                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0964n.06

                                            No. 11-2451
                                                                                           FILED
                                                                                    Nov 07, 2013
                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT                           DEBORAH S. HUNT, Clerk


THOMAS SPIKES,                                         )
                                                       )
       Plaintiff – Appellant                           )       ON APPEAL FROM THE
                                                       )       UNITED STATES DISTRICT
                                                       )       COURT FOR THE EASTERN
       v.                                              )       DISTRICT OF MICHIGAN
                                                       )
THOMAS MACKIE,                                         )                               OPINION
                                                       )
       Defendant – Appellee                            )



Before:        MERRITT, GIBBONS, and MCKEAGUE, Circuit Judges.



       MCKEAGUE, Circuit Judge. Thomas Spikes1 appeals the Eastern District of Michigan’s

denial of his habeas corpus petition, in which he asserted the following claims: (1) that his no

contest plea was involuntary and illusory; (2) that he was denied the effective assistance of trial

counsel; (3) that he was erroneously removed from the courtroom during sentencing; (4) that he was

denied the right to counsel of his choice; and (5) that he was denied the right to effective assistance

of appellate counsel. We affirm.




1
  “Thomas Spikes” is an alias. In the related proceeding of the assault case, Spikes was sentenced
under the name of “Sylvester North.” At oral argument, counsel for Spikes confirmed that Spikes’
real name is “Sylvester North.” This Court will refer to Spikes by the name under which he was
prosecuted in the state of Michigan.
No. 11-2451
Spikes v. Mackie

                                                   I.

       In July 2004, Thomas Spikes (“Spikes”) was charged with two sets of crimes in Wayne

County.2 In the first case, he faced two counts of Armed Robbery, Felonious Assault, and Felony-

Firearm (“the robbery case”). In the second case, Spikes faced charges of two counts of Assault

with Intent to Murder, Assault with Intent to do Great Bodily Harm, and Felony-Firearm (“the

assault case”).

       At a September 3, 2004 pretrial hearing, addressing both cases, Spikes rejected a plea offer

to resolve all charges in return for concurrent 10 to 20 year sentences. The prosecutor noted at the

pretrial that if the cases proceeded to trial, he would ask for “consecutive time” and also notified the

trial court that the sentencing guidelines were “much higher than 10 to 20 [years].” R. 6-3, 9-3-04

Pretrial Tr. at 5, PageID # 153. The next pretrial hearing was held on September 24, 2004. The

prosecutor mentioned the possibility of a plea agreement in the assault case, but noted that any offer

to resolve the assault case would require “at least double digits terms of incarceration, being over

10 years, plus 2 for the firearm.” R. 6-4, 9-24-04 Pretrial Tr. at 5, PageID # 161. Spikes, once

again, notified the trial court that he was not interested in exploring such a plea bargain.

       In October 2004, Spikes was tried in the assault case and found guilty of Assault with Intent

to Commit Murder, Assault with Intent to do Great Bodily Harm, and Felony-Firearm. On

December 17, 2004, Spikes was sentenced to 22 to 33 years on the Assault with Intent to Murder




2
  Counsel for the State clarified in oral argument that any references to Oakland County in the
record were improper and the references should have been to Wayne County. This Court corrects
for the record the reference to the proper county where Spikes was charged.

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No. 11-2451
Spikes v. Mackie

conviction, a concurrent five to ten years on Assault with Intent to do Great Bodily Harm conviction,

and a consecutive two-year term on the firearm charge.3

            On February 2, 2005, Spikes once again appeared before the trial court, this time only with

respect to the robbery case. The prosecutor informed the court that he had offered Spikes a plea

deal. The trial court asked what the sentencing guidelines were, should Spikes go to trial, and the

prosecutor responded that they topped out in the 40-year range. The trial court then stated, “[f]orty

years on the minimum, all right. And that would be consecutive, perhaps to [the sentences in the

assault case].” R. 6-8, 2-2-05 Pretrial Tr. at 3, PageID # 207. On February 7, 2005, the parties

returned to the trial court and a plea agreement was finally reached. Spikes entered a no contest plea

to two counts of Armed Robbery and one count of Felony Firearm. The prosecutor stated the final

terms of his offer to the court:

            If Spikes pleads to two counts of Armed Robbery and Felony Firearm on 04-7361 with a
            sentence agreement of twenty-six to forty years plus two, to run concurrently with the
            previous stated term that I’ve already put on the record [in reference to the assault case], we
            would dismiss the Felonious Assault count on this file, as well as all charges on 04-7355,
            which is an accompanying file that he has pending.

Id. at 3, PageID # 212.

            The prosecutor then stated what the sentencing guidelines would be, should Spikes proceed

to trial:


3
  A petition for habeas corpus regarding the convictions in the assault case was filed and denied by
the Honorable Gerald E. Rosen on July 24, 2012. Sylvester North v. Mary Berghuis, U.S.D.C. 2:09-
cv-13071, (E.D. Mich. Jul. 24, 2012). Following the district court’s ruling, Spikes filed a notice of
appeal and a motion for a Certificate of Appealability with this Court. Sylvester North v. Mary
Berghuis, Case No. 12-2100. This Court denied Spikes’ application for a Certificate of
Appealability on February 20, 2013. Spikes then filed a motion for leave to file a petition for
hearing en banc, which this Court also denied. The assault case was closed on June 24, 2013.

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No. 11-2451
Spikes v. Mackie

       The guidelines start in the range of the bottom of the guidelines are forty, and the reason
       they’re that high is because Spikes gets OV twenty-five points from the conviction that he
       already has [the assault case] that he’s doing the twenty-two to thirty-three on from the
       conviction, you know, from the previous conviction.

Id. at 4, PageID # 213.

       The prosecutor clarified that he would seek consecutive sentences and that the sentencing

guidelines range was from a forty-year minimum to a “high end” of sixty. Id. at 5, PageID # 214.

       The trial court then explained to Spikes the importance of his decision to either accept the

plea deal or proceed to trial. Id. at 5-6, PageID # 214-15. When the trial court asked Spikes whether

he understood, Spikes responded by saying “[s]o, so, you’re saying you’re giving me time to

think--.” Id. at 6, PageID # 215. The trial court responded:

       No. Time is up, Mr. Spikes. Your family has been here half dozen times in the last two, three
       weeks. This attorney has been here. I know he has visited you in jail. I know he has spoken
       with you in the back. I don’t know what he has spoken to you about, but no more time.
       We’re going to try this case and we’re going to try it very quickly from—not very quickly,
       but we’re going to try it shortly from this date. And the offer is here, and I will not permit
       a plea on the date of trial. You’re going to go for broke.

Id.

       Following an approximately twenty minute recess, where Spikes spoke with family members

and his counsel, defense counsel informed the court that Spikes would accept the plea offer and

enter a no contest plea.

       Spikes was then placed under oath, and the trial court began the plea colloquy. Spikes

indicated that he was twenty-five years old and had obtained an eleventh grade education. He

indicated that he was satisfied with his counsel’s representation and that he would like to plead no

contest. Spikes also indicated that he understood that the statutory maximum penalty for armed


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No. 11-2451
Spikes v. Mackie

robbery was life in prison and the maximum penalty for felony firearm was two years. The trial

court then stated the exact terms of the plea agreement:

       And just so we’re all clear, you’re pleading no contest to one count of Armed Robbery. I
       take that back, two counts of Armed Robbery; one count of Felony Firearm. The People will
       agree to dismiss the Felonious Assault count on this file and all charges on file number 04-
       7355, with a sentence agreement of twenty-six to forty years on both Armed Robbery counts,
       plus two years on the Felony Firearm. These terms are to run concurrently to your terms of
       twenty-two to thirty years, plus two on 04-7354.

Id. at 11, PageID # 220.

       Spikes then asked the court whether the plea agreement required him to serve an additional

twenty-six years to the time he was already serving in the assault case. The following discussion

occurred:

       THE COURT: No. They’re going to run together, what we call concurrent, all right. So, it’s
       not twenty-two plus twenty-six. While you’re doing the twenty-two the twenty-six is
       running well, as well. All right? Do you understand that?

       MR. SPIKES: Can I ask one more question? So, the offer for the robbery was four years,
       right? Two for the charge and two for the gun?

       THE COURT: Do you want to look at it that way, Mr. Trzcinski [the prosecutor]? I mean
       in the final analysis if you’re talking years.

       THE PROSECUTOR: Mr. Spikes, the end affect of your plea is you’re going to do twenty-
       eight years that run at the same time as the other twenty-four that you’re doing. So, if you
       want to think of it that you’re getting it for four years, that’s one way to look at it because
       you’ve already got twenty-four in the bank. But you are pleading to twenty-six plus two,
       which is twenty-eight years. But they run at the same time as your other twenty-four. All
       right.

       MR. SPIKES: See, I thought it was four years. I’m thinking it was just going to be four
       years, two for the gun and two for the crime. I didn’t know it was going to be twenty-six to
       forty.

       DEFENSE COUNSEL: I always advised Mr. Spikes that it would be the time, the minimum
       time that he’s doing plus four more years.

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No. 11-2451
Spikes v. Mackie

       THE COURT: Mr. Spikes, you’re doing twenty-six to forty plus the two years on the Felony
       Firearm for this case. That will run concurrent to the twenty-two plus two that you’ve
       already got on the other case. Take it or leave it, sir. I mean I believe and I know it to have
       been explained to you every which way. We’ve been here all day. This is probably the
       sixth, the half dozen time that you’ve been back here since the first of January. This isn’t
       rocket scientist about this. It’s do you want it or do you not want it, yes or no?

       MR. SPIKES: I’m confused, but yeah—

       THE COURT: No, it’s not that you’re confused. It’s your doing twenty-six plus two on the
       Felony Firearm on this case. That is the plea offer and that is to run concurrent, at the same
       time as your other case. Is that the plea offer that you are wishing to take advantage of this
       afternoon? Is that yes?

       MR. SPIKES: Yes.

Id. at 12-14, PageID # 221-23.

       Following this discussion, Spikes was informed of the rights he was waiving by entering a

plea. Spikes stated on the record that he was pleading voluntarily and that no one had threatened

or coerced him into pleading. The court then accepted the plea and set the case for a sentencing

hearing.

       A sentencing hearing was held on March 1, 2005. Defense counsel informed the court that

Spikes wanted to withdraw his plea.        Counsel indicated that Spikes never understood the

ramifications of the plea and that Spikes was going to appeal the sentence in the assault case.

Accordingly, assuming Spikes prevailed in his appeal, defense counsel stated that Spikes was under

the false understanding that he would only be required to serve four years and not twenty-eight

years. Defense counsel requested that the court allow Spikes to withdraw his plea. After hearing

argument from the prosecutor, the court denied Spikes’ motion, stating:

       Well, pursuant to MCR6.310 and People versus Gomer, the Court does agree with the
       position of the People in this matter and is not going to permit any withdrawal of the plea.

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No. 11-2451
Spikes v. Mackie

       There was no fraud, duress or coercion. This Court remembers this particular plea in some
       detail and there was discussion and communication both on the record and off the record
       between defense counsel, the prosecutor and the family, and that Mr. Spikes certainly was
       well aware of the implications of the plea in this matter. He had questions, those questions
       were answered both on the record and this Court is aware that those certain questions were
       answered off the record, as well. And that as with this sentencing hearing, that [defense
       counsel] spent a good part of a morning and the record, the docket entries would further
       reflect that [defense counsel] was back and forth here in this court on this case numerous
       times communicating with both Mr. Spikes and Mr. Spikes’ family. And the Court does,
       does agree that the plea at the time it was taken was knowingly and understandingly and
       voluntarily, and is going to deny the request to withdraw the plea.

R. 6-10, 3-1-05 Sentencing Hearing Tr. at 8-9, Page ID # 235-36.

       The court then proceeded to ask the parties about their respective positions on the sentencing

guidelines scoring. Defense counsel requested additional time to go over the guidelines, which the

court granted. After a ten-minute adjournment, defense counsel informed the court that Spikes

needed additional time to go over the offense variables. The court denied this request, at which

point, Spikes spoke up and informed the court that he was having a “break down and mis-

communication” with his counsel and no longer wanted the court-appointed attorney, James

Anderson, to represent him. Id. at 12, PageID # 239. The following exchange occurred between

Spikes and the court:

       MR. SPIKES: Excuse me. I—

       THE COURT: Put down your hand, sir. Go ahead.

       MR. SPIKES: --I, I don’t want this, I don’t want this guy, this counsel to represent me no
       more. We’re having a break down and mis-communication—

       THE COURT: Mr. Spikes?

       MR. SPIKES: --and I do not want this counsel—

       THE COURT: Mr. Spikes—

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No. 11-2451
Spikes v. Mackie

       MR. SPIKES: --to represent me.

       THE COURT: --I’m going to remove you from the courtroom. You don’t want any attorney
       to represent you. This is about your third time through.

       MR. SPIKES: I don’t want this guy because we had a break down in communication, and
       from my understanding the cop that was I was taking was four years. It was not twenty-eight
       years.

       THE COURT: Mr. Ander—

       MR. SPIKES: He did not break it down to me and he has not broke it down to me until this
       day. So—

       THE COURT: Well, I don’t—

       MR. SPIKES: --I would like—Can he step down, please? This is my life right now and I
       would not have took no cop for no twenty-eight years.

       THE COURT: Remove him from the courtroom. We’re going to sentence him. Go ahead.
       Take him out. Mr. Trzcinski, you may proceed.

Id. at 12-13, PageID # 239-40.

       The court proceeded to go through the scoring of the sentencing guidelines, without Spikes

in the courtroom. Defense counsel objected to his client being removed and noted for the record that

his client requested additional time to review the offense variables. The court responded by saying:

       Mr. Anderson [defense counsel], your client has been asking for more time on each thing
       we’ve done for the last six months and he’s gotten more time, he’s gotten plenty of time.
       And no personal offense to you, I know you’ve done an excellent job in this case as the
       Court has every confidence in you and what you’ve done. But your client has had every
       opportunity and really has—wants to continue to delay and we are going to move this case
       forward.

Id. at 14-15, PageID # 241-42.

       The court then sentenced Spikes under the terms of the plea agreement, placing on the record

a sentence of 26 to 40 years on the armed robbery counts, consecutive with two years for the felony

                                                 8
No. 11-2451
Spikes v. Mackie

firearm count. The court also dismissed the felonious assault charge. The court ordered the entire

sentence to run concurrently with the twenty-two to thirty-three plus two year sentence in the assault

case.

        Following his plea conviction and sentence, Spikes filed a delayed application for leave to

appeal in the Michigan Court of Appeals. The Michigan Court of Appeals issued a brief order

denying Spikes’ application for leave to appeal due to the lack of merit. The Michigan Supreme

Court also denied Spikes’ appeal in a standard order, stating that it was not convinced that the

questions presented should be reviewed by the Michigan Supreme Court.

        Following the Michigan Supreme Court’s ruling, Spikes returned to the trial court that had

sentenced him and filed a motion for relief from judgment.

        The trial court addressed each of Spikes’ claims individually, and eventually denied the

motion stating that Spikes had failed to establish “good cause or prejudice” and denied the motion

pursuant to Michigan Civil Rule 6.508(D)(3). Spikes then filed an application for leave to appeal

in the Michigan Court of Appeals, which was denied because Defendant had failed to meet the

burden of establishing entitlement to relief under MCR 6.508(D). Spikes applied for leave to appeal

this decision in the Michigan Supreme Court, but was denied relief under Rule 6.508(D).

        Spikes filed a petition for writ of habeas corpus in the Eastern District of Michigan pursuant

to 28 U.S.C. § 2254. Spikes raised the following claims for relief:

        I.     The trial court erred when it denied Spikes’ motion to withdraw plea because it was
               involuntary and illusory.

        II.    Spikes was denied the effective assistance of counsel regarding his plea.



                                                  9
No. 11-2451
Spikes v. Mackie

       III.    The trial court erred when it ejected Spikes from the courtroom during sentencing,
               thereby denying him his right to due process.

       IV.     Spikes was denied the right to counsel when the trial court forced him to proceed
               with appointed counsel during sentencing.

       V.      Spikes was denied the effective assistance of appellate counsel.

R.1, Petition for Writ of Habeas Corpus at 13, PageID # 13.

       The district court issued an opinion and order denying Spikes’ request for habeas relief.

Reviewing the claims under the deferential standard of the “Antiterrorism and Effective Death

Penalty Act of 1996” (AEDPA), the district court found all of Spikes’ claims to be without merit.

28 U.S.C. § 2254. This appeal followed.

                                                 II.

       Spikes raises five claims in his petition. Michigan asserts that some of Spikes’ claims are

barred by procedural default. The district court did not address the issue of procedural default,

finding the issue of procedural default to be “nettlesome.” This Court also need not address

procedural default as Spikes’ claims fail even on the merits.

A.     Standard of Review

       In a habeas corpus appeal, this Court reviews a district court’s legal conclusions de novo.

If the district court does not make its own findings of fact following an evidentiary hearing, and

instead relies on the state trial transcript, the reviewing court must likewise make its own de novo

review of the record and independently assess the facts in the case. Haliym v. Mitchell, 492 F.3d

680, 689 (6th Cir. 2007). Habeas review is generally “limited to the record that was before the state

court.” Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011). The standard for reviewing state-court


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No. 11-2451
Spikes v. Mackie

determinations on habeas is governed by the Antiterrorism and Effective Death Penalty Act

(AEDPA). 28 U.S.C. § 2254(d). AEDPA imposes a “highly deferential standard for evaluating

state-court rulings” and demands that federal courts give state court decisions the benefit of the

doubt. Renico v. Lett, 130 S. Ct. 1855, 1862 (2010) (citation omitted) (noting that AEDPA creates

a substantially higher threshold for obtaining relief than would de novo review). Accordingly, when

this Court reviews a state court’s findings habeas relief is only warranted if the state court’s decision

was contrary to or involved an unreasonable application of clearly-established federal law or was

based upon an unreasonable determination of the facts in light of the evidence. Slagle v. Bagley,

457 F.3d 501, 513 (6th Cir. 2006) (citing 28 U.S.C. § 2254(d)). Under AEDPA, a state court

decision is considered “contrary to . . . clearly established federal law” if it is “diametrically

different, opposite in character or nature, or mutually opposed.” Williams v. Taylor, 529 U.S. 362,

405 (2000) (quotation marks omitted); see also Wiggins v. Smith, 539 U.S. 510, 520 (2003)

(citations omitted). For a state court decision to be deemed an “unreasonable application of . . .

clearly established Federal law,” a state-court decision regarding the merits must be “objectively

unreasonable.” Wiggins, 539 U.S. at 520–21 (citations omitted).

        AEDPA deference requires federal courts to preclude 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) (citation and internal quotation omitted). The Supreme Court

has emphasized that even a “strong case for relief does not mean the state court’s contrary

conclusion was unreasonable.” Id. (citation omitted). Thus, to obtain habeas relief in federal court,

a state prisoner must show that the state court’s rejection of his claim “was so lacking in justification


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No. 11-2451
Spikes v. Mackie

that there was an error well understood and comprehended in existing law beyond any possibility

for fairminded disagreement.” Id. at 786–87. Section 2254(d) “does not require a state court to give

reasons before its decision can be deemed to have been adjudicated on the merits.” Id. at 785

(internal quotation omitted).

1.     Involuntary Plea

       Spikes argues that his no contest plea was not voluntarily and knowingly entered and sets

forth three arguments to support this contention. First, Spikes argues that the prosecutor incorrectly

stated the minimum sentencing guidelines, informing Spikes that if he went to trial his minimum

sentence would begin at 40 years. Spikes argues that this miscommunication, whether deliberate

or not, was misleading, as the low-end of the applicable sentencing guidelines for that offense was

actually 18 years, 9 months. Second, Spikes argues that the prosecutor misled him by stating that

if he went to trial, the prosecution would seek a sentence consecutive to the sentence in the assault

case. Spikes maintains that consecutive sentencing is in contravention of Michigan law. Finally,

Spikes concludes that the prosecutor’s misrepresentations induced him into accepting a plea bargain

that had questionable value.

       In order for a guilty plea to be constitutional it must be knowing, intelligent, voluntary, and

done with sufficient awareness of the relevant circumstances and likely consequences. Bradshaw

v. Stumpf, 545 U.S. 175, 183 (2005). The identical standard applies to a plea of no contest or nolo

contendere. See Fautenberry v. Mitchell, 515 F.3d 614, 636–37 (6th Cir. 2008). For a guilty or no

contest plea to be voluntary, the defendant must be

       fully aware of the direct consequences, including the actual value of any commitments made
       to him by the court, prosecutor, or his own counsel, [and not] induced by threats ( o r

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No. 11-2451
Spikes v. Mackie

       promises to discontinue improper harassment), misrepresentation (including unfulfilled or
       unfulfillable promises), or perhaps by promises that are by their nature  improper as
       having no proper relationship to the prosecutor’s business (e.g. bribes).

Brady v. United States, 397 U.S. 742, 755 (1970) (internal quotations and citation omitted). The

defendant must also be aware of the maximum sentence that can be imposed for the crime for which

he is pleading. King v. Dutton, 17 F.3d 151, 154 (6th Cir. 1994). The voluntariness of a guilty or

no contest plea is determined in light of all relevant circumstances surrounding the plea. Brady, 397

U.S. at 749. If a prosecutor’s promise is illusory, then a plea is involuntary and unknowing. United

States v. Randolph, 230 F.3d 243, 250–51 (6th Cir. 2000). However, where a defendant is “fully

aware of the likely consequences” of a plea, it is not unfair to expect him to live with those

consequences. Mabry v. Johnson, 467 U.S. 504, 511 (1984).

       A plea-proceeding transcript which suggests that a guilty or no contest plea was made

voluntarily and knowingly creates a “heavy burden” for a petitioner seeking to overturn his plea.

Garcia v. Johnson, 991 F.2d 324, 326–28 (6th Cir. 1993). Where the transcript shows that the guilty

or no contest plea was voluntary and intelligent, a presumption of correctness attaches to the state-

court findings of fact and to the judgment itself. Id. at 326–27.

       After reviewing the state court record, this Court finds that Spikes knowingly and voluntarily

entered the no contest plea. First, the trial judge, during the plea colloquy, was satisfied that Spikes

was pleading voluntarily and, again, found that Spikes’ plea was knowing and voluntary during the

motion for relief from judgment. The trial court’s factual finding that the plea was voluntary, which

is presumptively correct, is further supported by the record. 28 U.S.C. § 2254(e)(1) (providing that

state court determination of factual issues are presumed correct unless the habeas petitioner rebuts


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No. 11-2451
Spikes v. Mackie

the presumption by “clear and convincing evidence”). As the trial court noted in its order denying

Spikes’ motion for relief from judgment, “defendant was properly apprised of the name of the

offenses to which he was pleading and the maximum prison sentence and the mandatory minimum

sentence.” R. 6-13, Order Denying Mot. for Relief from J. at 38, PageID # 326. A review of the

sentencing transcript shows that during the plea colloquy, Spikes was informed, accurately, of the

consequences of his plea. When Spikes began to state that he was confused, the trial judge took

great care to ensure that Spikes understood the differences between “consecutive” and “concurrent”

sentences. The trial court specifically stated:

       THE COURT: No. They’re going to run together, what we call concurrent, all right. So, it’s
       not twenty-two plus twenty-six. While you’re doing the twenty-two the twenty-six is
       running well, as well. All right? Do you understand that?

       ...

       THE COURT: Mr. Spikes, you’re doing twenty-six to forty plus the two years on the Felony
       Firearm for this case. That will run concurrent to the twenty-two plus two that you’ve
       already got on the other case. Take it or leave it, sir. I mean I believe and I know it to have
       been explained to you every which way. We’ve been here all day. This is probably the
       sixth, the half dozen time that you’ve been back here since the first of January. This isn’t
       rocket scientist about this. It’s do you want it or do you not want it, yes or no?

       MR. SPIKES: I’m confused, but yeah—

       THE COURT: No, it’s not that you’re confused. It’s your doing twenty-six plus two on the
       Felony Firearm on this case. That is the plea offer and that is to run concurrent, at the same
       time as your other case. Is that the plea offer that you are wishing to take advantage of this
       afternoon? Is that yes?

Id. at 12-14, PageID # 221-23.




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No. 11-2451
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       While the transcript from pretrial proceedings shows that the prosecutor misstated4 the

maximum sentence available under the sentencing guidelines for the offense of armed robbery,5 the

trial court expressly clarified the sentence Spikes was going to receive prior to Spikes accepting the

plea deal, specifically stating that the statutory maximum sentence Spikes could receive was life in

prison. R. 6-9, 2-7-05 Plea Tr. at 10, PageID # 219 (The trial court asked Spikes: “And do you

understand that the statutory maximum penalty for Armed Robbery is life in prison. Do you

understand that, sir?” Spikes responded with: “Yes.”). Spikes contends that the reason he accepted

the plea was because he was seeking to avoid a 40-year sentence that would be consecutive to the

sentence in his assault case, however Spikes has offered no evidence to the Court, other than his

statements of his belief, to support this contention. Pet. Br. at 10.6 This Court has repeatedly


4
  During oral argument, Counsel for Spikes suggested that Spikes had a Constitutional right to not
be misled by the prosecutor, regardless of whether the prosecutor intended to mislead the defendant
or not. Counsel for Spikes listed a variety of cases for the bases for this Constitutional right. See,
e.g., United States v. Rodriguez, 533 U.S. 377 (2008); Hill v. Lockhart, 474 U.S. 52 (1985); Maples
v. Stegall, 427 F.3d 1020 (6th Cir. 2005). This Court has reviewed every case Counsel for Spikes
raised during oral argument and finds that none of the cases support a finding of such a
Constitutional right.

5
  The lower court record shows that at pretrial proceedings, the prosecutor informed Spikes that the
sentencing guidelines were forty years (480 months) at the minimum and sixty years (720 months)
at the maximum. R. 6-9, 2-7-05 Plea Tr. at 4, PageID # 213. It is unclear how the prosecutor
calculated these numbers, and hypothesizing on how he calculated them is inconsequential to this
Court’s ruling. It is simply worth noting that the prosecutor should have informed Spikes at the
pretrial conferences that the range was 225 to 375 months, or life. The prosecutor’s initial incorrect
statement regarding the potential sentence, however, was later corrected. Id. at 13, PageID # 222.

6
  During the plea colloquy, Spikes appeared to think that he was entering a plea involving only a
four-year sentence that would run concurrently with his assault-related sentences. R. 6-9, 2-7-05
Plea Tr. at 12-14, PageID # 221-23. However, the trial court made certain to clarify any

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No. 11-2451
Spikes v. Mackie

rejected claims by habeas petitioners to set aside pleas due to “sentence confusion” where the plea

transcript demonstrates that the petitioner states on the record that he is pleading knowingly and

voluntarily of his own free will. Ashbaugh v. Gundy, 244 Fed. App’x. 715, 717–18 (6th Cir. 2007);

Alford v. Brigano, 67 Fed. App’x. 282, 285 (6th Cir. 2003). This Court has stated that a court cannot

rely on the petitioner’s alleged “subjective impression” “rather than the bargain actually outlined

in the record,” for to do so would render the plea colloquy process meaningless. Ramos v. Rogers,

170 F.3d 560, 566 (6th Cir. 1999). If the plea colloquy process were viewed in this light, any

defendant who alleged that he believed the plea bargain was different from that outlined in the

record would have the option of withdrawing his plea despite his own statements during the plea

colloquy indicating the opposite. Id. Spikes has failed to provide this Court any evidence to show

this Court that he did not understand the bargain he was entering when he entered the no contest

plea. Garcia, 991 F.2d at 326–28 (holding that a plea-proceeding transcript which suggests that a


misconception that Spikes had regarding the length of the additional sentence he would serve should
he enter the plea, and also had the prosecutor articulate those consequences. Id.; R. 6-13, Order
Denying Mot. for Relief from J. at 38, PageID # 326. The district court noted,

       the trial court and the prosecutor clarified that he would not receive a four-year sentence but
       that the agreed-to sentence would run concurrently with his assault case sentences. Spikes
       then indicated that he wished to go ahead with the plea. The trial court, therefore, remedied
       any misconceptions held by Spikes regarding the direct consequences of his plea by
       clarifying the sentencing consequences of his plea agreement.

R. 8, District Court Op. at 12, PageID # 423.

        Therefore, while Spikes contends that he was confused as to the consequences of the plea
he was entering, the trial court transcript and the trial court’s factual findings clearly show that
any misconceptions were clarified by the trial judge and the prosecutor. Spikes has failed to
rebut this showing.


                                                 16
No. 11-2451
Spikes v. Mackie

plea was made voluntarily and knowingly creates a “heavy burden” for a petitioner seeking to

overturn his plea). Spikes has thus failed to rebut the strong presumption created by the state court’s

transcript and this Court finds that the lower court did not make an unreasonable determination of

the facts in finding that Spikes understood the plea he was entering.7

        Spikes’ second argument that the plea was “illusory” is also without merit. Because he

accepted the plea, Spikes’ felonious assault charge was dismissed. The prosecutor also dropped

charges in a separate criminal case as part of the plea bargain. Id. Additionally, the prosecutor did

not seek consecutive sentences, which was an option based on the offenses Spikes was charged. See

Mich. Comp. Law § 768.7b(2). As Spikes received a bargained-for benefit, he cannot claim that the

plea was illusory. See McAdoo v. Elo, 365 F.3d 487, 498 (6th Cir. 2004) (holding that where a




7
  Spikes argues that the district court should have granted his request for an evidentiary hearing
regarding his motivations for taking the plea. This Court reviews a district court’s denial of a request
for an evidentiary hearing for abuse of discretion. Getsy v. Mitchell, 495 F.3d 295, 310 (6th Cir.
2007) (en banc). A district court abuses its discretion where “it applies the incorrect legal standard,
misapplies the correct legal standard, or replies upon clearly erroneous findings of fact.” Id. (internal
quotations omitted). Section 2254(e)(2) sets forth certain preconditions to obtaining an evidentiary
hearing in a habeas proceeding, namely that the petitioner must attempt to develop a factual basis
of the claim in state court proceedings. If the petitioner fails to develop the factual record, then the
court shall not hold an evidentiary hearing unless the petitioner shows that the claim relies on new
constitutional law or a factual predicate that could not have been previously discovered. Id. The
Supreme Court has held that the petitioner must demonstrate diligence, at a minimum, by seeking
an evidentiary hearing in state court, in order for a court to consider granting an evidentiary hearing
on habeas review. Williams v. Taylor, 529 U.S. 420, 432 (2000). This Court finds that the district
court did not abuse its discretion in denying Spikes’ request for an evidentiary hearing. Spikes
showed no attempt to further develop the record in the state court proceedings and did not request
an evidentiary hearing when his claim was before Michigan state courts. Accordingly, the district
court did not abuse its discretion when it chose to rely on the state court record in reviewing Spikes’
claims.


                                                   17
No. 11-2451
Spikes v. Mackie

defendant receives the “bargained-for benefit” the plea is not illusory and he is not entitled to habeas

relief).

2.         Ineffective Assistance of Counsel

           Spikes asserts that his trial counsel provided ineffective assistance by allowing him to accept

the plea bargain without correcting the prosecutor’s misrepresentations regarding consecutive

sentencing and the applicable sentencing guidelines. Spikes contends that his counsel should have

corrected the prosecutor’s misstatements about the law and his failure to do so led Spikes to

erroneously enter a plea on the basis of avoiding consequences not even applicable to his offense.

           To demonstrate ineffective assistance of counsel with respect to a no contest plea, the

defendant must show that counsel’s performance was deficient and that the deficient performance

prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); see Hill v. Lockhart,

474 U.S. 52, 57–59 (1985) (holding that the Strickland test applies to challenges to guilty pleas

based on ineffective assistance of counsel).

           In analyzing the first prong—deficient performance—this Court presumes that counsel is

competent and the burden is on the petitioner to demonstrate a constitutional violation. United

States v. Pierce, 62 F.3d 818, 833 (6th Cir. 1995) (citing United States v. Cronic, 466 U.S. 648, 658

(1984)). There is an established deference that is afforded trial counsel in the area of plea

bargaining. Bray v. Andrews, 640 F.3d 731, 738 (6th Cir. 2011).

           In the context of guilty or no contest pleas, the “prejudice” requirement focuses on whether

counsel’s constitutionally ineffective performance affected the outcome of the plea process. Stated

differently, the defendant must show that there is a reasonable probability that, but for counsel’s


                                                     18
No. 11-2451
Spikes v. Mackie

errors, he would not have pleaded no contest and would have insisted on going to trial. Hill, 474

U.S. at 58–59. Moreover, he must show that there would have been a reasonable chance he would

have been acquitted had he gone to trial. Id. at 59.

       The Supreme Court has noted that “[e]stablishing that a state court’s application of

Strickland was unreasonable under § 2254(d) is all the more difficult.” Richter, 131 S. Ct. at 778.

The standards created by Strickland and § 2254(d) are both “highly deferential,” and when applied

together a court should be “doubly” deferent. Id. at 788 (internal quotations and citations omitted).

       The prosecutor’s representations as to the applicable sentencing range and potential sentence

Spikes would face if he proceeded to trial were inaccurate and potentially misleading. As the district

court noted, trial counsel should have researched the applicable sentencing guidelines and

appropriately notified Spikes of the potential sentence should Spikes proceed to trial. However,

even if this Court were to find that Spikes’ trial counsel’s performance was deficient in any respect,

Spikes’ claim fails on the second prong of Strickland. Spikes has not shown that he was

“prejudiced” in that he would have foregone the plea bargain but for his counsel’s failure to correct

the prosecutor’s misstatements about the potential sentence. Spikes has not even suggested in his

briefs that he would have proceeded to trial if his trial counsel had informed him of the accurate

sentencing guidelines. See Hill, 474 U.S. at 58–59. Furthermore, as the district court correctly

noted, the trial transcript clearly shows that Spikes’ main concern was the prospect of facing only

an additional four years beyond the sentence that he received in his assault case.

       Lastly, Spikes has not presented this Court any evidence or suggestion that had he gone to

trial he had a viable defense to the charges. As Spikes has offered no evidence to show that he


                                                 19
No. 11-2451
Spikes v. Mackie

would have gone to trial and that he had a viable defense if he proceeded to trial, this Court finds

that the lower court did not unreasonably apply clearly-established federal law.

3.      Removal from the Courtroom

        Spikes claims that his right to be present at all critical stages of the proceedings was denied

when the trial judge removed him from the courtroom during his sentencing hearing.

        A criminal defendant has a right to be physically present at every stage of his trial. Kentucky

v. Stincer, 482 U.S. 730, 745 (1987). However, a defendant can lose this privilege, “if, after he has

been warned by the judge that he will be removed if he continues his disruptive behavior, he

nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful

of the court that his trial cannot be carried on with him in the courtroom.” Illinois v. Allen, 397 U.S.

337, 343 (1970). When a court conducts criminal proceedings outside the presence of a defendant,

the lower court’s actions are subject to harmless error review. See United States v. Gallagher, 57

Fed. App’x. 622, 626–27 (6th Cir. 2003) (holding that a defendant must show that his presence at

a hearing would have been useful to show error in his removal). On habeas review, the test for

harmless error is whether it had a “substantial and injurious effect or influence” on the result of the

proceeding. Fry v. Pliler, 551 U.S. 112, 116 (2007).

        As noted above, during the sentencing hearing, defense counsel informed the trial court that

he had not had enough time to go over the sentencing guidelines with his client. Spikes then

informed the trial judge that he did not want trial counsel to continue representing him because there

had been a break down in communication and that, from his understanding, the plea he was taking

was four years and not twenty-six years. In response, the trial court ordered Spikes to be removed


                                                  20
No. 11-2451
Spikes v. Mackie

from the courtroom. Trial counsel then objected, stating that he was unable to effectively challenge

the guideline scoring without Spikes’ input. The trial court noted the objection, but then proceeded

with the sentencing and sentenced Spikes under the terms of the plea agreement.8

       On review, the district court found that Spikes should not have been removed from the

courtroom, but found the error to be harmless. We agree. Spikes’ behavior certainly did not rise

to the level of disruption outlined in Illinois v. Allen, 397 U.S. 337, 343 (1970). Spikes had barely

stated three sentences prior to being ejected from the courtroom. This does not rise to the level of

misconduct envisioned in Illinois v. Allen to warrant removal from the courtroom.

       Nonetheless, this Court finds that the error in removing Spikes from the courtroom in such

a quick fashion without cause was harmless. The trial court removed Spikes during his sentencing

hearing. At the time of the sentencing, the plea had already been entered and the trial court entered

a sentence that conformed to the exact terms to which Spikes pled. Furthermore, Spikes has

presented no evidence as to why he was prejudiced by not being in court during his sentencing.

Spikes was represented by counsel and his counsel was present during the entire sentencing hearing.

While it is true that the trial judge made factual findings on the scoring of offense variables after

Spikes was removed from the courtroom, any claim from Spikes regarding this procedure does not




8
  The trial court, in reviewing Spikes’ Motion for Relief from Judgment, reviewed Spikes’ removal
under the “plain error” standard. As this Court reviews a defendant’s removal from the courtroom
under a harmless error standard, the trial court’s actions are not subject to AEDPA deference.
However, this Court simply notes that the trial court found that no error existed in Spikes’ removal
from the courtroom.


                                                 21
No. 11-2451
Spikes v. Mackie

merit federal habeas relief, because there is no evidence that the outcome of the sentencing would

be different had Spikes been present.

4.     Denial of Counsel of Choice

       Spikes retained attorney Leroy Daggs to represent him in this matter. At some point in the

proceedings, Mr. Daggs was hospitalized. The trial court then appointed Robert Plumpe, a colleague

of Daggs, to represent Spikes. At a September 24, 2004 pretrial hearing, Plumpe informed the court

that Daggs was recently taken to a nursing home and it appeared that he would not be coming back.

At that time, Plumpe informed the court that Spikes was attempting to retain another attorney, but

that he would stay on as counsel if the attempt failed.

       At some point between the September 24, 2004 pretrial hearing and January 10, 2005,

another attorney, Rowland Short, was appointed to represent Spikes. On January 10, 2005, the court

held a hearing where Mr. Short withdrew as counsel, citing a breakdown in the relationship. The

trial court gave Spikes time to attain a new attorney, and notified him that the court would appoint

an attorney if he did not obtain one within the given time. Because Spikes did not retain a new

attorney within the given time, the court appointed James Anderson, who represented Spikes at a

final pretrial hearing, the plea proceeding, and at sentencing.

       The Sixth Amendment “guarantees the defendant the right to be represented by an otherwise

qualified attorney whom that defendant can afford to hire, or who is willing to represent the

defendant even though he is without funds.” United States v. Gonzalez-Lopez, 548 U.S. 140, 144

(2006) (internal quotations and citation omitted). However, the right to counsel of choice is not

absolute. Id. When a criminal defendant’s right to be assisted by counsel of one’s choice is wrongly


                                                 22
No. 11-2451
Spikes v. Mackie

denied, it is unnecessary for a reviewing court to conduct a full Strickland inquiry to establish a

Sixth Amendment violation. Id. at 148. “Deprivation of the right [to counsel of choice] is

‘complete’ when the defendant is erroneously prevented from being represented by the lawyer he

wants, regardless of the quality of the representation he received.” Id. However, when a criminal

defendant’s retained counsel becomes unavailable, it does not violate the defendant’s right to

counsel to require him to proceed with designated counsel. See United States v. Allen, 522 F.2d

1229, 1232–33 (6th Cir. 1975). When a trial court considers a defendant’s request to substitute

counsel in the middle of court proceedings, the court must balance an accused’s right to counsel of

his choice and the public’s interest in the prompt and efficient administration of justice. Wilson v.

Mintzes, 733 F.2d 424, 427–28 (6th Cir. 1984), aff’d on remand, 761 F.2d 275, 280–81 (6th Cir.

1985) (holding that when a defendant seeks substitution of counsel mid-trial, he must show good

cause, such as conflict of interest, a complete breakdown in communication, or an irreconcilable

conflict with his attorney to warrant substitution).

       The state court did not deny Spikes the right to be represented by the counsel of his choice.

Spikes argues that he was denied his counsel of choice (Leroy Daggs) when the trial court appointed

him counsel when Mr. Daggs was hospitalized. Spikes claims that “[o]ver [his] objection” he was

represented by James Anderson. Pet. Br. at 41. Spikes proceeds to argue that the trial court should

have considered his request for a continuance so that Mr. Daggs could have represented him.

       The trial court determined, in its order reviewing Spikes’ motion for relief from judgment,

that it did not err when it denied the motion for adjournment to substitute counsel. The court found

that Spikes waited to assert his right to hire different counsel immediately before the sentencing,


                                                 23
No. 11-2451
Spikes v. Mackie

after he had been represented by appointed counsel for almost six months. The trial court held that

the only prejudice Spikes was asserting was that he was forced to proceed with counsel not of his

choosing.

       The district court held that the state court did not deny Spikes the right to be represented by

counsel of his choice. The district court held that Spikes offered no objection to court appointed

counsel at the time the court appointed such counsel. While Spikes may have desired to retain

another attorney, the district court stated that there was no indication that he was able to secure his

services and therefore the district court ruled that Spikes’ claim did not have merit. Id.

       The Court finds that Spikes was not denied his Sixth Amendment right to counsel of his

choosing.   Spikes never objected to the court’s appointment of counsel, after Mr. Plumpe

represented to the trial court that Mr. Daggs was in the hospital. Furthermore, while Spikes notified

the trial court of his intention to retain new counsel in January 2005, the trial court warned Spikes

that if he was unable to retain new counsel, the court would appoint counsel. Spikes, once again,

did not object, when the court appointed James Anderson, after Spikes was unsuccessful in his

attempt to retain counsel.

       Spikes’ claim, at base, is that the trial court erred in not allowing him to proceed with Mr.

Daggs as his counsel of choice. However, the fact that Mr. Daggs was seriously ill and unable to

represent him does not mean Spikes was denied the right to counsel of choice. As the trial court and

district court properly recognized, a defendant’s right to counsel of choice is not violated when his

retained counsel becomes unavailable and the court requires him to proceed with designated counsel.

R. 8, District Court Op. at 19, PageID # 430 (citing Allen, 522 F.2d at 1232–33); see also Morris


                                                  24
No. 11-2451
Spikes v. Mackie

v. Slappy, 461 U.S. 1, 11–12 (1983) (noting that right to counsel of choice was not violated when

the trial court refused to grant a continuance when defendant’s counsel of choice was in the

hospital). While Spikes was entitled to counsel of his choosing, Spikes was not entitled to

unnecessarily delay court proceedings after being given over five months from the date his counsel

of choice was first hospitalized to the time of his plea to retain new counsel. The trial court’s

finding that Spikes was not denied his counsel of choice is not an unreasonable application of federal

law, and this Court finds that Spikes’ claim that he was denied counsel of choice is without merit.

5.     Ineffective Assistance of Appellate Counsel

       The standard for effective of assistance of counsel on appeal is the same standard set forth

in Strickland v. Washington. See Beasley v. United States, 491 F.2d 687, 692–93 (6th Cir. 1974).

The failure of an appellate attorney to object or raise an issue can constitute ineffective assistance

of counsel if it deprives the defendant of an opportunity for dismissal of the case or for success on

appeal. Willis v. Smith, 351 F.3d 741, 745 (6th Cir. 2003). To properly review a claim of ineffective

assistance of appellate counsel, a court must consider the merits of the issues not raised on direct

appeal. Willis, 351 F.3d at 745. However, counsel is not deemed ineffective for failing to file all

claims of arguable merit; rather, the question remains whether counsel’s errors have likely

undermined the reliability of, and confidence in, the result. Hill, 474 U.S. at 59–60.

       As this Court held in Willis v. Smith, 351 F.3d 741, 745 (6th Cir. 2003), to properly review

a claim of ineffective assistance of appellate counsel, a court must consider the merits of the issues

not raised on direct appeal. This Court, having already determined that the claims, raised and not




                                                 25
No. 11-2451
Spikes v. Mackie

raised, by Spikes’ appellate counsel were meritless, cannot find Spikes’ appellate counsel

ineffective.

                                              III.

       The district court’s denial of habeas corpus relief is AFFIRMED. Spikes has not shown that

the state trial court’s decision resulted in a decision that was “contrary to, or involved an

unreasonable application of, clearly established Federal law.” 28 U.S.C. § 2254(d).




                                               26
