                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                             File Name: 05a0028p.06

                       UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


                                                      X
                               Petitioner-Appellee, -
 MAURICE WHITING,
                                                       -
                                                       -
                                                       -
                                                           No. 03-1894
          v.
                                                       ,
                                                        >
 SHERRY BURT, Warden,                                  -
                             Respondent-Appellant. -
                                                       -
                                                       -
                                                       -
                                                      N
                       Appeal from the United States District Court
                      for the Eastern District of Michigan at Detroit.
                   No. 02-74359—Arthur J. Tarnow, District Judge.
                                            Argued: June 9, 2004
                                  Decided and Filed: January 19, 2005
            Before: MARTIN and SUTTON, Circuit Judges; HOLSCHUH, District Judge.*
                                             _________________
                                                  COUNSEL
ARGUED: Debra M. Gagliardi, OFFICE OF THE ATTORNEY GENERAL, Lansing, Michigan,
for Appellant. James Sterling Lawrence, Detroit, Michigan, for Appellee. ON BRIEF: Raina I.
Korbakis, OFFICE OF THE ATTORNEY GENERAL, Lansing, Michigan, for Appellant. James
Sterling Lawrence, Detroit, Michigan, for Appellee.
                                             _________________
                                                 OPINION
                                             _________________
        JOHN D. HOLSCHUH, District Judge. The District Court, pursuant to 28 U.S.C. § 2254,
conditionally granted the Petition for a writ of habeas corpus of Maurice D. Whiting (“Petitioner”
or “Defendant”), an inmate of the State Prison of Southern Michigan, the condition being that the
State grant Petitioner a new appeal in the Michigan Court of Appeals and, if not done within the time
specified by the District Court, Petitioner could apply for a writ ordering Sherry Burt, the warden
of the prison (“Respondent”) to release him. Respondent appealed, and the District Court denied
Respondent’s motion for a stay pending the appeal. Another panel of this Court granted

        *
          The Honorable John D. Holschuh, United States District Judge for the Southern District of Ohio, sitting by
designation.


                                                         1
No. 03-1894                Whiting v. Burt                                                                         Page 2


Respondent’s motion for a stay pending the appeal and the parties’ request for oral argument. For
the reasons stated herein, we vacate the judgment of the District Court and remand the case for
further proceedings.
      The issues presented by this appeal require a detailed history of the proceedings in the
Michigan state courts and the subsequent proceeding in the federal district court.
I.       THE MICHIGAN STATE COURTS
         A.        The Michigan Trial Court
       During his trial in the Detroit Recorder’s Court1 on charges of first-degree felony murder and
armed robbery, Defendant was represented by a retained attorney, Lawrence E. Schultz. Upon being
convicted of both charges in 1995, Defendant was sentenced to concurrent terms of life
imprisonment. He appealed to the Michigan Court of Appeals in January 1996.
         B.        The Direct Appeal to the Michigan Court of Appeals
        In his direct appeal, Defendant was again represented by Attorney Lawrence E. Schultz.
Mr. Schultz asserted just two claims on Defendant’s behalf: (1) the trial court erred in its
determination concerning the voluntariness and admissibility of Defendant’s statement to the police;
and (2) Defendant’s convictions and sentences for both felony murder and armed robbery violated
the prohibitions against double jeopardy. The Court of Appeals affirmed the trial court’s decision
concerning the admissibility of Defendant’s statement to the police and, accordingly, affirmed his
conviction of felony murder. The Court of Appeals, however, agreed that the convictions of both
felony murder and the underlying felony of armed robbery violated the federal and state prohibitions
against double jeopardy. The Court of Appeals therefore vacated the conviction and sentence for
the underlying felony of armed robbery.
         C.        The Delayed Appeal to the Michigan Supreme Court
      In June 1997, Defendant filed a delayed application for leave to appeal to the Michigan
Supreme Court. The leave to appeal was denied.
         D.        The Post-Appeal Proceedings in the Michigan Courts
                   1.       The Michigan Rules of Court
        Subchapter 6.500 of Chapter 6, Criminal Procedure, Michigan Rules of Court (“MCR”),
entitled “Post Appeal2 Relief,” establishes the procedure for post-appeal proceedings challenging
criminal convictions. The request for relief from judgment must set forth, in addition to other
information, the grounds for the relief requested and, if the grounds for relief were not raised before,
the reasons they were not raised. MCR 6.502(c)(12) and (14). The motion must be presented to the
judge to whom the case was assigned at the time of the defendant’s conviction. MCR 6.504(A).
Appeals are by application to the Court of Appeals. MCR 6.509(A).


         1
           At the time of Defendant’s trial and conviction in 1995, the trial court was known as the Detroit Recorder’s
Court. In 1997, legislation was passed to dissolve the Detroit Recorder’s Court and consolidate its operation under the
newly-formed Third Circuit Court. As a result, proceedings in both state and federal courts refer to the trial court in this
case as the Circuit Court.
         2
         The 1989 Staff Comment states, “[t]he rules are similar in structure to the federal rules governing proceedings
under 28 U.S.C. 2255, though there are a number of differences in substance and language.”
No. 03-1894               Whiting v. Burt                                                                       Page 3


         The critical rule governing the granting of relief is MCR 6.508. It provides, in pertinent part:
                  (D)      Entitlement to Relief. The defendant has the burden of
                           establishing entitlement to the relief requested. The court
                           may not grant relief to the defendant if the motion
                                                       *   *    *
                           (3)       alleges grounds for relief, other than jurisdictional
                                     defects, which could have been raised on appeal from
                                     the conviction and sentence or in a prior motion under
                                     this subchapter unless the defendant demonstrates
                                     (a)     good cause for failure to raise such grounds
                                             on appeal or in the prior motion, and
                                     (b)     actual prejudice from the alleged irregularities
                                             that support the claim for relief. As used in
                                             this subrule, “actual prejudice” means that,
                                             (i)     in a conviction following a trial, but
                                                     for the alleged error, the defendant
                                                     would have had a reasonably likely
                                                     chance of acquittal;
                                                              * * *
                                             (iii) in any case, the irregularity was so
                                                     offensive to the maintenance of a
                                                     sound judicial process that the
                                                     conviction should not be allowed to
                                                     stand regardless of the outcome of the
                                                     case. . . .
MCR 6.508(D)(3).3
                  2.       The Michigan Trial Court
        Defendant commenced his post-conviction collateral proceedings on March 31, 1999, when
he filed his motion for relief from judgment with the trial court. This time, Defendant was
represented by a new attorney, Gerald M. Lorence. The following claims were made in support of
the motion:
                  I.       The trial court committed reversible error in failing to give a
                           cautionary instruction sua sponte on the accomplice
                           testimony of witness James Wright.
                  II.      Prosecutor engaged in prosecutorial misconduct by vouching
                           for the credibility of his own witness when he disclosed that
                           one of the alleged co-perpetrators received a plea agreement
                           with the understanding that he would offer truthful testimony
                           at Defendant’s trial.



         3
           The 1989 Staff Comment to this subrule states, “[t]hese standards are based on several decisions of the United
States Supreme Court. See Wainwright v. Sykes, 433 U.S. 72; 97 S. Ct. 2497; 53 L. Ed. 2d 594 (1977)(habeas corpus
action by state prisoner); United States v. Frady, 456 U.S. 152; 102 S. Ct. 1584; 71 L. Ed. 2d 816 (1982)(under 28 U.S.C.
2255).”
No. 03-1894            Whiting v. Burt                                                        Page 4


                III.    The prosecutor denied the Defendant a fair trial in cross
                        examining the Defendant when he made reference to the fact
                        that the Defendant had been in jail along with others on a
                        prior occasion.
                IV.     Defendant was denied effective assistance of counsel by
                        virtue of his attorney’s failure to request an accomplice
                        instruction with respect to the testimony of witness James
                        Wright who testified against the Defendant and had been
                        given a plea agreement in exchange for his testimony, and by
                        virtue of this attorney’s failure to investigate and perfect a
                        possible intoxication defense.
                V.      The trial court gave incomplete supplemental instructions to
                        the jury by reinstructing them on the principal offenses
                        without mentioning the lesser included offenses or the
                        concept of aiding and abetting.
JA at 111-12.
       In Defendant’s motion for relief from judgment, he stated:
                Under MCR 6.508(D)(3)(a), there is good cause for not having raised
                these issues in a previous appeal. Specifically, Defendant was denied
                effective assistance of appellate counsel who failed to raise these
                issues. Ineffective assistance of counsel constitutes good cause for
                a delayed appeal. (See Brief in Support). It is also significant to note
                that failure to object to the reinstructions, and the failure to request
                the undisputed accomplice instructions were due to ineffective
                assistance of counsel. Since the same attorney represented the
                Defendant at the appellate levels, it is not surprising that the issues
                concerning ineffective assistance of counsel were not raised at that
                time.
JA at 112.
        In his brief in support of this motion, Defendant set forth his arguments with respect to each
of the alleged grounds for relief. With reference to the alleged denial of the effective assistance of
trial counsel, Defendant pointed out that Michigan courts had adopted the two-part requirement for
proving ineffective assistance of counsel as set forth in Strickland v. Washington, 466 U.S. 668
(1984). See People v. Pickens, 446 Mich. 298, 521 N.W. 2d 797 (1994); People v. Stammer, 179
Mich. App. 432, 446 N.W. 2d 312 (1989); People v. Dalessandro, 165 Mich. App. 569, 419 N.W.
2d 609 (1988). In Strickland, the Court held that in order to establish ineffective assistance of
counsel, a defendant must prove that: (1) counsel’s performance was deficient; and (2) such
performance prejudiced the defense. See 466 U.S. at 687.
        On January 5, 2001, the trial court denied Defendant’s motion for relief from judgment. The
court said:
                The Defendant has the burden of proof of establishing entitlement to
                the relief requested. Cause and prejudice must also be shown as to
                why the issues presented were not raised on one of the Defendant’s
                prior appeals. Most importantly, it must be shown in a conviction
                following a trial, but for the alleged error the Defendant would have
No. 03-1894           Whiting v. Burt                                                          Page 5


                had a reasonably likely chance of acquittal. This burden has not been
                met. MCR 6.508.
                Likewise it has not been shown that it would be manifestly unjust to
                allow the conviction to stand, nor has it been shown that any
                irregularity was so offensive to the maintenance of a sound judicial
                process that the conviction should not be allowed to stand. MCR
                6.508.
JA at 145-46.
        The court nevertheless proceeded to consider the merits of the five allegations of error. It
found no error in failing to sua sponte give an accomplice testimony instruction, no prosecutorial
misconduct in allegedly vouching for the credibility of a state’s witness, no error in the instructions
given to the jury, and no error in failing to object to a comment about the defendant being in
custody, a fact already known to the jury. With regard to the remaining allegation of ineffective
assistance of counsel, the court stated:
                The Defendant has met neither prong of the test set forth in the
                landmark cases of Strickland v. Washington, 466 U.S. 668 (1984),
                People v. Pickens, 446 Mich. 298 (1994). Failure to request an
                accomplice instruction doesn’t amount to ineffective assistance of
                counsel nor does picking one strategy over another. It has long been
                established that reviewing courts will not find ineffective assistance
                in differences over tactics on what defenses and issues to raise,
                People v. Stevenson, 60 Mich. App. 6114 (1975).
JA at 147.
                3.     The Michigan Court of Appeals
        In January of 2002, Defendant filed in the Michigan Court of Appeals a delayed application
for leave to appeal the denial of his motion for relief from judgment. On February 14, 2002, the
Court of Appeals entered the following order:
                The Court orders that the delayed application for leave to appeal is
                DENIED for failure to establish entitlement to relief under MCR
                6.508.
JA at 228. Defendant then sought leave to appeal to the Michigan Supreme Court.
                4.     The Michigan Supreme Court
       On September 30, 2002, the Michigan Supreme Court entered the following order:
                On order of the Court, the delayed application for leave to appeal
                from the February 14, 2002 decision of the Court of Appeals is
                considered, and it is DENIED, because the defendant has failed to
                meet the burden of establishing entitlement to relief under MCR
                6.508(D).
JA at 229.
No. 03-1894                Whiting v. Burt                                                                         Page 6


II.      THE UNITED STATES DISTRICT COURT
         A.        The Petition for a Writ of Habeas Corpus
        On November 4, 2002, Petitioner filed in the United States District Court for the Eastern
District of Michigan a pro se Petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. On
April 1, 2003, Petitioner, now represented by another attorney, James S. Lawrence, filed an amended
Petition listing the following grounds for relief:
                   Issue 1.           Petitioner’s statement to police was involuntary and
                                      inadmissible.
                   Issue 2.           Petitioner was denied a fair trial by testimony and
                                      argument that a prosecution witness had an agreement
                                      with the prosecutor to testify truthfully.
                   Issue 3.           Petitioner was denied the effective assistance of
                                      counsel by failure to investigate, prepare and advance
                                      a diminished capacity/criminal responsibility defense,
                                      and by failure to request a cautionary instruction
                                      regarding testimony by an alleged accomplice.
                   Issue 4.           Petitioner was denied a fair trial where the trial judge
                                      reinstructed the jury with incomplete instructions that
                                      prejudiced the defense.
                   Issue 5.           Petitioner was prejudiced by ineffective assistance of
                                      appellate counsel.
JA at 20.
        The Petition noted that Issue 1 – the admissibility of Petitioner’s statement to the police –
had been determined adversely to Petitioner on direct appeal, and that Issue 5 – the alleged
ineffectiveness of appellate counsel – was  based on a failure to raise Issues 2, 3, and 4, as well as
two issues of state law, on direct appeal.4 Petitioner argued that the outcome of the appeal would
have been different had appellate counsel raised these issues.
        The brief in support of the Petition contained extensive arguments and legal citations with
respect to each of the five listed issues. Of particular significance in this appeal is Issue 5, the
alleged ineffectiveness of appellate counsel. While Petitioner admits that “appellate counsel did
raise good issues,” JA at 63, including the issue of the involuntary statement as set forth in Issue 1
in the habeas Petition, he argues that counsel’s failure to raise the other issues on direct appeal
provides the basis for the claim of alleged ineffectiveness of appellate counsel. With respect to these
other issues, Petitioner noted, “[b]ecause raised [for the first time] in the Motion for Relief from
Judgment, they were doomed to failure under the ‘cause and prejudice’ rules of MCR 6.508(D),
unless ineffective assistance of appellate counsel were to be found.” JA at 64.


         4
           The Petition states, “Counsel failed to raise on appeal Issues II-V here, and also 2 issues of state law.” JA at
16. Appellate counsel, however, obviously could not have raised Issue 5 on direct appeal. The two state law issues
referred to were: (1) the failure of the trial court to give a cautionary instruction sua sponte on the accomplice testimony
of a witness; and (2) the reference to Petitioner having been in jail. These alleged errors were the subjects of grounds
I and III in Petitioner’s motion for relief from judgment, but they were not included as issues in the habeas corpus
Petition in federal court.
No. 03-1894               Whiting v. Burt                                                                     Page 7


         Petitioner argued that the two-prong requirement of Strickland had been met, i.e., counsel’s
failure to raise the other issues in the state court of appeals constituted deficient performance, and
there was a reasonable probability that, if appellate counsel had raised these issues, the outcome of
the appeal would have been different. Petitioner also pointed out that because the attorney who
represented him on direct appeal, Lawrence E. Schultz, had also represented him at trial, Mr. Schultz
would not be expected to raise claims based on his own ineffectiveness. Petitioner contended that
when the same attorney represents a defendant at trial and on direct appeal, there is an inherent
conflict of interest and, under the standard set forth in Cuyler v. Sullivan, 446 U.S. 335 (1980),
prejudice is presumed.
         B.       The Respondent’s Answer in Opposition to the Petition
        Respondent argued the merits of the first issue, the admissibility of Petitioner’s statement
to the police, which had been decided adversely to Petitioner on direct appeal. Respondent claimed
that Issues 2, 3, and 4 were procedurally defaulted because they were not raised on direct appeal,
and the Michigan state courts had denied Petitioner relief under MCR 6.508(D). Recognizing that
Petitioner was attempting to apply the cause and prejudice exception to the procedurally-defaulted
claims on the basis of the alleged ineffectiveness of appellate counsel (Issue 5), Respondent argued
that Petitioner had failed to satisfy the first prong of Strickland, i.e., that the attorney’s performance
was deficient. Accordingly, Respondent contended, the procedurally-defaulted issues were not
subject to review by the federal courts. Respondent, alternatively, argued that none of the allegedly
defaulted claims was meritorious.
         C.       The Standard of Review by the District Court
        A federal court’s review of a state court decision under 28 U.S.C. § 2254 is governed by the
Antiterrorism & Effective Death Penalty Act (“AEDPA”), effective April 24, 1996.5 The provisions
of that Act relevant to the issues in this case are as follows:
                  (b)(1) An 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 unless it appears that--
                     (A) the applicant has exhausted the remedies available in the
                     courts of the State; or
                     (B)(i) there is an absence of available State corrective process; or

                     (ii) circumstances exist that render such process ineffective to
                     protect the rights of the applicant.

                     (2) An application for a writ of habeas corpus may be denied on
                     the merits, notwithstanding the failure of the applicant to exhaust
                     the remedies available in the courts of the State.

                     (3) A State shall not be deemed to have waived the exhaustion
                     requirement or be estopped from reliance upon the requirement


         5
           Although Petitioner’s conviction predated the effective date of the AEDPA, his Petition was filed after that
date and, therefore, the AEDPA applies. See Williams v. Bagley, 380 F.3d 932, 943 (6th Cir. 2004); Barker v. Yukins,
199 F.3d 867, 871 (6th Cir. 1999).
No. 03-1894           Whiting v. Burt                                                             Page 8


                  unless the State, through counsel, expressly waives the
                  requirement.

               (c) An applicant shall not be deemed to have exhausted the remedies
               available in the courts of the State, within the meaning of this section,
               if he has the right under the law of the State to raise, by any available
               procedure, the question presented.

               (d) An 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(b),(c),(d).
       D.      The Opinion and Order of the District Court
        On June 10, 2003, the District Court rendered its Opinion and Order conditionally granting
the Petition for a writ of habeas corpus. The court, after recognizing the appropriate standard of
review under the AEDPA, proceeded directly to Petitioner’s fifth claim, the alleged ineffectiveness
of appellate counsel and the alleged conflict of interest arising from the fact that Petitioner was
represented on direct appeal by the same attorney who represented him at trial.
       The court first, however, sua sponte questioned whether the claimed conflict of interest issue
had been properly presented to the Michigan courts and, if not, whether Respondent had waived a
possible procedural default, i.e., the failure to exhaust state remedies, by failing to assert the
procedural default as an affirmative defense in Respondent’s Answer. The District Court’s
reasoning on these important preliminary questions was as follows:
       Although not specifically addressed by respondent in her answer, the Court briefly
       discusses whether petitioner’s conflict of interest was properly exhausted with the
       Michigan courts. Although respondent failed to raise the exhaustion issue in her
       answer, this defense is not waived unless the State, through counsel, expressly
       waives the exhaustion requirement. Benoit v. Bock, 237 F. Supp. 2d 804, 806 (E.D.
       Mich. 2003); 28 U.S.C. § 2254(b)(3). Moreover, “considerations of comity and
       federalism” require this Court to raise the exhaustion issue sua sponte. Id.
       In the present case, petitioner’s post-conviction counsel did not raise a separate
       ineffective assistance of appellate counsel claim in his motion for relief from
       judgment. However, post-conviction counsel argued ineffective assistance of
       appellate counsel to establish “cause”, as required by M.C.R. 6.508(D)(3), to excuse
       petitioner’s failure to raise his post-conviction claims in his appeal of right. As part
       of this argument, post-conviction counsel made one reference to the conflict of
       interest issue:
No. 03-1894             Whiting v. Burt                                                                   Page 9


                 “Since the same attorney represented Defendant at the appellate
                 levels, it is not surprising that the issues concerning ineffective
                 assistance of counsel were not raised at that time.”
        This reference is sufficient to fairly present this claim to the Michigan courts.
        As to any possible procedural default for failure to raise this issue in the first appeal;6
        this Court will not enforce any possible procedural default of the conflict of interest
        claim, because respondent failed to raise the defense of procedural default in her
        answer with respect to this specific claim. Benoit v. Bock, 237 F. Supp. 2d at 807.
        As the judge in Benoit indicated, with the exception of the exhaustion issue, “the
        Sixth Circuit strongly discourages the sua sponte invocation of procedural
        affirmative defenses that were not raised by the respondent.” Id. (Citing to Scott v.
        Collins, 286 F.3d 923, 928-29 (6th Cir. 2002)). Thus, although the issue of
        exhaustion must be expressly waived by respondent, “the same is not true for the
        affirmative defense of procedural default.” Id. Therefore, respondent’s failure to
        raise the procedural default defense in this case can be considered an implicit waiver
        of that issue. Benoit, 237 F. Supp. 2d at 807.
JA at 233-34.
       The District Court, having concluded that Petitioner’s fifth claim, with its conflict of interest
component, was properly before it, proceeded to address the merits of that claim. The court’s
discussion focused basically on Attorney Schultz’s alleged conflict of interest. The District Court
held:
        Defense attorneys owe their clients a duty of loyalty, including the duty to avoid
        conflicts of interest. Strickland v. Washington, 466 U.S. 668, 688 (1984)(citing to
        Cuyler v. Sullivan, 446 U.S. 335, 346 (1980)). However, a claim of a conflict of
        interest, by itself, is insufficient to justify reversal of a conviction. Reedus v. Stegall,
        197 F. Supp. 2d 767, 782 (E.D. Mich. 2001)(citing to United States v. Hall, 200 F.3d
        962, 966 (6th Cir. 2000); additional citations omitted). Instead, a habeas petitioner
        must demonstrate “that counsel ‘actively represented conflicting interests’ and that
        ‘an actual conflict of interest adversely affected his lawyer’s performance.’” Reedus,
        197 F. Supp. 2d at 782 (citing Strickland, 466 U.S. at 692); See also Mickens v.
        Taylor, 122 S. Ct. 1237, 1244, n.5 (2002)(actual conflict of interest, for Sixth
        Amendment purposes, is a conflict of interest that adversely affects counsel’s
        performance). However, a petitioner who can show that his counsel operated under
        a conflict of interest which affected his representation need not establish prejudice.
        Cuyler v. Sullivan, 466 U.S. at 349-50; Tyler v. United States, 78 F. Supp. 2d 626,
        631-32 (E.D. Mich. 1999). Instead, prejudice is presumed, in connection with an
        ineffective assistance of counsel claim, where a defendant demonstrates actual
        conflicts of interest that compromise his or her attorney’s ability to advocate his or
        her client’s interests. Olden v. United States, 224 F.3d 561, 565 (6th Cir.
        2000)(citing to Strickland, 466 U.S. at 692). The right to conflict-free counsel
        extends to defendants who seek appellate review of their convictions. See e.g. Pisa
        v. Streeter, 491 F. Supp. 530, 532-533 (D. Mass. 1980).
JA at 235-36.

        6
         We believe the District Court’s reference to the “first appeal” was to Defendant’s motion for relief from
judgment, because Defendant’s first opportunity to claim ineffective assistance of appellate counsel was in that
proceeding.
No. 03-1894           Whiting v. Burt                                                           Page 10


        The District Court believed that appellate counsel’s conflict of interest “prevented him from
raising the ineffective assistance of trial counsel claims that are raised in petitioner’s third claim,”
JA 236, and that “[i]n addition, petitioner has shown that this conflict of interest adversely affected
appellate counsel’s performance in that appellate counsel failed to raise several colorable ineffective
assistance of trial counsel claims.” JA 238. It is clear that the District Court based the finding of
ineffective assistance of appellate counsel on a finding of a conflict of interest, and the application
of the standard established in Sullivan, 446 U.S. 335, in which prejudice need not be established
when petitioner can show that his counsel operated under a conflict of interest which adversely
affected his representation.
        Having found that Petitioner was deprived of the effective assistance of appellate counsel
as alleged in the fifth claim, the District Court did not consider the merits of any of the other claims,
including Petitioner’s first claim concerning the admissibility of the allegedly involuntary statement
to police, a claim which Attorney Schultz raised on direct appeal. Instead, the court ordered that a
writ would be granted “if petitioner is not permitted to reinstate his appeal of right with the
assistance of counsel in the Michigan Court of Appeals within one hundred and twenty (120) days
from the date of this Opinion and Order.” JA at 240.
III.    THE ISSUES ON APPEAL
        There are five issues involved in this appeal:
        1.      Whether the exhaustion requirement was satisfied by a fair
                presentment of Petitioner’s conflict of interest issue to the state
                courts.
        2.      If the issue was not fairly presented to the state courts, whether
                Petitioner can return to the state courts and, if not, has there been a
                procedural default.
        3.      If there has been a procedural default, whether this defense was
                waived by Respondent in the District Court.
        4.      If the defense of procedural default was waived by Respondent in the
                District Court, whether Respondent can now raise that defense in the
                Court of Appeals.
        5.      If the Court of Appeals considers the merits of the claim of
                ineffective assistance of appellate counsel based on the alleged
                conflict of interest, did the District Court properly apply the Sullivan
                standard to that claim?
       For the reasons discussed herein, we find that Petitioner’s ineffective assistance of appellate
counsel claim based on the alleged conflict of interest was fairly presented to the state courts. The
exhaustion requirement is therefore satisfied, and, accordingly, it is not necessary to consider the
procedural default and waiver issues (Issues 2, 3 and 4). We, therefore, consider on its merits the
claim of ineffective assistance of appellate counsel based on an alleged conflict of interest. Because
we find that the District Court improperly applied the Sullivan standard to this claim, we vacate the
decision of the District Court and remand the case for further proceedings.
No. 03-1894            Whiting v. Burt                                                           Page 11


IV.     DISCUSSION
        A.      Standard of Review
        As noted earlier, this case is governed by the standard of review set forth in the AEDPA, and
this Court reviews de novo the District Court’s legal conclusions. We also review de novo the
District Court’s determination concerning Petitioner’s ineffective assistance of counsel claim, a
mixed question of law and fact. See Hicks v. Straub, 377 F.3d 538, 551 (6th Cir. 2004)(citing Lott
v. Coyle, 261 F.3d 594, 606 (6th Cir. 2001), cert. denied, 534 U.S. 1147 (2002)).
        B.      Ineffective Assistance of Appellate Counsel Claim Based on Alleged Conflict of
                Interest
                1. The Exhaustion Requirement was Satisfied by a Fair Presentment of the Conflict
                   of Interest Claim to the State Courts
       We cannot reach the merits of Petitioner’s ineffective assistance of appellate counsel claim
based on an alleged conflict of interest without first resolving the question of whether this
constitutional claim was exhausted by fairly presenting it to the Michigan courts.
        Long before the doctrine was codified in 28 U.S.C. § 2254(b)(1), it was firmly established
that before a federal court may grant habeas relief to a state prisoner, the prisoner had to first exhaust
his remedies in state court. Ex parte Royall, 117 U.S. 241 (1886). Because state courts, like federal
courts, are required to enforce federal law, including rights asserted under the Constitution, comity
requires that the state courts should have the first opportunity to review the prisoner’s federal claim
and provide any necessary relief. See O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999)(citing Rose
v. Lundy, 455 U.S. 509, 515-16 (1982); Darr v. Burford, 339 U.S. 200, 204 (1950)).
        As a necessary component of the exhaustion of state remedies doctrine, a petitioner’s claim
must be “fairly presented” to the state courts before seeking relief in the federal courts. Baldwin v.
Reese, 124 S. Ct. 1347, 1349 (2004); Picard v. Connor, 404 U.S. 270, 275 (1971). It is sufficient
if “the substance of a federal habeas corpus claim” be presented to the state courts, and there are
instances in which “the ultimate question for disposition” will be the same despite variations in the
legal theory or factual allegations urged in its support. Picard, 404 U.S. at 277-78. In our Circuit,
in making a determination of whether the petitioner has properly asserted both the factual and legal
basis for his claim, there are four actions a petitioner can take which are significant to the
determination of whether a claim has been “fairly presented:”
        (1) reliance upon federal cases employing constitutional analysis; (2) reliance upon
        state cases employing federal constitutional analysis; (3) phrasing the claim in terms
        of constitutional law or in terms sufficiently particular to allege a denial of a specific
        constitutional right; or (4) alleging facts well within the mainstream of constitutional
        law.
McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000)(citing Franklin v. Rose, 811 F.2d 322, 326
(6th Cir. 1987)), cert. denied, 532 U.S. 958 (2001).
         In the present case, Petitioner’s basic claim of ineffective assistance of appellate counsel was
clearly presented to the Michigan courts in his motion for relief from judgment. Although
ineffective assistance of appellate counsel was not included as a separate ground for relief (as it was
later in the federal habeas Petition), it was specifically argued at length in an effort to meet the cause
requirement of MCR 6.508(D)(3)(a). As noted earlier, Defendant had argued:
No. 03-1894           Whiting v. Burt                                                             Page 12


       Under MCR 6.508(D)(3)(a), there is good cause for not having raised these issues
       in a previous appeal. Specifically, Defendant was denied effective assistance of
       appellate counsel who failed to raise these issues. Ineffective assistance of counsel
       constitutes good cause for a delayed appeal. (See Brief in Support). It is also
       significant to note that failure to object to the reinstructions, and the failure to request
       the undisputed accomplice instructions were due to ineffective assistance of counsel.
       Since the same attorney represented the Defendant at the appellate levels, it is not
       surprising that the issues concerning ineffective assistance of counsel were not raised
       at that time.
JA at 112. Defendant’s brief in support of his motion for relief from judgment relied heavily on his
argument that, under both state and federal law, he was entitled to the effective assistance of
appellate counsel.
       Under both Mich Const 1963, Art. 1, Sec. 20 and US Const. Ams VI, XIV, a
       criminal defendant is entitled to the effective assistance of counsel on appeal. Evitts
       v Lucey 469 US 487; 105 S Ct 830; 83 Led 2d 821 (1985); People v Wolfe, 156 Mich
       App 225 (1986). Under the standards set forth in both Strickland v Washington,
       supra, and People v Garcia, supra, appellate counsel’s failure to raise issues which
       would likely result in a reversal constitutes ineffective assistance of counsel.
JA at 141. The brief cited both state and federal cases for the principle that ineffective assistance
of appellate counsel constitutes cause for a failure to include substantive claims of error in an appeal
as of right.
        With respect to satisfying the prejudice requirement of MCR 6.508(D)(3)(a), Defendant’s
brief stated:
       In addition, the Defendant has also shown “actual prejudice” in this case. The failure
       of the trial court to give a cautionary instruction sua sponte with respect to the
       accomplice testimony clearly requires reversal of Defendant’s conviction alone.
       However, this error, combined with the other errors listed in this brief clearly create
       a combination of trial court error requiring reversal. In combination, these errors are
       so offensive to the maintenance of a sound judicial process, that the conviction
       should not be allowed to stand. Insofar as Defendant was sentenced to a term of
       mandatory life without the possibility of parole, the prejudice to his case was clearly
       substantial.
JA at 142-43.
         The Michigan trial court, the first court to consider the arguments raised in the motion for
relief from judgment, held that Defendant had failed to meet the burden of proof placed on him by
MCR 6.508. The trial court nevertheless proceeded to discuss the merits of Defendant’s listed
claims. With respect to the fourth claim, the alleged ineffective assistance of trial counsel, the court
said:
       The Defendant has met neither prong of the test set forth in the landmark cases of
       Strickland v. Washington, 466 U.S. 668 (1984), People v. Pickens, 446 Mich. 298
       (1994). Failure to request an accomplice instruction doesn’t amount to ineffective
       assistance of counsel nor does picking one strategy over another. It has long been
       established that reviewing courts will not find ineffective assistance in differences
       over tactics on what defenses and issues to raise. People v. Stevenson, 60 Mich.
       App. 6114 (1975).
No. 03-1894               Whiting v. Burt                                                                      Page 13


JA at 147. Both the Michigan Court of Appeals and the Michigan Supreme Court in one-line Orders
denied Defendant’s appeals, also for failure to meet the burden of establishing entitlement to relief
under MCR 6.508(D).
        It is apparent from this record that, in his motion for relief from judgment, Defendant: (1)
argued at length that ineffective assistance of appellate counsel met the cause requirement of MCR
6.508(D)(3)(a); and (2) argued briefly that a combination of the alleged listed errors met the
prejudice requirement of MCR 6.508(D)(3)(a). Defendant, however, did not specifically argue at
any length the fact that appellate counsel had also been trial counsel, thus creating a conflict of
interest which, in addition to being a cause for failing to include claims in the direct appeal, resulted
in prejudice to Defendant. As the District Court correctly noted, the only reference to a conflict of
interest was the following sentence in Defendant’s motion for relief from judgment:
         Since the same attorney represented the Defendant at the appellate levels, it is not
         surprising that the issues concerning ineffective assistance of counsel were not raised
         at that time.
JA at 234. According to the District Court, “this reference is sufficient to fairly present this claim
to the Michigan courts.” JA at 234.
        Respondent disagrees. Respondent urges us to treat the issue of ineffective assistance of
counsel based on the alleged conflict of interest as a separate claim, and find that it was not “fairly
presented” to the Michigan courts. However, the constitutional claim involved – a denial of
Defendant’s Sixth Amendment right to the effective assistance of appellate counsel – was
undeniably presented to the Michigan     courts and decided against Defendant by the denial of his
motion for relief from judgment.7 The federal law governing ineffective assistance of appellate
counsel is not only firmly established, but it has been applied by the Michigan courts as “cause” to
excuse a procedural default under MCR 6.508(D)(3)(a). In Pickens, 446 Mich. 298, 521 N.W. 2d
797, the Michigan Supreme Court adopted the ineffective assistance of counsel standard articulated
by Strickland. See also People v. Reed, 449 Mich. 375, 535 N.W. 2d 496 (1995). The Michigan
Supreme Court has also dealt with a claim of ineffective assistance of counsel based on an alleged
conflict of interest by an attorney. In People v. Smith, 456 Mich. 543, 581 N.W. 2d 654 (1998), the
Michigan Supreme Court held that in order to demonstrate that a conflict of interest has violated a
defendant’s Sixth Amendment rights, the defendant must establish that an actual conflict of interest
adversely affected his lawyer’s performance. Smith, 456 Mich. at 556, 581 N.W. 2d at 659 (citing
Sullivan, 446 U.S. 335).
        Although the question of the alleged conflict of interest could certainly have been made in
a more specific and more emphatic manner, the Michigan courts, demonstrably very knowledgeable
of federal law regarding ineffective assistance of counsel and claimed conflicts of interest, were
made aware of the fact that Defendant was represented by the same attorney at trial and on appeal
and, to the extent that this presented a conflict of interest, it was brought to the attention of the
Michigan courts. We therefore find that the claim of ineffective assistance of appellate counsel, with
an alleged conflict of interest component, was fairly presented to the Michigan courts in the
collateral relief proceedings. Because Petitioner exhausted his state remedies with respect to this


         7
          As this Court said in Hicks v. Straub, 377 F.3d 538, 558 n.17 (6th Cir. 2004), with reference to a petitioner’s
claim of ineffective assistance of appellate counsel and the denial of the petition by the Michigan courts under MCR
6.508(D):
         Petitioner did not procedurally default his claim of ineffective assistance of appellate counsel. State
         collateral review was the first opportunity that petitioner had to raise this claim. In denying
         petitioner’s motion for relief from judgment, the state trial court decided petitioner’s ineffective-
         assistance-of-counsel claim against petitioner – albeit without any reasoning.
No. 03-1894             Whiting v. Burt                                                          Page 14


claim, we may consider it on the merits. Any discussion of the procedural default and waiver issues
is therefore unnecessary and would be, at best, pure dictum.
                2. The District Court Erred in Applying the Sullivan Standard
         As noted earlier in this opinion, the District Court proceeded directly to the Petitioner’s fifth
claim, the alleged ineffectiveness of appellate counsel and the claimed conflict of interest arising
from the fact that Petitioner was represented on direct appeal by the same attorney who represented
him at trial. After finding that this claim had been fairly presented to the Michigan courts and that,
if not, a procedural default defense had been waived by the State, the District Court found that,
because of the alleged conflict of interest, Petitioner had been deprived of his Sixth Amendment
right to the effective assistance of appellate counsel. Recognizing that a claim of a conflict of
interest, by itself, is insufficient to justify reversal of a conviction, and that a Petitioner must
demonstrate that an actual conflict of interest adversely affected his lawyer’s performance, the
District Court granted the petition on the basis that, under Sullivan, “a petitioner who can show that
his counsel operated under a conflict of interest which affected his representation need not establish
prejudice.” JA at 236. This finding is at the heart of this appeal.
                   a.    The Strickland Standard
       There is no dispute, of course, that ineffective assistance of counsel claims are normally
governed by the seminal case of Strickland v. Washington, 466 U.S. 668 (1984) and its progeny.
The two familiar components of the Strickland standard were described by this Court in Wickline
v. Mitchell, 319 F.3d 813 (6th Cir. 2003) as follows:
        Under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674
        (1984), a violation of the right to effective assistance of counsel has two components:
                First, the defendant must show that counsel’s performance was
                deficient. This requires showing that counsel made errors so serious
                that counsel was not functioning as the “counsel” guaranteed the
                defendant by the Sixth Amendment. Second, the defendant must
                show that the deficient performance prejudiced the defense. This
                requires showing that counsel’s errors were so serious as to deprive
                the defendant of a fair trial, a trial whose result is reliable.
        Id. at 687, 104 S. Ct. 2052. Review of counsel’s performance is highly deferential
        and requires that courts “indulge a strong presumption that counsel’s conduct falls
        within the wide range of reasonable professional assistance.” Id. at 689, 104 S. Ct.
        2052. To demonstrate that counsel’s performance was deficient, a “defendant must
        show that counsel’s representation fell below an objective standard of
        reasonableness.” Id. at 688, 104 S. Ct. 2052. To establish prejudice, he “must show
        that there is 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, 104 S.
        Ct. 2052.
Wickline, 319 F.3d at 819.
       The right to the effective assistance of counsel includes appellate counsel as well as trial
counsel, and in Mapes v. Coyle, 171 F.3d 408, 427-28 (6th Cir.), cert. denied, 528 U.S. 946 (1999),
this Court, with reference to the first prong of Strickland, listed eleven questions as matters to be
No. 03-1894                Whiting v. Burt                                                                        Page 15


considered in determining whether an   attorney on direct appeal acted in accordance with the
objective standard of reasonableness.8
        In the present case, the District Court did not apply the Strickland standard and the Mapes
case with its suggested list of questions. Instead, the court was of the opinion that because the same
attorney acted as both trial counsel and appellate counsel, that attorney would not have raised the
specific issue of his own ineffective assistance, and that this constituted a conflict of interest which
adversely affected his performance as appellate counsel. The District Court, specifically relying on
Sullivan, held:
        Defense attorneys owe their clients a duty of loyalty, including the duty to avoid
        conflicts of interest. Strickland v. Washington, 466 U.S. 668, 688 (1984) (citing to
        Cuyler v. Sullivan, 446 U.S. 335, 346 (1980)). However, a claim of a conflict of
        interest, by itself, is insufficient to justify reversal of a conviction. Reedus v. Stegall,
        197 F. Supp. 2d 767, 782 (E.D. Mich. 2001) (citing to United States v. Hall, 200 F.3d
        962, 966 (6th Cir. 2000); additional citations omitted). Instead, a habeas petitioner
        must demonstrate “that counsel ‘actively represented conflicting interests’ and that
        ‘an actual conflict of interest adversely affected his lawyer’s performance.’” Reedus,
        197 F. Supp. 2d at 782 (citing to Strickland, 466 U.S. at 692); See also Mickens v.
        Taylor, 122 S. Ct. 1237, 1244, n.5 (2002)(actual conflict of interest, for Sixth
        Amendment purposes, is a conflict of interest that adversely affects counsel’s
        performance). However, a petitioner who can show that his counsel operated under
        a conflict of interest which affected his representation need not establish prejudice.
        Cuyler v. Sullivan, 446 U.S. at 349-350; Tyler v. United States, 78 F. Supp. 2d 626,
        631-632 (E.D. Mich. 1999). Instead, prejudice is presumed, in connection with an
        ineffective assistance of counsel claim, where a defendant demonstrates actual
        conflicts of interest that compromise his or her attorney’s ability to advocate his or
        her client’s interests. Olden v. United States, 224 F.3d 561, 565 (6th Cir.
        2000)(citing to Strickland, 466 U.S. at 692). The right to conflict-free counsel
        extends to defendants who seek appellate review of their convictions. See e.g. Pisa
        v. Streeter, 491 F. Supp. 530, 532-533 (D. Mass. 1980).
JA at 235-36.




        8
            Those questions are as follows:
        (1) Were the omitted issues "significant and obvious"?
        (2) Was there arguably contrary authority on the omitted issues?
        (3) Were the omitted issues clearly stronger than those presented?
        (4) Were the omitted issues objected to at trial?
        (5) Were the trial court's rulings subject to deference on appeal?
        (6) Did appellate counsel testify in a collateral proceeding as to his appeal strategy and, if so, were the
        justifications reasonable?
        (7) What was appellate counsel's level of experience and expertise?
        (8) Did the petitioner and appellate counsel meet and go over possible issues?
        (9) Is there evidence that counsel reviewed all the facts?
        (10) Were the omitted issues dealt with in other assignments of error?
        (11) Was the decision to omit an issue an unreasonable one which only an incompetent attorney would
        adopt?
Mapes, 171 F.3d at 427-28.
No. 03-1894             Whiting v. Burt                                                         Page 16


                   b.    The Sullivan Standard
        Petitioners claiming ineffective assistance of counsel under Strickland have a heavy burden
of proof. See Lewis v. Alexander, 11 F.3d 1349, 1352 (6th Cir. 1993). This burden applies
regardless of whether a Petitioner is claiming ineffective assistance of trial counsel or ineffective
assistance of appellate counsel. See Munson v. Kapture, 384 F.3d 310, 316 (6th Cir. 2004). If,
however, a petitioner’s attorney had an actual conflict of interest, at least in cases involving multiple
representation, a lesser standard has been applied.
         In Sullivan’s predecessor, Holloway v. Arkansas, 435 U.S. 475 (1978), three defendants were
represented by the same attorney. The trial court refused to consider the appointment of separate
counsel despite the defense lawyer’s argument that his clients’ interests were in conflict. Under
those circumstances, the defendant was deprived of the effective assistance of counsel, and no
showing of prejudice was required to reverse the conviction. The Court pointed out that a rule
requiring a showing of prejudice in a joint representation case would require “unlike most cases,
unguided speculation.” Id. at 491. This is because in joint representation cases of conflicting
interests, the evil is in what the attorney finds himself compelled to refrain from doing, not only at
trial, but also as to possible pretrial plea negotiations and in the sentencing process. Accordingly,
it would be difficult, if not impossible, to determine the prejudicial impact on the defendant in such
cases.
        Sullivan was also a joint representation case but, unlike Holloway, there was no objection
made to the trial judge concerning any conflict of interest. Under these circumstances, the Court
held that, “[i]n order to establish a violation of the Sixth Amendment, a defendant who raised no
objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s
performance.” Sullivan, 446 U.S. at 348. The Court, citing Holloway, reiterated the rule that a
defendant in such a case who is able to show that a conflict of interest actually affected the adequacy
of his representation need not demonstrate prejudice in order to obtain relief.
        Subsequently, in Strickland, the Court recognized that, in certain Sixth Amendment contexts,
prejudice is presumed. Examples given included actual or constructive denial of the assistance of
counsel altogether and various kinds of state interference with counsel’s assistance. “Prejudice in
these circumstances is so likely that case-by-case inquiry into prejudice is not worth the cost.”
Strickland, 466 U.S. at 692. The Court referred to its earlier discussion in Sullivan and a conflict
of interest claim as involving “a similar, though more limited, presumption of prejudice.” Id. It
noted that the rule in Sullivan:
        is not quite the per se rule of prejudice that exists for the Sixth Amendment claims
        mentioned above. Prejudice is presumed only if the defendant demonstrates that
        counsel “actively represented conflicting interests” and that “an actual conflict of
        interest adversely affected his lawyer’s performance.”
Id. (quoting Sullivan, 446 U.S. at 348, 350).
        In Mickens v. Taylor, 535 U.S. 162 (2002), the Supreme Court revisited Sullivan in another
alleged conflict of interest case, one in which the defendant’s attorney had previously represented
the victim of defendant’s murder in an earlier, different proceeding. The case was presented and
argued on the assumption that the Sullivan standard – requiring a showing of defective performance
but not requiring a showing of prejudice – was applicable not only to cases of multiple
representation, but also to cases of successive representation. Because the Court held that the
judge’s failure to inquire into a potential conflict of interest did not itself relieve the defendant of
the burden of showing that a conflict of interest adversely affected defendant’s representation, the
Court did not decide whether, when an actual conflict of interest is shown, the Sullivan
No. 03-1894                Whiting v. Burt                                                                       Page 17


“prophylaxis” of not requiring a showing of probable effect on the outcome of the trial applies to
successive representation cases.
        Of major significance to the present case was the Supreme Court’s limitation on Sullivan.
The Court pointed out that Sullivan had been applied by courts of appeals “unblinkingly,” not only
to successive representation cases, but in a variety of other cases involving alleged conflicts of
interest. Mickens, 535 U.S. at 174. The Court noted that Holloway and Sullivan had emphasized
the high probability of prejudice arising from multiple concurrent representations and the difficulty
of proving that prejudice, but stressed that “[n]ot all attorney conflicts present comparable
difficulties.” Id. at 175. Whether Sullivan should be extended to successive representation cases
“remains, as far as the jurisprudence of this Court is concerned, an open question.” Id. at 176.
        In Moss v. United States, 323 F.3d 445, 460 (6th Cir.), cert. denied, 540 U.S. 879 (2003), the
Sixth Circuit noted that, “[i]n the wake9of Mickens, no court has applied the Sullivan presumption
to a case of successive representation.” Last year, in Lordi v. Ishee, 384 F.3d 189 (6th Cir. 2004),
this Court expressly held that:
          [t]he presumed prejudice standard for ineffectiveness claims based on a conflict of
         interest detailed in Cuyler v. Sullivan, 446 U.S. 335 (1980), is inapplicable to cases
         of successive representations.
Lordi, 384 F.3d at 193. See also Smith v. Hofbauer, 312 F.3d 809, 817 (6th Cir. 2002)(refusing to
extend Sullivan to an ineffective assistance of counsel claim based on an attorney’s conflict of
interest arising from anything other than joint representation), cert. denied, 540 U.S. 971 (2003);
Benge v. Johnson, 312 F. Supp. 2d 978, 994 (S.D. Ohio 2004)(refusing to apply the Sullivan
standard outside the concurrent joint representation context).
         Based on Supreme Court and prior Sixth Circuit law, it is our opinion that the District Court
erred in applying the Sullivan standard to Petitioner’s claim of ineffective assistance of appellate
counsel based on an alleged conflict arising from the same counsel representing the Defendant both
at trial and on appeal. The Sullivan standard has been applied by the Supreme Court only in cases,
like those involving multiple concurrent representation, where: (1) prejudice was obvious, e.g., a
denial of the assistance of counsel, or where there was a “high probability of prejudice;” and (2) it
was difficult to prove that prejudice. Mickens, 535 U.S. at 175. Neither of these factors has any
application to the rather common occurrence of trial counsel also acting    as counsel on direct appeal.
That situation, in itself, does not create any obvious prejudice.10 Furthermore, there is no
comparable difficulty in proving whether counsel was ineffective at the appellate level for failing
to raise an ineffective assistance of trial counsel claim. Whether that claim is based on the attorney’s
own conduct at trial, e.g., failing to object, or on the conduct of the judge or opposing counsel, the
effectiveness of appellate counsel can be measured by the well-established Strickland standard and,
in this Circuit, with the assistance of the eleven questions set forth in Mapes.
        In addition, expanding Sullivan beyond its present borders of multiple concurrent
representation would result in the creation of a new rule of law – one that clearly has not been
dictated by prior Supreme Court precedent. The AEDPA, as previously noted, provides, in part, that


         9
          The Court in Moss did apply Sullivan, because the facts of that case placed it outside the traditional class of
successive representation cases that was considered in Mickens.
         10
             In fact, the rules of this Court provide that trial counsel in criminal cases, whether retained or appointed by
the district court, is responsible for the continued representation of the client on appeal unless specifically relieved by
this Court. 6 Cir. R. 101(a).
No. 03-1894               Whiting v. Burt                                                                       Page 18


an application for a writ of habeas corpus shall not be granted with respect to any claim “that was
adjudicated on the merits in State court proceedings”11 unless the adjudication of the claim involved
an unreasonable application   of “clearly established Federal law,” as determined by the Supreme
Court of the United States.12 See 28 U.S.C. § 2254(d)(1). Therefore, in order for the Petitioner to
establish his ineffectiveness of appellate counsel claim, he will have to show that the Michigan
courts’ rejection of that claim involved an unreasonable application of clearly established law,
applying the Strickland standard as the clearly established law. See Williams v. Taylor, 529 U.S.
362, 403-04 (2000).
        The District Court erred by extending Sullivan to the facts of this case. The District Court
could not properly find that the state court’s rejection of Petitioner’s ineffective assistance of
appellate counsel claim was an unreasonable application of the Sullivan standard when the
Strickland standard, and not the Sullivan standard, is the clearly established law applicable to the
type of conflict of interest alleged in this case.
         C.       Other Claims
                  1. Claim One
       It is, of course, undisputed that Petitioner presented his first claim, concerning the
voluntariness of his statement to the police, to the state courts on direct appeal, and it was decided
adversely to him. The District Court, however, did not address the merits of this claim; instead, it
ordered a new appeal on the other claims in the Petition. On remand, the District Court shall
consider the merits of this claim as its first priority.
                  2. Claims Two, Three, and Four
        Petitioner’s second claim (regarding testimony concerning a prosecution witness agreement),
third claim (alleging ineffective assistance of trial counsel), and fourth claim (regarding the trial
court’s instructions to the jury), were not presented to the Michigan courts on direct appeal.
Respondent alleged in her Answer to the Petition that these claims were procedurally defaulted.
        The District Court, however, made no determination regarding the apparent procedural
default of these claims. It simply stated:
         Because this Court’s conclusion that petitioner is entitled to habeas relief on this fifth
         claim is dispositive of the petition, the Court considers it unnecessary to review
         petitioner’s other claims and declines to do so. See Haynes v. Burke, 115 F. Supp.
         2d 813, 819-20 (E.D. Mich. 2000); aff’d sub nom Miller v. Straub, 229 F.3d 570 (6th
         Cir. 2002); cert. den. sub nom Burke v. Haynes, 123 S. Ct. 996 (2003).
JA at 240.
       The Haynes case, unlike the present case, involved just one issue – whether a guilty plea was
involuntary. The district court in that case concluded that, “in light of this Court’s finding that
counsel was ineffective in failing to advise petitioner of the prosecutor’s right to appeal, it is

         11
            This Court has found that, in the present case, the claim of ineffective assistance of appellate counsel, with
its alleged conflict of interest component, was fairly submitted to the state courts, and was decided adversely to
Petitioner.
         12
           Such a rule of law must be clearly established at the time of defendant’s conviction in state court. See Miller
v. Webb, 385 F.3d 666, 672 (6th Cir. 2004).
No. 03-1894                Whiting v. Burt                                                                         Page 19


unnecessary to address petitioner’s remaining claims concerning the involuntariness of his guilty
plea and this Court declines to do so.” 115 F. Supp. 2d at 819-20. The reasoning of Haynes does
not apply to this case, which involves numerous claims.
        With respect to the procedurally defaulted claims, we believe that the District Court should
have determined whether Petitioner can demonstrate cause for his failure to comply with the state’s
procedural rules and actual prejudice flowing from the alleged constitutional violation or can
demonstrate that a lack of federal habeas review of the claims’ merits “will     resort in a fundamental
miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991).13 While the fact that Mr.
Schultz, who represented Petitioner on direct appeal, also served as Petitioner’s attorney at trial
might serve as cause for Petitioner’s failure to assert on direct appeal any claims based on ineffective
assistance of trial counsel, Petitioner must still show prejudice before the default can be excused.
V.       SUMMARY
         We have held in this opinion as follows:
         1.        Petitioner’s ineffective assistance of appellate counsel claim based on
                   the alleged conflict of interest was fairly presented to the Michigan
                   state courts.
         2.        The District Court erred in applying the Sullivan standard to
                   Petitioner’s ineffective assistance of appellate counsel claim. The
                   correct standard to be applied is the Strickland standard.
         3.        The District Court should have determined whether Petitioner can
                   show cause and prejudice with regard to the procedurally defaulted
                   claims (Claims 2, 3, and 4) so that this Court, on appeal, could
                   review the District Court’s judgment with regard not only to Claims
                   1 and 5, but also with regard to the claims that were procedurally
                   defaulted but nevertheless potentially available for federal court
                   review under a cause and prejudice analysis.
      For these reasons, the judgment of the District Court is VACATED, and this case is
REMANDED to the District Court for further proceedings in accordance with this opinion. On
remand, the District Court should:
         1.        Determine the merits of Petitioner’s first claim – the admissibility of
                   the allegedly involuntary statement to the police. This claim was
                   decided adversely to Petitioner on direct appeal. It is not affected by
                   the ineffective assistance of appellate counsel issue and the
                   procedurally defaulted claims, nor should it have been placed in
                   limbo by the District Court’s ordering a new appeal on the other
                   claims in the Petition.
         2.        Determine whether Petitioner has established the required cause and
                   prejudice to permit the federal courts to consider the merits of the


         13
            Petitioner claims that the state courts denied his request for an evidentiary hearing on his claims of ineffective
assistance of counsel. He repeated that request in his habeas Petition. The District Court did not consider whether he
was entitled to an evidentiary hearing under the provisions of 28 U.S.C. § 2254(e)(2). In certain circumstances, no
hearing is required, see, e.g., McAdoo v. Elo, 365 F.3d 487, 500 (6th Cir.), cert. denied, 124 S.Ct. 168 (2004), but this
is a determination left to the District Court in the first instance.
No. 03-1894         Whiting v. Burt                                                       Page 20


              procedurally defaulted claims set forth in the Petition as the second
              and fourth claims regarding alleged errors occurring during the trial.
              The only basis for a showing of cause in this case is the alleged
              ineffective assistance of appellate counsel to be determined by the
              Strickland standard.
      3.      With respect to the third claim, alleging ineffective assistance of trial
              counsel in failing to investigate and present a diminished capacity
              defense and in failing to request a cautionary instruction regarding
              accomplice testimony, the fact that Petitioner’s attorney on direct
              appeal had also represented him at trial may be considered as
              satisfying the need to show cause for a failure to raise a claim of
              ineffective assistance of trial counsel, but it would still be necessary
              to establish prejudice.
      4.      Petitioner’s fifth claim – alleged prejudice by ineffective assistance
              of appellate counsel – has been discussed above and is to be
              determined by application of the Strickland standard and the
              decisions of this Court, including Mapes v. Coyle.
VI.   CONCLUSION
        The judgment of the District Court is VACATED, and this case is REMANDED to the
District Court for further proceedings in accordance with this Opinion.
