                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 17a0620n.06

                                            No. 16-1687

                           UNITED STATES COURT OF APPEALS
                                                                                          FILED
                                                                                    Nov 09, 2017
                                FOR THE SIXTH CIRCUIT
                                                                                DEBORAH S. HUNT, Clerk
JARRHOD S. WILLIAMS,                                       )
                                                           )
     Petitioner-Appellant,                                 )
                                                           )
v.                                                         )
                                                                ON APPEAL FROM THE
                                                           )
                                                                UNITED STATES DISTRICT
DEWAYNE BURTON,                                            )
                                                                COURT FOR THE EASTERN
                                                           )
                                                                DISTRICT OF MICHIGAN
     Respondent-Appellee.                                  )
                                                           )
                                                           )
                                                           )
                                                           )


BEFORE: KEITH, ROGERS, and McKEAGUE, Circuit Judges.

       DAMON J. KEITH, Circuit Judge.                 Jarrhod Williams (“Williams”), a Michigan

prisoner proceeding through counsel, appeals a district court judgment denying his petition for a

writ of habeas corpus filed pursuant 28 U.S.C. § 2254. In his petition, Williams primarily raised

claims of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984),

and also requested an evidentiary hearing. The district court denied the petition on the merits,

but granted a Certificate of Appealability on the issue of whether an evidentiary hearing should

be granted. The Certificate of Appealability was later expanded by this court to include three of

petitioner’s substantive claims. Because the district court did not abuse its discretion in failing to

grant an evidentiary hearing, nor otherwise err in its decision to deny Williams’ petition on the

merits, we affirm.




                                                   
 
No. 16-1687, Williams v. Burton


                                   I.      BACKGROUND

       A. Underlying State Court Proceedings

       In 2007, D’Anglo Savage and Tommy Haney were shot to death while sitting in a parked

vehicle in Detroit. People v. Williams, No. 292909, 2010 WL 4026077, at *1 (Mich. Ct. App.

Oct. 14, 2010). The Detroit Police arrested Williams shortly after their deaths. Id. During

questioning following his arrest, Williams confessed to shooting multiple rounds from an AK-47

assault rifle into Savage’s vehicle in order to avenge the deaths of Williams’ cousins, who were

killed two days earlier. Id. On July 10, 2007, Williams was arraigned before Wayne County

Circuit Court Judge David Allen on two counts of first-degree premeditated murder, and one

count of possession of a firearm during the commission of a felony (“felony firearm”). Judge

Allen thereafter presided over a bench trial in the matter, which began on March 26, 2008.

       During the bench trial, the prosecutor presented evidence that Williams was the only

shooter (hereafter referred to as the “one-shooter theory”). This theory was based on a Detroit

Police Department investigation and related forensic testing.        However, experts from the

Michigan State Police testified that shell casings recovered from the crime scene actually showed

the presence of two guns, as opposed to one. This expert testimony raised serious questions

about the accuracy of the forensic testing underlying the prosecution’s theory of the case. Judge

Allen eventually declared a mistrial and subsequently recused himself. The case was then

reassigned to Judge Timothy Kenny.

       Before the re-trial, the prosecution offered a plea deal to drop the two first-degree murder

charges if Williams pled no contest to a new charge of second-degree murder and to the felony-

firearm charge. Under that agreement, Williams would be sentenced to twelve to thirty years in

prison for second-degree murder, and a consecutive two-year term for felony firearm. Williams



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No. 16-1687, Williams v. Burton


accepted the plea and sentencing was scheduled; however, prior to sentencing, Williams moved

to withdraw his plea and the trial court granted his motion.

       On March 5, 2009, at a hearing before the second trial was commenced, Williams’ trial

counsel Marvin Barnett (“Barnett”) appeared before Judge Kenny to argue various pretrial

motions. During a soliloquy, Barnett stated on the record that he never negotiates with the

prosecutor’s office.    Barnett further stated that the deal for his client, Williams, was

inappropriate and that he was not willing to trade two deaths for ten years, noting that “[t]he

bodies of these persons were worth more than 10 to 12 years and it was wrong . . . . I’m fighting

for everybody here today and the family.”

       Later in the hearing, Barnett asserted that the prosecution should not be permitted to

deviate from the one-shooter theory at the second trial and should not be able to argue that

Williams was guilty under the theory that he aided and abetted a second shooter. Barnett

acknowledged that his argument was a “stretch,” and that he only brought it up because of

something the prosecutor said “during this [h]earing.” Judge Kenny rejected this argument.

After Williams’ second trial, a jury convicted him on all counts, and he was sentenced to two life

terms in prison without the possibility of parole, and to a consecutive two-year term for the

felony-firearm conviction.

       Williams’ convictions and sentence were affirmed on appeal, and the Michigan Supreme

Court denied leave to appeal. People v. Williams, 795 N.W.2d 24 (Mich. 2011). Williams then

filed a Motion for Relief from Judgment pursuant to Michigan Court Rule 6.500, which the trial

court denied. The court of appeals and the Michigan Supreme Court subsequently denied leave

to appeal.




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No. 16-1687, Williams v. Burton


       B. Procedural History

       On June 14, 2014, Williams filed a petition for a writ of habeas corpus under 28 U.S.C.

§ 2254, raising the following claims: (1) denial of due process when the trial court, in its decision

denying his Rule 6.500 motion, erroneously deemed procedurally barred his claim that trial

counsel performed ineffectively by wrongly advising him about the one-shooter theory, which

led to his plea withdrawal; (2) trial counsel performed ineffectively by wrongly advising him

about the one-shooter theory at his second trial and because counsel also had conflicts of interest;

and (3) appellate counsel performed ineffectively by failing to raise the above claims regarding

his trial counsel’s performance. Williams also moved for an evidentiary hearing.

       The district court denied Williams’ motion for an evidentiary hearing and denied the

petition, but granted a Certificate of Appealability on the issue of whether the district court

should have granted an evidentiary hearing. Williams filed a timely notice of appeal on May 24,

2016, and this Court subsequently expanded the Certificate of Appealability to add the following

claims: (1) whether Williams was denied due process when the district court concluded that

Williams’ ineffective assistance of counsel claim, related to the prosecution’s one-shooter

theory, had been addressed in state court; (2) the underlying substantive claim concerning

counsel’s advice on the one-shooter theory at trial, and whether such advice amounted to

ineffective assistance of counsel; and, (3) Williams’ ineffective assistance of appellate counsel

argument concerning trial counsel’s performance with regard to the one-shooter theory.

                                    II.     DISCUSSION

                               A.         Standard of Review

       In an appeal from a district court’s denial of a § 2254 petition, we review the district

court’s legal conclusions de novo and its factual findings for clear error. Dando v. Yukins,



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No. 16-1687, Williams v. Burton


461 F.3d 791, 795-96 (6th Cir. 2006). Under the Antiterrorism and Effective Death Penalty Act

of 1996 (“AEDPA”), a federal court may not grant habeas relief with respect to a claim

adjudicated on the merits in state court unless the state court’s adjudication “resulted in a

decision that was contrary to, or involved an unreasonable application of, clearly established

Federal law,” or “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)(1)-

(2). “A state court’s decision is contrary to clearly established federal law where ‘the state court

arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if

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

indistinguishable facts.’” Muniz v. Smith, 647 F.3d 619, 623 (6th Cir. 2011) (quoting Terry

Williams v. Taylor, 529 U.S. 362, 412-13 (2000)). “A state court’s decision is an unreasonable

application of clearly established federal law if ‘the state court identifies the correct governing

legal principle from [the Supreme Court]’s decisions but unreasonably applies that principle to

the facts of the prisoner’s case.’” Muniz, 647 F.3d at 623 (quoting Terry Williams, 592 U.S. at

413).

        On habeas review, the “proper inquiry” is “whether the state court decision was

objectively unreasonable and not simply erroneous or incorrect.” Keith v. Mitchell, 455 F.3d

662, 669 (6th Cir. 2006) (citing Terry Williams, 529 U.S. at 409-11). When “applying the

‘unreasonable application’ clause, a reviewing court must be careful not to substitute its own

judgment for that of the state court . . . .” Harris v. Haeberlin, 526 F.3d 903, 910 (6th Cir.

2008). Under AEDPA, “a state prisoner must show that the state court’s ruling on the claim

being presented in federal court was so lacking in justification that there was an error . . . beyond

any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).



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                                            B.    Analysis

        1.   The District Court Did Not Abuse Its Discretion In Denying Williams an
             Evidentiary Hearing

        Williams argues that the district court erred by failing to grant an evidentiary hearing or

by failing to remand to the state court for such a hearing. “We review a district court’s denial of

a habeas evidentiary hearing for an abuse of discretion.” Muniz, 647 F.3d at 625 (citation

omitted). “Under 28 U.S.C. § 2254(e)(2), if [a petitioner] for habeas relief ‘has failed to develop

the factual basis of a claim in State court proceedings,’ a district court may not grant an

evidentiary hearing on the claim unless the [petitioner] shows that:

                (A) the claim relies on –

                       (i) a new rule of constitutional law, made
                       retroactive to cases on collateral review by the
                       Supreme Court, that was previously unavailable; or

                       (ii) a factual predicate that could not have been
                       previously discovered through the exercise of due
                       diligence; and

                (B) the facts underlying the claim would be sufficient to establish
                by clear and convincing evidence that but for constitutional error,
                no reasonable factfinder would have found the [petitioner] guilty
                of the underlying offense.”

Robinson v. Howes, 663 F.3d 819, 823-24 (6th Cir. 2011) (quoting 28 U.S.C. § 2254(e)(2)(A)-

(B)).

        “The strictures of § 2254(e)(2)(A)-(B) do not apply, however, where [a petitioner] has

not failed to develop – i.e., has been diligent in developing – the factual basis of his claim in state

court.” Robinson, 663 F.3d at 824 (citing Michael Williams v. Taylor, 529 U.S. 420, 432

(2000)). “Diligence . . . depends upon whether the prisoner made a reasonable attempt, in light

of the information available at the time, to investigate and pursue claims in state court.” Michael



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No. 16-1687, Williams v. Burton


Williams, 529 U.S. at 435. “A petitioner whose efforts to develop his claims were rebuffed by

the state court may still be deemed ‘diligent.’” Richey v. Bradshaw, 498 F.3d 344, 351 (6th Cir.

2007) (quoting Michael Williams, 529 U.S. at 435). “Where an applicant has been diligent, the

decision to grant an evidentiary hearing is left to the district court’s sound discretion.” Robinson,

663 F.3d at 824 (citing Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (noting that AEDPA did

not change the “basic rule” that the decision to grant an evidentiary hearing is left to the

discretion of the district courts, though AEDPA deference should guide the decision)).

       As a preliminary matter, the district court did not rule on whether 28 U.S.C. § 2254(e)(2)

precluded an evidentiary hearing because the district court concluded that “even if the statute did

not bar an evidentiary hearing, the [c]ourt would exercise its discretion not to hold a hearing.”

We hold that 28 U.S.C. § 2254(e)(2) does not bar an evidentiary hearing here because Williams

met the requirement that a defendant make “a reasonable attempt, in light of the information

available at the time, to investigate and pursue claims in state court . . . .” Michael Williams,

529 U.S. at 435.    Indeed, prior to requesting an evidentiary hearing before the district court,

Williams sought an evidentiary hearing in his Motion for Relief from Judgment pursuant to

Michigan Court Rule 6.500 before Judge Kenny in state court.

       Judge Kenny did not deny Williams an evidentiary hearing because he “failed to develop

. . . the factual basis of his claim . . . .” Robinson, 663 F.3d at 824 (citing Michael Williams,

529 U.S. at 432). Williams was sufficiently diligent in trying to develop the factual basis of his

ineffective assistance of counsel claim in state court, even though he was ultimately unsuccessful

in doing so. Accordingly, 28 U.S.C. § 2254(e)(2) does not categorically bar Williams’ request

for an evidentiary hearing.




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No. 16-1687, Williams v. Burton


       With respect to the issue of whether the district court then abused its discretion in

denying Williams’ request for an evidentiary hearing, the district court did not do so. “[I]f the

record refutes the applicant’s factual allegations or otherwise precludes habeas relief, a district

court is not required to hold an evidentiary hearing.” Schriro, 550 U.S. at 474. “[N]o hearing is

required if the petitioner’s allegations cannot be accepted as true because they are contradicted

by the record [or] inherently incredible.” Arredondo v. United States, 178 F.3d 778, 782 (6th

Cir. 1999).

       Here, the district court determined that an evidentiary hearing was unnecessary because it

found implausible “Williams’ argument that he withdrew his plea[] based upon Barnett’s bad

advice about the Prosecution’s [o]ne-[s]hooter Theory.” The district court highlighted two parts

of the record that made Williams’ claim implausible. First, Williams previously explained to the

state courts, on direct appeal, why he withdrew from his plea agreement; this explanation did not

mention erroneous advice regarding the prosecutor’s inability to put forth a “one-shooter”

theory. Second, when Williams’ trial counsel raised the theory during a motions hearing prior to

the commencement of the second trial, counsel told the judge that he was “making it up,” and

that he wouldn’t even “bother to brief it.”

       The district court’s decision, bolstered by the aforementioned points, does not amount to

an abuse of discretion.     Williams’ ineffective assistance of trial counsel claim is indeed

contradicted by the record in numerous ways.         As previously mentioned, Williams earlier

provided an explanation of his plea withdrawal that is at odds with his current argument

premised on bad advice about the one-shooter theory. The district court stated: “If, as petitioner

now claims, his trial counsel had actually advised [Williams] that he should withdraw his pleas

because the prosecution would be stuck with the Prosecution’s [o]ne-[s]hooter Theory at his re-



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No. 16-1687, Williams v. Burton


trial, [Williams] surely would have pointed that fact out to the state appellate court in his pro se

brief.” Moreover, Barnett’s representations to the trial court suggest that he himself found little

veracity in the advice that he purportedly gave to Williams regarding the one-shooter theory. If

Barnett did not believe this theory had merit, it is unlikely that he would have encouraged

Williams to withdraw from his plea agreement on the basis of it. Taken together, these points

thoroughly support the district court’s determination that William’s claim of ineffective

assistance of counsel, as it relates to purported erroneous advice given by Barnett, was

implausible. Accordingly, we affirm the district court’s decision to deny Williams’ request for

an evidentiary hearing because it was not an abuse of discretion.

       2. Williams Was Not Denied Due Process

       Williams argues that he was denied due process when the state trial court erroneously

stated that it was procedurally barred from considering his ineffective assistance of counsel claim

related to advice about the prosecution’s mandatory adherence to the one-shooter theory.  For the

reasons that follow, this argument misses the mark.   

       In rejecting Williams’ ineffective assistance of counsel claim based on trial counsel’s

alleged erroneous advice that the prosecution would be limited to the one-shooter theory at a

second trial, the district court concluded that the state trial court, in denying Williams Rule 6.500

motion, addressed the claim on the merits. The district court further noted that “Judge Kenny did

not unreasonably apply Strickland when he declined to grant relief based on [Williams’] claim

that he withdrew his plea because his trial counsel provided him erroneous advice concerning the

Prosecution’s one-shooter theory.” The district court then proceeded to address the merits, and

in applying AEDPA deference, found that Williams made no offer of proof that he withdrew his




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No. 16-1687, Williams v. Burton


plea because of counsel’s erroneous advice regarding the one-shooter theory, and thus the trial

court was justified in denying relief on this claim.

       Under Sixth Circuit precedent, the district court erred by applying AEDPA deference to

Williams’ claim of ineffective assistance of counsel with respect to trial counsel’s advice

pertaining to the one-shooter theory. See Maples v. Stegall, 340 F.3d 433, 437 (6th Cir. 2003)

(holding that, to the extent no state court had decided the claim in question, the claim would be

subject to de novo review). AEDPA deference was deemed inappropriate in Maples because the

Michigan courts declined to evaluate the merits of the petitioner’s federal ineffective assistance

of counsel claims. Id. at 435-36; see also People v. Maples, No. 196975, 1997 WL 33339368, at

*1 (Mich. Ct. App. Nov. 4, 1997), aff’d, People v. Maples, 584 N.W.2d 738 (1998). Here, Judge

Kenny’s statement regarding the absence of evidence was premised on, and made within the

context of, an ineffective assistance of counsel claim pertaining to a strategy of attacking the

Detroit Police Department’s investigation, not an ineffective assistance of counsel claim

regarding the advice trial counsel gave on the prosecution being limited to the one-shooter

theory. The district court’s holding on this issue was therefore incorrect, and thus, the district

court erred in concluding that Williams’ new ineffective assistance of counsel claim had been

addressed on the merits. When “the state court [does] not assess the merits of a claim properly

raised in a habeas petition, the deference due under AEDPA does not apply.” Maples, 340 F.3d

at 436 (citing Williams v. Coyle, 260 F.3d 684, 706 (6th Cir. 2001)).   

       However, the consequence of that error is that the claim may be reviewed de novo by this

court – the error does not constitute a denial of due process. As the State correctly notes in its

brief, no authority supports the argument that a procedural mistake by a state court that is later




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No. 16-1687, Williams v. Burton


erroneously endorsed by the district court amounts to a denial of due process. Therefore, we

affirm the district court’s decision with respect Williams’ due process claim.

       3. Williams Was Not Denied Effective Assistance Of Trial Counsel

       Williams also maintains that the district court erred in concluding that the state court’s

denial of his ineffective assistance of counsel claims was not an unreasonable application of

Strickland. The Supreme Court has held that defendants have a Sixth Amendment right to

counsel that extends to the plea-bargaining process. Lafler v. Cooper, 566 U.S. 156, 162 (2012).

“During plea negotiations defendants are ‘entitled to the effective assistance of competent

counsel.’” Id. (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). In Hill v. Lockhart,

the Supreme Court held that “the two-part Strickland v. Washington test applies to challenges to

guilty pleas based on ineffective assistance of counsel.”         474 U.S. 52, 58 (1985).       The

performance prong of Strickland requires a defendant to show “‘that counsel’s representation fell

below an objective standard of reasonableness.’” Strickland v. Washington, 466 U.S. 668, 688

(1984). To establish Strickland prejudice, 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.” Id. at 694. “In the context of pleas a defendant must show the outcome of the

plea process would have been different with competent advice.” Lafler, 566 U.S. at 163 (citation

omitted); see also Hill, 474 U.S. at 59 (“The . . . ‘prejudice,’ requirement . . . focuses on whether

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

       In Lafler, the Supreme Court further qualified the standard for ineffective assistance of

counsel claims with respect to a defendant’s rejection of a plea, when “[h]aving to stand trial, not

choosing to waive it, is the prejudice alleged.” Lafler, 566 U.S. at 163-64. The Court noted as

follows:



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No. 16-1687, Williams v. Burton


           In these circumstances a defendant must show that but for the ineffective
           advice of counsel there is a reasonable probability that the plea offer would
           have been presented to the court (i.e., that the defendant would have accepted
           the plea and the prosecution would not have withdrawn it in light of
           intervening circumstances), that the court would have accepted its terms, and
           that the conviction or sentence, or both, under the offer’s terms would have
           been less severe than under the judgment and sentence that in fact were
           imposed.
            
Id. at 164.
 
        Applying de novo review, and for the reasons mentioned in Section 1 of this opinion,

Williams has failed to demonstrate that trial counsel was ineffective for advice leading to the

plea withdrawal. The record lacks any evidence that Barnett ever believed the prosecution

would be estopped from pursuing an aiding-and-abetting theory. Furthermore, nothing in the

record suggests that Barnett thought of this argument early enough to advise Williams on it.

Lastly, Williams signed a pleading in state court explaining why he withdrew his plea, and this

pleading wholly fails to mention reliance on erroneous advice from trial counsel regarding a

“one-shooter” or aiding-and-abetting theory.

       The evidence in the record refutes Williams’ ineffective assistance of trial counsel claim

as it relates to the plea withdrawal. Accordingly, as Williams has failed to meet the deficient

performance prong of Strickland, we need not analyze the prejudice prong. The district court’s

decision on this issue is affirmed.

       4. Williams Was Not Prejudiced By Ineffective Assistance of Appellate Counsel

       Williams next argues that his appellate counsel’s performance was deficient because he

failed to raise the claims regarding his trial counsel’s deficient performance on direct appeal.

AEDPA deference applies to this claim because the state court addressed it on the merits. See

Harrington, 562 U.S. at 101. As previously mentioned, this means that a “habeas corpus petition

filed by a state prisoner shall be denied with respect to any claim that was ‘adjudicated on the

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No. 16-1687, Williams v. Burton


merits in State court’ unless the petitioner can demonstrate that the state court decision was

‘contrary to, or involved an unreasonable application of, clearly established Federal law’ or

involved an ‘unreasonable determination of the facts.’” Kelly v. Lazaroff, 846 F.3d 819, 831 (6th

Cir. 2017) (quoting 28 U.S.C. § 2254). “[T]he state court’s decision must have been more than

incorrect or erroneous.” Wiggins v. Smith, 539 U.S. 510, 520 (2003) (citing Lockyer v. Andrade,

538 U.S. 63, 75 (2003)). Rather, “[t]he state court’s application must have been ‘objectively

unreasonable.’” Wiggins, 539 U.S. at 520-21 (quoting Terry Williams, 529 U.S. at 409).

        “AEDPA deference is made more deferential still where the underlying substantive law

requires this court to defer to another reasoned decision-maker on review.” Kelly, 846 F.3d at

831. “Claims of ineffective assistance of appellate counsel are subject to the Strickland test,

which requires a defendant to show both deficient representation and prejudice.” Evans v.

Hudson, 575 F.3d 560, 564 (6th Cir. 2009) (citing Mahdi v. Bagley, 522 F.3d 631, 636 (6th Cir.

2008)). Under Strickland, “counsel is strongly presumed to have rendered adequate assistance

and made all significant decisions in the exercise of reasonable professional judgment.”

466 U.S. at 690. “[T]his is a deferential standard that is challenging for a claimant to meet.”

Kelly, 846 F.3d at 831.

       Where a state habeas petitioner’s claims are subject to AEDPA, Strickland’s deferential

standard “is raised even higher, as the petitioner must show that the state court’s application of

Strickland was itself unreasonable.” Id. at 832. This amounts to a “doubly deferential standard

of review that gives both the state court and the defense attorney the benefit of the doubt.” Burt

v. Titlow, 134 S. Ct. 10, 13 (2013) (internal quotation marks omitted). Stated differently,

AEDPA mandates that the court “take a highly deferential look at counsel’s performance through




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No. 16-1687, Williams v. Burton


the deferential lens of § 2254(d).” Cullen v. Pinholster, 563 U.S. 170, 190 (2011) (internal

quotation marks omitted).

       With respect to whether appellate counsel was ineffective for failing to raise on appeal

trial counsel’s inaccurate advice related to the one-shooter theory, Judge Kenny concluded that

the “contention is without merit because the appellate counsel’s decision to winnow out weaker

arguments and focus on those more likely to prevail is not evidence of ineffective assistance.”

Judge Kenny further stated that the court “will not second-guess strategies appellate counsel

employed.” Moreover, Williams did not give the state court or the district court reason to

believe that appellate counsel knew, or should have known, that Williams’ trial counsel gave

erroneous advice regarding the one-shooter theory.        Under the doubly-deferential lens of

AEDPA and Strickland, Williams has not demonstrated that his appellate counsel rendered

deficient performance. Williams cannot shift the burden of trial counsel’s possible failings to his

appellate counsel. We therefore affirm the district court’s decision denying Williams’ claim for

ineffective assistance of appellate counsel.

                                     III.      CONCLUSION

       For the foregoing reasons, we AFFIRM the district court’s decision.




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