused. It’s your doing twenty-six plus two on the
Felony Firearm on this case. That is the plea offer and that is to run concurrent, at the same
time as your other case. Is that the plea offer that you are wishing to take advantage of this
afternoon? Is that yes?
MR. SPIKES: Yes.
Id. at 12-14, PageID # 221-23.
Following this discussion, Spikes was informed of the rights he was waiving by entering a
plea. Spikes stated on the record that he was pleading voluntarily and that no one had threatened
or coerced him into pleading. The court then accepted the plea and set the case for a sentencing
hearing.
A sentencing hearing was held on March 1, 2005. Defense counsel informed the court that
Spikes wanted to withdraw his plea. Counsel indicated that Spikes never understood the
ramifications of the plea and that Spikes was going to appeal the sentence in the assault case.
Accordingly, assuming Spikes prevailed in his appeal, defense counsel stated that Spikes was under
the false understanding that he would only be required to serve four years and not twenty-eight
years. Defense counsel requested that the court allow Spikes to withdraw his plea. After hearing
argument from the prosecutor, the court denied Spikes’ motion, stating:
Well, pursuant to MCR6.310 and People versus Gomer, the Court does agree with the
position of the People in this matter and is not going to permit any withdrawal of the plea.
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There was no fraud, duress or coercion. This Court remembers this particular plea in some
detail and there was discussion and communication both on the record and off the record
between defense counsel, the prosecutor and the family, and that Mr. Spikes certainly was
well aware of the implications of the plea in this matter. He had questions, those questions
were answered both on the record and this Court is aware that those certain questions were
answered off the record, as well. And that as with this sentencing hearing, that [defense
counsel] spent a good part of a morning and the record, the docket entries would further
reflect that [defense counsel] was back and forth here in this court on this case numerous
times communicating with both Mr. Spikes and Mr. Spikes’ family. And the Court does,
does agree that the plea at the time it was taken was knowingly and understandingly and
voluntarily, and is going to deny the request to withdraw the plea.
R. 6-10, 3-1-05 Sentencing Hearing Tr. at 8-9, Page ID # 235-36.
The court then proceeded to ask the parties about their respective positions on the sentencing
guidelines scoring. Defense counsel requested additional time to go over the guidelines, which the
court granted. After a ten-minute adjournment, defense counsel informed the court that Spikes
needed additional time to go over the offense variables. The court denied this request, at which
point, Spikes spoke up and informed the court that he was having a “break down and mis-
communication” with his counsel and no longer wanted the court-appointed attorney, James
Anderson, to represent him. Id. at 12, PageID # 239. The following exchange occurred between
Spikes and the court:
MR. SPIKES: Excuse me. I—
THE COURT: Put down your hand, sir. Go ahead.
MR. SPIKES: --I, I don’t want this, I don’t want this guy, this counsel to represent me no
more. We’re having a break down and mis-communication—
THE COURT: Mr. Spikes?
MR. SPIKES: --and I do not want this counsel—
THE COURT: Mr. Spikes—
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Spikes v. Mackie
MR. SPIKES: --to represent me.
THE COURT: --I’m going to remove you from the courtroom. You don’t want any attorney
to represent you. This is about your third time through.
MR. SPIKES: I don’t want this guy because we had a break down in communication, and
from my understanding the cop that was I was taking was four years. It was not twenty-eight
years.
THE COURT: Mr. Ander—
MR. SPIKES: He did not break it down to me and he has not broke it down to me until this
day. So—
THE COURT: Well, I don’t—
MR. SPIKES: --I would like—Can he step down, please? This is my life right now and I
would not have took no cop for no twenty-eight years.
THE COURT: Remove him from the courtroom. We’re going to sentence him. Go ahead.
Take him out. Mr. Trzcinski, you may proceed.
Id. at 12-13, PageID # 239-40.
The court proceeded to go through the scoring of the sentencing guidelines, without Spikes
in the courtroom. Defense counsel objected to his client being removed and noted for the record that
his client requested additional time to review the offense variables. The court responded by saying:
Mr. Anderson [defense counsel], your client has been asking for more time on each thing
we’ve done for the last six months and he’s gotten more time, he’s gotten plenty of time.
And no personal offense to you, I know you’ve done an excellent job in this case as the
Court has every confidence in you and what you’ve done. But your client has had every
opportunity and really has—wants to continue to delay and we are going to move this case
forward.
Id. at 14-15, PageID # 241-42.
The court then sentenced Spikes under the terms of the plea agreement, placing on the record
a sentence of 26 to 40 years on the armed robbery counts, consecutive with two years for the felony
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firearm count. The court also dismissed the felonious assault charge. The court ordered the entire
sentence to run concurrently with the twenty-two to thirty-three plus two year sentence in the assault
case.
Following his plea conviction and sentence, Spikes filed a delayed application for leave to
appeal in the Michigan Court of Appeals. The Michigan Court of Appeals issued a brief order
denying Spikes’ application for leave to appeal due to the lack of merit. The Michigan Supreme
Court also denied Spikes’ appeal in a standard order, stating that it was not convinced that the
questions presented should be reviewed by the Michigan Supreme Court.
Following the Michigan Supreme Court’s ruling, Spikes returned to the trial court that had
sentenced him and filed a motion for relief from judgment.
The trial court addressed each of Spikes’ claims individually, and eventually denied the
motion stating that Spikes had failed to establish “good cause or prejudice” and denied the motion
pursuant to Michigan Civil Rule 6.508(D)(3). Spikes then filed an application for leave to appeal
in the Michigan Court of Appeals, which was denied because Defendant had failed to meet the
burden of establishing entitlement to relief under MCR 6.508(D). Spikes applied for leave to appeal
this decision in the Michigan Supreme Court, but was denied relief under Rule 6.508(D).
Spikes filed a petition for writ of habeas corpus in the Eastern District of Michigan pursuant
to 28 U.S.C. § 2254. Spikes raised the following claims for relief:
I. The trial court erred when it denied Spikes’ motion to withdraw plea because it was
involuntary and illusory.
II. Spikes was denied the effective assistance of counsel regarding his plea.
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III. The trial court erred when it ejected Spikes from the courtroom during sentencing,
thereby denying him his right to due process.
IV. Spikes was denied the right to counsel when the trial court forced him to proceed
with appointed counsel during sentencing.
V. Spikes was denied the effective assistance of appellate counsel.
R.1, Petition for Writ of Habeas Corpus at 13, PageID # 13.
The district court issued an opinion and order denying Spikes’ request for habeas relief.
Reviewing the claims under the deferential standard of the “Antiterrorism and Effective Death
Penalty Act of 1996” (AEDPA), the district court found all of Spikes’ claims to be without merit.
28 U.S.C. § 2254. This appeal followed.
II.
Spikes raises five claims in his petition. Michigan asserts that some of Spikes’ claims are
barred by procedural default. The district court did not address the issue of procedural default,
finding the issue of procedural default to be “nettlesome.” This Court also need not address
procedural default as Spikes’ claims fail even on the merits.
A. Standard of Review
In a habeas corpus appeal, this Court reviews a district court’s legal conclusions de novo.
If the district court does not make its own findings of fact following an evidentiary hearing, and
instead relies on the state trial transcript, the reviewing court must likewise make its own de novo
review of the record and independently assess the facts in the case. Haliym v. Mitchell, 492 F.3d
680, 689 (6th Cir. 2007). Habeas review is generally “limited to the record that was before the state
court.” Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011). The standard for reviewing state-court
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determinations on habeas is governed by the Antiterrorism and Effective Death Penalty Act
(AEDPA). 28 U.S.C. § 2254(d). AEDPA imposes a “highly deferential standard for evaluating
state-court rulings” and demands that federal courts give state court decisions the benefit of the
doubt. Renico v. Lett, 130 S. Ct. 1855, 1862 (2010) (citation omitted) (noting that AEDPA creates
a substantially higher threshold for obtaining relief than would de novo review). Accordingly, when
this Court reviews a state court’s findings habeas relief is only warranted if the state court’s decision
was contrary to or involved an unreasonable application of clearly-established federal law or was
based upon an unreasonable determination of the facts in light of the evidence. Slagle v. Bagley,
457 F.3d 501, 513 (6th Cir. 2006) (citing 28 U.S.C. § 2254(d)). Under AEDPA, 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); see also Wiggins v. Smith, 539 U.S. 510, 520 (2003)
(citations omitted). For a state court decision to be deemed an “unreasonable application of . . .
clearly established Federal law,” a state-court decision regarding the merits must be “objectively
unreasonable.” Wiggins, 539 U.S. at 520–21 (citations omitted).
AEDPA deference requires federal courts to preclude federal habeas relief so long as
“fairminded jurists could disagree on the correctness of the state court’s decision.” Harrington v.
Richter, 131 S. Ct. 770, 786 (2011) (citation and internal quotation omitted). The Supreme Court
has emphasized that even a “strong case for relief does not mean the state court’s contrary
conclusion was unreasonable.” Id. (citation omitted). Thus, to obtain habeas relief in federal court,
a state prisoner must show that the state court’s rejection of his claim “was so lacking in justification
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that there was an error well understood and comprehended in existing law beyond any possibility
for fairminded disagreement.” Id. at 786–87. Section 2254(d) “does not require a state court to give
reasons before its decision can be deemed to have been adjudicated on the merits.” Id. at 785
(internal quotation omitted).
1. Involuntary Plea
Spikes argues that his no contest plea was not voluntarily and knowingly entered and sets
forth three arguments to support this contention. First, Spikes argues that the prosecutor incorrectly
stated the minimum sentencing guidelines, informing Spikes that if he went to trial his minimum
sentence would begin at 40 years. Spikes argues that this miscommunication, whether deliberate
or not, was misleading, as the low-end of the applicable sentencing guidelines for that offense was
actually 18 years, 9 months. Second, Spikes argues that the prosecutor misled him by stating that
if he went to trial, the prosecution would seek a sentence consecutive to the sentence in the assault
case. Spikes maintains that consecutive sentencing is in contravention of Michigan law. Finally,
Spikes concludes that the prosecutor’s misrepresentations induced him into accepting a plea bargain
that had questionable value.
In order for a guilty plea to be constitutional it must be knowing, intelligent, voluntary, and
done with sufficient awareness of the relevant circumstances and likely consequences. Bradshaw
v. Stumpf, 545 U.S. 175, 183 (2005). The identical standard applies to a plea of no contest or nolo
contendere. See Fautenberry v. Mitchell, 515 F.3d 614, 636–37 (6th Cir. 2008). For a guilty or no
contest plea to be voluntary, the defendant must be
fully aware of the direct consequences, including the actual value of any commitments made
to him by the court, prosecutor, or his own counsel, [and not] induced by threats ( o r
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promises to discontinue improper harassment), misrepresentation (including unfulfilled or
unfulfillable promises), or perhaps by promises that are by their nature improper as
having no proper relationship to the prosecutor’s business (e.g. bribes).
Brady v. United States, 397 U.S. 742, 755 (1970) (internal quotations and citation omitted). The
defendant must also be aware of the maximum sentence that can be imposed for the crime for which
he is pleading. King v. Dutton, 17 F.3d 151, 154 (6th Cir. 1994). The voluntariness of a guilty or
no contest plea is determined in light of all relevant circumstances surrounding the plea. Brady, 397
U.S. at 749. If a prosecutor’s promise is illusory, then a plea is involuntary and unknowing. United
States v. Randolph, 230 F.3d 243, 250–51 (6th Cir. 2000). However, where a defendant is “fully
aware of the likely consequences” of a plea, it is not unfair to expect him to live with those
consequences. Mabry v. Johnson, 467 U.S. 504, 511 (1984).
A plea-proceeding transcript which suggests that a guilty or no contest plea was made
voluntarily and knowingly creates a “heavy burden” for a petitioner seeking to overturn his plea.
Garcia v. Johnson, 991 F.2d 324, 326–28 (6th Cir. 1993). Where the transcript shows that the guilty
or no contest plea was voluntary and intelligent, a presumption of correctness attaches to the state-
court findings of fact and to the judgment itself. Id. at 326–27.
After reviewing the state court record, this Court finds that Spikes knowingly and voluntarily
entered the no contest plea. First, the trial judge, during the plea colloquy, was satisfied that Spikes
was pleading voluntarily and, again, found that Spikes’ plea was knowing and voluntary during the
motion for relief from judgment. The trial court’s factual finding that the plea was voluntary, which
is presumptively correct, is further supported by the record. 28 U.S.C. § 2254(e)(1) (providing that
state court determination of factual issues are presumed correct unless the habeas petitioner rebuts
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the presumption by “clear and convincing evidence”). As the trial court noted in its order denying
Spikes’ motion for relief from judgment, “defendant was properly apprised of the name of the
offenses to which he was pleading and the maximum prison sentence and the mandatory minimum
sentence.” R. 6-13, Order Denying Mot. for Relief from J. at 38, PageID # 326. A review of the
sentencing transcript shows that during the plea colloquy, Spikes was informed, accurately, of the
consequences of his plea. When Spikes began to state that he was confused, the trial judge took
great care to ensure that Spikes understood the differences between “consecutive” and “concurrent”
sentences. The trial court specifically stated:
THE COURT: No. They’re going to run together, what we call concurrent, all right. So, it’s
not twenty-two plus twenty-six. While you’re doing the twenty-two the twenty-six is
running well, as well. All right? Do you understand that?
...
THE COURT: Mr. Spikes, you’re doing twenty-six to forty plus the two years on the Felony
Firearm for this case. That will run concurrent to the twenty-two plus two that you’ve
already got on the other case. Take it or leave it, sir. I mean I believe and I know it to have
been explained to you every which way. We’ve been here all day. This is probably the
sixth, the half dozen time that you’ve been back here since the first of January. This isn’t
rocket scientist about this. It’s do you want it or do you not want it, yes or no?
MR. SPIKES: I’m confused, but yeah—
THE COURT: No, it’s not that you’re confused. It’s your doing twenty-six plus two on the
Felony Firearm on this case. That is the plea offer and that is to run concurrent, at the same
time as your other case. Is that the plea offer that you are wishing to take advantage of this
afternoon? Is that yes?
Id. at 12-14, PageID # 221-23.
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While the transcript from pretrial proceedings shows that the prosecutor misstated4 the
maximum sentence available under the sentencing guidelines for the offense of armed robbery,5 the
trial court expressly clarified the sentence Spikes was going to receive prior to Spikes accepting the
plea deal, specifically stating that the statutory maximum sentence Spikes could receive was life in
prison. R. 6-9, 2-7-05 Plea Tr. at 10, PageID # 219 (The trial court asked Spikes: “And do you
understand that the statutory maximum penalty for Armed Robbery is life in prison. Do you
understand that, sir?” Spikes responded with: “Yes.”). Spikes contends that the reason he accepted
the plea was because he was seeking to avoid a 40-year sentence that would be consecutive to the
sentence in his assault case, however Spikes has offered no evidence to the Court, other than his
statements of his belief, to support this contention. Pet. Br. at 10.6 This Court has repeatedly
4
During oral argument, Counsel for Spikes suggested that Spikes had a Constitutional right to not
be misled by the prosecutor, regardless of whether the prosecutor intended to mislead the defendant
or not. Counsel for Spikes listed a variety of cases for the bases for this Constitutional right. See,
e.g., United States v. Rodriguez, 533 U.S. 377 (2008); Hill v. Lockhart, 474 U.S. 52 (1985); Maples
v. Stegall, 427 F.3d 1020 (6th Cir. 2005). This Court has reviewed every case Counsel for Spikes
raised during oral argument and finds that none of the cases support a finding of such a
Constitutional right.
5
The lower court record shows that at pretrial proceedings, the prosecutor informed Spikes that the
sentencing guidelines were forty years (480 months) at the minimum and sixty years (720 months)
at the maximum. R. 6-9, 2-7-05 Plea Tr. at 4, PageID # 213. It is unclear how the prosecutor
calculated these numbers, and hypothesizing on how he calculated them is inconsequential to this
Court’s ruling. It is simply worth noting that the prosecutor should have informed Spikes at the
pretrial conferences that the range was 225 to 375 months, or life. The prosecutor’s initial incorrect
statement regarding the potential sentence, however, was later corrected. Id. at 13, PageID # 222.
6
During the plea colloquy, Spikes appeared to think that he was entering a plea involving only a
four-year sentence that would run concurrently with his assault-related sentences. R. 6-9, 2-7-05
Plea Tr. at 12-14, PageID # 221-23. However, the trial court made certain to clarify any
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rejected claims by habeas petitioners to set aside pleas due to “sentence confusion” where the plea
transcript demonstrates that the petitioner states on the record that he is pleading knowingly and
voluntarily of his own free will. Ashbaugh v. Gundy, 244 Fed. App’x. 715, 717–18 (6th Cir. 2007);
Alford v. Brigano, 67 Fed. App’x. 282, 285 (6th Cir. 2003). This Court has stated that a court cannot
rely on the petitioner’s alleged “subjective impression” “rather than the bargain actually outlined
in the record,” for to do so would render the plea colloquy process meaningless. Ramos v. Rogers,
170 F.3d 560, 566 (6th Cir. 1999). If the plea colloquy process were viewed in this light, any
defendant who alleged that he believed the plea bargain was different from that outlined in the
record would have the option of withdrawing his plea despite his own statements during the plea
colloquy indicating the opposite. Id. Spikes has failed to provide this Court any evidence to show
this Court that he did not understand the bargain he was entering when he entered the no contest
plea. Garcia, 991 F.2d at 326–28 (holding that a plea-proceeding transcript which suggests that a
misconception that Spikes had regarding the length of the additional sentence he would serve should
he enter the plea, and also had the prosecutor articulate those consequences. Id.; R. 6-13, Order
Denying Mot. for Relief from J. at 38, PageID # 326. The district court noted,
the trial court and the prosecutor clarified that he would not receive a four-year sentence but
that the agreed-to sentence would run concurrently with his assault case sentences. Spikes
then indicated that he wished to go ahead with the plea. The trial court, therefore, remedied
any misconceptions held by Spikes regarding the direct consequences of his plea by
clarifying the sentencing consequences of his plea agreement.
R. 8, District Court Op. at 12, PageID # 423.
Therefore, while Spikes contends that he was confused as to the consequences of the plea
he was entering, the trial court transcript and the trial court’s factual findings clearly show that
any misconceptions were clarified by the trial judge and the prosecutor. Spikes has failed to
rebut this showing.
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plea was made voluntarily and knowingly creates a “heavy burden” for a petitioner seeking to
overturn his plea). Spikes has thus failed to rebut the strong presumption created by the state court’s
transcript and this Court finds that the lower court did not make an unreasonable determination of
the facts in finding that Spikes understood the plea he was entering.7
Spikes’ second argument that the plea was “illusory” is also without merit. Because he
accepted the plea, Spikes’ felonious assault charge was dismissed. The prosecutor also dropped
charges in a separate criminal case as part of the plea bargain. Id. Additionally, the prosecutor did
not seek consecutive sentences, which was an option based on the offenses Spikes was charged. See
Mich. Comp. Law § 768.7b(2). As Spikes received a bargained-for benefit, he cannot claim that the
plea was illusory. See McAdoo v. Elo, 365 F.3d 487, 498 (6th Cir. 2004) (holding that where a
7
Spikes argues that the district court should have granted his request for an evidentiary hearing
regarding his motivations for taking the plea. This Court reviews a district court’s denial of a request
for an evidentiary hearing for abuse of discretion. Getsy v. Mitchell, 495 F.3d 295, 310 (6th Cir.
2007) (en banc). A district court abuses its discretion where “it applies the incorrect legal standard,
misapplies the correct legal standard, or replies upon clearly erroneous findings of fact.” Id. (internal
quotations omitted). Section 2254(e)(2) sets forth certain preconditions to obtaining an evidentiary
hearing in a habeas proceeding, namely that the petitioner must attempt to develop a factual basis
of the claim in state court proceedings. If the petitioner fails to develop the factual record, then the
court shall not hold an evidentiary hearing unless the petitioner shows that the claim relies on new
constitutional law or a factual predicate that could not have been previously discovered. Id. The
Supreme Court has held that the petitioner must demonstrate diligence, at a minimum, by seeking
an evidentiary hearing in state court, in order for a court to consider granting an evidentiary hearing
on habeas review. Williams v. Taylor, 529 U.S. 420, 432 (2000). This Court finds that the district
court did not abuse its discretion in denying Spikes’ request for an evidentiary hearing. Spikes
showed no attempt to further develop the record in the state court proceedings and did not request
an evidentiary hearing when his claim was before Michigan state courts. Accordingly, the district
court did not abuse its discretion when it chose to rely on the state court record in reviewing Spikes’
claims.
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No. 11-2451
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defendant receives the “bargained-for benefit” the plea is not illusory and he is not entitled to habeas
relief).
2. Ineffective Assistance of Counsel
Spikes asserts that his trial counsel provided ineffective assistance by allowing him to accept
the plea bargain without correcting the prosecutor’s misrepresentations regarding consecutive
sentencing and the applicable sentencing guidelines. Spikes contends that his counsel should have
corrected the prosecutor’s misstatements about the law and his failure to do so led Spikes to
erroneously enter a plea on the basis of avoiding consequences not even applicable to his offense.
To demonstrate ineffective assistance of counsel with respect to a no contest plea, the
defendant must show that counsel’s performance was deficient and that the deficient performance
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); see Hill v. Lockhart,
474 U.S. 52, 57–59 (1985) (holding that the Strickland test applies to challenges to guilty pleas
based on ineffective assistance of counsel).
In analyzing the first prong—deficient performance—this Court presumes that counsel is
competent and the burden is on the petitioner to demonstrate a constitutional violation. United
States v. Pierce, 62 F.3d 818, 833 (6th Cir. 1995) (citing United States v. Cronic, 466 U.S. 648, 658
(1984)). There is an established deference that is afforded trial counsel in the area of plea
bargaining. Bray v. Andrews, 640 F.3d 731, 738 (6th Cir. 2011).
In the context of guilty or no contest pleas, the “prejudice” requirement focuses on whether
counsel’s constitutionally ineffective performance affected the outcome of the plea process. Stated
differently, the defendant must show that there is a reasonable probability that, but for counsel’s
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No. 11-2451
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errors, he would not have pleaded no contest and would have insisted on going to trial. Hill, 474
U.S. at 58–59. Moreover, he must show that there would have been a reasonable chance he would
have been acquitted had he gone to trial. Id. at 59.
The Supreme Court has noted that “[e]stablishing that a state court’s application of
Strickland was unreasonable under § 2254(d) is all the more difficult.” Richter, 131 S. Ct. at 778.
The standards created by Strickland and § 2254(d) are both “highly deferential,” and when applied
together a court should be “doubly” deferent. Id. at 788 (internal quotations and citations omitted).
The prosecutor’s representations as to the applicable sentencing range and potential sentence
Spikes would face if he proceeded to trial were inaccurate and potentially misleading. As the district
court noted, trial counsel should have researched the applicable sentencing guidelines and
appropriately notified Spikes of the potential sentence should Spikes proceed to trial. However,
even if this Court were to find that Spikes’ trial counsel’s performance was deficient in any respect,
Spikes’ claim fails on the second prong of Strickland. Spikes has not shown that he was
“prejudiced” in that he would have foregone the plea bargain but for his counsel’s failure to correct
the prosecutor’s misstatements about the potential sentence. Spikes has not even suggested in his
briefs that he would have proceeded to trial if his trial counsel had informed him of the accurate
sentencing guidelines. See Hill, 474 U.S. at 58–59. Furthermore, as the district court correctly
noted, the trial transcript clearly shows that Spikes’ main concern was the prospect of facing only
an additional four years beyond the sentence that he received in his assault case.
Lastly, Spikes has not presented this Court any evidence or suggestion that had he gone to
trial he had a viable defense to the charges. As Spikes has offered no evidence to show that he
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No. 11-2451
Spikes v. Mackie
would have gone to trial and that he had a viable defense if he proceeded to trial, this Court finds
that the lower court did not unreasonably apply clearly-established federal law.
3. Removal from the Courtroom
Spikes claims that his right to be present at all critical stages of the proceedings was denied
when the trial judge removed him from the courtroom during his sentencing hearing.
A criminal defendant has a right to be physically present at every stage of his trial. Kentucky
v. Stincer, 482 U.S. 730, 745 (1987). However, a defendant can lose this privilege, “if, after he has
been warned by the judge that he will be removed if he continues his disruptive behavior, he
nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful
of the court that his trial cannot be carried on with him in the courtroom.” Illinois v. Allen, 397 U.S.
337, 343 (1970). When a court conducts criminal proceedings outside the presence of a defendant,
the lower court’s actions are subject to harmless error review. See United States v. Gallagher, 57
Fed. App’x. 622, 626–27 (6th Cir. 2003) (holding that a defendant must show that his presence at
a hearing would have been useful to show error in his removal). On habeas review, the test for
harmless error is whether it had a “substantial and injurious effect or influence” on the result of the
proceeding. Fry v. Pliler, 551 U.S. 112, 116 (2007).
As noted above, during the sentencing hearing, defense counsel informed the trial court that
he had not had enough time to go over the sentencing guidelines with his client. Spikes then
informed the trial judge that he did not want trial counsel to continue representing him because there
had been a break down in communication and that, from his understanding, the plea he was taking
was four years and not twenty-six years. In response, the trial court ordered Spikes to be removed
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No. 11-2451
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from the courtroom. Trial counsel then objected, stating that he was unable to effectively challenge
the guideline scoring without Spikes’ input. The trial court noted the objection, but then proceeded
with the sentencing and sentenced Spikes under the terms of the plea agreement.8
On review, the district court found that Spikes should not have been removed from the
courtroom, but found the error to be harmless. We agree. Spikes’ behavior certainly did not rise
to the level of disruption outlined in Illinois v. Allen, 397 U.S. 337, 343 (1970). Spikes had barely
stated three sentences prior to being ejected from the courtroom. This does not rise to the level of
misconduct envisioned in Illinois v. Allen to warrant removal from the courtroom.
Nonetheless, this Court finds that the error in removing Spikes from the courtroom in such
a quick fashion without cause was harmless. The trial court removed Spikes during his sentencing
hearing. At the time of the sentencing, the plea had already been entered and the trial court entered
a sentence that conformed to the exact terms to which Spikes pled. Furthermore, Spikes has
presented no evidence as to why he was prejudiced by not being in court during his sentencing.
Spikes was represented by counsel and his counsel was present during the entire sentencing hearing.
While it is true that the trial judge made factual findings on the scoring of offense variables after
Spikes was removed from the courtroom, any claim from Spikes regarding this procedure does not
8
The trial court, in reviewing Spikes’ Motion for Relief from Judgment, reviewed Spikes’ removal
under the “plain error” standard. As this Court reviews a defendant’s removal from the courtroom
under a harmless error standard, the trial court’s actions are not subject to AEDPA deference.
However, this Court simply notes that the trial court found that no error existed in Spikes’ removal
from the courtroom.
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No. 11-2451
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merit federal habeas relief, because there is no evidence that the outcome of the sentencing would
be different had Spikes been present.
4. Denial of Counsel of Choice
Spikes retained attorney Leroy Daggs to represent him in this matter. At some point in the
proceedings, Mr. Daggs was hospitalized. The trial court then appointed Robert Plumpe, a colleague
of Daggs, to represent Spikes. At a September 24, 2004 pretrial hearing, Plumpe informed the court
that Daggs was recently taken to a nursing home and it appeared that he would not be coming back.
At that time, Plumpe informed the court that Spikes was attempting to retain another attorney, but
that he would stay on as counsel if the attempt failed.
At some point between the September 24, 2004 pretrial hearing and January 10, 2005,
another attorney, Rowland Short, was appointed to represent Spikes. On January 10, 2005, the court
held a hearing where Mr. Short withdrew as counsel, citing a breakdown in the relationship. The
trial court gave Spikes time to attain a new attorney, and notified him that the court would appoint
an attorney if he did not obtain one within the given time. Because Spikes did not retain a new
attorney within the given time, the court appointed James Anderson, who represented Spikes at a
final pretrial hearing, the plea proceeding, and at sentencing.
The Sixth Amendment “guarantees the defendant the right to be represented by an otherwise
qualified attorney whom that defendant can afford to hire, or who is willing to represent the
defendant even though he is without funds.” United States v. Gonzalez-Lopez, 548 U.S. 140, 144
(2006) (internal quotations and citation omitted). However, the right to counsel of choice is not
absolute. Id. When a criminal defendant’s right to be assisted by counsel of one’s choice is wrongly
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denied, it is unnecessary for a reviewing court to conduct a full Strickland inquiry to establish a
Sixth Amendment violation. Id. at 148. “Deprivation of the right [to counsel of choice] is
‘complete’ when the defendant is erroneously prevented from being represented by the lawyer he
wants, regardless of the quality of the representation he received.” Id. However, when a criminal
defendant’s retained counsel becomes unavailable, it does not violate the defendant’s right to
counsel to require him to proceed with designated counsel. See United States v. Allen, 522 F.2d
1229, 1232–33 (6th Cir. 1975). When a trial court considers a defendant’s request to substitute
counsel in the middle of court proceedings, the court must balance an accused’s right to counsel of
his choice and the public’s interest in the prompt and efficient administration of justice. Wilson v.
Mintzes, 733 F.2d 424, 427–28 (6th Cir. 1984), aff’d on remand, 761 F.2d 275, 280–81 (6th Cir.
1985) (holding that when a defendant seeks substitution of counsel mid-trial, he must show good
cause, such as conflict of interest, a complete breakdown in communication, or an irreconcilable
conflict with his attorney to warrant substitution).
The state court did not deny Spikes the right to be represented by the counsel of his choice.
Spikes argues that he was denied his counsel of choice (Leroy Daggs) when the trial court appointed
him counsel when Mr. Daggs was hospitalized. Spikes claims that “[o]ver [his] objection” he was
represented by James Anderson. Pet. Br. at 41. Spikes proceeds to argue that the trial court should
have considered his request for a continuance so that Mr. Daggs could have represented him.
The trial court determined, in its order reviewing Spikes’ motion for relief from judgment,
that it did not err when it denied the motion for adjournment to substitute counsel. The court found
that Spikes waited to assert his right to hire different counsel immediately before the sentencing,
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No. 11-2451
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after he had been represented by appointed counsel for almost six months. The trial court held that
the only prejudice Spikes was asserting was that he was forced to proceed with counsel not of his
choosing.
The district court held that the state court did not deny Spikes the right to be represented by
counsel of his choice. The district court held that Spikes offered no objection to court appointed
counsel at the time the court appointed such counsel. While Spikes may have desired to retain
another attorney, the district court stated that there was no indication that he was able to secure his
services and therefore the district court ruled that Spikes’ claim did not have merit. Id.
The Court finds that Spikes was not denied his Sixth Amendment right to counsel of his
choosing. Spikes never objected to the court’s appointment of counsel, after Mr. Plumpe
represented to the trial court that Mr. Daggs was in the hospital. Furthermore, while Spikes notified
the trial court of his intention to retain new counsel in January 2005, the trial court warned Spikes
that if he was unable to retain new counsel, the court would appoint counsel. Spikes, once again,
did not object, when the court appointed James Anderson, after Spikes was unsuccessful in his
attempt to retain counsel.
Spikes’ claim, at base, is that the trial court erred in not allowing him to proceed with Mr.
Daggs as his counsel of choice. However, the fact that Mr. Daggs was seriously ill and unable to
represent him does not mean Spikes was denied the right to counsel of choice. As the trial court and
district court properly recognized, a defendant’s right to counsel of choice is not violated when his
retained counsel becomes unavailable and the court requires him to proceed with designated counsel.
R. 8, District Court Op. at 19, PageID # 430 (citing Allen, 522 F.2d at 1232–33); see also Morris
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v. Slappy, 461 U.S. 1, 11–12 (1983) (noting that right to counsel of choice was not violated when
the trial court refused to grant a continuance when defendant’s counsel of choice was in the
hospital). While Spikes was entitled to counsel of his choosing, Spikes was not entitled to
unnecessarily delay court proceedings after being given over five months from the date his counsel
of choice was first hospitalized to the time of his plea to retain new counsel. The trial court’s
finding that Spikes was not denied his counsel of choice is not an unreasonable application of federal
law, and this Court finds that Spikes’ claim that he was denied counsel of choice is without merit.
5. Ineffective Assistance of Appellate Counsel
The standard for effective of assistance of counsel on appeal is the same standard set forth
in Strickland v. Washington. See Beasley v. United States, 491 F.2d 687, 692–93 (6th Cir. 1974).
The failure of an appellate attorney to object or raise an issue can constitute ineffective assistance
of counsel if it deprives the defendant of an opportunity for dismissal of the case or for success on
appeal. Willis v. Smith, 351 F.3d 741, 745 (6th Cir. 2003). To properly review a claim of ineffective
assistance of appellate counsel, a court must consider the merits of the issues not raised on direct
appeal. Willis, 351 F.3d at 745. However, counsel is not deemed ineffective for failing to file all
claims of arguable merit; rather, the question remains whether counsel’s errors have likely
undermined the reliability of, and confidence in, the result. Hill, 474 U.S. at 59–60.
As this Court held in Willis v. Smith, 351 F.3d 741, 745 (6th Cir. 2003), to properly review
a claim of ineffective assistance of appellate counsel, a court must consider the merits of the issues
not raised on direct appeal. This Court, having already determined that the claims, raised and not
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No. 11-2451
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raised, by Spikes’ appellate counsel were meritless, cannot find Spikes’ appellate counsel
ineffective.
III.
The district court’s denial of habeas corpus relief is AFFIRMED. Spikes has not shown that
the state trial court’s decision resulted in a decision that was “contrary to, or involved an
unreasonable application of, clearly established Federal law.” 28 U.S.C. § 2254(d).
26