                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0073n.06

                                           No. 10-1432                                  FILED
                                                                                    Jan 16, 2013
                          UNITED STATES COURT OF APPEALS                      DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT


CRAIG HASKELL,                         )
                                       )
      Plaintiff-Appellant,             )                 ON APPEAL FROM THE
                                       )                 UNITED STATES DISTRICT
v.                                     )                 COURT FOR THE EASTERN
                                       )                 DISTRICT OF MICHIGAN
MARY BERGHUIS, Warden,                 )
                                       )
      Defendant-Appellee.              )                        OPINION
_______________________________________)


BEFORE: MERRITT and MOORE, Circuit Judges; and MAYS, District Judge.*

       MAYS, District Judge. Petitioner Craig Haskell (“Haskell”) seeks review of the denial of

his Petition for Writ of Habeas Corpus. Haskell was convicted on August 15, 2003, by a jury in

Livingston County, Michigan, which returned a verdict of “guilty but mentally ill” on four counts

of first-degree criminal sexual conduct (“CSC”), one count of second-degree CSC, and aggravated

domestic violence against Rae Russell (“Russell”), Haskell’s ex-girlfriend. The state trial court

sentenced Haskell to concurrent prison terms of 12-30 years for first-degree CSC, 10-15 years for

second-degree CSC, and one year in Livingston County jail for aggravated domestic violence.

Haskell has exhausted his state habeas procedures. In Haskell v. Berghuis, 695 F. Supp. 2d 574, 600

(E.D. Mich. 2010), the district court denied Haskell’s federal habeas petition, but granted a

certificate of appealability (“COA”) on: (1) whether Haskell had a Due Process right to present an

       *
       The Honorable Samuel H. Mays, Jr., United States District Judge for the Western District
of Tennessee, sitting by designation.
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automatism defense; and (2) whether his attorneys’ representation was ineffective in violation of the

Sixth Amendment. In addition to the issues certified, Haskell seeks review of the state trial judge’s

finding that four separate digital and/or penile penetrations constituted continuing criminal behavior.

We AFFIRM the district court's denial of Haskell's habeas corpus petition.

                                        I. BACKGROUND

A. The Night of May 17, 2002

       Haskell and Russell dated for more than two years in high school, but separated during

Russell’s first semester at Grand Valley State University. On May 13, 2002, Haskell, then 21 years

old, visited Russell for the first time since their relationship had ended. Each had recently returned

home for summer vacation, and they had agreed to spend time together as friends. Russell, then 19,

testified that Haskell was sullen and depressed because of problems at college and that he was

suicidal. During this visit, Haskell sought reconciliation, despite Russell’s understanding that their

relationship was platonic. When Haskell refused to leave after several hours together, Russell

succumbed to the pressure of the situation and engaged in oral sex with him.

       Despite the awkwardness of the May 13 encounter, Haskell and Russell agreed to watch a

movie at Russell’s house on Thursday, May 17. Haskell behaved normally when he arrived, but after

they went downstairs to watch a movie, Haskell became upset when Russell sat on a different couch.

Haskell’s seemingly innocent questions about why Russell refused to sit next to him became more

serious, and he began making threats and demanding to know why they could not get back together.

Russell believed that his behavior was an attempt to bring her closer to him.


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        Russell asked Haskell to leave, but he refused. Eventually, he agreed to leave if Russell

changed into her pajamas, which included a t-shirt, athletic shorts, panties, and bra. Russell

understood his request as a desire to tuck her into bed before leaving. After Russell had finished

changing, Haskell sat next to her on the bed. He began speaking about his unhappiness, eventually

concluding that he had made a final decision. When Russell asked about that decision, Haskell

punched her in the left eye with enough force to propel her into a nearby nightstand. Russell testified

that Haskell continued to strike her.

        While pinning Russell to the ground, Haskell said that he had asked her to change into her

pajamas to make it easier for him to rape her before he committed suicide. Haskell removed

Russell’s clothing and molested her vagina and breasts, digitally penetrating her vagina on at least

two separate occasions. He vaginally raped her. After intercourse, Haskell instructed Russell to lie

on the bed. He grabbed a pair of scissors from Russell’s nightstand, and Russell thought he intended

to kill her.

        Haskell’s demeanor changed abruptly. He lowered the scissors, covered Russell with a

blanket, and repeatedly apologized for his actions. His apologies appeared to indicate confusion

about what he had done. Relieved, Russell told him to leave her house and seek help. Before

leaving, Haskell requested time before Russell told her parents.




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       Russell’s initial police report included only Haskell’s physical assault.1 When asked by

attending physicians at the local hospital where she was treated, she denied having experienced any

sexual assault or advances. After the family had returned from the hospital, Russell’s mother

discovered blood in Russell’s underwear and confronted her about a possible sexual encounter.

Russell admitted that Haskell had raped her, and her parents took her back to the hospital, where

doctors conducted a “rape kit” and a physical exam. The examinations showed no signs of sexual

trauma to the vagina or anus, and there was no evidence of forceful sexual contact. Russell filled

out a new police report at the hospital that detailed the sexual assault.

       While Russell was being treated for her injuries, Haskell returned to his parent’s house. He

appeared frantic, confused, and allegedly heard voices in his head. He did not remember the identity

of the person he had just assaulted but eventually identified Russell as the victim. Haskell’s parents

had him admitted to a psychiatric hospital at the University of Michigan, where he stayed for

approximately ten days. Haskell was under the care of Dr. Kenneth Pitts, whose tentative diagnosis

of Haskell was NOS, or “not otherwise specified.”




       1
        Russell’s original statement to the police reads: “Craig and I went out for two years and
eight months. We broke up in October, 2001. I didn’t see him until May of 2002. At this time we
were arguing ‘cause he wanted to date again and I did not. He had been having some school and
family problems and needed to talk them out with me. . . . [W]hen I couldn’t help him and didn’t
want him back he hit me four or five times in the head. Then he muffled my screams then he felt
bad and I told him to leave and he left out the front door.”

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B. Ronald Plunkett and Barry Resnick

       After Haskell was arrested, he retained Ronald Plunkett (“Plunkett”) as his attorney. On the

day before his trial, Haskell sought to have Plunkett removed as his counsel. Among other things,

Haskell said that Plunkett had failed to communicate the terms of a pending plea bargain until

immediately before trial. The trial court granted Haskell’s request for new counsel, revoked his

bond, and held him in custody until trial. Haskell then hired Barry Resnick (“Resnick”), and the

court granted a two-month continuance so Resnick could prepare for trial.

       Before being replaced, Plunkett had filed a Notice of Intent to Assert the Insanity Defense

as required by Michigan law. Resnick also pursued the insanity defense. Resnick offered the

testimony of Dr. Pitts, Haskell’s attending physician at the University of Michigan, who testified (1)

that Haskell’s assault on Russell was brought on by a complex partial seizure (“CPS”)2 that left

Haskell incapable of appreciating the wrongfulness of his conduct and (2) that Haskell could not

conform his conduct to the requirements of the law. The State’s expert witness, Dr. Lisa Marquis,

evaluated Haskell and agreed that he suffered from a CPS disorder, but disagreed that his disorder

prevented him from conforming his behavior to the requirements of the law.

       Before trial, Plunkett failed to file a motion under Michigan law that he intended to offer

evidence of Russell’s past sexual conduct. Resnick also failed to file the motion, although he had



       2
          CPS involves the temporal lobe of the brain and produces: (1) neuropsychiatric symptoms,
(2) visual and olfactory hallucinations, (3) psychotic phenomena after the seizure, (4) rapid heart
rate, (5) aggressive acting out, (6) no memory or awareness during the episode or seizure, and (7)
no appreciation of any behavior or surroundings during the episode or seizure.

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been on the case for more than sixty days before trial. Resnick believed that Michigan law required

the motion to be filed within 10 days of arraignment, and he came into the case well after that

deadline had passed. The trial court originally prohibited Resnick from asking about Russell’s

sexual history, but reconsidered its ruling after the State’s opening argument placed the former

couple’s sexual history at issue. Resnick requested, and the trial court granted, permission to ask

about Russell’s sexual relations with Haskell the Sunday before the events in question. Resnick did

not request the opportunity to explore Russell’s complete sexual history.

C. Procedural History

       Haskell was convicted on August 15, 2003, by a jury in Livingston County, Michigan, which

returned a verdict of “guilty but mentally ill.” The state trial court sentenced Haskell, and the

Michigan Court of Appeals affirmed his conviction and sentence. See People v. Haskell, No.

251929, 2005 Mich. App. LEXIS 1531, at *25 (Mich. Ct. App. June 23, 2005). The Michigan

Supreme Court denied leave to appeal the judgment of the Michigan Court of Appeals. See People

v. Haskell, 712 N.W.2d 448 (Mich. 2006). Haskell timely filed a habeas corpus petition. On

February 26, 2010, the district court denied Haskell’s petition, but granted a COA on Haskell’s

Fourteenth and Sixth Amendment claims. Haskell, 695 F. Supp. 2d at 600. Haskell timely appealed.

                                       II. JURISDICTION

       We have jurisdiction under 28 U.S.C. § 2253 because the district court issued a COA based

on Haskell’s “substantial showing of the denial of a constitutional right,” and that certificate stated

which “specific issues or issues” could be appealed. 28 U.S.C. § 2253(c)(2)-(3). Although the


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district court did not issue a COA on Haskell's Due Process claim, we may treat Haskell’s notice of

appeal as a request for a COA. See Johnson v. Hudson, 421 F. App’x 568, 570 n.1 (6th Cir. 2011).

                                 III. STANDARD OF REVIEW

       We review “de novo a district court’s denial of a writ of habeas corpus.” Ramonez v.

Berguis, 490 F.3d 482, 486 (6th Cir. 2007) (citing Dando v. Yukins, 461 F.3d 791, 795-96 (6th Cir.

2006)); see also Nichols v. United States, 563 F.3d 240, 248 (6th 2009); Ivory v. Jackson, 509 F.3d

284, 291 (6th Cir. 2007). “And where as here the district court has reviewed only trial transcripts

and other court records, any factual determinations by the district court are also reviewed de novo.”

Ramonez, 490 F.3d at 486.

       Haskell is entitled to relief if the state court adjudication “(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.” Anti-Terrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254(d)(1)-

(2).

       Legal principles are “clearly established” if they are “embodied” in a holding of the Supreme

Court. Thayler v. Haynes, 130 S. Ct. 1171, 1173 (2010) (citing Carey v. Musladin, 549 U.S. 70, 74

(2006)). Decisions are contrary to clearly established Federal law if they are based on legal

conclusions “opposite to [those] reached in Supreme Court precedent.” Ramonez, 490 F.3d at 486

(citing Dando, 461 F.3d at 796). A decision is also contrary to clearly established Federal law “if


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the state court decides a case differently than [the Supreme] Court has on a set of materially

indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000).

       “Unreasonable applications” of clearly established law are distinguishable from incorrect

applications. Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002). Federal courts “must find the state

court’s application of Supreme Court precedent ‘objectively unreasonable,’ not merely ‘incorrect or

erroneous.’” Ramonez, 490 F.3d at 486 (quoting Wiggins v. Smith, 539 U.S. 510, 520-21 (2003)).

“A state court’s determination that a claim lacks merit precludes federal habeas relief so long as

‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Harrington v.

Richter, 131 S. Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

A defendant must demonstrate that a state court’s ruling “was so lacking in justification that there

was an error well understood and comprehended in existing law beyond any possibility for fair-

minded disagreement.” Id. at 786-87. This Court takes the position that, “while the principles of

‘clearly established law’ are to be determined solely by resort to Supreme Court rulings, the

decisions of lower federal courts may be instructive in assessing the reasonableness of a state court’s

resolution of an issue.” Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007) (citation omitted).

                                    IV. CERTIFIED ISSUES

A. Haskell’s Automatism Defense

       Haskell argues that his Due Process rights were violated because Michigan required the

presentation of an automatism defense through the framework of its insanity statute. He contends

that automatism is fundamentally distinguishable from insanity because it negates key elements of


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the criminal charge by “plac[ing] the individual in a state of unconsciousness or semiconsciousness.”

(Appellant Br. 12-13.) Because Haskell was allegedly unconscious—and therefore unable to control

or direct his actions—he argues that he was incapable of forming the actus reus and mens rea of the

crimes for which he was charged. (Id. at 13.) Haskell argues that placing the burden of proving his

defense on him was contrary to and an unreasonable application of clearly established constitutional

principles.

       It is not obvious that Haskell may bring this Due Process claim. At oral argument the parties

were asked to demonstrate that Haskell attempted to raise his automatism defense as anything other

than an insanity defense, but was barred by the state trial court from doing so. Haskell directs us to

a single passage in the pretrial transcript discussing how the jury will be instructed about shifting

burdens of persuasion of Haskell’s insanity defense. See R. 9-9 (Trial Tr. at 9-10) (Page ID # 1788-

89). This passage provides, at best, weak support for the claim that the trial court prevented Haskell

from raising his defense in the manner preferred–viz., as a challenge to mens rea and actus reus,

rather than as an affirmative defense.

       Nevertheless, assuming that Haskell was actually prevented at trial from raising automatism

as a defense independent from an insanity defense, he has since properly exhausted his claim. See

Haskell, 695 F. Supp. 2d at 590 (“Petitioner raised the issue in his supplemental brief on direct

appeal as issue ‘X’, and raised it in his application for leave to appeal to the Michigan Supreme

Court as issue ‘VI’. . . . The Court will review the issue de novo.”). In Haskell’s supplemental brief

to the Michigan Court of Appeals, he “challenge[d] outright [] as violative of the Fourteenth


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Amendment’s due process clause the actual or apparent requirement of Michigan law that any

mental-incapacity defense must be presented as an ‘insanity’ defense.” (See Def.’s Supp. Br. 49,

ECF No. 9-35) (emphasis in original). He relied on “federal cases employing constitutional analysis”

and phrased his claim “in terms of constitutional law or in terms sufficiently particular to allege a

denial of a specific constitutional right.” Whiting v. Burt, 395 F.3d 602, 613 (6th Cir. 2005) (citation

omitted). He supported his brief by “facts well within the mainstream of constitutional law” and

attached exhibits and articles from medical journals on CPS. Id. “This is not an instance where the

habeas petitioner failed to ‘apprise the state court of his claim.’” Dye v. Hofbauer, 546 U.S. 1, 3-4

(2005) (quoting Duncan v. Henry, 513 U.S. 364, 366 (1995) (per curiam)). The exhaustion

requirement “cannot turn upon whether a state appellate court chooses to [address] in its opinion”

a constitutional claim; it must turn on what the party actually argued. Id. at 3 (citing Smith v.

Digmon, 434 U.S. 322, 333 (1978) (per curiam)).

        On the merits, the parties dispute the scope of Haskell’s Due Process claim. Haskell frames

the issue broadly, arguing that his conviction was unconstitutional because “automatism should be

recognized as an independent defense apart from the insanity defense.” (Appellant Br. 19.) The

State narrows the issue, contending that automatism is not a defense clearly established under federal

law. (Appellee Br. 15.) According to the State, Due Process does not require that a defendant be

permitted to raise whatever defense he chooses, particularly if that defense does not exist as a matter

of law. (Id.) (citing Clark v. Arizona, 548 U.S. 735 (2006)).




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        Michigan does not recognize an independent automatism defense. Michigan has adopted a

“comprehensive statutory framework” outlining when and under what conditions an insanity defense

may be argued. People v. Carpenter, 627 N.W.2d 276, 277 (Mich. 2001) (discussing Mich. Comp.

Laws § 768.21a). In doing so, “the Legislature has demonstrated its policy choice that evidence of

mental incapacity short of insanity cannot be used to avoid or reduce criminal responsibility by

negating specific intent.” Id. at 283. Automatism, insofar as it concerns a neurological condition

precluding Haskell from forming the requisite intent, is a defense reliant on mental capacity–indeed,

Haskell labeled his CPS disorder as a mental-incapacity defense before the state appellate court.

Thus, Michigan law requires an automatism defense be raised within the statutory framework of the

state’s insanity defense; this means, inter alia, that Haskell had the burden of proving his defense

by a preponderance of the evidence. Mich. Comp. Laws § 768.21a(3).

        Supreme Court precedent does not clearly establish an automatism defense, nor does it

establish that defendants may raise whatever defenses they choose. See Clark, 548 U.S. at 753

(recognizing that defining state crimes is open to state choice); see also United States v. Sheffer, 523

U.S. 303, 308 (1998) (stating that lawmakers have “broad latitude” to establish rules for a

defendant’s presentation of evidence). It is “‘within the power of the State to regulate procedures

. . . including the burden of producing evidence and the burden of persuasion,’ and [the State’s]

decision in this regard is not subject to proscription . . . unless ‘it offends some principle of justice

so rooted in the traditions and conscience of our people as to be ranked as fundamental.’” Medina

v. California, 505 U.S. 437, 445 (1992) (quoting Speiser v. Randall, 357 U.S. 513, 523 (1958)); see


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also Patterson v. New York, 432 U.S. 197, 201-202 (1977). Here, Michigan’s statute does not shift

the burden of proving automatism. Automatism is simply not recognized in Michigan as distinct

from an insanity defense. The Supreme Court makes clear that a state’s conceptualization of the

insanity defense will be accorded broad deference. See Clark, 548 U.S. at 752-53. In habeas

proceedings, we should be reluctant to “second guess a state court’s decision concerning matters of

state law.” Greer v. Mitchell, 264 F.3d 663, 675 (6th Cir. 2001). Given that principle, it would be

overreaching to conclude that Haskell’s conviction was contrary to clearly established federal law.

When “cases give no clear answer to the questions presented,” there is no clearly established law.

Wright v. Van Patten, 552 U.S. 120, 126 (2008) (per curiam).

       In the absence of a specific legal rule, it was not unreasonable for Michigan courts to

conclude that an automatism defense (sometimes called an unconsciousness defense) is not

constitutionally required, or that its presentation outside the context of an insanity defense is not

necessary as a matter of due process.       To date, few state courts have embraced Haskell’s

constitutional theory. Haskell states that twelve states recognize a defense of automatism; only five

of those states place the burden of proof on the prosecution. Letter Br. at 3 (identifying California,

Indiana, South Dakota, Washington, and West Virginia). We have identified only five states that

explicitly separate automatism and insanity defenses. People v. Martin, 197 P.2d 379, 383 (Cal.

1948); State v. Caddell, 215 S.E.2d 348, 363 (N.C. 1975); Jones v. State, 648 P.2d 1251, 1258 (Okla.

Crim. Ct. App. 1982); State v. Jenner, 451 N.W.2d710, 721 (S.D. 1990); Fulcher v. State, 633 P.2d

142, 145-47 (Wyo. 1981). Two of these states require a defendant to prove automatism by a


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preponderance of the evidence, as though it were any other affirmative defense. Caddell, 215 S.E.2d

at 363; Fulcher, 633 P.2d at 147. In light of the small minority of states that share Haskell’s theory

about constitutionally required criminal defenses, it was not an unreasonable application of clearly

established federal law for Michigan to require that he present his automatism defense within the

framework of an insanity defense.

B. Ineffective Assistance of Counsel

       Haskell claims that he was ineffectively assisted by Plunkett, who represented him from June

2002 to May 2003, and Resnick, who represented him from May 2003 until after his conviction.

Haskell identifies several areas of Plunkett’s ineffective assistance, but the weight of Haskell’s

argument is that Plunkett was unprepared. Haskell argues that Resnick was ineffective because he

was not knowledgeable about CPS disorder, which was the basis for Haskell’s defense.

       The law of ineffective assistance is stated in Strickland v. Washington, 466 U.S. 668, 687

(1984). See also Padilla v. Kentucky, 130 S. Ct. 1473 (2010) (ineffective assistance of counsel is

a basis for relief under 28 U.S.C. § 2254(d)); Porter v. McCullum, 130 S. Ct. 447 (2009). Under

Strickland, 466 U.S. at 687, Haskell must establish that his counsels’ performances were deficient,

which requires showing that counsels’ errors were so serious they were not functioning as counsel.

Haskell must then establish that at least one of the deficient performances prejudiced his defense,

meaning that his counsel’s errors were so serious that they deprived him of a fair trial or appeal. Id.

Unless Haskell demonstrates both deficient performance and prejudice, “it cannot be said that the

conviction resulted from a breakdown in the adversary process that renders the result unreliable.”


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Id. at 687. “Surmounting Strickland’s high bar is never an easy task.” Padilla, 130 S. Ct. at 1485.

We must evaluate Haskell’s case with “scrupulous care, lest ‘intrusive post-trial inquiry threaten the

integrity of the very adversary process the right to counsel is meant to serve.’” Richter, 131 S. Ct.

at 788 (quoting Strickland, 466 U.S. at 689-90).

       “The first prong—constitutional deficiency—is necessarily linked to the practice and

expectations of the legal community: ‘The proper measure of attorney performance remains simply

reasonableness under prevailing professional norms.’” Padilla, 130 S. Ct. at 1482 (quoting

Strickland, 466 U.S. at 688)). The Supreme Court has long “recognized that prevailing norms of

practice as reflected in American Bar Association standards and the like . . . are guides to

determining what is reasonable . . . .” Id. (citations and internal quotation marks omitted). Although

“only guides” and not “inexorable commands,” prevailing norms of practice may be “valuable

measures . . . of effective representation.” Id. Claims under this prong carry the strong presumption

that “counsel . . . rendered adequate assistance and made all significant decisions in the exercise of

reasonable professional judgment.” Johnson v. Bell, 525 F.3d 466, 487 (6th Cir. 2008); see also

Strickland, 466 U.S. at 689.

       To establish prejudice, Haskell must show “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.” Strickland, 466 U.S.

at 689. “It is not enough to show that the errors had some conceivable effect on the outcome of the

proceeding.” Richter, 131 S. Ct. 770, 788 (2011) (internal quotation marks omitted). Courts


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consider “‘the totality of the available [] evidence—both that adduced at trial, and the evidence

adduced in the habeas proceeding’”—and gauge it in relation to evidence against the defense. Id.

at 454 (quoting Williams, 529 U.S. at 397-98).

       Richter states the inquiry:

       Establishing that a state court's application of Strickland was unreasonable under
       § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d)
       are both ‘highly deferential,’ and when the two apply in tandem, review is ‘doubly’
       so. The Strickland standard is a general one, so the range of reasonable applications
       is substantial. Federal habeas courts must guard against the danger of equating
       unreasonableness under Strickland with unreasonableness under § 2254(d). When
       § 2254(d) applies, the question is not whether counsel's actions were reasonable. The
       question is whether there is any reasonable argument that counsel satisfied
       Strickland’s deferential standard.

131 S. Ct. at 788 (internal citations omitted). This inquiry has a “‘substantially higher threshold.’”

Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (internal quotation marks omitted). “And,

because the Strickland standard is a general standard, a state court has even more latitude to

reasonably determine that a defendant has not satisfied that standard.” Id. (citing Yarborough, 541

U.S. at 664 (“[E]valuating whether a rule application was unreasonable requires considering the

rule’s specificity. The more general the rule, the more leeway courts have in reaching outcomes in

case-by-case determinations.”)).

       1. Plunkett

       The district court succinctly summarized Haskell’s allegations:

       (1) Mr. Plunkett and his wife’s divorce became final four days after Mr. Plunkett was
       retained; (2) Mr. Plunkett has admitted to a crack cocaine addiction; (3) Mr. Plunkett
       was arrested for possession of 25 grams of crack cocaine and is facing incarceration;
       (4) the Michigan Attorney Grievance Commission was appointed receiver of Mr.

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       Plunkett’s files after the Commission received notice that Mr. Plunkett abandoned
       his law practice; (5) Mr. Plunkett was under investigation for the death of a 22-year-
       old woman who was found dead in his apartment from an apparent drug overdose;
       (6) Mr. Plunkett withdrew as Petitioner’s attorney the day before trial was scheduled;
       (7) Mr. Plunkett requested so many trial date continuances in the past that the trial
       judge was initially going to allow Petitioner’s new attorney Mr. Resnick only three
       weeks to prepare for trial; (8) Mr. Plunkett told the trial judge that Petitioner
       threatened him with physical violence, which led to the revocation of Petitioner’s
       bond; (9) Dr. Pitts attested at trial and in an affidavit that Petitioner’s incarceration
       while awaiting trial made it difficult and/or impossible to conduct proper testing in
       preparation for Petitioner's defense; and (10) Mr. Plunkett’s story about being
       threatened by Petitioner was inconsistent. As to the latter incident, Petitioner argues
       Mr. Plunkett first told the trial judge that Petitioner threatened him, but at a July 9,
       2003 bond hearing, Mr. Plunkett stated that he may have “misinterpreted” what
       Petitioner had said to him. Petitioner asserts that Mr. Plunkett responded to an
       attorney grievance by saying that it was Petitioner’s father, William Haskell, who had
       threatened him.3

Haskell, 695 F. Supp. 2d at 595-96. In his brief, Haskell also identifies Plunkett’s failure to address

Russell’s prior sexual history, which he argues was key impeachment evidence. According to

Haskell, Plunkett failed to file a timely notice under Mich. Comp. Laws § 750.520j(2), “even though

he knew that [] Russell and Haskell had been in a romantic relationship and the topic came up at the

preliminary examination.” (Appellant Br. 25.) After reviewing those contentions, the Michigan

Court of Appeals concluded that Haskell had failed to show deficient performance, and—even if he

had—that the deficient performance had not prejudiced his case. See Haskell, 2005 Mich. App.

LEXIS, 1531, at *14-18.




       3
        As the district court noted, most of these issues were revealed after Plunkett no longer
represented Haskell. Haskell, 695 F. Supp. 2d at 596 n.6.

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       Haskell’s ineffective assistance claim does not satisfy the “doubly deferential” habeas

standard. See Knowles, 556 U.S. at 123. He cites no authority that an attorney’s drug or legal

problems rise to a level of constitutional concern. Plunkett’s personal problems are not relevant to

this case absent a showing that they affected his performance. Because Haskell has not made that

showing, his argument that Plunkett’s personal problems rose to the level of ineffectiveness fails.

       The inquiry is whether “there is any reasonable argument that counsel satisfied Strickland’s

deferential standard.” Richter, 131 S. Ct. at 788. Plunkett failed to file notice under Michigan law

to cross-examine Russell about her sexual history, but that failure was inconsequential. Haskell’s

trial counsel sought and received permission to question Russell’s sexual history to the limited extent

he requested. Even if material, Plunkett’s failure to file notice with the court can be seen as a

“strategic choice[].” Strickland, 466 U.S. at 691. Russell was prepared to testify that she had a prior

sexual relationship with Haskell. The inferences from that testimony are obvious. An attorney could

reasonably conclude that the benefits of pressing Russell about her prior sexual relationship were

outweighed by the danger of alienating the jury, given the physical and emotional injuries Russell

had sustained. A “heavy measure of deference to counsel’s judgments” is demanded in ineffective-

assistance cases. Id.

       2. Resnick

       The district court succinctly summarized Resnick’s alleged ineffectiveness:

       Petitioner argues that Mr. Resnick’s ineffectiveness as trial counsel resulted from his
       lack of knowledge about CPS disorders. Petitioner asserts that Mr. Resnick failed
       to: (1) object to Dr. Marquis as an expert witness and the admission of her
       testimony; (2) object to the insanity defense jury instruction; (3) raise the automatism

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       defense; and (4) explain to the jury that the totality of Petitioner’s actions consisted
       only of hitting Ms. Russell in the face and stomach during a 15-30 second time
       period, and did not include a sexual assault.

Haskell, 695 F. Supp. 2d at 596-97. Haskell argues that Resnick failed, “perhaps due to lack of

preparation time, to fully understand [] CPS disorder,” which was likely fatal to Haskell’s case.

(Appellant Br. 27.) Haskell contends that Resnick’s choices were not strategic, but demonstrated

a “fundamental misunderstanding of CPS and automatism . . . [and thus] Haskell was unable to

establish a defense that shifted the burden of proof from himself to the prosecution.” (Id.)

“Improperly framing this defense” allowed the jury to find that Haskell was “mentally ill” but not

“insane.” (Id.) The Michigan Court of Appeals rejected Haskell’s argument in a single paragraph:

       Defendant’s claim that he was deprived of effective assistance of counsel because his
       trial counsel failed to object to the assertions of error addressed on appeal lacks merit
       because counsel is not required to advocate a meritless position. As noted above,
       defendant has failed to show any prosecutorial misconduct, instructional error, or
       improper admission of evidence. Therefore, his trial counsel was not ineffective for
       failing to object to these assertions of law.

Haskell, 2005 Mich. App. LEXIS 1531, at *8.

       Haskell was competently represented. He has not identified, and we have not located, a

constitutional requirement that Resnick assert a defense not recognized under state law. Resnick’s

failure to challenge Michigan’s insanity defense does not make his representation unsound. It does

not demonstrate that he lacked a fundamental understanding of automatism. His line of questioning

at trial supports the opposite conclusion. During cross-examination, Resnick asked Russell to

describe the rapidity of Haskell’s behavior change. He asked, “[D]id [Haskell’s behavior] seem like

a sudden change or d[id] you notice a gradual change in Craig at, at this time that we’re talking

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about?” (Trial Tr. (Vol. I) 226: 3-6.) When questioning Russell about when Haskell stopped

assaulting her, he asked, “Do you recall testifying . . . that: ‘Shortly after that, he must have realized

what he was doing because he stopped and he covered me with a blanket.” (Id. 232: 18-23.) He also

questioned Russell about what she perceived to be Haskell’s “normal” behavior during their previous

relationship. (Id. 240: 1-16.) Again, Resnick pursued whether Haskell’s behavioral change was

“drastic” or “gradual.” (Id. 240: 13-18.) Resnick’s questions are consistent with a theory of

automatism.

                                  V. HASKELL’S THIRD ISSUE

        Haskell argues that the district court erred in denying a COA on the issue of whether his

actions constituted a “continuing pattern of criminal behavior” that supported a 25-point increase

under Michigan sentencing law (Appellant Br. 28.) The alleged “continuing pattern of criminal

behavior” was the repeated penetration of Russell’s vagina by Haskell’s fingers and/or penis. The

Michigan Court of Appeals rejected this argument, and the district court agreed. See Haskell, 2005

Mich. App. LEXIS 1531, at *8; Haskell, 695 F. Supp. 2d at 598-99.

        Haskell attacks the logic of the state-court decision that “[e]ach forcible penetration of the

victim resulted in a separate conviction pursuant to the plain language of the statute and case law.”

Haskell, 2005 Mich. App. LEXIS 1531, at *8. According to Haskell, “[u]nder this theory, almost

any crime could, by itself, be deemed a continuing pattern of criminal activity. A person in a fight

who landed four punches could be charged with four counts of battery and then that would be the

basis for finding a continuing pattern of criminal activity and thus grounds for a tremendous increase


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in the sentence.” (Appellant Br. 29.) Haskell argues that the state court’s decision is “so arbitrary

and unfair as to raise significant questions under the due process clause.” See, e.g., Brecht v.

Abrahamson, 507 U.S. 619, 639 (1993). Haskell also argues that the state court’s decision is “so

broad” that it “offends due process as being so vague as not to provide defendants adequate notice

of what might be punished.” See, e.g., City of Chicago v. Morales, 527 U.S. 41, 56 (1999). Haskell

contends that the state-court decision violates his Sixth Amendment right to trial by jury because the

judge, not the jury, decided there was a pattern of criminal activity, which increased his sentence,

although not beyond the statutory maximum. See Blakely v. Washington, 542 U.S. 961 (2004).

       The district court did not grant a COA on this issue. “Rule 22(b)(2) provides that when an

appellant fails to file an express request for a COA, the notice of appeal constitutes such a request

to the judges of the court of appeals.” United States v. Cruz, 108 F. App’x. 346, 348 (6th Cir. 2004).

Haskell concedes that he has failed to certify this issue for appeal. (Appellant Rep. Br. 10-12.) His

sole argument is that the Court should treat his notice of appeal as a request for a COA. (Appellant

Rep. Br. 12.)

       Generally, “a court of appeals will address only the issues which are specified in the [COA]”

on habeas review. See Searcy v. Carter, 246 F.3d 515, 518 (6th Cir. 2001); Johnson v. Bradshaw,

205 F. App’x 426, 430 (6th Cir. 2007) (“We . . . limit our review to those issues identified in the

[COA].”); Hunt v. Mitchell, 261 F.3d 575, 579-80 (6th Cir. 2001) (reviewing the “sole question[s]”

presented to the Court on appeal). However, we have recognized our ability to grant a COA in the

first instance at our own discretion. See Hudson, 421 F. App’x at 570 n.1.


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       Haskell concedes that he failed to ask this Court to review the district court’s decision and

that his counsel provides no reason for failing to comply with Rule 22’s express language. These

shortcomings are not fatal. His notice of appeal constitutes a request for a COA. Castro v. United

States, 310 F.3d 900, 903 (6th Cir. 2002). Although we encourage “petitioners as a matter of

prudence to move for a COA at their earliest opportunity so that they can exercise their right to

explain their argument,” we grant a COA on Haskell’s third issue. Id.

       Haskell argues that: (1) the state trial court’s finding that four separate digital penetrations

constituted continuing criminal activity was so arbitrary and fundamentally unfair that it deprived

him of due process, and (2) the state trial court’s determination that the continuing criminal behavior

warranted a higher prison sentence violated his Sixth Amendment rights under Blakely.

A. Due Process

       Sentences violate due process if they are based on “misinformation of constitutional

magnitude[,]” Roberts v. United States, 445 U.S. 552, 556 (1980), or “extensively and materially

false” evidence that the defendant had no opportunity to cure. Townsend v. Burke, 334 U.S. 736, 741

(1948). “A state court’s alleged misinterpretation of state sentencing guidelines and crediting

statutes is a matter of state concern only.” Howard v. White, 76 F. App’x 52, 53 (6th Cir. 2003).

“In conducting habeas review, a federal court is limited to deciding whether a conviction violated

the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991);

see also Greer, 264 F.3d at 675.




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       The Michigan Court of Appeals rejected Haskell’s due process challenge as follows:

       “And, regarding OV 13, continuing pattern of criminal behavior, the evidence clearly
       indicated that defendant committed three or more crimes against the victim within
       a five year period, i.e., the sentencing offenses . . . . Each forcible sexual penetration
       of the victim resulted in a separate conviction pursuant to the plain language of the
       statute and relevant case law. Therefore, the trial court did not abuse its discretion
       in counting each offense as part of defendant's pattern of criminal behavior and
       scoring OV 13 at twenty-five points. In sum, OV 2, 10, and 13 were scored
       correctly; thus, defendant's sentence is within the appropriate guidelines range and
       this issue is without merit.”

Haskell, 2005 Mich. App. LEXIS 1531, at *23-24 (internal citations omitted).

       The Michigan Court of Appeals’ decision is not unreasonable. The jury found that Haskell

sexually assaulted Russell on at least four occasions with either his fingers or his penis. That

information is neither misleading nor materially false. The jury convicted Haskell on the basis of

that evidence. The district court concluded that multiple penetrations constituted a pattern of

behavior that warranted increasing Haskell’s sentence within the Michigan guidelines. See Haskell,

695 F. Supp. 2d at 598. The “actual computation of [a prisoner’s] term involves a matter of state

law that is not cognizable under 22 U.S.C. § 2254.” Kipen v. Renico, 65 F. App’x 958, 959 (6th Cir.

2003) (citing McGuire, 502 U.S. at 68).

       Haskell cites a number of Supreme Court decisions to argue that the state trial court’s

sentence was fundamentally unfair. (See Appellant Br. 29) (collecting cases.) None of Haskell’s

cases addresses unfairness in the sentencing process, or supports his assertion that the trial court’s

finding of a “continuing pattern of criminal activity” violates due process. See Abrahamson, 507

U.S. at 639 (“[W]e conclude that the Doyle error that occurred at petitioner’s trial did not


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‘substantially . . . influence’ the jury’s verdict.”); Doggett v. United States, 505 U.S. 647, 657-58

(1992) (overturning a defendant’s conviction because an approximately nine-year delay violated his

Speedy Trial rights); Darden v. Wainright, 477 U.S. 168, 186 (1986) (affirming a defendant’s

conviction and death sentence); Beardan v. Georgia, 461 U.S. 660, (1983) (states may not use the

poverty of a probationer as the sole justification for imprisonment). These decisions have no

concrete application to this case. They do not address sentencing adjustments. They do not address

what is required to establish a continuing pattern of criminal behavior. At best, they establish

general rules. State courts have “even more latitude to reasonably determine that a defendant has

not satisfied [general standards].” Knowles, 556 U.S. at 111.

       Haskell contends that, if “continuing pattern of criminal behavior” is so broad as to include,

as here, events that occurred within minutes, the concept offends due process because its vagueness

denies defendants “adequate notice of what might be punished.” (Appellant Br. 29-30.) Haskell also

mentions in a footnote, without development, that this argument “can also be phrased as a matter of

double jeopardy.” Id. at 30 n.3. Haskell did not exhaust either his vagueness or double-jeopardy

claims in state court; for example, neither argument is mentioned in any of his briefs to the Michigan

Court of Appeals or the Michigan Supreme Court. Thus, we will not consider these arguments

unless Haskell can show cause and actual prejudice. He offers no reason to believe that procedural

default can be overcome in this instance.




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B. Blakely v. Washington

       Haskell contends that the state trial court’s finding of a pattern of criminal behavior increased

his sentence beyond the statutory maximum permitted by the jury’s verdict and violated his Sixth

Amendment rights. In Blakely, the Supreme Court invalidated a Washington sentencing scheme that

permitted judges to impose sentences above standard guideline ranges if they found “substantial and

compelling reasons justifying an exceptional sentence.” Id. at 299. The defendant in Blakely was

sentenced to more than three years above the 53-month statutory maximum of the standard range

because he had acted with “deliberate cruelty.” Id. at 303. The Supreme Court held that this

increase violated the principle that, “’[o]ther than a prior conviction, any fact that increases the

penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt.’” Id. (quoting Apprendi v. New Jersey, 530 U.S. 466, 490

(2000)); see also id. (“When a judge inflicts punishment that the jury’s verdict alone does not allow,

the jury has not found all the facts which the law makes essential to the punishment, and the judge

exceeds his proper authority.”) (internal citations omitted). In Cunningham v. California, 549 U.S.

270, 274 (2007), the Supreme Court invalidated a California sentencing scheme that placed sentence-

elevating fact-finding within the province of individual judges. Id. at 274.4 The Court affirmed that

it had “repeatedly held that, under the Sixth Amendment, any fact that exposes a defendant to a

greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable

doubt, not merely by a preponderance of the evidence.” Id.


       4
           California had a determinate sentencing scheme. 549 U.S. at 274.

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        In contrast to the sentencing laws at issue in Blakely and Cunningham, Michigan has an

indeterminate sentencing scheme. The maximum sentence in Michigan is determined by law, not

the trial judge. See, e.g., Chontos v. Berghuis, 585 F.3d 1000, 1001 (6th Cir. 2009) (“Under the

Michigan sentencing scheme, a particular criminal offense carries with it a statutory maximum

penalty set by the legislature.”); see also People v. Drohan, 475 Mich. 140, 160-61 (2006).

“[M]ichigan’s sentencing guidelines, unlike the Washington guidelines at issue in Blakely, create

a range within which the trial court must set the minimum sentence.” Drohan, 475 Mich. at 161.

Under Michigan law, only the minimum sentence must presumptively be set within the appropriate

sentencing guidelines range. See Deatrick v. Sherry, 451 F. App’x 562, 564 (6th Cir. 2011) (“[T]he

Apprendi/Blakely line of cases is not implicated by Michigan’s statutory scheme because judicial

fact-finding increases the minimum sentence, rather than the maximum sentence.”); see also People

v. Babcock, 469 Mich. 247, 255 n.7 (2003). The trial judge can never exceed the maximum

sentence. Id.

        Blakely does not apply to indeterminate sentencing schemes. 542 U.S. at 304-05 (concluding

that Blakely does not apply to sentencing schemes that do “not authorize a sentence in excess of that

otherwise allowed for [the underlying] offense.”). Cases addressing indeterminate sentencing

regimes do not “involve[] a sentence greater than what state law authorized on the basis of the

verdict alone,” and thus are not limited by Blakely. Id. “Indeterminate sentencing . . . increases

judicial discretion, to be sure, but not at the expense of the jury’s traditional function of finding the

facts essential to lawful imposition of the penalty.” Id. at 309-10. The record demonstrates that


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Haskell’s sentences are well within the statutory maximum for each offense of conviction. Haskell

has failed to show a Blakely violation.

                                      VI. CONCLUSION

       For the foregoing reasons, the judgment of the district court is AFFIRMED.




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       MERRITT, Circuit Judge, dissenting. The jury returned an unusual verdict saying that

Haskell was “mentally ill” but did not meet the quite different standards for the insanity defense, a

defense at odds with automatism. I believe that if Haskell’s counsel had presented his automatism

defense (a form of unconsciousness) as negating the mens rea or intent element of the case, the jury

may well have returned a verdict of not guilty because of the absence of intent. By virtue of the

failure of both Pluckett and Resnick, as counsel, to raise the automatism defense to the element of

intent, the jury required Haskell to meet the different theory of insanity charged by the court as an

affirmative defense.

       This occurred because neither lawyer in the case had any conception of how the particular

mental illness should affect the elements of the crime and did not understand the mens rea

requirement. The first lawyer, Pluckett, was a drug addict with a record of legal malpractice and

completely ineffective as a lawyer in the case. He was confused beyond repair. He left the case

immediately before the trial. The substitute lawyer was in a difficult situation in having but little

time to prepare for the trial. Nevertheless, Resnick should obviously have understood that the

automatism defense went to intent or mens rea and did not support a standard for insanity under the

Michigan law. It certainly did, however, negate the element of intent under Michigan law. The fact

that the jury returned the “mentally ill” defense strongly indicates that it accepted the automatism

defense — the only “mental illness” raised in the case.

       Usually the most important work of a criminal defense lawyer is to develop a plausible

defense theory. Here, there was an obvious theory that would have negated intent as a result of


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“mental illness,” a fact that the jury found, but could not apply to insanity. The defense lawyers were

so ineffective that they never gave the jury an opportunity to consider it as undermining intent. I

would put that kind of lawyer malpractice on an equal plane with the lawyer who sleeps through the

trial in the sense that the lawyer was unfocused on the case and therefore unable to make a rather

obvious decision to use the type of “mental illness” the jury found to negate intent.

       For purposes of Strickland v. Washington, 466 U.S. 668 (1984), the failure to assert an

obvious defense to an element of the crime — intent — constitutes deficient performance.

Competence requires a basic conception of the elements of the crime and how lawyers must go about

casting doubt on mens rea which the state has the burden of establishing. Instead counsel chose to

carry the heavy burden of proving the affirmative defense of insanity which includes proof of the

defendant’s lack of capacity to understand the difference between right and wrong. Where the jury

finds the facts in favor of the automatism defense (“mental illness”) but is unable to apply it because

defense counsel did not correctly point out the element of the crime that it would undermine,

prejudice is clear. Lawyers can be incompetent because they do not understand the law as well as

incompetent because they do not develop the facts.




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