                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 10a0404n.06

                                               Case No. 08-2498                                          FILED
                                                                                                     Jul 12, 2010
                               UNITED STATES COURT OF APPEALS                                 LEONARD GREEN, Clerk
                                    FOR THE SIXTH CIRCUIT

 BRADLEY LEATHERMAN,                                           )
                                                               )
             Petitioner-Appellee,                              )
                                                               )       ON APPEAL FROM THE
                    v.                                         )       UNITED STATES DISTRICT
                                                               )       COURT FOR THE WESTERN
 CARMEN PALMER, Warden,                                        )       DISTRICT OF MICHIGAN
                                                               )
       Respondent-Appellant.                                   )
 _______________________________________                       )

Before: BATCHELDER, Chief Judge; SUTTON, Circuit Judge; WISEMAN, District Judge.*

         ALICE M. BATCHELDER, Chief Circuit Judge. The district court granted a writ of

habeas corpus on the basis that the petitioner’s trial counsel provided ineffective assistance by failing

to fully and effectively relay a plea-agreement offer to the petitioner prior to trial. We affirm.

                                                         I.

         On Saturday, June 28, 2003, petitioner Brad Leatherman’s niece, an eight-year-old girl, spent

the night with her three cousins — Leatherman’s daughters, aged ten, eight, and four — at the

Leatherman’s home. The next day, she told her mother that Leatherman had molested her.

         The county prosecutor charged Leatherman with one count of First Degree Criminal Sexual

Conduct (CSC-1), which carried a potential sentence of 85 to 480 months in prison; two counts of

Second Degree Criminal Sexual Conduct (CSC-2), which carried a potential sentence of 60 to 180



         *
         The Honorable Thomas A. W iseman, United States District Judge for the Eastern District of Michigan, sitting
by designation.
08-2498, Leatherman v. Palmer




months; and one count of accosting a child for immoral purposes, 32 to 48 months. Leatherman

proclaimed his innocence, hired a lawyer (James Champion), and prepared to go to trial.

          Just prior to a preliminary hearing, at which the then-nine-year-old girl would testify for the

first time, the prosecutor offered Leatherman a plea deal in an effort to avoid the child’s having to

testify: if Leatherman would plead guilty (or no contest) to one count of CSC-2, the prosecutor

would dismiss the other charges and recommend probation and a 12-month maximum jail sentence,

with a “Killebrew.” In Michigan, a Killebrew sentence agreement is binding between the parties but

if the judge rejects the prosecutor’s recommendation, then the defendant may withdraw his guilty

plea and proceed to trial. See Michigan v. Killebrew, 330 N.W.2d 834 (Mich. 1982).

          The first dispute in this case is whether Champion actually relayed this offer to Leatherman.

Leatherman contends that Champion did not; Champion claims that he did, but concedes that he did

not do so fully and effectively. In any event, Leatherman (or Champion) declined the offer and the

parties proceeded with the preliminary hearing, at which the girl testified. The second dispute is

whether Leatherman would have accepted the offer had it been properly relayed to him. And the

third dispute is whether the court would have accepted the plea recommendation at that time.

          Later, at the final pretrial conference, the prosecutor again offered Leatherman a plea deal:

if Leatherman would plead guilty (or no contest) to one count of CSC-2 and accosting a child for

immoral purposes, the prosecutor would dismiss the other two charges and recommend probation

with a 12-month maximum jail sentence, with a “Cobbs” rather than a “Killebrew.” In Michigan,

a Cobbs evaluation is not a binding agreement, but is a preliminary assessment by the judge as to the

likely sentence. See Michigan v. Cobbs, 505 N.W.2d 208 (Mich. 1993). In this case, the judge

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08-2498, Leatherman v. Palmer




rejected the prosecutor’s recommendation during the Cobbs, so Leatherman declined the offer.

          Leatherman proceeded to trial whereupon the jury convicted him on all four counts. The

state trial court sentenced Leatherman to 85 to 480 months in prison pursuant to the CSC-1

conviction, and lesser sentences for the other three counts, to run concurrently. Leatherman moved

for a new trial and requested a Ginther hearing, see Michigan v. Ginther, 212 N.W.2d 922 (Mich.

1973), to investigate his claim that his attorney had been constitutionally ineffective. The trial court

conducted the hearing but denied the motion, finding that Leatherman could not establish that his

former attorney, Champion, had failed to convey the offer or that he would have accepted it.

          Leatherman appealed, pressing his claim that Champion had provided ineffective assistance

by failing to advise him of the original plea offer. The state intermediate court of appeals determined

that Champion had, in fact, relayed the offer but had failed to explain it adequately to Leatherman,

and that Champion’s performance had therefore been deficient. That court further determined,

however, that Leatherman had not established that he would have accepted the offer had he

understood it and, therefore, “he did not prove prejudice by a preponderance of the evidence.” The

appeals court affirmed the trial court. The Michigan Supreme Court denied Leatherman leave to

appeal.

          Leatherman filed for habeas review in the district court, claiming ineffective assistance of

counsel for Champion’s failure to properly advise him of the plea offer. The district court referred

the case to a magistrate judge, who began his analysis by explaining that the state appellate court had

unquestionably misapplied clearly established law by applying the preponderance-of-the-evidence

standard to the question of Strickland prejudice. The magistrate judge analyzed the question de novo

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and, finding a reasonable probability that Leatherman would have accepted the offer had he been

properly informed, recommended that the district court grant habeas relief. The State objected to

the recommendation, but the district court overruled the objection and granted habeas relief.

          In conducting its own analysis, the district court began with the principle that “a substantial

disparity between the penalty offered by the prosecution and the punishment called for by the

indictment is sufficient to establish a reasonable probability that a properly informed and advised

defendant would have accepted the prosecution’s offer.” Griffin v. United States, 330 F.3d 733,

737-38 (6th Cir. 2003) (quoting Dedvukovic v. Martin, 36 F. App’x 795, 798 (6th Cir. 2002));

accord United States v. Morris, 470 F.3d 596, 602-03 (6th Cir. 2006); Magana v. Hofbauer, 263

F.3d 542, 551-52 (6th Cir. 2001). In this case, the disparity between the sentence that the prosecutor

offered in the proposed plea bargain (probation including up to one year of jail time) and the

maximum sentence called for by the statute (85 to 480 months in prison), was certainly significant.

          The district court rejected the State’s argument, which was based on Leatherman’s out-of-

context Ginther-hearing testimony. At the Ginther hearing, Leatherman stated unequivocally that

he would have accepted the offer and then justified that statement by explaining that he would have

been at home and would not have risked being separated from his family. The State argued that,

because the offer would have subjected Leatherman to 12 months in jail, away from his home and

family, this proves that he would have declined the offer. The district court rejected this argument

as a distortion of Leatherman’s testimony, taken out of context, and insufficient to overcome his

plain statement.

          The district court also rejected the State’s argument that Leatherman could not establish

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08-2498, Leatherman v. Palmer




prejudice because he could not prove that the state trial court judge would have accepted the

recommended sentence. The district court explained, by way of a Second Circuit case, that “it need

not determine whether the [state] trial court would have accepted the plea in order to find prejudice

due to ineffective assistance of counsel.” See Mask v. McGinnis, 233 F.3d 132, 142 (2d Cir. 2000)

(“[N]othing in the standards established by the Supreme Court in either Strickland or Hill require

an evaluation of whether the court would have accepted a different plea agreement.”). In Hill, the

Supreme Court had reiterated its instruction that an evaluation of prejudice “should be made

objectively, without regard for the ‘idiosyncrasies of the particular decisionmaker.’” Hill v.

Lockhart, 474 U.S. 52, 59-60 (1985) (quoting Strickland v. Washington, 466 U.S. 668, 695 (1984)).

          Thus, the district court granted the writ and ordered the State to make Leatherman the same

offer that it had made him originally (CSC-2 with a sentence recommendation of probation including

up to one year of jail time, with a Killebrew). The court also ordered that if the state court were to

reject the prosecutor’s recommendation, then it must afford Leatherman a new trial.

                                                  II.

          Leatherman filed for habeas relief on October 4, 2006, so the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996), applies.

          Under AEDPA, a writ may not be granted unless the state court’s decision “was contrary to,

or involved an unreasonable application of, clearly established” Supreme Court precedent or “was

based on an unreasonable determination of facts in light of the evidence presented” during the state

court proceedings. 28 U.S.C. § 2254(d)(1)-(2). “Contrary to federal law” means it “arrives at a

conclusion opposite to that reached by [the Supreme] Court on a question of law” or “decides a case

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08-2498, Leatherman v. Palmer




differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Williams

v. Taylor, 529 U.S. 362, 412-13 (2000). “Unreasonable application of Supreme Court precedent”

means it “identifies the correct governing legal principle from [Supreme Court] decisions but

unreasonably applies that principle to the facts” of the case. Id. at 413.

          “[A] state-court decision [is] contrary to clearly established federal law if, in spite of the rule

in Strickland — that a petitioner urging ineffective assistance of counsel need only show a

‘reasonable probability’ of prejudice — a state court required the petitioner to show prejudice by a

preponderance of the evidence.” Holder v. Palmer, 588 F.3d 328, 343 (6th Cir. 2009) (quoting

Fulcher v. Motley, 444 F.3d 791, 799 (6th Cir. 2006)) (editorial marks and certain quotation marks

omitted). Of course, reaching this holding was not particularly difficult inasmuch as the Supreme

Court had already spoken directly to this issue, albeit in dicta, explaining by example:

          If a state court were to reject a prisoner’s claim of ineffective assistance of counsel
          on the grounds that the prisoner had not established by a preponderance of the
          evidence that the result of his criminal proceeding would have been different, that
          decision would be ‘diametrically different,’ ‘opposite in character or nature,’ and
          ‘mutually opposed’ to our clearly established precedent because we held in
          Strickland that the prisoner need only demonstrate a ‘reasonable probability that . . .
          the result of the proceeding would have been different.’

Williams v. Taylor, 529 U.S. 362, 405-06 (2000) (quoting Strickland, 466 U.S. at 694).

          In the present case, the state appellate court “conclude[d] that the [state] trial court did not

err in finding that [Leatherman] did not prove prejudice by a preponderance of the evidence.”

Therefore, the state courts applied the wrong standard of proof (i.e., the wrong law). But that does

not end our analysis or decide the present question. Even “[t]hough the state court clearly applied

an incorrect standard,” we must nonetheless decide whether “it reached the correct outcome.” West

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08-2498, Leatherman v. Palmer




v. Bell, 550 F.3d 542, 554 (6th Cir. 2008). That is, we must conduct “[a] careful review of the

record” to determine whether Leatherman’s counsel (Champion) was “so ineffective as to constitute

a denial of [Leatherman’s] constitutional rights.” See id. We conduct this review de novo.1

                                                             III.

          On appeal, the State concedes that Champion failed to adequately advise Leatherman about

the plea offer but insists that Leatherman would not have accepted the offer. The State bases this

argument on its interpretation of Leatherman’s Ginther-hearing testimony. The State also insists that

the judge likely would have rejected the sentence recommendation at the Killebrew phase.

          First, the Ginther-hearing testimony on which the State relies is ambiguous at best and —

as the magistrate judge and district court both agreed — taken entirely out of context. When

Leatherman’s testimony is read in context and in its entirety, it is clear that Leatherman offered these

statements to explain why he would have accepted the offer (and 12 months in jail), despite

maintaining his innocence. That is, if his attorney, Champion, had adequately explained to him that

he would likely be convicted and sentenced to up to 40 years in prison, but that the prosecutor was

offering 12 months in jail (in order to avoid the girl’s having to testify), Leatherman would have

accepted the offer because he could not bear to be away from his family for the next 39 years.


          1
             W hile the panel in West did not specifically state the standard governing its review, it is clear from the opinion
that it conducted a plenary review of the record and application of those facts to Strickland’s prescribed standard. See,
e.g., West, 550 F.3d at 554 (“A careful review of the record demonstrates . . .”; “W e are not convinced . . .”; “Under
Strickland, we must . . .”), 555 (“. . . the record demonstrates . . .”), 556 (“Finally, we note that even if W est could prove
. . . he has not shown . . .”; “W e are not convinced . . .”; “Given the strength of the evidence . . . we cannot conclude
. . .”); see also, e.g., id. at 568 (Moore, J., dissenting) (“Applying the Strickland standard, I conclude that . . . . Several
pieces of evidence demonstrate . . .”; “I further conclude that W est was prejudiced by this deficiency.”). W e also relied
on Sixth Circuit precedent to support our analysis. Id. at 555 (citing Scott v. M itchell, 209 F.3d 854 (6th Cir. 2000)
(“similar conclusion”), and Fautenberry v. Mitchell, 515 F.3d 614 (6th Cir. 2008) (“similar situation”)).

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08-2498, Leatherman v. Palmer




          The State also disagrees with our Circuit precedent, in which we have held that a “substantial

disparity” between the sentence offered and the sentence likely to be imposed upon conviction

demonstrates such an enticing offer that we can presume that a “properly informed and advised”

defendant would have accepted it. Griffin, 330 F.3d at 737-38. That is, we presume that it was

Champion’s admitted failure to sufficiently inform or advise Leatherman that caused Leatherman

to decline the original offer. But the State wants us to ignore that presumption and hold that

Leatherman declined the offer because he was unwilling to go to jail for even one day. Such a

conclusion is unsupportable under our precedent and unjustified by the testimony in the record.

          Finally, the State argues that the state court judge would not have accepted the prosecution’s

offer anyway, so even if Leatherman would have accepted the offer, he cannot establish any

prejudice. There are at least three flaws in this argument. The first, as the district court noted, is that

neither Strickland nor Hill requires Leatherman to demonstrate that the judge would have accepted

the recommendation in order to show prejudice from his not having been given the choice.

          Also, despite the State’s assertion, the judge who rejected the pretrial-conference Cobbs plea

would not necessarily have been the “same judge” who earlier would have considered the

preliminary-hearing Killebrew plea. In Michigan, criminal trial courts are separated into Circuit

Division Courts and District Division Courts.           See Michigan Judicial System, http://courts.

michigan.gov/scao/ resources/publications/pamphlets/onecourt.pdf (last visited June 24, 2010).

Circuit Division Courts have jurisdiction over felonies and serious misdemeanors, but the District

Division Courts conduct the preliminary examinations in felony cases and adjudicate cases in which

the punishment does not exceed one year in jail. In the present case, District Division Judge Gary

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08-2498, Leatherman v. Palmer




Holman conducted the preliminary hearing and would have considered the Killebrew-phase plea-

offer sentence recommendation (probation including up to one year of jail time). After the

preliminary hearing, when no plea agreement had been reached, the case was assigned to Circuit

Division Judge James Fisher, who declined the recommended sentence during the Cobbs phase and

eventually imposed the post-jury-verdict sentence (85 to 480 months in prison).

          Finally, the surrounding circumstances were different at the different stages of the

proceedings. Prior to the preliminary hearing, the nine-year-old girl had not yet testified and the

prosecutor was offering Leatherman the plea bargain in order to avoid her having to testify. It is

reasonable that a trial judge would be more willing to accept a prosecutor’s recommendation at this

point, when there is a clear benefit to the witness and the court, than at a later point, after the witness

had already testified and the judge had become more substantially involved in the case.

          We therefore conclude that Leatherman would have accepted the offer and reject the State’s

contention that Leatherman cannot demonstrate prejudice from his attorney’s deficient performance.

                                                   IV.

          For all of the foregoing reasons, we AFFIRM the district court’s judgment.




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