           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                      2     Robinson v. Stegall                          No. 02-1898
        ELECTRONIC CITATION: 2004 FED App. 0029P (6th Cir.)
                    File Name: 04a0029p.06                              Michigan, for Appellant. Elizabeth L. Jacobs, Detroit,
                                                                        Michigan, for Appellee. ON BRIEF: Brad H. Beaver,
                                                                        O F F IC E O F T H E A T T ORN E Y G E N E RA L,
UNITED STATES COURT OF APPEALS                                          CORRECTIONS DIVISION, Lansing, Michigan, for
                                                                        Appellant. Elizabeth L. Jacobs, Detroit, Michigan, for
                  FOR THE SIXTH CIRCUIT                                 Appellee.
                    _________________
                                                                                             _________________
 REGINALD ROBINSON,               X
          Petitioner-Appellee. -                                                                 OPINION
                                   -                                                         _________________
                                   -  No. 02-1898
           v.                      -                                      ALAN E. NORRIS, Circuit Judge. The State of Michigan
                                    >                                   appeals on behalf of Warden Jimmy Stegall from the grant of
                                   ,                                    a writ of habeas corpus, 28 U.S.C. § 2254, to prisoner
 JIMMY STEGA LL, Warden,           -
       Respondent-Appellant. -                                          Reginald Robinson. On appeal, we must determine whether
                                                                        the alleged violation of a consent judgment entered into by
                                  N                                     the parties is sufficient to warrant granting the writ despite the
      Appeal from the United States District Court                      fact that the district court did not specify which, if any,
     for the Eastern District of Michigan at Detroit.                   federal constitutional right had been violated. Because a
    No. 97-70308—Arthur J. Tarnow, District Judge.                      district court may grant a writ of habeas corpus “only on the
                                                                        ground that [a state prisoner] is in custody in violation of the
                   Argued: December 5, 2003                             Constitution or laws or treaties of the United States,”
                                                                        28 U.S.C. § 2254(a), we hold that the grant of the writ under
             Decided and Filed: January 22, 2004                        the circumstances presented by this case was premature and
                                                                        therefore remand the matter for further proceedings consistent
        Before: NORRIS and GILMAN, Circuit Judges;                      with this opinion.
                 BUNNING, District Judge.*
                                                                                                        I.
                      _________________
                                                                          In 1992, petitioner was convicted of kidnaping, in violation
                           COUNSEL                                      of Mich. Comp. Laws § 750.349. During the trial, defense
                                                                        counsel received a 13-day continuance to locate two
ARGUED: Brad H. Beaver, OFFICE OF THE ATTORNEY                          witnesses. Before court was adjourned, however, petitioner
GENERAL, CORRECTIONS DIVISION, Lansing,                                 told the judge, “Your Honor, I don’t feel I’m being
                                                                        represented right so I’m going to fire my lawyer.” The court
                                                                        replied, “You’re not firing your lawyer now in the middle of
    *
                                                                        a trial. We’re adjourning this case until the 26th and it’s
     The Honorable David L. Bunning, United States District Judge for   going to conclude at that time.”
the Eastern District of Kentucky, sitting by designation.

                                 1
No. 02-1898                          Robinson v. Stegall      3    4      Robinson v. Stegall                           No. 02-1898

  When the proceedings resumed on August 26, 1992,                 petition be denied, on December 6, 1999, the parties entered
defense counsel reiterated that “the attorney/client               into a consent judgment that reads in full as follows:
relationship has broken down” and that petitioner wanted a
different attorney. A discussion ensued, during which                     IT IS HEREBY ORDERED that the petition for writ
petitioner told the judge “I’m going to leave and be in                of habeas corpus is conditionally granted. Unless the
contempt of court. I’m not going to trial with him, man.” He           state takes action to afford Petitioner a full hearing in the
went on to state that he wished to testify but not without a           trial court to determine whether Petitioner was denied the
new lawyer. The judge responded, “[W]e’re either going to              effective assistance of counsel or his counsel had a
proceed with this case with your testimony at this time, or if         conflict of interest within ninety (90) days of the date of
you refuse to testify, even with this lawyer or in representing        this Order, the Court shall issue the writ ordering the
yourself, then this case will be concluded.” Given this choice,        Respondent to vacate the sentence and conviction.
the defense rested without calling any witnesses. Defendant
was convicted and received a sentence of 10 to 20 years of           This hearing is to be considered as part of Petitioner’s
imprisonment.                                                      appeal of right. In response, the successor to the original trial
                                                                   judge conducted a hearing over a two-day period in March
  On appeal, petitioner raised several issues, including           2000. After the hearing, the trial court denied petitioner’s
whether the trial court erred by refusing to allow him to retain   claim on the record. After judgment was pronounced, counsel
new counsel. Although not raised explicitly in the trial court,    for petitioner requested appointment of appellate counsel,
petitioner argued that his attorney had a conflict of interest     which ultimately occurred on May 9, 2000.
because an associate in the attorney’s law firm represented
petitioner’s co-defendant. The Michigan Court of Appeals             However, the Michigan Court of Appeals issued an order
rejected this argument:                                            prior to briefing that dismissed the case for lack of
                                                                   jurisdiction under the Michigan Court Rules:
  On appeal, defendant alleges only the potential for a
  conflict of interest. Our review of the record indicates               The claim of appeal is DISMISSED for lack of
  that the only prosecution witness cross-examined by                  jurisdiction because a criminal defendant may only
  codefendant’s counsel was the officer who conducted the              challenge an order denying a motion for relief from
  photo-showup, and that cocounsel elicited no testimony               judgment under MCR 6.500 et seq. by filing an
  damaging to defendant. Neither defendant nor his                     application for leave to appeal under MCR 7.205. See
  codefendant presented a defense. Thus, our review of the             MCR 6.509(A). Even though the order in question does
  record reveals no conflict of interest actually affecting            not specifically state that appellant brought the motion
  the adequacy of defendant’s representation.                          under the rule in question, a criminal defendant may only
                                                                       petition the lower court for post-appellate relief under
People v. Robinson, No. 158824, slip op. at 9 (Mich. App.              this subchapter. See MCR 6.501.
Jan. 5, 1996) (citations omitted). The Michigan Supreme
Court denied leave to appeal.                                      People v. Robinson, No. 227154, Order (Mich. App. July 7,
                                                                   2000). Defense counsel had not sought leave to appeal, but
  On January 24, 1997, petitioner initiated this habeas corpus     rather had sought to appeal as of right. A motion for
proceeding. Although a magistrate recommended that the             rehearing was denied, as was a subsequent delayed
No. 02-1898                               Robinson v. Stegall          5    6      Robinson v. Stegall                          No. 02-1898

application for leave to appeal to the Michigan Supreme                         of right, and if the terms of the Consent Judgment are not
Court.                                                                          fulfilled, this Court shall issue the writ ordering
                                                                                Respondent to vacate Petitioner’s sentence and
  Petitioner responded to these setbacks by filing a “Brief                     conviction. Nowhere does the Consent Judgment state
after Remand to State Trial Court” in the district court. The                   that Petitioner shall be entitled as of right to only a
district court issued a show cause order in response to the                     hearing in the trial court, or that, after a hearing in the
failure of the Michigan courts to afford appellate review to                    trial court, a discretionary appeal in the Michigan Court
the trial court’s disposition of the ineffective assistance                     of Appeals would satisfy the requirements of the Consent
question. The order explains the following:                                     Judgment. On the contrary, the Consent Judgment states
                                                                                that Petitioner’s Ginther hearing “is to be considered as
     Review of the record indicates that Petitioner’s                           part of Petitioner's appeal of right.” The language of the
  attempts to obtain appellate review of the trial court’s                      Consent Judgment itself, stating that Petitioner’s Ginther
  denial of his motion for a new trial after receiving his                      hearing was to be considered part of Petitioner’s appeal
  Ginther1 [hearing] were not treated as a part of his appeal                   of right unambiguously indicates that Petitioner is to
  of right in the Michigan Court of Appeals. The Michigan                       receive a full evidentiary hearing, which is only a part of
  Supreme Court was given the opportunity to order the                          his appeal of right, the remainder of which . . . must take
  Michigan Court of Appeals to do so and comply with the                        place in the Michigan Court of Appeals.
  terms of the Consent Judgment voluntarily entered into
  by the parties, but declined to do so.                                    Id. at 863. The district court then ordered that the writ be
                                                                            granted unless the state retried the petitioner within 120 days.
Robinson v. Stegall, No. 97-CV-70308-DT, Order to Show
Cause, at 4 (E.D. Mich. Mar. 12, 2002) (footnote added).                                                    II.
After entertaining argument on the issue, the district court
entered an order enforcing its consent judgment and granting                  As stated at the outset of this opinion, a district court may
a conditional writ of habeas corpus. Robinson v. Stegall, 206               grant a writ of habeas corpus “only on the ground that [a state
F. Supp. 2d 859 (E.D. Mich. 2002). It reasoned as follows:                  prisoner] is in custody in violation of the Constitution or laws
                                                                            or treaties of the United States,” 28 U.S.C. § 2254(a). In the
     This Court finds as a matter of fact that the parties in               instant case, the district court never found a violation of
  this case agreed that Petitioner’s Ginther hearing would                  petitioner’s Sixth Amendment rights, which is the only viable
  be considered as a part of Petitioner’s appeal of right in                constitutional claim raised in the petition. Rather, the parties
  the Michigan Court of Appeals. The Consent Judgment                       agreed that petitioner was entitled to a more fully developed
  stated that the writ is conditionally granted, that                       record with respect to this claim and therefore entered into a
  Petitioner must receive a full hearing in the trial court,                consent judgment that provided for a Ginther hearing in state
  that the hearing is to be considered as a part of his appeal              court. The trial court found no constitutional violation,
                                                                            however, and the Michigan appellate courts declined to
                                                                            consider the issue on the merits.
    1
      In M ichigan, a post-trial hearing may be ordered if the record has
not been sufficiently developed with respect to an ineffective assistance     In its order granting the writ, the district court identifies no
of counsel claim. See People v. Ginther, 390 M ich. 436, 212 N.W.2d 922     constitutional infirmity that justifies its action. Rather, it
(1973).
No. 02-1898                           Robinson v. Stegall       7    8    Robinson v. Stegall                        No. 02-1898

relies on the perceived violation of the consent judgment                                        III.
negotiated by the parties and approved by the court. The
consent judgment, however, did not stipulate to the                    The judgment of the district court is reversed and the writ
conditional finding of a Sixth Amendment violation; it simply        of habeas corpus withdrawn. The cause of action is
provided for further proceedings in the Michigan courts.             remanded for further proceedings consistent with this
Thus, even if the district court correctly held that the             opinion.
respondent violated the provisions of the consent judgment,
that does not result in the finding of a constitutional violation.
Because 28 U.S.C. § 2254(a) explicitly requires such a
finding before the writ may issue, the district court’s action
was at best premature.
   At this point in the proceedings, we find it inappropriate to
review the merits of petitioner’s Sixth Amendment claim.
Rather, we shall remand the matter to the district court to
allow it the first opportunity to evaluate the claim in light of
the decision reached by the Michigan courts. In making this
assessment, however, the district court will be guided by the
standard of review imposed by the Antiterrorism and
Effective Death Penalty Act of 1996, Pub. L. No. 104-132,
110 Stat. 1214. It may grant a habeas corpus petition only if
it concludes that the state adjudication of the federal claim
“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,”
28 U.S.C. § 2254(d)(1), or “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)(2). A state court decision is “contrary
to” Supreme Court precedent “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 confronts facts that
are materially indistinguishable from a relevant Supreme
Court precedent and arrives at” an opposite result. Williams
v. Taylor, 529 U.S. 362, 405 (2000) (O’Connor, J.,
concurring).
