                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0573n.06

                                            No. 09-2300                                     FILED
                                                                                       Aug 15, 2011
                           UNITED STATES COURT OF APPEALS
                                                                                 LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


MOHAMMED AL-KHALIL,                                       )        ON APPEAL FROM THE
                                                          )        UNITED STATES DISTRICT
       Petitioner-Appellant,                              )        COURT FOR THE EASTERN
                                                          )        DISTRICT OF MICHIGAN
v.                                                        )
                                                          )                           OPINION
SUSAN DAVIS, Warden,                                      )
                                                          )
       Respondent-Appellee.                               )
                                                          )



BEFORE:        SILER, COLE, and KETHLEDGE, Circuit Judges.

       COLE, Circuit Judge. Petitioner-Appellant Mohammed Al-Khalil appeals the district

court’s denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. Specifically, he

argues that he received ineffective assistance from his state trial counsel, who purportedly failed to

provide Al-Khalil’s retained mental-health expert with the information necessary to render an

informed opinion as to Al-Khalil’s sanity at the time of the crime. Both the Michigan Court of

Appeals and the district court disagreed. Because Al-Khalil has not shown that his trial counsel

provided ineffective assistance, we AFFIRM the district court’s judgment.

                                       I. BACKGROUND

       In May 2005, a Michigan jury convicted Al-Khalil of kidnapping, assault with intent to do

great bodily harm less than murder, mayhem, and felonious assault. Al-Khalil received 18 to 50

years’ imprisonment on the kidnapping charge, and a lesser concurrent amount on the others.
No. 09-2300
Al-Khalil v. Davis

       Prior to the trial, Al-Khalil’s counsel at the time, James F. Piazza, filed a notice with the state

trial court that he planned to assert an insanity defense. Al-Khalil then was referred to the Michigan

Forensic Center for a psychological evaluation. That evaluation ultimately opined that Al-Khalil was

competent to stand trial and “criminally responsible for his conduct” towards the victim.

Subsequently, Piazza requested and received public funding for an independent psychological

evaluation. On the suggestion of the trial court, Piazza chose Dr. George Drozd as the independent

psychological expert. After evaluating Al-Khalil on August 17 and 24, 2004, Dr. Drozd also found

Al-Khalil competent to stand trial and “criminally responsible.” Piazza then withdrew his insanity

defense for Al-Khalil.

       After Al-Khalil’s conviction and concurrently with his appeal to the Michigan Court of

Appeals, Al-Khalil filed with the trial court a motion for a new trial and for an evidentiary hearing

as to whether Piazza rendered ineffective assistance of counsel. In relevant part, Al-Khalil argued

that Piazza provided ineffective assistance of counsel by failing to provide Dr. Drozd with certain

Forensic Center documents. In so arguing, Al-Khalil relies on the report of Dr. Steven Miller, a

mental-health expert Al-Khalil hired after his conviction. The trial court denied his motion.

Likewise, the Michigan Court of Appeals rejected Al-Khalil’s claim. The Michigan Supreme Court

denied his application for leave to appeal the Court of Appeals’ decision.

       Subsequently, Al-Khalil filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254

in the U.S. District Court for the Eastern District of Michigan. The magistrate judge issued a Report

and Recommendation suggesting that the district court deny Al-Khalil’s claims. The district court

summarily adopted the Report and Recommendation, but granted Al-Khalil a certificate of

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appealability on the claim currently pending before us. Al-Khalil later sought to expand the scope

of his appeal; we declined that request.

                                           II. ANALYSIS

       A. AEDPA Generally and the Standard of Review

       Because Al-Khalil filed his petition after April 24, 1996, the Antiterrorism and Effective

Death Penalty Act (“AEDPA”) amendments to 28 U.S.C. § 2254 apply. Lundgren v. Mitchell, 440

F.3d 754, 762 (6th Cir. 2006). Under those amendments,

       [a]n application for a writ of habeas corpus on behalf of a person in custody pursuant
       to the judgment of a State court shall not be granted with respect to any claim that
       was adjudicated on the merits in State court proceedings unless the adjudication of
       the claim-

               (1) resulted in a decision that was contrary to, or involved an unreasonable
       application of, clearly established Federal law, as determined by the Supreme Court
       of the United States; or

               (2) resulted in a decision that was based on an unreasonable determination of
       the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

       A state court’s determination is “contrary to” the clearly established law of the Supreme

Court under § 2254(d)(1) “if the state court arrives at a conclusion opposite to that reached by [the

Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme

Court] on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000)

(opinion of O’Connor, J.). A state court’s determination “involve[s] an unreasonable application

of” the clearly established law of the Supreme Court under § 2254(d)(1) if “the state court identifies



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Al-Khalil v. Davis

the correct governing legal principle . . . but unreasonably applies that principle to the facts of the

prisoner’s case.” Id.

        Al-Khalil’s first contention is that we need not defer to the Michigan Court of Appeals’

decision because it “couldn’t get the Strickland[ v. Washington, 466 U.S. 668, 694 (1984),] standard

right . . . , requiring that it be ‘likely that the proceedings outcome would have been different,’ or that

counsel’s ineffectiveness ‘deprived defendant of a substantial defense’ or that the error ‘affected the

outcome of this case’ but never speaking to the reasonable probability of a different result,” which

is the test under Strickland. (Al-Khalil Br. 38 (quoting Mich. Ct. App. Decision, Dist. Ct. Docket

No. 9-20, at 4).) Thus, he contends that the decision was “contrary to” Strickland. At oral argument,

however, Al-Khalil was unclear as to whether or not he continued to advance this argument.

        To the extent that Al-Khalil has not conceded the point, he seems to be correct. The

Michigan Court of Appeals required Al-Khalil to establish “that, but for defense counsel’s error, it

is likely the proceeding’s outcome would have been different.” (Mich. Ct. App. Decision, Dist. Ct.

Docket No. 9-20, at 4 (citing People v. Henry, 607 N.W.2d 767, 770 (Mich. Ct. App. 1999)).) Yet

the U.S. Supreme Court in Strickland explicitly rejected an outcome-determinative approach in favor

of one demanding a showing of simply a “reasonable probability” that the result would be different.

See Strickland, 466 U.S. at 693-94. We have previously recognized as much—and held that

language nearly identical to that used by the Michigan Court of Appeals was “contrary to” Supreme

Court precedent. See Smith v. Bell, 381 F. App’x 547, 550 (6th Cir. 2010) (citing Williams, 529 U.S.

at 405-06). Ultimately, our standard of review makes little difference in this case, for even under

de novo review, Al-Khalil cannot establish that he received ineffective assistance of trial counsel.

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        B. Ineffective Assistance of Trial Counsel

        Al-Khalil argues that he received ineffective assistance “where his trial attorney, with no

strategic purpose, made a critical, outcome-determinative error in failing to provide a psychiatric

expert, through discovery, with the material necessary to make a studied determination of criminal

responsibility.” (Al-Khalil Br. 2.)

                1. Generally

        The Supreme Court has held that the Sixth Amendment to the U.S. Constitution guarantees

a criminal defendant the effective assistance of counsel. Strickland, 466 U.S. at 684-85. In

Strickland, the Court articulated a two-part test for assessing when counsel is ineffective. Id. at 687.

        First, we ask whether counsel’s performance was deficient, because it “fell below an

objective standard of reasonableness” as measured by “prevailing professional norms.” Id. at 688.

In assessing deficient performance, we must abide by the “strong presumption” that counsel’s

performance was professionally reasonable and must take care not to second-guess strategic

decisions that did not bear fruit. Id. at 689. Nonetheless, we differentiate between “strategic choices

made after thorough investigation of law and facts relevant to plausible options,” and “choices made

after less than complete investigation[, the latter of which] are reasonable precisely to the extent that

reasonable professional judgment support the limitations on investigation.” Id. at 690-91. Decisions

not to investigate are assessed for “reasonableness,” id. at 691, though “the deference owed” strategic

determinations is dependent on “the adequacy of the investigation supporting those” determinations,

Wiggins v. Smith, 539 U.S. 510, 521 (2003).



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        Second, we determine if the deficient performance prejudiced the defendant. Strickland, 466

U.S. at 692. “Prejudice” constitutes “a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Id. at 694.

                 2. In Providing a Mental-Health Expert with Necessary Information

        The Supreme Court has held that a defendant who “demonstrates to the trial judge that his

sanity at the time of the offense is to be a significant factor at trial, . . . [has a constitutional right of]

access to a competent psychiatrist who will conduct an appropriate examination and assist in

evaluation, preparation, and presentation of the defense.” Ake v. Oklahoma, 470 U.S. 68, 83 (1985).

Nonetheless, the Court cautioned that “[a] defendant’s mental condition is not necessarily at issue

in every criminal proceeding.” Id. at 82. Also, an “indigent defendant [does not have] a

constitutional right to choose a psychiatrist of his personal liking.” Id. at 83.

        We have since fleshed out the dictates of Ake. Specifically, in Lundgren v. Mitchell, we

reviewed the petition of a defendant who received funding for two clinical psychologists. 440 F.3d

at 772. The psychologists, after performing their evaluations and meeting with counsel, nonetheless

concluded that the defendant was criminally responsible. Id. Rejecting the defendant’s ineffective-

assistance challenge, we explained that “defense counsel did secure appropriate mental health

experts and did make an adequate investigation into [the defendant]’s mental state and background

well before the criminal trial.” Id. The Lundgren court continued: “The question before this Court

. . . is not whether all mental health experts would agree on whether the defense was viable, but

whether counsel’s decision not to pursue the defense was a reasonable strategic choice.” Id. We

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then observed that, “[t]o the extent that [the defendant]’s argument can be framed as counsel’s

failure to procure a mental health expert whose conclusions were favorable to [the defendant], [the

defendant]’s claim must also fail. [A defendant] does not have a constitutional right to an expert

whose conclusions favor [the defendant].” Id. at 772 n.5. Indeed, “[t]he Constitution does not

require that an indigent criminal defendant be able to retain the expert of his choosing, only that a

competent expert be made available.” Id. at 772; see also Matthews v. Parker, --- F.3d ----, 2011

WL 2518895, at *17 (6th Cir. June 27, 2011); Daoud v. Davis, 618 F.3d 525, 532 (6th Cir. 2010).

       Here, Al-Khalil contends that Piazza provided ineffective assistance of counsel in failing to

provide Dr. Drozd with Al-Khalil’s psychological reports from the Forensic Center and the jail. At

the outset, we note that Dr. Drozd had a proper basis for his opinion—a basis facilitated by Piazza’s

assistance. Dr. Drozd “interviewed [Al-Khalil] on more than one occasion, considered the results

of several objective tests, and reviewed [various] forensic records, police records, and court files.”

(Mich. Ct. App. Decision, Dist. Ct. Docket No. 9-20, at 4-5.) Dr. Drozd’s report on Al-Khalil noted:

               Regarding the issue of Mr. Al-Khalil’s competency to stand trial, . . . [t]he
       defendant’s performance on [one cognitive test] is indicative of an average level of
       cognitive functioning. The results of the McAuthur [test] clearly indicate that he
       possesses a sufficient level of understanding of the legal process, shows an adequate
       capacity to rationally assist in his defense and demonstrates a good appreciation of
       the proceedings against him. Consequently, it is this psychologist’s clinical opinion
       that the defendant is indeed competent to stand trial on the pending charges.

(Dr. Drozd Rep., Dist. Ct. Docket No. 1-4, at 47-48.)

       Also, while he observed that Al-Khalil “presents with some ideas of reference bordering on

the paranoid . . . , he was generally easily verbally redirected from such preoccupations [and t]here

were no indicators of any acute psychotic symptomatology over the course of this evaluation.” (Id.,

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Dist. Ct. Docket No. 1-5, at 1.) Dr. Drozd thus concluded, regarding whether Al-Khalil was

criminally responsible at the time of the crime, that, “based on an extensive analysis and integration

of the evaluation outcomes delineated above and all the biographical data, it is this psychologist’s

clinical opinion that, Mr. Al-Khalil does not meet the criteria for being considered legally insane at

the time of the alleged offenses.” (Id. at 4.)

        Attempting to combat the presumption that Piazza’s actions vis-a-vis Dr. Drozd constituted

sound trial strategy, Al-Khalil identifies “at least an inch to an inch and a half of documents,” (Post-

Conviction Mot. for New Trial Hr’g Tr., Dist. Ct. Docket No. 9-16, at 5), that he claims Piazza

should have obtained. He further points to Piazza’s post-trial statement that, “if there was [a way

to get the aforementioned documents beforehand], then I made an error in not getting it to provide

to Dr. Drozd.” (Id. at 10.)

        As an initial matter, such “admissions” by counsel are inadequate to establish ineffective

assistance of counsel. Cf. Young v. Miller, 883 F.2d 1276, 1281 (6th Cir. 1989). Furthermore, as

to the “inch and a half” of documents from the Forensic Center, Al-Khalil identifies only six

documents “of note” from that presumably large stack: reports by Dr. George Watson, Dr. Michele

Hill, Dr. Thomas Shazer, Dr. Wladimir Zarski, and admission and discharge summaries. Of those

six—or, indeed, of the sixteen documents that Dr. Miller reviewed from the Forensic Center’s

files—none of them is in the record before us, except as summarized in Dr. Miller’s psychological

report on Al-Khalil. (See Dr. Miller Sept. 28, 2005 Rep., Dist. Ct. Docket No. 1-3, at 42-50, and No.

1-4, at 1-7.)



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        Yet even taking as accurate Dr. Miller’s summaries of the relevant documents, we find them

inadequate to carry Al-Khalil’s burden of showing inadequate investigation and thus ineffective

assistance of counsel. The documents to which Dr. Miller directs us are conflicting. A prison

incident report simply notes that Al-Khalil threw a cup of liquid on a corrections officer. Dr.

Watson found Al-Khalil criminally responsible and not legally insane. Dr. Thomas Shazer reached

the same conclusion. Dr. Wladimir Zarski, in the course of ongoing treatment of Al-Khalil and as

noted in an August 25, 2004 report, diagnosed Al-Khalil with “Schizoaffective Disorder, Depressed

Mood,” but did not explicitly opine on whether he was competent to stand trial or criminally

responsible. (Id., Dist. Ct. Docket No. 1-3, at 48, and No. 1-4, at 6-7.) Two admission and discharge

summaries, as well as a report by Dr. D. Pascual, specified that Al-Khalil seemed to have “psychosis,

not otherwise specified.” (Id., Dist. Ct. Docket No. 1-4, at 1-3, 6.) Like Dr. Zarski, these diagnoses

did not directly bear on Al-Khalil’s criminal responsibility or competency to stand trial. Only one

clinician identified Al-Khalil as unfit to stand trial: Dr. Michele Hill. However, Dr. Hill did not

perform a criminal responsibility evaluation, because of the conclusion that Al-Khalil was unfit to

stand trial.

        Drawing on the Supreme Court’s opinion in Ake and our opinion in Lundgren, we conclude,

as did the Michigan Court of Appeals, that “[t]he fact that another expert concluded after the trial

that [Al-Khalil] was legally insane does not mean that Dr. Drozd would have reached the same

conclusion had he reviewed the additional records from the Forensic Center.” (Mich. Ct. App.

Decision, Dist. Ct. Docket No. 9-20, at 4.) Al-Khalil has not provided us with the documents

themselves, only their summaries as present in Dr. Miller’s report. Assuming those summaries are

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reliable, however, they still provide at best conflicting conclusions on Al-Khalil’s mental state, and

none of them explicitly states that Al-Khalil was not criminally responsible at the time of the

crime—the key question before us. Furthermore, even such a statement would simply establish that

two professionals might disagree on Al-Khalil’s mental state; we have no reason to believe that such

a report would have convinced Dr. Drozd to change his mind. In sum, Al-Khalil had no right “to

procure a mental health expert whose conclusions were favorable” to Al-Khalil, so Piazza’s

performance was not deficient and Al-Khalil’s challenge must fail. See Lundgren, 440 F.3d at 772

n.5; see also Ake, 470 U.S. at 83. We conclude that Piazza was not constitutionally ineffective for

failing to provide Dr. Drozd with the Forensic Center documents.

               3. Remand

       Finally, we reject Al-Khalil’s request for a remand—be it to the district court or back to the

Michigan courts—for an evidentiary hearing, as Al-Khalil has not identified any further information

that he would seek or provide on remand that he could not have sought or provided in the current

proceedings. Cf. Greer v. Mitchell, 264 F.3d 663, 681 (6th Cir. 2001) (“Consistent with Williams

v. Taylor, therefore, we conclude that petitioner is not precluded from an evidentiary hearing as he

exercised the necessary diligence in attempting to establish the factual record in state court.”).



                                       III. CONCLUSION

       Therefore, for the reasons detailed above, we AFFIRM the judgment of the district court.




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