                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 05a0115n.06
                          Filed: February 15, 2005

                                    Nos. 03-1709/1723

                        UNITED STATES COURT OF APPEALS
                             FOR THE SIXTH CIRCUIT


DAVID MICHAEL KORAS,

       Petitioner-Appellee/Cross-Appellant,

v.                                                    On Appeal from the United
                                                      States District Court for the Eastern
KENNY ROBINSON, Warden,                               District of Michigan

       Respondent-Appellant/Cross-Appellee.
                                         /

BEFORE:       RYAN, COLE, and ROGERS, Circuit Judges.

       RYAN, Circuit Judge.        The state of Michigan, through Warden Kenny Robinson,

appeals from the district court’s order conditionally granting a writ of habeas corpus to the

petitioner, David Michael Koras. The district court ordered Koras to be released from

custody unless the state court schedules an evidentiary hearing within ninety days to

determine whether Koras was improperly interrogated in violation of Edwards v. Arizona,

451 U.S. 477 (1981). Koras cross-appeals the district court’s decision denying habeas

relief for his other remaining claims on the ground that they are barred by procedural

default. The district court concluded that, although all of Koras’s claims were procedurally

defaulted in state court, Koras had established cause and prejudice with respect to the

Edwards claim because his trial and appellate counsel were constitutionally ineffective.

Because we conclude Koras did not receive ineffective assistance of counsel, we

REVERSE.
(Nos. 03-1709/1723)                         -2-

                                    I. BACKGROUND

       On the morning of February 16, 1994, a car came smashing into the front end of

Parham’s Barbershop in Inkster, Michigan. David Latham, an employee of the barbershop,

looked over and saw the driver slumped over the steering wheel. The passenger, whom

Latham later identified as Koras, quickly exited the vehicle, saying “you better check the

guy inside.” The passenger started walking away from the accident and then began

running down the street. Latham and two other bystanders pursued and apprehended him,

a short distance away. Police arrived shortly after the accident and arrested Koras.

Dwayne Tindell, the driver of the car, had been stabbed in the chest and died from his

wounds. Koras was subsequently charged for Tindell’s death.

       Following a bench trial, Koras was convicted of second-degree murder and

sentenced to twenty-five to fifty years’ imprisonment. Koras, through his court-appointed

attorney, appealed as of right from the conviction and sentence, alleging that 1) the

inculpatory statements he made to police were erroneously admitted because the

statements were involuntarily given or coerced, and 2) the trial judge violated the principle

of proportionality by sentencing him to twenty-five to fifty years in prison for second-degree

murder. The Michigan Court of Appeals affirmed Koras’s conviction and sentence, and his

application for leave to appeal in the Michigan Supreme Court was denied.

       Koras subsequently filed a motion for post-conviction relief in the trial court and

presented an entirely new set of claims, including the claim that under Edwards, his

confession was improperly admitted into evidence because he had previously invoked and

was denied his right to have counsel present during his interrogation. The trial court denied

the motion because Koras failed to argue any of those claims on direct appeal. Koras then
(Nos. 03-1709/1723)                          -3-

filed a delayed application for leave to appeal the trial court’s denial of his motion for post-

conviction relief in both the Michigan Court of Appeals and the Michigan Supreme Court,

both of which denied leave to appeal.

       Koras then filed a petition for a writ of habeas corpus in the United States District

Court for the Eastern District of Michigan, Southern Division. The state of Michigan, in

opposing the writ request, argued that Koras’s claims were procedurally defaulted because,

during post-conviction proceedings, the claims had been dismissed under Michigan Court

Rule 6.508(D)(3) for failing to raise those claims on direct appeal. After an evidentiary

hearing, the district court issued an order conditionally granting a writ of habeas corpus.

The district court determined that Koras’s procedural default on the Edwards claim was

excused because Koras’s trial and appellate counsel rendered ineffective assistance by

failing to argue that his statements to police were taken in violation of Edwards. The district

court further determined that review of Koras’s remaining claims was barred by procedural

default because, although trial counsel had argued those claims at sentencing, appellate

counsel had not been ineffective for failing to raise those claims on direct appeal. The state

of Michigan subsequently filed a timely notice of appeal, and Koras filed a timely notice of

cross-appeal.

                                        II. ANALYSIS

                                              A.

       The Fifth Amendment, applicable to the states through the Fourteenth Amendment,

protects an accused from compulsory self-incrimination. In Miranda v. Arizona, the

Supreme Court held that, in order to protect against compulsory self-incrimination, a

suspect may not be subjected to custodial interrogation until he has been informed of his
(Nos. 03-1709/1723)                         -4-

right to counsel and his right to remain silent. 384 U.S. 436, 479 (1966). The Court

declared that if a suspect invokes his right to counsel, “the interrogation must cease until

an attorney is present.” Id. at 474. In Edwards v. Arizona, the Supreme Court clarified that

when a suspect has invoked the right to counsel, he may not be “subject to further

interrogation by the authorities until counsel has been made available to him, unless the

accused himself initiates further communication, exchanges, or conversations with the

police.” 451 U.S. at 484-85.

       Koras contends that, under Edwards, his statements to police were improperly

admitted because those statements were recorded after he invoked, and was denied, his

right to counsel. On February 17, 1994, Detective Darryl Tubbs of the City of Inkster Police

Department visited Koras in his cell and informed him of his constitutional rights under

Miranda. The parties disagree as to what happened next. According to Tubbs, Koras

asked him if he needed a lawyer. Tubbs testified he told Koras, “I don’t know. I didn’t know

what would happen.” Koras, however, maintains he made an unequivocal request for an

attorney, but was refused. Koras then proceeded to give a statement in which he admitted

to stabbing Tindell, although he insisted it was an accident.

       Although the Edwards claim was procedurally defaulted because Koras did not raise

the issue on direct appeal, he nevertheless contends that the district court correctly ruled

that the ineffective assistance of Koras’s trial and appellate counsel constitutes “cause,”

thereby excusing the procedural default. Because a claim of ineffectiveness of counsel

raises mixed questions of law and fact, this court reviews the district court’s ruling on such

a claim de novo. United States v. Jackson, 181 F.3d 740, 744 (6th Cir. 1999). “Any
(Nos. 03-1709/1723)                         -5-

findings of fact pertinent to the ineffective assistance of counsel inquiry are subject to a

‘clearly erroneous’ standard of review.” Id. (citation omitted).

       Under the Sixth and Fourteenth Amendments, a state criminal defendant has a right

to the effective assistance of counsel at trial, Strickland v. Washington, 466 U.S. 668

(1984), and on his first appeal as of right, Evitts v. Lucey, 469 U.S. 387 (1985). In

Strickland, the Supreme Court established a two-part test for determining whether a

defendant has received ineffective assistance of counsel. First, the defendant must prove

that counsel’s performance was deficient; that is, the defendant must establish “that

counsel made errors so serious that counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. Second,

the defendant must show that counsel’s deficient performance prejudiced the defendant.

To establish prejudice, “[t]he defendant must show that there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would have been

different. A reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id. at 694. While “a defendant need not show that counsel’s deficient conduct

more likely than not altered the outcome in the case,” neither is it sufficient “for the

defendant to show that the errors had some conceivable effect on the outcome of the

proceeding.” Id. at 693.

       During an evidentiary hearing in the district court, Koras’s trial counsel testified he

could not remember whether Koras told him he had requested an attorney before making

his statement to police. Trial counsel recalled that he may not have moved to suppress the

statement under Edwards because, in light of Tubbs’s testimony, Koras’s alleged request

for an attorney was ambiguous. In Davis v. United States, 512 U.S. 452 (1994), the
(Nos. 03-1709/1723)                         -6-

Supreme Court held that the cessation of custodial interrogation is required only upon a

suspect’s unambiguous request for counsel, and that the petitioner’s passing remark,

“Maybe I should talk to a lawyer,” was too ambiguous to require interrogators to cease

questioning. Id. at 462. Considered thus far, trial counsel’s decision not to object to the

admission of Koras’s statements to police under Edwards appears competent because

Tubbs’s testimony indicates Koras did not make an unambiguous request for counsel.

       Koras, however, insists he did make an unambiguous request for an attorney, a

contention that is supported by the testimony of forensic psychologist Dr. Firoza B. Van

Horn. During a hearing before trial, Dr. Van Horn, who was not present at Koras’s

interrogation, testified that “[Koras] was coerced. He asked for a lawyer, and they did not

want him to -- they told him he didn’t need one . . . [and] he was forced to make a

statement, although he had refused to make the statement.” Moreover, in a psychological

evaluation sent to trial counsel on November 2, 1994, Dr. Van Horn wrote, “After his rights

were read to him, he asked for a lawyer and a lie detector test which were denied.” During

the evidentiary hearing, trial counsel admitted that he knew Koras told Dr. Van Horn he had

requested a lawyer and was denied.

       In deciding whether trial counsel rendered ineffective assistance, we need not

decide whether trial counsel’s performance was incompetent because “[i]f it is easier to

dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that

course should be followed.” Strickland, 466 U.S. at 697. Even assuming trial counsel

rendered deficient performance, we fail to discern a reasonable probability that counsel’s

performance altered the outcome of the trial. In order for us to find a reasonable probability

that the outcome of the trial was altered by counsel’s performance, we must first conclude
(Nos. 03-1709/1723)                          -7-

there was a reasonable probability that a motion to suppress Koras’s statements under

Edwards would have been successful. See United States v. Carter, 355 F.3d 920, 924 (6th

Cir. 2004). This is not a case where it is undisputed that the defendant made an

unambiguous request for an attorney. Officer Tubbs’s testimony indicates that Koras’s

request for an attorney was ambiguous, if indeed it can fairly be deemed a request. Dr.

Van Horn’s testimony, in contrast, indicates Koras made an unequivocal request for an

attorney.

       Had trial counsel moved to suppress Koras’s inculpatory statements under Edwards,

we can only speculate what evidence trial counsel could have presented in support of the

motion. The Supreme Court’s decision in Davis indicates the burden is on the defendant

to prove that he clearly invoked his right to counsel in the first instance. 512 U.S. at 458-

59. Dr. Van Horn’s testimony was the only evidence in the record supporting the Edwards

claim at the time of the trial. Koras might have testified in support of the motion, although

that seems unlikely given that he did not testify in support of his unsuccessful motion to

suppress his statements on the basis of involuntariness. The trial judge’s ruling on the

motion apparently would have boiled down to a credibility determination regarding the

conflicting testimony. There is no evidence in the record making Dr. Van Horn’s rendition

of the relevant events more credible than Tubbs’s rendition. Dr. Van Horn could not have

testified from firsthand knowledge because she was not present at Koras’s interrogation,

while Tubbs had personal knowledge of what was said. Nor did the district court have an

opportunity to assess the credibility of Tubbs, Dr. Van Horn, or Koras because they did not

testify during the evidentiary hearing. Where “one is left with pure speculation on whether

the outcome of the trial . . . could have been any different,” there is an insufficient showing
(Nos. 03-1709/1723)                         -8-

of prejudice. Baze v. Parker, 371 F.3d 310, 322 (6th Cir. 2004). Based on the record

before us, we cannot conclude there is a reasonable probability that Koras’s motion to

suppress would have succeeded, and consequently, that the outcome of the trial would

have been any different.

       Koras also argues that his appellate counsel was constitutionally ineffective for

failing to raise the Edwards claim. Because trial counsel did not preserve the Edwards

claim for appellate review, appellate counsel was left with the option of either arguing trial

counsel was ineffective for failing to raise the Edwards claim, or arguing the admission of

Koras’s statements to police was plain error. Mich. R. Evid. § 103(d). Because we

conclude the claim of ineffectiveness of trial counsel is not meritorious because Koras

cannot show the prejudice needed to sustain that claim, his claim of ineffective assistance

of appellate counsel also fails. Nor was appellate counsel ineffective for failing to argue

plain error. Under that rigorous standard, “[r]eversal is warranted only when plain error

resulted in the conviction of an actually innocent defendant or seriously affected the

fairness, integrity, or public reputation of judicial proceedings, independent of defendant’s

innocence.” People v. Ackerman, 669 N.W. 2d 818, 827 (Mich. Ct. App. 2003). We see

no reasonable probability that, absent appellate counsel’s performance, Koras “would have

prevailed on his appeal.” Smith v. Robbins, 528 U.S. 259, 285 (2000). Accordingly, Koras

has not established he received ineffective assistance of appellate counsel so as to

establish “cause” for the procedural default of his Edwards claim.

                                             B.

       Koras also contends his due process rights under the Fourteenth Amendment were

violated at sentencing. Although Koras’s due process claims were procedurally defaulted
(Nos. 03-1709/1723)                          -9-

in state court, Koras maintains appellate counsel’s ineffectiveness constituted cause

excusing the default.

       “[F]ederal habeas corpus relief does not lie for errors of state law.” Lewis v. Jeffers,

497 U.S. 764, 780 (1990). In reviewing a petition for a writ of habeas corpus, “a federal

court is limited to deciding whether a conviction violated the Constitution, laws, or treaties

of the United States.” Baze, 371 F.3d at 322. Although errors of state law are generally

not reviewable in a federal habeas proceeding, an alleged violation of state law “could,

potentially, ‘be sufficiently egregious to amount to a denial of equal protection or of due

process of law guaranteed by the Fourteenth Amendment.’” Bowling v. Parker, 344 F.3d

487, 521 (6th Cir. 2003) (quoting Pulley v. Harris, 465 U.S. 37, 41 (1984)), cert. denied, 125

S. Ct. 281 (2004). A sentence imposed on the basis of material “‘misinformation of

constitutional magnitude’” may violate due process under some circumstances. Roberts

v. United States, 445 U.S. 552, 556 (1980) (citation omitted). “A sentence must be set

aside where the defendant can demonstrate that false information formed part of the basis

for the sentence.    The defendant must show, first, that the information before the

sentencing court was false, and, second, that the court relied on the false information in

passing sentence.” United States v. Stevens, 851 F.2d 140, 143 (6th Cir. 1988).

       Koras first contends that the sentencing judge erroneously increased the “score” of

offense variable six from ten points to twenty-five points. Under the Michigan Sentencing

Guidelines, a defendant convicted of second-degree murder must receive ten points, rather

than twenty-five points, if the death took place in a combative situation. Mich. Comp. Laws

Ann. § 777.36(2)(b). Although Koras essentially quarrels with the trial judge’s application

of state law, he attempts to give his argument a constitutional dimension by claiming the
(Nos. 03-1709/1723)                        - 10 -

judge violated his due process right to be sentenced according to accurate information.

The judge declined to assess the petitioner with only ten points for inflicting death in a

combative situation, apparently because the judge rejected Koras’s claim that he had

stabbed the victim during a combative situation after adequate provocation. There is no

significant evidence in the record that Koras and the victim were engaged in a physical

fight, so the issue was neither “significant” nor “obvious.” Mapes v. Coyle, 171 F.3d 408,

427 (6th Cir. 1999). Moreover, had appellate counsel raised the issue on direct appeal, she

would have had to overcome a deferential “abuse of discretion” standard of review. See

People v. Hornsby, 650 N.W.2d 700, 704 (Mich. Ct. App. 2002). Thus, even assuming that

Koras’s claim is not based solely on a violation of state law, appellate counsel was not

deficient for failing to raise this issue, and the underlying substantive claim has been

procedurally defaulted.

       Next, Koras contends he was deprived of his due process rights because the trial

judge failed to articulate in the record the reasons for the sentence imposed. The fact that

the trial judge allegedly failed to articulate the reasons for enhancing Koras’s sentence in

violation of Michigan Court Rule 6.425(D)(2)(e) and Michigan case law is not itself a basis

for federal habeas corpus relief. Moreover, the record evinces sufficient evidence of the

reasons supporting the sentence to avoid any federal due process concerns. Finally, the

judge did articulate the reasons underlying the sentence, noting, among other things, that

Koras was not being victimized or acting in self-defense, that his conduct was goal-

directed, and that his actions were motivated by his desire to obtain drugs. Consequently,

appellate counsel did not render ineffective assistance by failing to argue this claim on

direct appeal, and the underlying substantive claim has been procedurally defaulted.
(Nos. 03-1709/1723)                         - 11 -

       Koras next claims the trial court failed to respond to his objection at sentencing to

allegedly inaccurate information in the presentence investigation report.            First, the

presentence investigation report stated Koras called Tindell from a 7-Eleven. Koras

objected, stating he did not contact Tindell from the 7-Eleven, and that the two men just

happened to be at the store at the same time. Second, the presentence investigation

report stated that, prior to the stabbing incident, Koras had used drugs for four years.

Koras objected, stating that he had been drug-free for about two-and-a-half years until

approximately two weeks before the stabbing.

       Even assuming the information was false, there is no indication that the information

was “misinformation of constitutional magnitude.” Whether or not Koras intended to meet

with Tindell may have been material had he been convicted of premeditated, first-degree

murder, but he was not convicted of that offense. Further, there is no indication that the

judge actually relied on Koras’s prior history of drug addiction in any pertinent way. The

judge did attribute the crime to Koras’s problem with drugs, but there is no dispute that

Koras had been smoking crack leading up to the murder. Koras cannot overcome the

strong presumption that his appellate counsel was competent in declining to raise this

issue, and thus, the substantive claim has been procedurally defaulted.

       Finally, Koras contends the trial court erred in failing to consider his requested lesser

offense of involuntary manslaughter. A lesser-included offense instruction, however, is not

required unless “‘the evidence would permit a jury rationally to find [a defendant] guilty of

the lesser offense and acquit him of the greater.’” Hopper v. Evans, 456 U.S. 605, 612

(1982) (quoting Keeble v. United States, 412 U.S. 205, 208 (1973)). A due process

violation occurs only when the failure to consider and give a lesser-included offense
(Nos. 03-1709/1723)                          - 12 -

instruction in a non-capital case amounts to a defect so fundamental as to cause a

complete miscarriage of justice. Bagby v. Sowders, 894 F.2d 792, 797 (6th Cir. 1990)

(plurality opinion) (en banc).

       Under Michigan law, involuntary manslaughter is the killing of another without malice

and unintentionally, but in doing some unlawful act not amounting to a felony nor naturally

tending to cause death or great bodily harm, or in negligently doing some act lawful in itself,

or by the negligent omission to perform a legal duty. People v. Clark, 556 N.W.2d 820, 822

(Mich. 1996). In this case, the trial judge determined Koras was “goal directed,” that he

was “very much involved in what was going on,” and that he manifested “selfish goal

directed behavior.” The district court noted that the trial judge found Koras acted with the

intent to kill, with the intent to do great bodily harm, or with the intent to create a very high

risk of death. As such, the facts as the trial judge determined them did not support a

finding of involuntary manslaughter, and the failure to consider such a charge was certainly

not a fundamental defect resulting in a miscarriage of justice. Therefore, appellate counsel

was not deficient for failing to raise this argument on direct appeal, and the substantive

claim has been procedurally defaulted.

                                      III. CONCLUSION

       For the foregoing reasons, the district court’s order conditionally granting a writ of

habeas corpus is REVERSED. The court’s rulings denying the petitioner relief on the other

grounds argued are AFFIRMED.
(Nos. 03-1709/1723)                          - 13 -

       R. GUY COLE JR., Circuit Judge. I concur with the majority regarding Koras’s

sentencing errors. As those alleged errors are, at most, errors of state law not implicating

constitutional concerns, there can be no federal habeas relief. Lewis v. Jeffers, 497 U.S.

764, 780 (1990). However, since I disagree with the majority’s analysis of Koras’s

ineffective assistance of counsel claims, I respectfully dissent.

                                               I.

       Under Strickland v. Washington, there are two requirements for ineffective

assistance of counsel under the Sixth Amendment: (1) the counsel’s performance was

constitutionally deficient; and (2) the counsel’s deficient performance prejudiced the

defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Regarding the deficient

performance prong, “[t]here is a strong presumption that an attorney’s performance falls

within the wide range of reasonable professional assistance. Barnes v. Elo, 339 F.3d 496,

502 (6th Cir. 2003) (internal quotes and citation omitted). That is, the “defendant must

overcome the presumption that . . . the challenged action might be considered to be sound

trial strategy.” Id. (internal quotes and citation omitted). Regarding the prejudice prong,

a defendant must show that there is “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. A reasonable

probability is a probability sufficient to undermine the confidence in the outcome.” Id.

(internal quotes and citation omitted).

       Here, the district court determined that Koras’s appellate counsel was

constitutionally ineffective, resulting in procedural default excusing the failure to raise a

claim of constitutionally ineffective trial counsel. The district court then determined that the
(Nos. 03-1709/1723)                         - 14 -

trial counsel was constitutionally ineffective for failing to argue that Koras had properly

invoked his right to counsel under Edwards v. Arizona, 451 U.S. 477 (1981). The majority

concludes that Koras’s claims cannot succeed, because he has failed to establish the

prejudice prong of Strickland. Since I would hold that both trial and appellate counsel were

constitutionally ineffective, I will analyze both prongs.

                                              II.

       It is well-settled that once a criminal defendant invokes his right to counsel in

response to his Fifth Amendment Miranda rights, all questioning must cease. See Edwards

v. Arizona, 451 U.S. 477, 484-85 (1981) (“We further hold that an accused . . . having

expressed his desire to deal with the police only through counsel, is not subject to further

interrogation by the authorities until counsel has been made available to him, unless the

accused himself initiates further communication, exchanges, or conversations with the

police.”); Abela v. Martin, 380 F.3d 915, 925 (6th Cir. 2000) (noting that Edwards

establishes a bright-line rule to cease interrogation once an accused’s Miranda right to

counsel is invoked). The Supreme Court has also noted that “additional safeguards are

necessary when the accused asks for counsel.” Edwards, 451 U.S. at 484. Accordingly,

“when an accused has invoked his right to have counsel present during custodial

interrogation, a valid waiver of that right cannot be established by showing only that he

responded to further police-initiated custodial interrogation even if has been advised of his

rights.” Id. Indeed, subsequent Supreme Court cases establish the paramount importance

of a defendant’s right not to be questioned without counsel after invocation of the Miranda

right. See Arizona v. Roberson, 486 U.S. 675, 682 (1988) (holding that police may not

question a defendant about any unrelated crimes after invocation of the right to counsel,
(Nos. 03-1709/1723)                         - 15 -

even if such crimes are the subject of a separate investigation); Minnick v. Mississippi, 498

U.S. 146, 152 (1990) (holding that after invocation of the right to counsel, police may not

reinitiate interrogation without counsel present); McNeil v. Wisconsin, 501 U.S. 171, 177

(1991) (noting that the Edwards rule is designed to “prevent police from badgering a

defendant into waiving his previously asserted Miranda rights”).

       However, the Supreme Court has also held that a defendant’s ambiguous invocation

of the Miranda right to counsel does not trigger the Edwards bright line-rule. Davis v.

United States, 512 U.S. 452, 459 (1994) (holding that cessation of questioning is not

required “if a suspect makes a reference to an attorney that is ambiguous or equivocal in

that a reasonable officer in the light of the circumstances would have understood only that

the suspect might be invoking the right to counsel”). Still, an ambiguous invocation should

not rest solely on the words of the request; rather, a court should review all the

circumstances surrounding the invocation in order to determine whether the invocation was

clear and unambiguous. Abela, 380 F.3d at 926 (where defendant stated “Maybe I should

talk to an attorney by the name of William Evans,” furnished the business card of the

attorney to the interrogating officer, and the officer then left the interrogation, presumably

to call the attorney, invocation of the Miranda right held clear and unambiguous); Kyger v.

Carlton, 146 F.3d 374, 376, 380 (6th Cir. 1998) (finding an unequivocal request for counsel

where the defendant stated that “I would just as soon have an attorney,” in response to an

officer’s asking him: “Would you answer some of our questions, without an attorney

present?”).

       Here, both the appellate and trial attorney failed to apply correctly this black-letter,

bright-line, and elementary rule of criminal procedure.           The appellate attorney’s
(Nos. 03-1709/1723)                            - 16 -

performance is the most egregious. As noted by the majority, evidence indicated that Dr.

Van Horn, a psychiatrist retained by Koras as an expert trial witness, testified that Koras

had made a direct and unambiguous request for an attorney, which was denied. Ante at

6 (Maj. Op.). In an evidentiary hearing in habeas proceedings in the federal district court,

the appellate attorney testified that she knew of this direct and unambiguous request for

counsel, but refused to raise it on appeal. The appellate attorney gave her reasoning

thusly:

                  The next day they asked him again after Mirandizing him if he would
          give a statement. My client told me that he never again asked for counsel .
          ...
                  Now, my understanding of the law is you have to suspend asking the
          person if they request counsel. But then at another time, if they volunteer
          that they will give a statement, you may proceed to take that statement if they
          don’t ask for counsel.

The appellate attorney’s assertion that the State may reinitiate interrogation after a direct

and unambiguous request for counsel is simply incorrect. Edwards, 451 U.S. at 484

(“[W]hen an accused has invoked his right to have counsel present during custodial

interrogation, a valid waiver of that right cannot be established by showing only that he

responded to further police-initiated custodial interrogation even if he has been advised of

his rights.”). Given such a fundamental misunderstanding of Supreme Court precedent,

I would hold that the appellate attorney’s actions were constitutionally deficient for the

purposes of Strickland.

          As noted by the majority, the trial attorney also testified that he knew “Koras told Dr.

Van Horn he had requested a lawyer and was denied.” Ante at 6 (Maj. Op.). Nonetheless,

the trial attorney failed to raise any Edwards issue at trial, either through Dr. Van Horn or

through the cross-examination of Detective Tubbs, who testified that Koras’s invocation of
(Nos. 03-1709/1723)                         - 17 -

the right to counsel was ambiguous.        When asked why, the trial attorney gave no

satisfactory answer, and conceded that no competent or reasonable attorney would ignore

the Edwards issue. Given this failure to raise what appears to be evidence of an obvious

Edwards claim, I would hold that the trial attorney’s performance was also constitutionally

deficient.

                                             III.

       Strickland also requires prejudice such that there is a “reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have been

different. A reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Barnes, 339 F.3d at 502. A reasonable probability is less than a preponderance

of the evidence, but more than a mere “conceivable effect” on the outcome of the trial.

Strickland, 466 U.S. at 693.

       The majority reasons that since it is unclear what evidence Koras could have used

to support his claim for an Edwards violation, he has not established prejudice under

Strickland. In particular, the majority argues that Koras must show that there was a

“reasonable probability that a motion to suppress Koras’s statements under Edwards would

have been successful.” Ante at 7 (Maj. Op.) (citing United States v. Carter, 355 F.3d 920,

924 (6th Cir. 2004)). The majority then notes that since Detective Tubbs and Dr. Van Horn

have competing views as to Koras’s invocation of the right to counsel, “the motion would

have boiled down to a credibility determination regarding the conflicting testimony.” Id.

Since “[t]here is no evidence in the record making Dr. Van Horn’s rendition of the relevant

events more credible than Tubbs’s rendition,” the success of any unfiled motion to
(Nos. 03-1709/1723)                        - 18 -

suppress, and any subsequent change in outcome of the trial, is “pure speculation.” Id. at

7-8 (citing Baze v. Parker, 371 F.3d 310, 322 (6th Cir. 2004)).

       I disagree with this analysis. As an initial matter, the case law upon which the

majority relies does not support this position. In Carter, we noted that there was no

ineffective assistance where trial counsel failed to move for acquittal where he was on trial

for being a felon-in-possession of a firearm. See Carter, 355 F.3d at 924. We first noted

that there was “ample evidence that [defendant] possessed the pistol.”        Id. at 924-25.

Such evidence included finding the firearm in the vehicle in which the defendant was

arrested, and testimony by the arresting officer that he saw the defendant place an object

under the driver’s seat when he approached the car. See id. at 925. Accordingly, we noted

that there could be no prejudice resulting from counsel’s refusal to make a motion with no

chance of success. See id. at 924. This was especially true as the motion for acquittal was

based on sufficiency of the evidence, in which credibility arguments are generally

disfavored. See id. at 925. Since there was no reasonable probability of success for the

motion for acquittal, we held that there was no ineffective assistance in failing to make the

motion. See id.

       By contrast, a motion to suppress in this case cannot be considered frivolous or

without support. Indeed, trial counsel concedes he knew Dr. Van Horn asserted that Koras

had made a direct and unambiguous request for counsel. Furthermore, a motion to

suppress evidence, unlike a motion for acquittal based on sufficiency of the evidence, has

no categorical prohibition against arguments based on the credibility of witnesses.

       The majority then cites to Baze for the proposition that “where one is left with pure

speculation on whether the outcome of the trial . . . could have been any different,” there
(Nos. 03-1709/1723)                         - 19 -

is an insufficient showing of prejudice. Baze, 371 F.3d at 322. However, that case is also

clearly distinguishable. In Baze, the petitioner argued that there was ineffective assistance

since trial counsel failed to challenge the procedure for the removal of a potential juror in

a death penalty case. See id. The petitioner argued that the potential juror’s views on the

death penalty might be influenced by his wife, and therefore, that he was less likely to

impose capital punishment. But we noted that “[n]othing in the record even hints that [the

potential juror] would have voted against the death penalty or that the outcome of the trial

would have been different had he remained.” Id. at 322. We further noted that the

defendant does not “have a right to have a specific juror decide his case, only that all jurors

be qualified.” Id. Accordingly, we held there was no prejudice, and therefore, no ineffective

assistance of counsel.

       Here, prejudice to Koras cannot be considered speculative. Whereas the petitioner

in Baze had no evidence supporting his claim, both Koras’s trial and appellate counsel

testified that they knew of Dr. Van Horn’s statements that Koras had made a direct and

unambiguous request for counsel. Furthermore, Koras’s conviction was largely supported

by his confession, which if properly suppressed, might have resulted in a different outcome.

       The majority also states that there is no prejudice since the motion to suppress

would amount to dueling assertions of credibility. Ante at 7 (Maj. Op.) (“There is no

evidence in the record making Dr. Van Horn’s rendition of the relevant events more credible

than Tubbs’s rendition.”).     However, this misapplies the applicable standard under

Strickland. A “reasonable probability” that the outcome would have been different, is less

than a preponderance, but more than a mere “conceivable effect.” Strickland, 466 U.S. at

693. Accordingly, Koras is not required to show that evidence of a direct and unambiguous
(Nos. 03-1709/1723)                         - 20 -

request for counsel is more believable than, or even in equipoise with, contrary assertions

by Detective Tubbs. Rather Koras must merely show that there is some reasonable

likelihood that the trial court would suppress the confession. Given this evidence, a trial

court could reasonably rely on Dr. Van Horn’s testimony of a proper invocation of the right

to counsel. Accordingly, I would hold that failure to raise this issue is constitutionally

ineffective assistance of counsel.

       The majority also notes that “we can only speculate what evidence trial counsel

could have presented in support of the motion [to suppress].” Ante at 7 (Maj. Op.). Like

the majority, I believe that this is the heart of the matter. Unlike the majority, however, I

believe prior precedent supports a finding of prejudice in a case like this where trial counsel

fails to develop, investigate or raise a claim, either in discovery or at trial, an obvious and

important weakness in the state’s case. See, e.g., Towns v. Smith, 395 F.3d 251, 258-59

(6th Cir. 2005) (noting that failure to interview witness who identified non-parties as the

killers was ineffective assistance of counsel); Foster v. Lockhart, 9 F.3d 722, 726 (8th Cir.

1993) (noting that failure to investigate or develop a claim may be a basis for ineffective

assistance of counsel). Here, trial counsel’s refusal to raise or argue the Edwards claim,

despite evidence that such a claim was supportable, prevented the development of further

supporting evidence. I would hold that this is prejudice sufficient under Strickland to show

ineffective assistance of counsel.

       Since I would hold trial counsel was ineffective, I would also hold that there was

sufficient prejudice to find ineffective assistance of appellate counsel. As appellate counsel

failed to raise this obvious error by the trial counsel, Koras was denied constitutionally

effective counsel on direct appeal. Accordingly, I would also excuse procedural default for
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failing to rase this claim on direct appeal, given the appellate counsel’s ineffective

assistance.

      For these reasons, I respectfully dissent.
