                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                                Pursuant to Sixth Circuit Rule 206
                                       File Name: 07a0360p.06

                    UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                       X
                                 Petitioner-Appellant, -
 TODD DANIELS,
                                                        -
                                                        -
                                                        -
                                                                No. 05-1846
            v.
                                                        ,
                                                         >
 BLAINE LAFLER, Warden,                                 -
                                 Respondent-Appellee. N

                         Appeal from the United States District Court
                        for the Eastern District of Michigan at Detroit.
                       No. 04-71418—Denise Page Hood, District Judge.
                                      Argued: July 17, 2007
                             Decided and Filed: September 5, 2007
            Before: BOGGS, Chief Judge; and CLAY and ROGERS, Circuit Judges.
                                       _________________
                                           COUNSEL
ARGUED: James Sterling Lawrence, Royal Oak, Michigan, for Appellant. William C. Campbell,
OFFICE OF THE ATTORNEY GENERAL, Lansing, Michigan, for Appellee. ON BRIEF: James
Sterling Lawrence, Royal Oak, Michigan, for Appellant. William C. Campbell, OFFICE OF THE
ATTORNEY GENERAL, Lansing, Michigan, for Appellee.
                                       _________________
                                           OPINION
                                       _________________
        BOGGS, Chief Judge. In 1996, Todd Daniels helped a friend to burn down a house in
Detroit, killing three children. In 1997, a Michigan state jury convicted him of three counts of
second-degree murder and seven counts of assault within intent to commit murder. The trial court
sentenced him to twenty to forty years of imprisonment. The district court denied his petition for
a writ of habeas corpus; he now appeals. First, he contends that the trial court violated his Sixth
Amendment right to counsel by replacing his original court-appointed attorney with a different
court-appointed attorney, allegedly without cause. Second, he argues that an instruction given to
his jury regarding the mental state required to commit murder as an aider and abettor so gravely
misrepresented Michigan law that it violated his Fourteenth Amendment right to due process, and
that his trial counsel was ineffective for failing to object to the allegedly erroneous instruction.
       We affirm. We reject Daniels’s first claim because the Sixth Amendment gives an indigent
defendant a right to adequate representation but not to his choice of court-appointed counsel.
Because Daniels does not allege that the change in counsel prejudiced his defense, he cannot

                                                 1
No. 05-1846           Daniels v. Lafler                                                        Page 2


demonstrate a violation of this adequate-representation right and therefore cannot establish a Sixth
Amendment violation. We reject Daniels’s second claim because, even though one sentence of the
instructions contained a confusing and arguably misleading statement of the law, the trial court
correctly stated the law at several other times. Consequently, Daniels cannot show that “the ailing
instruction by itself so infected the entire trial that the resulting conviction violates due process,”
Cupp v. Naughten, 414 U.S. 141, 147 (1973), or that he was prejudiced by his trial counsel’s failure
to object.
                                                   I
       Paula Bailey wanted revenge against “some girls,” one of whom apparently was dating her
ex-boyfriend. Encouraged by her brother Paul, she offered a thousand dollars to anyone who would
burn down their house. Daniels’s friend Eugene McKinney took Bailey up on her offer.
         With Daniels accompanying him, McKinney drove to a gas station, filled a plastic container
with gasoline, drove to the house that Bailey had identified, and poured the gasoline on the side of
it near the front porch. Apparently believing that he had not poured enough gasoline to burn the
house, McKinney returned with Daniels to the gas station, refilled his container, and then told
Daniels to fill an old antifreeze jug with gasoline. McKinney poured his gasoline in the same place
by the front porch, while Daniels poured his on the other side of the house, near the back door.
McKinney then lit a match; flames engulfed the front porch and the two men ran to the car and left.
Daniels did not set fire to the gasoline that he had poured.
        After McKinney showed Paula and Paul Bailey that he had “done the job,” Paula Bailey paid
McKinney a thousand dollars as promised. McKinney gave $200 of the money to Daniels. Soon
thereafter, the state brought charges related to the fire against Daniels, McKinney, Paula Bailey, and
Paul Bailey. The trial court appointed a separate attorney to represent each defendant. Daniels was
charged with three counts of first-degree felony murder, with arson as the underlying felony, and
seven counts of assault with intent to commit murder. A jury found him guilty of three counts of
second-degree murder and seven counts of assault, but not guilty of first-degree felony murder.
Having exhausted his state remedies, he filed the petition for a writ of habeas corpus at issue in this
appeal.
                                                  II
       Daniels bases his first claim for relief on the replacement of his original court-appointed
attorney.
                                                  A
        The trial court scheduled a hearing to consider pre-trial motions on April 24, 1997.
McKinney and Paula Bailey filed motions prior to that date; Daniels, then represented by Mark
Brown, did not. Of the four defendants’ attorneys, only Brown appeared at the hearing. At the
hearing, the prosecutor intimated that Brown had stated that he intended to file a motion to suppress
a statement that Daniels had made to police after his arrest, but had not done so by the court’s
deadline. Trial Court Tr., April 24, 1997, at 3-4 (District Court document 10). Brown did not say
anything.
        Frustrated by the attorneys’ failure to appear and wishing to avoid postponement of the trial,
set to begin on July 7, the trial court decided to “replace all counsel [and] pick counsel who can try
this case on the trial date we currently have.” It appointed Lawrence Burgess to replace Brown in
representing Daniels. During the next court date, Daniels attempted to object to something, but was
told that he could not speak except through Burgess. Daniels now says that he wished to object to
the replacement of Brown as his attorney. Burgess made no such objection, but he did file four pre-
No. 05-1846               Daniels v. Lafler                                                                      Page 3


trial motions, including a motion to suppress. The case proceeded to trial with Burgess representing
Daniels.
                                                           B
         The Sixth Amendment states that, “in all criminal prosecutions, the accused shall enjoy the
right . . . to have the Assistance of Counsel for his defence.” U.S. Const., amend. VI. Daniels
contends that the trial court violated this right when it removed Brown as Daniels’s attorney,
allegedly without cause. We disagree.
         The Sixth Amendment’s right to counsel encompasses two distinct rights: a right to adequate
representation and a right to choose one’s own counsel. The adequate-representation right applies
to all defendants and “focuses on the adversarial process, not on the accused’s relationship with his
lawyer as such.” United States v. Cronic, 466 U.S. 648, 657 n.21 (1984). A defendant has the right
to “counsel acting in the role of an advocate,” Anders v. California, 386 U.S. 738, 743 (1967), who
will “require the prosecution’s case to survive the crucible of meaningful adversarial testing,”
Cronic, 466 U.S. at 656. Daniels does not claim that Brown could have been a better advocate than
Burgess was; indeed, the record shows, if anything, that Burgess put forward a stronger defense,
filing four pre-trial motions where Brown had filed none. Without even alleging prejudice from the
change in counsel, Daniels cannot establish that the change violated his adequate-representation
right.
        Nor can he demonstrate a violation of any right to his counsel of choice. In Powell v.
Alabama, 287 U.S. 45, 53 (1932), the Supreme Court stated that a criminal defendant who hires, and
pays for, an attorney has the right to select that attorney. More recently, in United States v.
Gonzalez-Lopez, 126 S. Ct. 2557, 2563 (2006), it held that a defendant could obtain a new trial
without showing prejudice when the trial court arbitrarily denied him the services of his retained
counsel – in that case, by erroneously refusing to grant the chosen attorney admission pro hac vice.
If they applied to Daniels, the rights at issue in Powell and Gonzalez-Lopez might very well entitle
him to relief.
        Yet neither Powell nor Gonzalez-Lopez suggests that the choice-of-counsel right at issue is
universal to all defendants. The Gonzalez-Lopez Court explicitly stated that the basis for its decision
was “the right of a defendant who does not require appointed counsel to choose who will represent
him,” indicating that the erroneous or arbitrary exclusion of court-appointed counsel might not
trigger the same constitutional scrutiny. Id. at 2561 (emphasis added). In Caplin & Drysdale v.
United States, 491 U.S. 617, 624 (1989), the Court was even more direct: “those who do not have
the means to hire their own lawyers have no cognizable complaint so long as they are adequately
represented by attorneys appointed by the courts.” Although this language from Gonzalez-Lopez
and Caplin & Drysdale is dicta, its import is clear: Daniels, an indigent defendant forced to rely on
court-appointed counsel, has no choice-of-counsel right. Thus, he is not entitled to relief.
        We reach this result without applying the deferential standard of review set forth in the
Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254(d). The last state court
to consider Daniels’s Sixth Amendment claim rejected it not because it concluded that defendants
relying on court-appointed counsel have no choice-of-counsel right, but rather because it believed
that Daniels had1 acquiesced to the replacement of Brown and that the trial court had good cause to
replace Brown. People v. Daniels, No. 210014, 2000 Mich. App. LEXIS 1504, at *10 (Mich. Ct.

         1
          The warden reprises these arguments regarding acquiescence and good cause here. Because we can resolve
Daniels’s claim without reaching those arguments, we decline to address them. One might think that our approach –
confronting a broad question about the scope of the Sixth Amendment’s choice-of-counsel right to avoid questions
regarding the details of Daniels’s specific case – violates the maxim that we should “rest [our] decision on the narrowest
No. 05-1846              Daniels v. Lafler                                                                   Page 4


App. Oct. 3, 2000). Indeed, the court suggested that it would have resolved the Sixth Amendment
question in Daniels’s favor, stating that “[a]fter adversary judicial proceedings have been initiated,
a trial court’s removal of a criminal defendant’s appointed counsel for any reason other than gross
incompetence, physical incapacity, or contumacious conduct violates the defendant’s constitutional
right to counsel.” Ibid. Thus, in reviewing the Sixth Amendment question, we face a state court’s
treatment of an issue in a manner favorable to the petitioner but not dispositive of his claim for
relief.
        In this situation, we think that de novo review is appropriate. We should not apply AEDPA
deference to the state court’s pro-petitioner resolution of the issue because AEDPA’s standard of
review is “a precondition to the grant of habeas relief (‘a writ of habeas corpus . . . shall not be
granted’ unless the conditions of § 2254(d) are met), not an entitlement to it.” Fry v. Pliler, 127 S.
Ct. 2321, 2327 (2007). Nor should we apply AEDPA deference to a hypothetical ruling against the
petitioner on the disputed constitutional question: “AEDPA applies only to claims ‘adjudicated on
the merits in State court proceedings,’ and the standard of review it mandates depends on an
assessment of an actual decision made by the state court.” Eddleman v. McKee, 471 F.3d 576, 583
n.3 (6th Cir. 2006) (emphasis in original) (quoting 28 U.S.C. § 2254(d)). As a result, we default
back to the standard of review that we would have applied prior to the passage of AEDPA – i.e., to
de novo review.
        Carrying out this de novo review, and in light of the clear guidance from the Supreme Court
discussed above, we hold that a defendant relying on court-appointed counsel has no constitutional
right to the counsel of his choice. This does not mean that an indigent defendant never could
establish that the arbitrary replacement of court-appointed counsel violated his constitutional rights.
The replacement of court-appointed counsel might violate a defendant’s Sixth Amendment right to
adequate representation or his Fourth Amendment right to due process if the replacement prejudices
the defendant – e.g., if a court replaced a defendant’s lawyer hours before trial or arbitrarily removed
a skilled lawyer and replaced him with an unskilled one. But because Daniels does not even allege
prejudice here, we must affirm the denial of his Sixth Amendment claim.
                                                         III
        In his second claim for relief, Daniels challenges the jury instructions given by the trial court,
arguing that the instructions so seriously misstated the law as to violate his right to due process
under the Fourteenth Amendment and that Burgess’s failure to object to the instructions constituted
ineffective assistance of counsel.
                                                         A
         To be guilty of second-degree murder in Michigan, a defendant must have acted with malice,
that is, “the intention to kill, the intention to do great bodily harm, or the wanton and willful
disregard of the likelihood that the natural tendency of defendant’s behavior is to cause death or
great bodily harm.” People v. Aaron, 299 N.W.2d 304, 326 (Mich. 1980). This requirement applies
whether the defendant is charged as a principal or as an aider and abettor. People v. Kelly, 378
N.W.2d 365, 370 (Mich. 1985). Daniels contends that one passage in the jury instructions might
have prompted the jury to convict him even if it did not believe that this mens rea requirement was
satisfied:



possible ground capable of deciding the case.” Dames & Moore v. Reagan, 453 U.S. 654, 660 (1981). We proceed as
we do because it is the most direct way to resolve the case: we have serious doubts as to whether, even applying AEDPA
deference, the record supports the state court’s conclusions that Daniels acquiesced and that there was good cause for
Brown’s removal.
No. 05-1846           Daniels v. Lafler                                                        Page 5


       In determining whether the defendant intended to help someone else commit the
       charged offense of felony murder and assault with intent to murder, you may
       consider whether that offense was fairly within the common, unlawful activity of
       arson; that is, whether the defendant might have expected the charged offense to
       happen as part of that activity. There can be no criminal liability for any crime not
       fairly within the common, unlawful activity.
(emphasis added). This instruction, according to Daniels, permitted the jury to convict him by
concluding that he might have expected the charged offense to happen instead of that he actually
expected the charged offense to happen.
       The trial court also gave four other instructions addressing the mens rea required to convict
Daniels of murder as an aider and abettor. First, after listing the elements of first-degree felony
murder, it instructed the jury on the lesser included offense of second-degree murder:
       To prove this charge, the prosecutor must prove each of the following elements
       beyond a reasonable doubt[:] First, that the defendant caused the death of [the three
       victims]; that is, that [the victims] died as a result of the arson.
       Second, that the defendant had one of these three states of mind. He intended to kill
       or he intended to do great bodily harm to [the victims], or he knowingly created a
       very high risk of death or great bodily harm, knowing that death or such harm would
       be the likely results of his actions.
       Second, it addressed factors relevant to the assessment of Daniels’s mental state:
       The defendant’s intent may be proved by what he said, what he did, how he did it,
       or any other facts and circumstances in evidence.
       You must think about all the evidence in deciding what the defendant’s state of mind
       was at the time of the alleged killing. The defendant’s state of mind may be inferred
       from the kind of weapon he used, the type of wound inflicted, the acts and words of
       the defendant, and any other circumstances surrounding the alleged killing.
       Third, it emphasized that the jury must determine Daniels’s mental state as a possible aider
and abettor, not McKinney’s mental state as the principal, in order to find Daniels guilty:
       You should consider Todd DeShawn Daniels separately. He is entitled to have his
       case decided on the evidence and the law that applies to him. It is not enough merely
       to find that Mr. Daniels agreed to commit the crime of arson. Instead, you must
       determine, as to Mr. Daniels, separately, whether he intended to kill, whether he
       intended to do great bodily harm, or whether he created a very high risk of death or
       great bodily harm, knowing that death or such harm was the probable result of what
       he did.
        Fourth, it addressed the standard for liability as an aider and abettor: “Anyone who
intentionally assists someone else in committing a crime is as guilty as the person who directly
commits it, and can be convicted of that crime as an aider and abettor.”
                                                  B
        Because “federal habeas corpus relief does not lie for errors of state law,” we may grant the
writ based on errors in state jury instructions only in extraordinary cases. Lewis v. Jeffers, 497 U.S.
764, 780 (1990). “The question in [] a collateral proceeding is ‘whether the ailing instruction by
No. 05-1846            Daniels v. Lafler                                                            Page 6


itself so infected the entire trial that the resulting conviction violates due process,’ Cupp v.
Naughten, 414 U.S., at 147, not merely whether ‘the instruction is undesirable, erroneous, or even
universally condemned,’ id., at 146.” Henderson v. Kibbe, 431 U.S. 145, 154 (1977). Daniels
cannot clear this high bar to relief.
       First, it is not clear that the instruction Daniels challenges is even inaccurate. The
challenged instruction states a necessary condition for guilt, not a sufficient condition. It says that
a defendant cannot be guilty of aiding and abetting murder simply because he aided and abetted
another activity that improbably resulted in a death, even if the defendant intended for the death to
occur:
        In determining whether the defendant intended to help someone else commit the
        charged offense of felony murder and assault with intent to murder, you may
        consider whether that offense was fairly within the common, unlawful activity of
        arson; that is, whether the defendant might have expected the charged offense to
        happen as part of that activity. There can be no criminal liability for any crime not
        fairly within the common, unlawful activity.
(emphasis added). This does not negate the existence of a separate intent requirement, and earlier
in its instructions the trial court made clear that the jury could not convict Daniels of murder without
determining “whether he intended to kill, whether he intended to do great bodily harm, or whether
he created a very high risk of death or great bodily harm, knowing that death or such harm was the
probable result of what he did.” It simply adds an additional requirement: Daniels is not guilty
unless he both intended the deaths to occur and might have expected the deaths to occur as a result
of the arson.
        Daniels asserts that the Michigan Supreme Court addressed the propriety of the same
instruction in Kelly, 378 N.W.2d at 373, and found it to be erroneous. It did not. Because the
defendant in Kelly had not objected to the instructions at trial, the court did “not address the
defendant’s contention that the actual instruction given does not require [the appropriate] level of
intent to be found”; instead, it reviewed the instructions “only to determine whether the defendant
was subject to a manifest injustice” and found no manifest injustice. Id. at 373. We have not
discovered any other Michigan case disapproving of the instruction either. Therefore, we are not
fully convinced that the instruction misstates Michigan law.
         Second, even assuming arguendo that the instruction is inaccurate, Daniels cannot show that
it “so infected the entire trial that the resulting conviction violates due process,” Cupp, 414 U.S. at
147. Michigan courts evaluate the appropriateness of jury instructions by looking at the instructions
“in their entirety.” Kelly, 378 N.W.2d at 370. A defendant cannot show error by extracting “several
short excerpts from the entire context of the charge” and discussing “their claimed inadequacies at
great length.” People v. Dye, 96 N.W.2d 788, 792 (Mich. 1959). Here, Daniels’s only hope is to
do just that. It is undisputed that, earlier in its instructions, the trial court accurately stated the mens
rea requirement twice:
        [Y]ou must determine, as to Mr. Daniels, separately, whether he intended to kill,
        whether he intended to do great bodily harm, or whether he created a very high risk
        of death or great bodily harm, knowing that death or such harm was the probable
        result of what he did.
        ...
        Anyone who intentionally assists someone else in committing a crime is as guilty as
        the person who directly commits it, and can be convicted of that crime as an aider
        and abettor.
No. 05-1846            Daniels v. Lafler                                                            Page 7


These instructions make clear that the jury could not convict Daniels without finding that he assisted
McKinney in burning down the house, that the assistance was intentional, and that the assistance
was given with intent to kill or do greatly bodily harm or knowledge that such harm was probable.
We do not think, in this case, that one arguably misleading statement of the mens rea requirement
is likely to have caused the jury to ignore repeated prior statements of the correct requirement.
        To be sure, the challenged instruction is confusing; we can understand how a juror
theoretically might have interpreted it to weaken the mens rea requirement and why Daniels would
not have wanted it given. But we cannot say that it violated Daniels’s federal constitutional rights.
We affirm the denial of Daniels’s due-process claim.
                                                     C
        For similar reasons, we also reject Daniels’s claim that Burgess’s failure to object to the
challenged instruction was ineffective assistance of counsel. To prevail on an ineffective-assistance
claim, a petitioner must show that counsel’s performance was deficient and that the deficient
performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). An
attorney’s failure to object to jury instructions is deficient only if the petitioner can establish that the
instructions were inaccurate. Cross v. Stovall, No. 05-1528, 2007 U.S. App. LEXIS 14511, at *17
(6th Cir. June 14, 2007) (unpublished). And to demonstrate prejudice, a petitioner “must show that
there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694. Daniels cannot satisfy the first
requirement because he has not established that the instructions were inaccurate; he cannot satisfy
the second requirement because the jury instructions, taken as a whole, apprised the jury of the mens
rea requirement, such that modification of the challenged segment of the instructions would be quite
unlikely to have affected the verdict. We affirm the denial of Daniels’s ineffective-assistance claim.
                                                    IV
        For the foregoing reasons, the judgment of the district court is AFFIRMED.
