                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 13a0923n.06

                                             No. 11-2040                                   FILED
                                                                                      Nov 01, 2013
                           UNITED STATES COURT OF APPEALS                         DEBORAH S. HUNT, Clerk
                                FOR THE SIXTH CIRCUIT


                                                    )
 EDWARD F. LINT,                                    )
                                                    )     ON APPEAL FROM THE
           Petitioner-Appellant                     ) UNITED STATES DISTRICT COURT
                                                    )       FOR THE EASTERN
 v.                                                 )     DISTRICT OF MICHIGAN
                                                    )
 JOHN PRELESNIK,                                    )
                                                    )           OPINION
           Respondent-Appellee.                     )
                                                    )
 ____________________________________               )



Before: ROGERS and COOK, Circuit Judges; VAN TATENHOVE,* District Judge.

       GREGORY F. VAN TATENHOVE, District Judge. A Macomb County Circuit Court

jury found Edward Lint guilty of, among other things, kidnapping his wife, Maja Lint. After nearly

a decade of challenging this conviction in state court, Lint petitions this court for a writ of habeas

corpus, claiming that it is he who is now being unlawfully detained. Specifically, he argues that he

was confined without the effective assistance of counsel because his attorney did not properly

investigate certain evidence, object to improper jury instructions, or communicate an advantageous

plea offer to him. The district court declined to hold an evidentiary hearing or issue the writ, but did




       *
         The Honorable Gregory F. Van Tatenhove, United States District Judge for the Eastern
District of Kentucky, sitting by designation.
grant a certificate of appealability as to these issues, and Lint appealed to this court. For the reasons

that follow, the district court’s decision will be AFFIRMED.
                                                   I

        The honeymoon did not last long for Maja and Edward Lint. Shortly after midnight on

November 10, 2003, less than two months after their marriage, Maja told her new husband that she

was leaving him. Edward Lint begged her not to go, but when she insisted, he resorted to more

coercive measures to ensure his wife would stay. According to Maja, her husband burned her green

card, tackled her to the floor, tied her up with utility straps, forced a sock in her mouth, and

threatened to kill her. After restraining her, he sprayed PAM cooking spray on the floor and walls,

and then ignited some in the air as a demonstration that it would start a fire. Though Lint briefly

released Maja for purposes of sexual intercourse and to accompany him to the store, he restrained

her again upon returning home. When she tried to escape her bonds, Lint strengthened them and

undertook additional measures to ensure she would not try to escape, such as hanging a hot iron over

her head and tethering her to a television, which he claimed would fall on her if she were to move.

        According to Maja, Lint released her when he observed a police car drive through the

neighborhood and believed the police might see him because there were no blinds on the windows.

At that point, Lint cleaned up the apartment, hid the utility straps in the laundry room, and kept Maja

near him, threatening to kill her if she moved. Around 8:00 a.m. the next day, Maja’s brother called.

Lint informed him that Maja had left and that he did not know where she went. After taking the call,

Lint fell asleep, and Maja, who was now unrestrained and awake, took the opportunity to escape.

She went to a gas station and called the police. She reported that she had not previously attempted

to call the police because she did not have a cell phone in her possession and Lint had “cut off” the

phone line.

                                                   2
       Lint was charged with Kidnapping in violation of MICH. COMP. LAWS § 750.349; two counts

of First-Degree Criminal Sexual Conduct in violation of MICH. COMP. LAWS §750.520b(1)(f); and

Malicious Destruction of Personal Property with a value of between $1,000 and $20,000 in violation

of MICH. COMP. LAWS §750.337a(1)(b)(i). Over the course of the preliminary hearing and ensuing

trial, Lint was represented by counsel James Hoare. According to the affidavits provided by Lint

and his parents, Hoare received a plea offer from the government, but rejected the offer without

communicating it to Lint. Thus, the case proceeded to trial.

       At the conclusion of the government’s case, which included testimony from Maja Lint,

Hoare called Lint’s Sister, Amanda Lint, and his cousin, Christy Dickenson. Because Hoare had

not filed timely notice of using an alibi defense, he was limited to using testimony of these witnesses

for the purposes of rebuttal and impeachment. By affidavit, Lint’s parents and other sister, Jessica

Lint, claim that they had other important information about the case, including testimony concerning

the apartment’s telephone line and window blinds, that could have impeached Maja’s testimony.

Jessica even claims to have contacted Hoare to inform him of this fact, but none of them were called

to testify. In addition, Lint also claims that Hoare failed to properly introduce evidence of phone

records and a police report.

       In 2004, a Macomb County jury, which had been instructed on, among other crimes, a theory

of secret kidnapping, found Lint guilty of kidnapping and malicious destruction of property, but

acquitted him of the criminal sexual conduct charges. Lint was sentenced to 210 months to 40 years

on the kidnapping conviction and 40-60 months on the malicious destruction of property conviction.




                                                  3
       Lint filed a direct appeal in the Michigan Court of Appeals, where he raised, among other

issues, his contentions that he received ineffective assistance of counsel because of his trial

attorney’s failure to investigate various testimonial and documentary evidence, as well as his trial

counsel’s failure to object to the jury instructions on secret kidnapping. The Michigan Court of

Appeals affirmed Lint’s conviction in a reasoned opinion, and the Michigan Supreme Court

summarily denied his appeal.

       Lint then collaterally attacked his conviction in state court, filing a motion for relief in the

trial court. In this motion, Lint again raised his claim for ineffective assistance of counsel based on

failure to pursue certain testimonial or documentary evidence. Lint also included an argument for

ineffective assistance of counsel related to his trial counsel’s failure to inform him of a plea deal

offered by the government. The Macomb County Circuit Court denied Lint’s motion for relief in

an opinion that detailed its justifications for doing so. Both the Michigan Court of Appeals and the

Michigan Supreme Court denied Lint’s motion for leave to appeal “because the defendant has failed

to meet the burden of establishing entitlement to relief under MCR 6.508(D).” People v. Lint, No.

281800 (Mich.Ct.App. Apr. 8, 2008); People v. Lint, 769 N.W.2d 211 (Mich. 2008).

       Having found no success in the Michigan state courts, Lint filed a petition for writ of habeas

corpus in the Federal District Court of the Eastern District of Michigan, raising several of the claims

he had previously asserted in state court. The District Court denied Lint’s petition without an

evidentiary hearing, but did grant a limited certificate of appealability. Lint now appeals to this

court for yet another review.




                                                  4
                                                  II

                                                   A

       This court applies de novo review to a district court’s legal conclusions and the legal aspect

of its rulings on mixed questions of law and fact in a habeas corpus proceeding. Jalowiec v.

Bradshaw, 657 F.3d 293, 301 (6th Cir. 2011). However, under the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, this court’s review of

a state court decision affirming the conviction of a habeas petitioner is “highly deferential.” Cullen

v. Pinholster, 131 S. Ct. 1388, 1391-92 (2011) (quoting Woodford v. Visciotti, 537 U.S. 19, 24

(2002) (per curiam)). State court findings of fact shall be “presumed to be correct,” and the

petitioner has the burden of overcoming that presumption by clear and convincing evidence. 28

U.S.C. § 2254(e)(1).

       When a habeas claim has been adjudicated on the merits in state court, the AEDPA prohibits

federal reviewing courts from granting the habeas petition unless the state court decision:

       (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(d). A state court decision is contrary to clearly established federal law when a

state court arrives at a conclusion opposite of that reached by the Supreme Court on a question of

law or on indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 412–13 (2000). Unreasonable

application of clearly established federal law occurs when “the state court identifies the correct legal

principle from [the Supreme] Court’s decision but unreasonably applies that principle to the facts

of the prisoner’s case.” Id. at 413. In terms of application, the Supreme Court has stated that, "[i]f

                                                   5
this standard is difficult to meet, that is because it was meant to be.” Harrington v. Richter, 131 S.

Ct. 770, 786 (2011). Under the AEDPA, the federal reviewing courts are empowered with authority

to “issue the writ in cases where there is no possibility fairminded jurists could disagree that the state

court’s decision conflicts with [the Supreme] Court’s precedents.” Id. In this way, the writ of

habeas corpus operates as a “‘guard against extreme malfunctions in the state criminal justice

systems,’ not a substitute for ordinary error correction through appeal.” Id. (citing Jackson v.

Virginia, 443 U.S. 307, 332, n. 5 (1979) (Stevens, J., concurring in judgment)).

                                                    B

        All three of Lint’s claims reaching this court assert ineffective assistance of counsel.

Accordingly, “[t]here is no dispute that the clearly established federal law here is Strickland v.

Washington [,466 U.S. 668 (1984)].” Pinholster, 131 S. Ct. at 1403. In Strickland, the Supreme

Court articulated a two-component test that must be satisfied for a defendant to demonstrate that a

counsel’s performance was so defective as to require reversal of a conviction: “[f]irst, the defendant

must show that counsel’s performance was deficient” and “[s]econd, the defendant must show that

the deficient performance prejudiced the defense.” Id. at 687.

        For a defendant to satisfy the deficient performance component of the standard, he must

show that “counsel’s representation fell below the objective standard of reasonableness.” Id. at 688.

However, “[j]udicial scrutiny of counsel’s performance must be highly deferential,” and the court

must apply a “strong presumption” that the counsel’s representation was within the “wide range”

of reasonable professional assistance. Id. at 689. To establish the prejudice component, a defendant

must show “that there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different. A reasonable probability is a probability


                                                    6
sufficient to undermine confidence in the outcome.” Id. at 694. This likelihood of a different result

“must be substantial, not just conceivable.” Richter, 131 S. Ct. at 792.

        In application, the Supreme Court has noted that, “[s]urmounting Strickland’s high bar is

never an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010). The difficulty of this challenge

is intensified when a petitioner is attempting to establish that a state court’s application of Strickland

was unreasonable under the AEDPA. “The standards created by Strickland and §2254(d) are both

highly deferential…and when the two apply in tandem, review is doubly so.” Richter, 131 S. Ct.,

at 788 (internal citations and quotation marks omitted).

                                                    1

        First, Lint claims that his counsel was ineffective under the Strickland standard for failing

to investigate and present potential testimonial and evidentiary sources.1 Specifically, Lint argues

that the introduction of phone records would have provided evidence that Maja was not held in

secrecy, and would have impeached her testimony that she never made a call during the

confinement. Lint also indicates that his parents and sister had important information that could

have impeached Maja’s testimony about the landline telephone cord and the blinds on the house, but

that his attorney failed to investigate these matters. Finally, he asserts that his counsel failed to

introduce a police report that he claims would have impeached certain testimony of Maja’s.




        1
        The State argues that Lint first presented this claim, as well as his claim for ineffective
assistance of counsel for failure to communicate the plea deal, during his motion for relief from
judgment, despite a state law that requires defendants to present claims in their direct appeal.
However, whether or not Lint actually ran afoul of any state procedural laws, none of the courts that
have engaged in a reasoned review of his claims has enforced such a rule against him. Thus, this
claim may not be considered procedurally defaulted. See Taylor v. McKee, 649 F.3d 446, 450 (6th
Cir. 2011) (quoting Willis v. Smith, 351 F.3d 741, 744 (6th Cir. 2003)).

                                                    7
        Lint has been through several appeals, but to determine the proper state-court opinion to

review, this court must “look through” the summary decisions of the Michigan Supreme Court and

the Michigan Court of Appeals to the last reasoned state-court opinion discussing the ineffective

assistance of counsel claims for failure to investigate, which was issued by the Macomb County

Circuit Court in denying Lint’s motion for relief from judgment. See Ylst v. Nunnemaker, 501 U.S.

797, 804 (1991) (describing the “look through” presumption); Guilmette v. Howes, 624 F.3d 286,

289 (6th Cir. 2010) (“Brief orders citing Michigan Court Rule 6.508(D) are not explained orders

invoking a procedural bar.”). Lint argues that this court confined its analysis to state law and did

not sufficiently adjudicate his federal claims on the merits to trigger the AEDPA deference. The

clear text of the AEDPA applies its deferential standard only when claims were “adjudicated on the

merits in State court proceedings.” 28 U.S.C. § 2254(d). Therefore, if a state court “did not reach

the merits of [a habeas] claim, federal habeas review is not subject to the deferential standard that

applies under AEDPA. . . .Instead, the claim is reviewed de novo.” Moritz v. Lafler, No. 12-1222,

2013 WL 1777127, at *5 (6th Cir. Apr. 25, 2013) (quoting Cone v. Bell, 556 U.S. 449, 472 (2009)).

        However, under the so-called Richter presumption, “[w]hen a federal claim has been

presented to a state court and the state court has denied relief, it may be presumed that the state court

adjudicated the claim on the merits in the absence of any indication or state-law procedural

principles to the contrary.” Richter, 131 S. Ct. at 784-85. Further, even when the state court decision

contains an analysis of some issues, but does not expressly address the federal law claims raised in

a subsequent habeas petition, the Richter presumption still applies. Johnson v. Williams, 133 S. Ct.

1088, 1094 (2013). The Supreme Court has recognized that there exists various reasons that a state

court might not expressly discuss a federal claim that it considered on the merits, including when


                                                   8
“a line of state precedent is viewed as fully incorporating a related federal constitutional right;”

when the state court does not “regard a fleeting reference to a provision of the Federal Constitution

or federal precedent as sufficient to raise a separate federal claim;” and when “a state court may

simply regard a claim as too insubstantial to merit discussion.” Id. at 1094-95. However, though

the Richter presumption is “a strong one,” it may be overcome in unusual circumstances, such as

when the federal claim was rejected out of “sheer inadvertence.” Id. at 1096-97.

       Though Lint argues that the Michigan state courts did not adjudicate his claims on the merits,

the Macomb County Circuit Court expressly characterized its rulings differently. In discussing

Lint’s claim that his counsel was ineffective for failing to investigate, the court stated that Lint’s

argument “wholly lacks merit” and “is, at best, specious,” and “failed to establish an entitlement to

a new trial.” [R. 6-16 at 1171, 1173]. Thus, the state court expressly indicated that it was evaluating

Lint’s claims on the merits.

       Further, the court’s citation of state law in its analysis sufficiently incorporates the federal

standard. See Johnson, 133 S. Ct. at 1094. The state circuit court characterized the two-part

ineffective assistance of counsel test as follows: “First, the defense counsel must perform at least

as well as a lawyer with ordinary training and skill in the criminal law. Second, even though the

first test is satisfied, counsel must not make a serious mistake but for which the defendant would

have a reasonably likely chance of acquittal.” [R. 6-16 at 1170]. The state circuit court also noted

that the trial counsel enjoyed the presumption of effective representation, and the burden is on the

defendant to make a showing of ineffectiveness. Though the Supreme Court of Michigan has

characterized this iteration of the test as more protective of defendants than the Strickland standard,

in that a defendant need only demonstrate the prejudice prong for relief, it fully incorporates the


                                                  9
federal standard.2 That is to say, if the state court could not find Lint’s counsel ineffective under the

Garcia test, it would by definition be unable to do so under Strickland. As the applied state standard

“is viewed as fully incorporating a related federal constitutional right,” the Macomb County Circuit

Court did not need to cite directly to Strickland to conduct an adjudication on the merits for the

purposes of § 2254(d)(1). Johnson, 133 S. Ct. 1094; see Richter, 131 S. Ct. at 784. Thus, the state

court having considered this claim on the merits, its decision must be afforded AEDPA deference.

        When viewed through the deferential lens of the AEDPA, the Macomb County Circuit

Court’s analysis is not contrary to nor an unreasonable application of the first prong of Strickland.

In the context of the deficiency component of the Strickland analysis, “strategic choices made after

thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.”

Strickland, 466 U.S. at 690. It is clear from the record that Lint’s trial counsel was aware of

photographs of the Lint apartment and the police report, but made a strategic choice to argue against

their admission, likely because they contained evidence that he calculated as being more harmful

than favorable. The trial court’s refusal to second guess these decisions in hindsight is in line with

Strickland.



        2
         In People v. Pickens, the Michigan Supreme Court found that the test applied by the circuit
court here provided for more protection for defendants than Strickland, allowing a finding of
ineffective assistance of counsel even if counsel’s performance did not prejudice the defendant. 521
N.W.2d 797, 809-10 (Mich. 1994). In Pickens, the Michigan Supreme Court held that, as was
already the case with the deficient performance prong, the prejudice prong of the Garcia test was
to be applied in a manner that is consistent with the federal standard in Strickland. Id.; see also
People v. Kevorkian, 639 N.W.2d 291, 324 (Mich. 2001). This court has recognized the ineffective
assistance of counsel analysis that is generally applied by the Michigan state courts is now
essentially the same as the deficiency and prejudice analysis mandated by Strickland. Ballinger v.
Prelesnik, 709 F.3d 558, 561 (6th Cir. 2013).



                                                   10
        “[S]trategic choices made after less than complete investigation are reasonable precisely to

the extent that reasonable professional judgments support the limitations on investigation.”

Strickland, 466 U.S. at 690-91. Counsel has a “duty to make reasonable investigations or to make

a reasonable decision that makes particular investigations unnecessary.” Id. at 91. An attorney’s

decision not to investigate must be directly assessed for “reasonableness in all circumstances,

applying a heavy measure of deference to counsel’s judgment.” Id. It was reasonable under this

standard for the state court to find that Lint’s counsel, having already secured two family witnesses

to impeach the credibility of Maja Lint, did not perform deficiently when he determined that the

testimony of Lint’s sister and parents, none of whom was at the apartment at the time of the incident

and all of whom would appear obviously biased before the jury, would be insufficiently helpful to

merit further investigation or introduction at trial. This is especially true considering that the subject

of their alleged testimony would have been cumulative or of little exculpatory value for Lint. Lint’s

counsel had already cross-examined Maja Lint about her inconsistent statement relative to the

window blinds. Also, whether or not Lint’s family members could have testified that the phone cord

was not cut, does not foreclose the possibility that Lint deceived Maja into believing that it was.

Likewise, the fact that phone calls were made from the Lint home does not show that Maja Lint

could freely make calls during the time that she was supposedly captured, only that calls were made.

The state court’s decision that Lint’s counsel was not deficient for failing to introduce or investigate

this testimonial and documentary evidence is not objectively unreasonable.

        Though Lint’s failure to carry his burden on the first component of the Strickland test

forecloses habeas relief on this ground, the state court’s decision that Lint was in any event not

prejudiced by his counsel’s failure to investigate the previously mentioned evidence was not


                                                   11
unreasonable. As has been stated, the evidence cited by Lint was largely cumulative, irrelevant, or

even harmful to his case. Even if his parents and sister would have testified that his phone line was

not cut and that there were blinds on the windows, and even if Lint had introduced into evidence his

phone records, pictures of his home, and the police report, the chance that a jury would reach a

different outcome, especially in light of the overwhelming evidence against him, is not “substantial,”

which is required for Lint to meet his burden under the second component of Strickland. Richter,

131 S. Ct. at 792.

                                                  2

       Lint’s second claim is that his counsel was ineffective under the Strickland standard for

failing to object to jury instructions for kidnapping by secret confinement. Specifically, Lint claims

that the jury was instructed on secret confinement even though that was “a theory of criminal

conduct that was absent from Mr. Lint’s criminal information and complaint.” As a result of his

counsel’s failure, Lint argues that he was denied his Sixth Amendment right to be informed of the

nature and cause of the accusation against him.

       Unlike the previous claim, this ground for ineffective assistance of counsel was raised in the

direct appeal, but not the motion for post-conviction relief. The last reasoned state-court opinion

in which this claim was discussed is the decision of the Michigan Court of Appeals, which

considered Lint’s direct appeal of his conviction. See Ylst, 501 U.S. at 804; Guilmette, 624 F.3d at

291-92. Contrary to Lint’s contention, the Michigan Court of Appeals considered this claim on the

merits. The court not only expressly stated that Lint’s argument had no merit, but also applied a

state law standard for ineffective assistance of counsel that essentially mirrors the one set forth in




                                                  12
Strickland.3 See Johnson, 133 S. Ct. at 1094. Thus, AEDPA deference applies and the relevant

inquiry is whether the district court correctly determined that the Michigan state court’s decision was

not contrary to or an unreasonable application of Strickland.

        The felony information charges Lint with kidnapping, stating that he “did willfully,

maliciously and without lawful authority forcibly confine Maja Lint within her will; contrary to

MCL 750.349.” At the time that Lint was charged, the Michigan kidnapping statute, MCL 750.430,

stated as follows:

        Section 349. Confining person against will, etc.—Any person who willfully,
        maliciously and without lawful authority shall forcibly or secretly confine or
        imprison any other person within this state against his will, or shall forcibly carry or
        send such person out of this state, or shall forcibly seize or confine, or shall inveigle
        or kidnap any other person with intent to extort money or other valuable thing
        thereby or with intent either to cause such person to be secretly confined or
        imprisoned in this state against his will, or in any way held to service against his will,
        shall be guilty of a felony, punishable by imprisonment in the state prison for life or
        for any term of years.

MICH. COMP. LAWS § 750.349. At the conclusion of Lint’s trial, pursuant to CJI 12d 19.4,

Michigan’s standard jury instruction for “Kidnapping; Secret Confinement of a Victim,” the trial

judge instructed the jury to find Lint guilty if it found the State had sufficiently proven the following

elements: (1) the defendant forcibly confined the victim against her will; (2) the defendant was

without legal authority to confine the victim; (3) the defendant kept the victim’s location a secret;

(4) the defendant intended that the victim’s confinement be a secret; and (5) the defendant acted

willfully and maliciously.


        3
         The Michigan Court of Appeals directly cited to the previously referenced case of People
v. Pickens, 521 N.W.2d 797 (Mich. 1994), in which the court articulates the state ineffective
assistance of counsel analysis, which sufficiently incorporates the Strickland standard. See Ballinger,
709 F.3d at 561.


                                                   13
       The Michigan Court of Appeals expressly found that the jury instructions were sufficient

under state law in light of the language of the charging document and the relevant statute. The

reasons for this finding are largely immaterial to this proceeding. “[A] state court’s interpretation

of state law, including one announced on direct appeal of the challenged conviction, binds a federal

court sitting in habeas corpus.” Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (citing Estelle v.

McGuire, 502 U.S. 62, 67–68 (1991)); Mullaney v. Wilbur, 421 U.S. 684, 691 (1975)). This court

has previously stated, “[p]rinciples of comity require federal courts to defer to a state court judgment

on the issues of state law.” Israfil v. Russell, 276 F.3d 768, 771 (2001)(citing Engle v. Isaac, 456

U.S. 107, 128-29 (1982)).

       Though the reasons that the Michigan Court of Appeals found its jury instruction adequately

reflected the state law and corresponding state charges might be immaterial, the fact that it made

such a finding is relevant to this analysis. The Michigan Court of Appeals reviewed the secret

confinement jury instruction and found that in light of the state statute and interpreting state case

law, the instruction approximately reflected the crime charged. Specifically, the Michigan Court

of Appeals found that “[t]he instructions fairly presented the issues and protected Lint’s rights.”

People v. Lint, No. 256743, 2005 WL 3179637 at *9 (Mich. Ct. App. Nov. 29, 2005). Additionally,

citing its precedent, the court expressly held that, “the instructions properly included the elements

of the crime of kidnapping and did not exclude consideration of the material issues, defenses, or

theories for which there was supporting evidence.” Id. at *10. If this was the understood state of the

law on kidnapping in Michigan, as represented by the Michigan Court of Appeals, it can hardly be

said that a defense counsel’s failure to object to the jury instructions is unreasonable. As the state

court concluded, Lint’s counsel was “not required to advocate a meritless position.” Id.


                                                  14
       Further, it is not as though the State kept its theory of secret confinement hidden in the

weeds, waiting to spring it on Lint at the charge conference, after which he would have had no

opportunity to attack that accusation. The Michigan Court of Appeals found that the prosecutor had

made his theory clear at the preliminary hearing, the opening argument, and the closing argument.

Included in this theory was that Lint used multiple methods to restrain Maja, that he tied her up in

the apartment and forbade her from leaving, and that he kept her location and confinement a secret.

When Lint and his counsel had continued through the course of an entire trial in which the

prosecutor had made his theory clear, it is difficult to conceive that the trial court would have been

receptive to an objection that Lint was without notice that this instruction would be proposed by the

prosecution. As stated by the Michigan Court of Appeals, “the parties knew at all times that the

kidnapping charge was based on a theory of secret confinement.” Id. Therefore, the decision of the

Michigan Court of Appeals that Lint’s counsel was not ineffective for failing to object on Sixth

Amendment grounds to the secret kidnapping jury instruction is not contrary to or an unreasonable

application of the clearly established federal law set forth in Strickland.

                                                   3

       Lint’s third claim is that his counsel was ineffective under the Strickland standard for failing

to communicate a plea offer from the prosecutor. Specifically, Lint submits affidavits from his

mother and father, each of which states that the defense attorney, James Hoare, told them that he had

rejected a plea offer without communicating it to Lint. Lint also submits an affidavit in which he

alleges that after trial, Hoare told him about a plea offer which he unilaterally rejected without first

communicating with Lint. Though the affidavits of his parents do not reveal the terms of the plea

deal, Lint’s affidavit identifies the rejected plea offer to have been for a sentence of 48-96 months.


                                                  15
This is in contrast to Lint’s actual sentence, which was for 210 months and 40-60 months to be

served concurrently.

       The last reasoned analysis of this claim was in the opinion of the Macomb County Circuit

Court, which denied Lint’s motion for relief from judgment. See Ylst, 501 U.S. at 804; Guilmette

624 F.3d at 291-92. As previously discussed, the court’s decision expressly stated that it was

undertaking review on the merits, and the state standard for ineffective assistance of counsel that it

applied sufficiently encompassed Strickland. However, in the context of this claim, Lint also argues

that the opinion of the Macomb County Circuit Court cannot be considered a decision on the merits

for AEDPA purposes because the state court failed to fully develop the factual record by refusing

to grant Lint the evidentiary hearing that he requested. For this proposition, Lint cites this court’s

decision in Brown v. Smith, 551 F.3d 424 (6th Cir. 2008). In Brown, this court stated “whenever

new, substantial evidence supporting a habeas claim comes to light during the proceedings in federal

district court,” AEDPA deference is not appropriate because, “the state courts could not have made

a proper determination on the merits.” Id. at 429 (internal citation and quotation marks omitted).

As a result, this court concluded, “the absence of the counseling records before the Michigan Court

of Appeals (through no fault of Brown’s), combined with that court’s explicit statement that its

review was ‘limited to mistakes apparent on the record,’ means that there is no relevant state court

adjudication to which this court can defer.” Id. at 429-30. As a result, this court refused to apply

AEDPA deference, and instead reviewed the claims de novo.

       Several factors render Brown inapplicable here. First, as this court has recently recognized,

intervening decisions of the United States Supreme Court have called into question the continued

validity of Brown. In Ballinger, this court stated as follows:


                                                 16
       In Brown, we concluded that the state court had not issued a decision on the merits
       because highly relevant documents were absent from the trial court record. To the
       extent that Brown is inconsistent with Harrington’s definition of “on the merits,”
       however, it is no longer the law. It is now clear that a state-court adjudication, even
       when unaccompanied by an explanation, is presumed to be on the merits and is to be
       reviewed through the deferential lens of § 2254(d).

709 F.3d at 561-62. (internal citations omitted).

       Further, unlike Brown, Lint did develop a record that the state courts actually reviewed. On

his collateral appeal to the Macomb County Circuit Court, Lint submitted the evidence that he had

to support his claim that his counsel had failed to communicate a plea offer to him. This included

his own affidavit, as well as affidavits from his mother and father. He seems to have proposed no

additional evidence that he might introduce or develop at a hearing, nor does it appear from his

briefs that he could have produced such evidence. The state court expressly considered the

affidavits Lint submitted relative to this claim and found that no evidentiary hearing was necessary

and that Lint had not successfully shown a plea offer had been extended that was not communicated

to him. Therefore, even if the Richter presumption had not likely rendered inapplicable the rule in

Brown, the nature of the evidentiary record distinguishes Lint’s case. The absence of an evidentiary

hearing at the state court level does not change the fact that the Macomb County Circuit Court

considered this claim on the merits, and that its decision should be afforded the required AEDPA

deference.

       In considering the substance of Lint’s argument, “the two-part Strickland v. Washington test

applies to challenges to guilty pleas based on ineffective assistance of counsel.” Hill v. Lockhart,

474 U.S. 52, 58 (1985). A petitioner satisfies the deficient performance component if he can prove

“that the government extended a plea offer that [his counsel] failed to communicate to him.”

Guerrero v. United States, 383 F.3d 409, 416 (6th Cir. 2004). To satisfy the prejudice component,

                                                 17
“defendants must demonstrate a reasonable probability they would have accepted the earlier plea

offer had they been afforded effective assistance of counsel.” Missouri v. Frye, 132 S. Ct. 1399,

1409 (2012).

       The Macomb County Circuit Court recognized that the failure to advise a client of a plea

offer was an appropriate ground for finding ineffective assistance of counsel. In addition, though

brief, the Macomb County Circuit Court’s analysis of what constitutes deficient performance of

counsel is essentially the same as the standard employed by this court in Guerrero. Specifically, the

circuit court found that, in order to receive relief from the prior judgment, the petitioner must prove,

“that a plea offer was made and his counsel failed to communicate it to him.” [R. 6-16 at 1173].

       Lint is critical of the state court’s focus on state evidence law, but it is a reasonable inference

that the Macomb County Circuit Court is merely using evidence law as a mechanism to evaluate

whether petitioner has carried his burden in proving that a plea offer was made and then not

communicated to Lint. The evidence that Lint had placed into the record included three affidavits.

The first two were from his parents, each of whom indicated that the defense attorney had stated

during trial that he had received a plea offer from the prosecutor. Neither of these claimed to know

the length of the sentence range contained in the offer because, in the words of Lint’s mother,

“Attorney Hoare said that we did not want to hear what the offer was.” Lint also submits his own

affidavit, in which he claims that he called his attorney after the conclusion of trial and only then

did Hoare tell him that he had rejected a plea offer without first consulting with Lint. Lint claims

his attorney said that the plea offer was a sentencing minimum of 48-96 months. The Macomb

County Circuit Court classified this evidence as “rank hearsay” because “each affiant is relying on

what trial defense counsel allegedly said the prosecutor stated.” [R. 6-16 at 1173]. The state circuit


                                                  18
court found that the evidence that a plea offer was extended and not communicated to Lint was

unpersuasive and insufficient to merit a new trial on the basis of ineffective assistance of counsel.



       This is not an unreasonable conclusion. The only evidence that Lint has to support this claim

is his own statement and the statement of his parents, containing information that they received

second hand. The power of this evidence is not only diluted by the fact that it is hearsay, but also

because of the obvious bias of his parents’ affidavit and the self-serving nature of his own. As

discussed, Lint has proposed no additional evidence that he might introduce or develop at a hearing,

nor does it appear from his briefs that he could have produced such evidence.4 Moreover, as noted

by the State, the wide variation between the alleged plea offer and the amount Lint actually received

upon conviction, even having been acquitted on two counts, somewhat reduces the persuasiveness

of the evidence Lint has presented.

       In short, the Macomb County Circuit Court correctly recognized that in order to maintain

a claim for ineffective assistance of counsel on the basis of a plea agreement, Lint must first

demonstrate that a plea offer was made and that his counsel failed to communicate it to him. The

court’s decision that he failed in making that showing was not contrary to or an unreasonable

application of clearly established federal law so as to warrant habeas relief under the deferential

standard of the AEDPA.




       4
           Importantly, Lint did not submit an affidavit of his defense counsel.

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                                                    4

         Finally, Lint argues that the federal district court abused its discretion by failing to grant an

evidentiary hearing to allow him to further develop his claim for ineffective assistance of counsel.

“This court reviews a district court's decision whether to hold an evidentiary hearing for an abuse

of discretion.” Hodges v. Colson, 711 F.3d 589, 613 (6th Cir. 2013) (quoting Vroman v. Brigano,

346 F.3d 598, 606 (6th Cir. 2003)).

         The Supreme Court has recently limited the circumstances under which federal district courts

may hold an evidentiary hearing in the context of 28 U.S.C. § 2254. In Cullen v. Pinholster, the

Supreme Court held that, based on the “backward-looking language” of the statute, “review under

§ 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the

merits.” 131 S. Ct. at 1398-99; see also Ballinger, 709 F.3d at 561 (“[D]istrict courts are precluded

from conducting evidentiary hearings to supplement existing state court records when a state court

has issued a decision on the merits with respect to the claim at issue.”).

         As has already been discussed in detail, the state courts of Michigan adjudicated each of

Lint’s claims on the merits. Pursuant to § 2254(d)(1) and the Supreme Court’s decision in

Pinholster, the district court’s review was limited to the record that was before the state court.

Therefore, “[i]t was a reasonable exercise of the district court’s discretion to deny an evidentiary

hearing on the claim, because any evidence introduced would be ‘irrelevant’ and ‘have no bearing

on § 2254(d)(1) review’ in any event.” Hodges, 711 F.3d at 613 (quoting Pinholster, 131 S. Ct. at

1400).




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                                                III

      Accordingly, for the reasons stated above, the district court’s decision denying Lint’s petition

for writ of habeas corpus is AFFIRMED.




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