                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 08a0549n.06
                           Filed: September 9, 2008

                                              No. 06-5873

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT


JAMES ALLEN PETERS,                                 )
                                                    )
        Petitioner-Appellant,                       )
                                                    )
v.                                                  )    ON APPEAL FROM THE UNITED
                                                    )    STATES DISTRICT COURT FOR THE
LARRY CHANDLER, Warden,                             )    WESTERN DISTRICT OF KENTUCKY
                                                    )
        Respondent-Appellee.                        )


        Before: SUHRHEINRICH, CLAY and COOK, Circuit Judges.


        COOK, Circuit Judge. Petitioner James Allen Peters appeals from the district court’s

dismissal of his petition for a writ of habeas corpus. Peters is serving a thirty-five year sentence after

pleading guilty to first-degree rape and first-degree assault and then unsuccessfully attempting to

withdraw his plea. Peters argues: (1) that he was denied effective assistance of counsel at his motion

to withdraw his guilty plea; (2) that the trial court should have given him a Faretta warning before

he argued his motion to withdraw; and (3) that he was denied effective assistance of counsel when

his appointed counsel failed to obtain an expert opinion about whether his victim’s injuries sufficed

to support a first-degree rape charge. Finding no merit in Peters’s claims, we affirm.


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       In 1996, Christy Pierce entered a hospital with ligature marks around her neck, wrists, and

ankles. Blood was pooling in her eyes. Pierce reported that while she slept, Peters, her roommate,

strangled her with a rope until she passed out, tied her feet and hands with tape, and raped her. The

examining doctor found blistered hemorrhages in Pierce’s conjunctiva (the membrane that lines the

eyelids), rope burns around her neck, and petechia (purplish-red spots caused by intradermal

hemorrhage) on her neck, face, and eardrums. Her body was bruised, but an examination of her

genitalia revealed no bleeding or lacerations.


       A Kentucky grand jury charged Peters with first-degree rape and first-degree assault. Upon

arraignment, the trial court appointed public defender Thomas Hall to represent Peters; Hall in turn

arranged for public defender Anne Hardy to assist him. On the day set for trial, Peters pleaded

guilty, accepting the prosecution’s recommended thirty-five year sentence on the rape charge and

twenty-year sentence on the assault charge, with the sentences to run concurrently. But prior to final

sentencing, Peters moved pro se to withdraw his plea, arguing “that it was not knowingly,

intelligently and voluntarily entered.” Peters also notified the court that his counsel informed him

“that they will be unable to represent him in this motion, and thus Defendant . . . requests that the

court appoint alternative counsel to represent him at this and all subsequent hearings.”


       Before a hearing on the motion, Hardy requested to withdraw as Peters’s lawyer on the

grounds that she recommended to Peters that he enter the plea. The trial court allowed Hardy to

withdraw, but only on the condition that Hall remain as Peters’s “counsel of record.” Peters stood


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Peters v. Chandler


before the bench and stated no objection to Hardy’s withdrawal. In fact, when the court indicated

that Hall would continue as counsel, Peters nodded his head in agreement.


        The court then asked Peters if he wanted to argue the motion to withdraw himself. Peters

replied, “Yes, Your Honor,” and addressed the court with Hall by his side. Peters explained that,

the week he entered his plea, he was sick with the flu, suffering a fever, chills, and stomach cramps,

and unable “to handle intellectually the argument about whether [to] enter a guilty plea.” On top of

that, Peters alleged that “there were several things told to me . . . that were not correct” and accused

his lawyers of incorrectly reporting that one of his primary witnesses had been called to testify for

the prosecution and that another was in jail.


        The court responded by reviewing events prior to accepting Peters’s plea. It reminded Peters

of the in-chambers meeting where the court meticulously ascertained that Peters was entering the

plea voluntarily, knowingly, and of his free will. The court noted that, in addition to going over the

written plea, it explained Peters’s rights to him in the presence of counsel and found him competent

to enter the plea. In addition, when the court asked Peters if he committed the charged crimes, Peters

replied, “I’m guilty, Your Honor.” Finally, the court noted that Peters graduated from college and

completed some graduate education. In view of these facts, the court overruled Peters’s motion.

Afterwards, Hall stood at the bench and discussed future proceedings with the court.


        Peters then filed a pro se motion for reconsideration, supplying affidavits from two inmates

confirming his illness. When Peters appeared with Hall for final sentencing and consideration of this

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motion, the court praised Hardy and Hall for doing a “commendable job” representing Peters. As

to Peters’s motion, the court found that neither an illness nor anything else indicated an inability to

knowingly and voluntarily plead guilty. After repeating that Peters admitted guilt, the court

overruled his motion to withdraw his plea and sentenced him to thirty-five years for the rape charge

and twenty years for the assault charge, as recommended by the plea agreement.


        Having exhausted his Kentucky remedies, Peters petitioned for habeas corpus relief under

28 U.S.C. § 2254. The district court dismissed Peters’s petition but granted a Certificate of

Appealability on two issues, which we expanded to include a third issue. Peters now appeals.


                                                  II


       We review de novo a district court’s judgment denying habeas corpus relief. Bey v. Bagley,

500 F.3d 514, 518 (6th Cir. 2007). The Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”) governs our review because Peters filed his petition after AEDPA’s effective date.

Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007). AEDPA prohibits habeas relief with respect

to any claim adjudicated on the merits in the state courts, unless the adjudication resulted in (1) a

decision contrary to, or involving an unreasonable application of, clearly established federal law as

determined by the Supreme Court; or (2) a decision based on an unreasonable determination of the

facts in light of the evidence presented to the state courts. 28 U.S.C. § 2254(d).




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       AEDPA’s “contrary to” clause allows habeas relief if the state court arrives at a conclusion

opposite to that reached by the Supreme Court on a question of law, or decides a case differently than

the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S.

362, 405 (2000). AEDPA’s “unreasonable application” clause, by contrast, allows habeas relief 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 petitioner’s case. Id. at 413.


       In analyzing whether a state court decision is “contrary to” or an “unreasonable application

of” clearly established Supreme Court precedent, we only look to the holdings of the Supreme

Court’s decisions as of the time of the relevant state-court decision. Lockyer v. Andrade, 538 U.S.

63, 71–72 (2003); See also Williams, 529 U.S. at 412. We also look to courts of appeals’ decisions,

not as binding precedent, but to inform our analysis of Supreme Court holdings and to determine

whether the Supreme Court had clearly established a legal principle. See Hill v. Hofbauer, 337 F.3d

706, 716 (6th Cir. 2003). Finally, we presume that the state court’s factual findings are correct,

unless Peters rebuts that presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1);

McAdoo v. Elo, 365 F.3d 487, 493-94 (6th Cir. 2004).


A.     Ineffective Assistance of Counsel During Peters’s Motion to Withdraw the Guilty Plea


       Peters claims that he was denied effective assistance of counsel during his motion to

withdraw when the trial court allowed Hall to remain as counsel. According to Peters, Hall was



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placed in the impossible position of advocating his own alleged misconduct or taking a position

contrary to that of his client, an actual conflict that precluded Hall from representing Peters.


        On direct appeal, the Kentucky Supreme Court rejected this claim, concluding that Peters was

not denied the assistance of counsel because the trial court insisted that Hall remain as counsel

before permitting Hardy to withdraw and because Hall stood with Peters during the proceeding. The

court also found that Hall’s representation was not illusory due to any conflict of interest, noting that

Peters offered no evidence supporting the misrepresentation charge and made no specific objection

to Hall continuing as counsel of record. AEDPA limits our inquiry to determining whether the

Kentucky Supreme Court’s decision was contrary to, or an unreasonable application of, clearly

established federal law as determined by the Supreme Court, and the decision suffices under this

standard.


        Where a defendant’s Sixth Amendment right to counsel attaches, the right is denied when

an attorney’s actual conflict of interest adversely affects his performance. See Mickens v. Taylor,

535 U.S. 162, 166 (2002); Cuyler v. Sullivan, 446 U.S. 335, 344 (1980); see also Whiting v. Burt,

395 F.3d 602, 611 (6th Cir. 2005) (“[A] [mere] claim of a conflict of interest, by itself, is insufficient

to justify reversal of a conviction.”). Although Peters posits that a conflict of interest at a hearing

on a motion to withdraw a guilty plea deprives a defendant of counsel at a “critical stage” under

Mempa v. Rhay, 389 U.S. 128, 134 (1967), he fails to rebut the Kentucky Supreme Court’s

conclusion that Hall’s representation was not illusory. Peters’s motion to withdraw did not mention


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Peters v. Chandler


any conflict with Hall; nor did Hall perceive one. Finally, when the trial court allowed Hardy to

withdraw while advising Peters that Hall would remain, Peters nodded his head in agreement. DVD

of Motion to Withdraw at 11:00:54.


       The court, having confirmed the absence of any conflict, then asked Peters if he would like

to present the motion to withdraw himself. Peters agreed and argued that illness prevented him from

knowingly and intelligently pleading guilty. Although Peters did mention that “several things told

to him were not correct,” Peters never accused Hall of forcing him to plead or misrepresenting facts.

It was only during post-conviction proceedings that Peters first accused his attorneys of coercion.

Even then, Peters blamed Hardy, not Hall, for the alleged misrepresentations about the status of two

witnesses. And to the extent that Hall failed to act during the motion to withdraw, that worked to

respect Peters’s decision to argue the motion himself, the consequences of which Peters cannot now

escape by pointing to Hall’s inactivity. Peters opted for hybrid representation by consenting to Hall

remaining as counsel but deciding to argue the motion himself, and this distinguishes this case from

those the dissent cites. Moreover, Hall remained at Peters’s side, available to consult with Peters

before and during the motion.


 B.    The State Trial Court’s Failure to Give a Faretta Warning


       Peters makes the related complaint that the state trial court violated the principles of Faretta

v. California, 422 U.S. 806, 835 (1975), by failing to ensure that he waived his right to counsel with

his “eyes wide open” before allowing him to argue his motion to withdraw pro se. Appellant’s Br.

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14. The Kentucky Supreme Court dismissed this claim on direct appeal, finding no reversible error

because Peters was never without the assistance of counsel and was therefore not denied his

constitutional rights, and because the trial court did not abuse its discretion in rejecting Peters’s plea

withdrawal.


        The Constitution protects a criminal defendant’s right to present his own defense and to be

represented by counsel. Faretta, 422 U.S. at 833–34. When a defendant opts to present his own

defense, he waives the right to representation. Id. at 835; see also United States v. Cromer, 389 F.3d

662, 680 (6th Cir. 2004). A court, therefore, must ensure that waiver is knowing and intelligent.

Faretta, 422 U.S. at 835. Peters contends the Kentucky Supreme Court impermissibly excused the

trial court’s failure to do so by finding that he was never without counsel. We disagree.


        In Cromer, we canvassed federal authority regarding when Faretta warnings are required.

Noting “conflicting authority,” we found that most courts “have held that there is a presumption

against a waiver of counsel, and that Faretta warnings are only required when a defendant has clearly

and unequivocally asserted his right to proceed pro se.” See 389 F.3d at 680-81 (collecting cases).

At issue here is a type of hybrid representation similar to that in Cromer, where a federal defendant

charged with drug trafficking and firearms possession requested permission from the district court

to personally cross-examine a witness, even though the defendant had appointed trial counsel. Id.

at 679-80. The district court allowed this without providing a Faretta warning. Id. On appeal, the

defendant argued that this violated his Sixth Amendment rights because the district court did not


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explicitly find that he had knowingly and voluntarily waived his right to counsel. Id. We disagreed,

holding that because Cromer never “clearly and unequivocally” asked to proceed pro se, the court

was not required to secure a waiver of his right to counsel before permitting him to cross-examine

the witness. Id. at 682-83 (acknowledging that, in hybrid representation cases, some courts require

Faretta warnings before defendant assumes “core functions” of counsel).


       Peters made no clear and unequivocal demand to proceed pro se. Instead, his motion to

withdraw his plea requested appointment of counsel, and when the trial court indicated to him that

Hall would remain his lawyer, Peters nodded his head in agreement. And while Peters spoke with

the court directly about his motion to withdraw his guilty plea, Hall remained for all other purposes:

Hall conversed with the court immediately after Peters’s argument, represented Peters through the

judgment of conviction, filed a notice of appeal, and sent Peters’s case to the Department of Public

Advocacy. As no clearly established Supreme Court precedent required a Faretta warning in these

circumstances, the Kentucky Supreme Court’s decision was not unreasonable.


C.     Counsel’s Failure to Obtain Expert Opinion


        In his post-conviction proceedings, Peters argued that trial counsel should have sought expert

opinion about whether Pierce’s injuries sufficed to support the charges against him. The Kentucky

Court of Appeals refused to consider this claim on its merits, reasoning Peters should have raised

it in his direct appeal. The court conceded that “it is somewhat unusual for a defendant to challenge

trial counsel’s performance on direct appeal,” but emphasized that “Peters did so” and therefore

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Peters v. Chandler


should have “[made] that challenge as thorough as he could.” The district court disagreed with this

procedural default analysis but still denied relief on the merits.


        We find that Peters procedurally defaulted this claim. In making this determination, we use

the Maupin v. Smith factors: (1) is there an applicable state procedural rule?; (2) did petitioner fail

to comply with that rule?; (3) was the rule actually enforced in petitioner’s case?; and (4) is the state

procedural forfeiture an adequate and independent state ground on which the state can rely to

foreclose review of a federal constitutional claim? 785 F.2d 135, 138 (6th Cir. 1986).


        Prongs (1) and (3) are met because the Kentucky Court of Appeals explicitly refused to

consider Peters’s new claim after finding that he failed to comply with a state procedural rule when

he raised some ineffective assistance claims on direct appeal, and then attempted to raise others in

his post-conviction proceedings. Prong (4) is also satisfied because we hold (albeit in unpublished

opinions) that the procedural bar set forth in Kentucky post-conviction proceedings constitutes an

adequate and independent state law ground. Wilson v. Webb, 107 F. App’x 516, 518 (6th Cir. 2004)

(“Rule 11.42 is an adequate and independent ground foreclosing review of a petitioner’s habeas

claim.”); see also Hardin v. Chandler, 36 F.App’x 769, 771 (6th Cir. 2002).


        Prong (2)—failure to comply with the state rule—is also satisfied. Kentucky Rule of

Criminal Procedure 11.42 prohibits post-conviction relief grounded upon issues “which could and

should have been raised” on direct appeal. Thacker v. Commonwealth, 476 S.W.2d 838, 839 (Ky.

1972). Although a post-conviction Rule 11.42 motion is ordinarily the “appropriate avenue” to

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claim ineffective assistance, Osborne v. Commonwealth, 992 S.W.2d 860, 863 (Ky. Ct. App. 1998),

when a criminal defendant opts to raise this on direct appeal, Kentucky limits a later 11.42 motion

“alleging ineffective assistance of counsel at the original trial. . . . to the issues that were not and

could not be raised on direct appeal.” Haight v. Commonwealth, 41 S.W.3d 436, 441 (Ky. 2001).


        The question, then, is whether Peters could have raised this claim on direct appeal, and we

find that he could. Peters knew the relevant facts before advancing his direct appeal. At his Rule

11.42 evidentiary hearing, Peters admitted, “I tried to tell [Hall and Hardy] again and again that I felt

we needed a doctor to testify on . . . whether or not this was a serious physical injury,” and “[I] told

[Hall] several times that something was messed up” with the prosecution’s allegedly mixed-up

forensic report on the injuries. Thus, Peters recognized the allegedly egregious act of counsel prior

to his direct appeal, and, since Peters otherwise made counsel’s performance an issue on direct

appeal, the state court appropriately barred him from raising it in post-conviction proceedings. See

Gross v. Commonwealth, 648 S.W.2d 853, 857 (Ky. 1983) (holding “the proper procedure for a

defendant aggrieved by a judgment in a criminal case is to directly appeal that judgment, stating

every ground of error which it is reasonable to expect that he or his counsel is aware of when the

appeal is taken.”); Alvey v. Commonwealth, 648 S.W.2d 858, 860 (Ky. 1983) (“[W]e should not

afford the defendant a second bite at the apple.”). Moreover, since this is a matter of state procedural

law, we defer to the Kentucky Court of Appeal’s conclusion that Peters should have raised this claim

on direct appeal. See Israfil v. Russell, 276 F.3d 768, 771 (6th Cir. 2001) (“[C]omity require[s]



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federal courts to defer to a state’s judgment on issues of state law and, more particularly, on issues

of state procedural law.”).


       Because the four Maupin prerequisites are met, and because Peters offers nothing to explain

why the default of his claim should be excused under the cause and prejudice standard, or to show

actual innocence, Peters procedurally defaulted this claim. Hargrave-Thomas v. Yukins, 374 F.3d

383, 387 (6th Cir. 2004) (quoting Coleman v. Thompson, 501 U.S. 722, 729–30 (1991)).


       But even if Peters did not procedurally default this claim, it fails on the merits. Strickland’s

familiar two prong test governs: “[T]he defendant must show that the counsel’s performance was

deficient” and that the deficiency “prejudiced the defendant.” 466 U.S. 668, 687 (1984). The

defendant’s burden in the case of a guilty plea is the same, except that, to prove the second prong,

the defendant must demonstrate that he would have reached a different decision to plead. Hill v.

Lockhart, 474 U.S. 52, 59 (1985). In determining whether counsel made serious errors, we use a

reasonably-effective-assistance standard and “indulge in a strong presumption that counsel’s conduct

falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 688-89.


       Peters argues that his counsel did not adequately challenge whether a “serious physical

injury” occurred in this case. At the Rule 11.42 hearing, however, attorney Hall testified that he

spoke with a medical doctor, and, based on that conversation, concluded that Pierce’s injuries met

the statutory definition of a serious physical injury. In his Memorandum in Support of Habeas

Corpus, Peters admits Hall informed him that he spoke with a doctor and that the state’s evidence

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Peters v. Chandler


was adequate. The Sixth Amendment does not require perfect performance but permits a “wide

range of professionally competent assistance,” especially regarding strategic choices made by

“reasonable investigation.” Strickland, 466 U.S. at 690–91. Hall investigated and, understanding

that his client faced a potential life sentence, made a strategic choice informed by that investigation.


        Aside from failing on the deficiency prong, Peters’s claim also fails on the prejudice prong.

Peters contends that, under Kentucky law, the seriousness of Pierce’s injuries could not support the

first-degree charges against him. Kentucky, however, defines first-degree assault as “intentionally

caus[ing] serious physical injury to another person by means of a deadly weapon or a dangerous

instrument,” or “[u]nder circumstances manifesting extreme indifference to the value of human life

. . . wantonly engag[ing] in conduct which creates a grave risk of death to another and thereby causes

serious physical injury to another person.” Ky. Rev. Stat. § 508.010. Likewise, a person commits

first-degree rape when “[h]e engages in sexual intercourse with another person by forcible

compulsion,” which is a class A felony when the victim “receives a serious physical injury.” Ky.

Rev. Stat. § 510.040. A serious physical injury “creates a substantial risk of death.” Ky. Rev. Stat.

§ 500.080(15).


        Pierce reported that Peters, before raping her, strangled her with a rope until she passed out.

Kentucky case law supports the conclusion that this created a substantial risk of death. In Cooper

v. Commonwealth, 569 S.W.2d 668, 671 (Ky. 1978), a seventy-four-year old rape victim was choked




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Peters v. Chandler


to unconsciousness and bruised, and this injury created the substantial risk of death necessary for

first-degree rape. Id.


       Accordingly, because Peters procedurally defaulted this claim in state court, and because, in

any event, he cannot establish the required deficiency or prejudice, we reject Peters’s claim that he

was denied effective assistance of counsel when his counsel failed to obtain expert opinion.


                                                 III


       We affirm the judgment of the district court dismissing Peters’s habeas petition.




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       CLAY, Circuit Judge, dissenting. I agree with the majority that Petitioner, James Allen

Peters (“Peters”), procedurally defaulted his claim that his trial counsel were ineffective in failing

to obtain expert medical assistance to assess whether the evidence supported his conviction for first

degree assault. I also agree that Faretta v. California, 422 U.S. 806 (1975) is inapplicable in this

case because Peters was not seeking to represent himself pro se, but rather was requesting the

assistance of counsel. However, I cannot join the majority in concluding that Peters was not

deprived of his right to counsel during a critical stage of his criminal proceedings. Because I find

that Peters was deprived entirely of the assistance of counsel during his plea withdrawal hearing and

because the Kentucky trial court failed to appoint substitute counsel for Peters during that hearing,

I am convinced that Peters’ Sixth Amendment right to counsel has been infringed and that Peters

therefore is entitled to the requested writ of habeas corpus. Accordingly, I respectfully dissent.


                                                  I.


       In as much as the majority opinion has failed to fully explain the background of this case, I

find it necessary to provide the following additional facts:


       On August 21, 1996, Peters was charged in Nelson County Circuit Court with one count of

first degree rape, pursuant to Ky. Rev. Stat. Ann. § 510.040 (2006), and one count of first degree

assault, pursuant to Ky. Rev. Stat. Ann. § 508.010, for the alleged rape and assault of Christy Pierce,

Peters’ expense sharing roommate, on July 22, 1996. Upon Peters’ arraignment on the charges, the

circuit court appointed a local contract public defender, Thomas Hall (“Hall”) to represent Peters.

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Peters v. Chandler


Hall arranged for another contract public defender, Anne P. Hardy (“Hardy”), to assist in the

representation of Peters.


          After the entry of Peters’ initial plea of not guilty, the case was set for trial on February 27,

1997. On that date, Peters, following the advice of counsel, filed a motion to change his plea.

Peters then pled guilty to both of the counts in the indictment in return for the Commonwealth’s

agreement to recommend concurrent sentences of thirty-five years imprisonment for the rape charge

and twenty years imprisonment for the assault charge, for a total sentence of thirty-five years

imprisonment.


          On March 10, 1997, Peters filed a pro se motion to withdraw his guilty plea which read as

follows:


          Comes now, the Defendant, JAMES ALLEN PETERS, pro se, and respectfully
          requests the permission of this honorable Court to withdraw his guilty plea entered
          on February 28, 1997, on the grounds that it was not knowingly, intelligently, and
          voluntarily entered.


          The Defendant has been informed by his counsel, Hon. Tom Hall and Hon. Anne
          Hardy, that they will be unable to represent him in this motion, and thus Defendant
          additionally requests that the court appoint alternative counsel to represent him at this
          and all subsequent hearings.


J.A. on 180. Two days later, on March 12, 1997, Hardy filed a written motion to withdraw as

appointed co-counsel because of her prior role in advising Peters to enter a guilty plea on both

counts.

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No. 06-5873
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       On March 20, 1997, the circuit court held a hearing on Peters’ pro se motion to withdraw his

guilty plea. At this hearing, Hardy orally presented her motion to withdraw as Peters’ counsel. After

Peters indicated that he did not have any objection to the motion, the court granted Hardy’s motion

to withdraw on the condition that Hall remain in the case as Peters’ “counsel of record.” Contrary

to what the majority asserts, the tape recording of this hearing does not reveal that Peters

affirmatively assented to Hall remaining as “counsel of record.” Rather, Peters remained silent

during this encounter and appears to have been unaware of what Hall’s presence as “counsel of

record” might have meant.


       Without confirming whether Peters really did consent to Hall’s presence as counsel of record,

the circuit court judge proceeded to consider Peters’ pro se motion to withdraw his guilty plea. The

judge reviewed the written pro se motion and then asked Peters if he wished to present the motion

on his own. The judge did not inform Peters of the consequences of arguing his motion by himself

or that Peters had the right to counsel’s assistance in the presentation of his motion. Peters indicated

that he would like to present his arguments, and proceeded to do so with Hall standing silently

nearby. In presenting his motion, Peters argued that his guilty plea was not knowing, intelligent and

voluntary because: (1) he was unable to intellectually handle the decision at the time it was entered

due to illness; and (2) he had been misinformed by counsel, both Hall and Hardy, about the

unavailability of certain witnesses whom Peters had hoped would be able to testify on his behalf.

In particular, Peters argued that had he not been misinformed by counsel he would not have changed

his plea to guilty. After hearing from Peters and without any comments or arguments offered by

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Peters v. Chandler


Hall, the judge denied Peters’ motion to withdraw his guilty plea. The record does not indicate that

Hall consulted with or offered any statements on behalf of Peters at any point during the hearing.


       On April 1, 1997, Peters filed a pro se motion for reconsideration in which he presented the

same arguments that he had presented at the plea withdrawal hearing. The circuit court denied the

motion for reconsideration and proceeded to sentence Peters on April 3, 1997. Following the

Commonwealth’s recommendation, the court sentenced Peters to concurrent terms of thirty-five

years and twenty years imprisonment for the rape and assault charges respectively.


       Peters then appealed the circuit court’s denial of his plea withdrawal motion to the Kentucky

Supreme Court arguing that he had been denied his Sixth Amendment right to counsel when

presenting his motion. On February 19, 1998, the Kentucky Supreme Court affirmed the judgment

of the circuit court finding Peters’ Sixth Amendment claim to lack merit.


       Following the failure of his direct appeal, on April 27, 1999, Peters filed a pro se motion in

the Nelson County Circuit Court to vacate his conviction and sentence pursuant to Kentucky Rule

of Criminal Procedure 11.42. In his motion, Peters argued that his trial counsel had committed

numerous errors thereby depriving him of his Sixth Amendment right to effective assistance of

counsel. After appointing new counsel to represent Peters on the motion and after conducting an

evidentiary hearing with regard to it, the circuit court denied Peters’ motion to vacate his conviction

and sentence on September 6, 2000, finding Peters’ claims to be both meritless and procedurally

defaulted by his failure to raise them in his direct appeal. On October 26, 2001, the Kentucky Court

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Peters v. Chandler


of Appeals affirmed the circuit court’s denial of the motion on the procedural ground. Id. at 286-89.

The Kentucky Supreme Court denied Peters’ subsequent request for discretionary relief. Id. at 189.


       Having exhausted the available avenues of state post-conviction relief, on March 3, 2003,

Peters filed a pro se petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, in the United

States District Court for the Western District of Kentucky, alleging ten grounds for relief. On April

13, 2006, the magistrate judge issued a report containing findings of fact and law and a

recommendation that the district court deny the petition because none of Peters’ claims had merit.

After considering Peters’ objections to this report and recommendation, the district court adopted

the magistrate judge’s report in full and entered an order denying the petition. The district court,

however, granted Peters a certificate of appealability on the issue of whether he was deprived of his

Sixth Amendment right to counsel during the presentation of his motion to withdraw his guilty pleas.

This timely appeal followed.


                                                  II.


       When evaluating a habeas appeal, we review the district court’s legal conclusions, including

its denial of a writ of habeas corpus de novo while evaluating its factual conclusions for clear error.

Girts v. Yanai, 501 F.3d 743, 752 (6th Cir. 2007). As revised by the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), the

federal habeas statute for review of state court judgments, 28 U.S.C. § 2254, provides that:



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Peters v. Chandler


       An application for a writ of habeas corpus on behalf of a person in custody pursuant
       to the judgment of a State court shall not be granted with respect to any claim that
       was adjudicated on the merits in State court proceedings unless the adjudication of
       the claim: (1) resulted in a decision that was contrary to or involved an unreasonable
       application of, clearly established Federal law, as determined by the Supreme Court
       of the United States; or (2) resulted in a decision that was based on an unreasonable
       determination of facts in light of the evidence presented in the State Court
       proceeding.


28 U.S.C. § 2254(d) (2000). Under this standard, a decision is “contrary to” clearly established

federal law as determined by the Supreme Court if “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] Court has on a set of materially indistinguishable facts.” Williams v. Taylor,

529 U.S. 362, 412-13 (2000). A decision involves an “unreasonable application” of clearly

established federal law if a “state court identifies the correct governing legal rule from [the Supreme

Court’s] cases but unreasonably applies it to the facts of the particular state prisoner’s case,” id. at

407, or if it “either unreasonably extends or unreasonably refuses to extend a legal principle from

Supreme Court precedent to a new context.” Seymour v. Walker, 224 F.3d 542, 549 (6th Cir. 2000)

(citing Williams, 529 U.S. at 407). That is, the federal habeas court “should ask whether the state

court’s application of clearly established federal law was objectively unreasonable.” Williams, 529

U.S. at 409.


                                                  III.


                                                  A.


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       The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy

the right . . . to have the Assistance of Counsel for his defence.” U.S. CONST . amend. VI. In Gideon

v. Wainwright, the Supreme Court held that this Sixth Amendment right to counsel is extended to

criminal defendants in state court through the Due Process clause of the Fourteenth Amendment.

372 U.S. 335, 342-43 (1963). In interpreting this Sixth and Fourteenth Amendment guarantee, the

Supreme Court has long recognized that, because “the right to counsel exists, and is needed to

protect the fundamental right to a fair trial,” Strickland v. Washington, 466 U.S. 668, 684 (1984),

this right entitles an accused “to be assisted by an attorney, whether retained or appointed, who plays

the role necessary to ensure that the trial is fair.” Id. at 685. In other words, “the right to counsel

is the right to effective assistance of counsel.” Id. at 686 (quoting McMann v. Richardson, 397 U.S.

759, 771 n.14 (1970)). Accordingly, in order to demonstrate a violation of this constitutionally

protected right, a habeas petitioner must show that his counsel’s assistance during the course of his

criminal proceedings was so ineffective that it undermined the proper functioning of the adversarial

process. Id. at 686; see also Wright v. Van Patten, 128 S. Ct. 743, 746 (2008) (per curiam); United

States v. Gonzales-Lopez, 548 U.S. 140, 146-49 (2006).


       To determine whether a habeas petitioner has made this ineffectiveness showing, we

generally apply the two-part test announced by the Supreme Court in Strickland. See Wright, 128

S. Ct. at 746; Florida v. Nixon, 543 U.S. 175, 190 (2004); Bell v. Cone, 535 U.S. 685, 695-698

(2002); Smith v. Robbins, 528 U.S. 259, 287 (2000); Hill v. Lockhart, 474 U.S. 52, 58 (1985). This

Strickland standard requires the petitioner to demonstrate that: (1) counsel’s representation was

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deficient, i.e., it fell below an objective standard of reasonableness; and (2) the petitioner was

prejudiced by counsel’s deficient performance, i.e., it is reasonably probable that the result of the

proceeding would have been different but for counsel’s errors. 466 U.S. at 688, 694.


        In certain egregious circumstances, however, where the representation by counsel has

effectively been denied altogether, we do not require a petitioner to demonstrate prejudice in order

to prevail on an ineffectiveness claim. See, e.g., Wright, 128 S. Ct. at 746. In particular, in United

States v. Cronic, 466 U.S. 648 (1984), which was decided on the same day as Strickland, the

Supreme Court “identified three situations implicating the right to counsel that involved

circumstances ‘so likely to prejudice the accused that the cost of litigating their effect in a particular

case is unjustified.’” Bell, 535 U.S. at 695 (quoting Cronic, 466 U.S. at 658); see also Nixon, 543

U.S. at 190. These three situations, as explained by Cronic and its progeny, are: (1) the “complete

denial of counsel” during “a critical stage” of the criminal proceeding, Cronic, 466 U.S. at 659;

accord Wright, 128 S. Ct. at 746; Bell, 535 U.S. at 695; (2) counsel’s “fail[ure] to subject the

prosecution’s case to meaningful adversarial testing,” Cronic, 466 U.S. at 659; accord Wright, 128

S. Ct. at 746 n.1; Bell, 535 U.S. at 695; and (3) representation by counsel who is “burdened by an

actual conflict of interest,” Smith, 528 U.S. at 287 (quoting Strickland, 466 U.S. at 692); accord

Mickens v. Taylor, 535 U.S. 162, 173-74 (2002). See also Ivory v. Jackson, 509 F.3d 284, 294 (6th

Cir. 2007) (listing the three types of cases that lead to a presumption of prejudice); Mitchell v.

Mason, 325 F.3d 732, 742 (6th Cir. 2003) (same). In such situations, “a Sixth Amendment violation

may be found ‘without inquiring into counsel’s actual performance or requiring the defendant to

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Peters v. Chandler


show the effect it had on the trial.’” Wright, 128 S. Ct. at 746 (quoting Bell v. Cone, 535 U.S. at

695); see also Van v. Jones, 475 F.3d 292, 308 (6th Cir. 2007) (identifying the situations in which

Cronic prevails and noting that “Cronic was meant to cover those cases in which prejudice was to

be assumed [whereas] Strickland would address cases in which prejudice needed to be shown”).


        In the instant case, the Kentucky Supreme Court appropriately used the Cronic standard in

assessing Peters’ claim that he was deprived of the assistance of counsel during the presentation of

his motion to withdraw his guilty pleas. However, the Kentucky Supreme Court unreasonably

applied Cronic to the facts of Peters’ case. In particular, the Kentucky Supreme Court unreasonably

concluded that Peters was not deprived of counsel during a critical stage of his trial and that Hall was

not subject to an actual conflict of interest while serving as the counsel of record during the motion

hearing. Because the Kentucky Supreme Court unreasonably applied Cronic to Peters’ case and

because the record demonstrates that Peters was, in fact, deprived of the assistance of counsel during

his plea withdrawal hearing, I would grant Peters the requested writ of habeas corpus.


                                                    B.


        Under Supreme Court precedent, “[a]ctual or constructive denial of the assistance of counsel

altogether is legally presumed to result in prejudice.” Strickland, 466 U.S. at 692; accord Cronic,

466 U.S. at 659 (“The presumption that counsel’s assistance is essential [for a fair trial] requires us

to conclude that a trial is unfair if the accused is denied counsel at a critical stage of his trial.”); see

also Van, 475 F.3d at 311-12 (“It is settled that a complete absence of counsel at a critical stage of

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a criminal proceeding is a per se Sixth Amendment violation warranting reversal of a conviction,

a sentence, or both, as applicable without analysis for prejudice or harmless error.”). The Supreme

Court has indicated that such denial of counsel occurs “when counsel [is] either totally absent, or

prevented from assisting the accused during a critical stage of the proceeding.” Cronic, 466 U.S. at

659 n.25. While counsel’s physical absence during a critical stage certainly constitutes denial of

counsel, see, e.g., Hamilton v. Alabama, 368 U.S. 52, 55 (1961), a defendant may also be denied

counsel when a physically present attorney cannot or will not assist the accused. See, e.g., Geders

v. United States, 425 U.S. 80, 96 (1976) (finding denial of right to counsel when trial court order

prevented the defendant from consulting counsel about anything during an overnight recess between

his direct and cross examinations); Herring v. New York, 422 U.S. 853, 859-63 (1975) (finding

denial of right to counsel when trial judge denied counsel the opportunity to present a closing

argument); Burdine v. Johnson, 262 F.3d 336, 349 (5th Cir. 2001) (finding denial of assistance of

counsel when counsel was sleeping during portions of the defendant’s trial); Javor v. United States,

724 F.2d 831, 834 (9th Cir. 1984) (same).


       Moreover, although the Kentucky Supreme Court suggested otherwise in its opinion, a plea

withdrawal hearing is undoubtedly a critical stage in a criminal proceeding. See United States v.

Segarra-Rivera, 473 F.3d 381, 384 (1st Cir. 2007); United States v. Davis, 239 F.3d 283, 286 (2d

Cir. 2001) (“It cannot be gainsaid that a defendant’s guilty plea is the most critical stage of the

proceeding as it forecloses his very right to a trial. Consequently, in the face of an allegedly

involuntary plea, a plea withdrawal hearing is vital to ensuring the integrity of the process by which

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guilt may ultimately be determined.”); United States v. Sanchez-Barreto, 93 F.3d 17, 20 (1st Cir.

1996); United States v. Crowley, 529 F.2d 1066, 1069 (3d Cir.), cert. denied, 425 U.S. 995 (1976);

see also Wright, 128 S. Ct. at 748 (Stevens, J., concurring) (“It is well-settled that a court proceeding

in which a defendant enters a plea . . . is a ‘critical stage’ where an attorney’s presence is crucial

because ‘defenses may be . . . irretrievably lost, if not then and there asserted.’ (citation omitted));

Nixon, 543 U.S. at 187 (“A guilty plea . . . is an event of signal significance in a criminal proceeding.

By entering a guilty plea, a defendant waives constitutional rights that inhere in a criminal trial,

including the right to trial by jury, the protection against self-incrimination, and the right to confront

one’s accusers.”).


        Unlike the majority, I find that Peters was effectively denied counsel during his plea

withdrawal hearing—a critical stage in the court’s determination of Peters’ guilt. While Hall

technically remained as “counsel of record” during the plea withdrawal hearing, he neither served

as counsel in any way nor appeared willing to do so. On the contrary, prior to the hearing, Hall

informed Peters that he would “be unable to represent” Peters on the motion. J.A. at 180. During

the hearing, he similarly offered no assistance to Peters. Hall presented no arguments on Peters’

behalf, and Peters never consulted with Hall about the arguments he was presenting. Indeed, it is

not clear that Peters was even aware that he could consult with Hall. The judge asked Peters: “It says

here that you want to present this on your own, is that correct?” Trial Tape 6 at 11:01:46. When

Peters answered in the affirmative, rather than informing Peters that he could employ his counsel of

record, the judge simply asked Peters: “Is there anything you want to add?” Trial Tape 6 at 11:01:49.

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Peters v. Chandler


Peters then proceeded to present his argument without ever consulting Hall, who likewise never

offered to help his “client.”


       On these facts, I am convinced that Peters was “constructive[ly] deni[ed] the assistance of

counsel altogether,” Strickland, 466 U.S. at 492, and was thus deprived of his Sixth Amendment

right to counsel. The Kentucky Supreme Court’s failure to reach this conclusion was not only an

objectively unreasonable application of Cronic, but was also premised on an unreasonable

determination of the facts in light of the evidence presented. In its review of Peters’ conviction on

direct appeal, the Kentucky Supreme Court found that Peters was not denied the assistance of

counsel because Hall “stood with him during the entire proceeding and conferred with him both

before and during the motion, even interjecting twice on his behalf.” J.A. at 129. The tape recording

of this motion hearing, however, does not demonstrate that Hall ever consulted with Peters or offered

any statements, let alone arguments, on Peters’ behalf. This tape recording is sufficiently “clear and

convincing” to rebut the        presumption of correctness that we generally afford state court

determinations of fact. 28 U.S.C. § 2254(e)(1).


       Accordingly, I would find that Peters is entitled to a writ of habeas corpus on this ground

alone. Nevertheless, even if the majority were correct that Peters was technically represented by

counsel—namely, Hall, who was serving as “counsel of record”—at his plea withdrawal hearing,

I would still find that Peters is entitled to relief because Hall would have been subject to an actual

conflict of interest, rendering him unable to effectively represent Peters, during the hearing.


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                                                 C.


       It is clearly established federal law that a defendant’s Sixth Amendment right to counsel is

violated “when counsel is burdened by an actual conflict of interest.” Strickland, 466 U.S. at 692;

accord Cuyler v. Sullivan, 446 U.S. 335, 349-50 (holding that “a defendant who shows that a conflict

of interest actually affected the adequacy of his representation need not demonstrate prejudice in

order to obtain relief”); Fautenberry v. Mitchell, 515 F.3d 614, 628 (6th Cir. 2008) (“[A] habeas

petitioner can establish an ineffective-assistance claim without having to show prejudice if he

demonstrates that his counsel labored under an ‘actual conflict’ of interest.’”). To obtain relief on

such grounds, a defendant must “establish that an actual conflict of interest adversely affected his

lawyer’s performance.” Cuyler, 446 U.S. at 350; accord Mickens, 535 U.S. at 171 n.5 (“An ‘actual

conflict,’ for Sixth Amendment purposes, is a conflict of interest that adversely affects counsel’s

performance.”); Fautenberry, 515 F.3d at 628.


       Actual conflicts of interest may arise from counsel’s representation of different parties with

competing interests, see, e.g., Woods v. Georgia, 450 U.S. 261, 273 (1981); Holloway v. Arkansas,

435 U.S. 475, 485-90 (1978); Glasser v. United States, 315 U.S. 60, 72-75 (1942), or from counsel’s

representation of a client whose interests are at odds with counsel’s own. See, e.g., United States

v. Hurt, 543 F.2d 162, 166 (D.C. Cir. 1976) (“To be sure, most conflicts of interest arise out of a

lawyer’s dual representation of co-defendants, but the constitutional principle is not narrowly

confined to instances of that type. . . . Competition between the client’s interests and counsel’s own


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No. 06-5873
Peters v. Chandler


interests plainly threatens that result, and we have no doubt that the conflict corrupts the relationship

when counsel’s duty to his client calls for a course of action which concern for himself suggests that

he avoid.”). In particular, “[c]ourts have recognized actual conflicts of interest between an attorney

and his client when pursuit of a client’s interests would lead to evidence of an attorney’s

malpractice.” United States v. Soldevila-Lopez, 17 F.3d 480, 486 (1st Cir. 1994); see also United

States v. Davis, 239 F.3d 283, 286-87 (2d Cir. 2001) (finding actual conflict of interest created when

the defendant argued in his pro se plea withdrawal motion that counsel coerced the defendant to

plead guilty by threatening not to investigate his case); United States v. Sanchez-Barretto, 93 F.3d

17, 20-21 (1st Cir. 1996) (finding an actual conflict of interest when the defendant’s pro se motion

to withdraw plea alleged that counsel had coerced the defendant to plead guilty in order to conceal

his unpreparedness for trial); Lopez v. Scully, 58 F.3d 38, 41 (2d Cir. 1995) (finding an actual

conflict of interest when the defendant’s pro se motion to withdraw a guilty plea was based on

alleged attorney coercion); United States v. Ellison, 798 F.2d 1102, 1106 (7th Cir. 1986) (same).


        In the instant case, any representation that Hall may have provided Peters at the plea

withdrawal hearing would have been adversely affected by an actual conflict of interest. A key part

of Peters’ argument in support of his plea withdrawal motion was his allegation that his attorneys,

Hall and Hardy, had provided him with inaccurate information when advising him to plead guilty.

If true, such an allegation would at minimum show deficient performance by Hall and at worst

demonstrate legal malpractice. Thus, Hall’s continued representation of Peters, who was presenting

such arguments, would have created an actual conflict of interest. See Davis, 239 F.3d at 287 (noting

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No. 06-5873
Peters v. Chandler


that defendant’s allegations that his attorney had threatened not to investigate the case if defendant

did not plead guilty “placed his attorney in the position of having to defend himself, and potentially

to contradict [the defendant], in open court”).


       Moreover, the record reflects that this actual conflict of interest did, in fact, adversely affect

Hall’s performance as “counsel of record.” Prior to the plea withdrawal hearing, Hall informed

Peters that he would “be unable to represent him in this motion.” J.A. at 180. Hall then followed

through on this promised lack of representation by failing to consult with Peters about the motion

and by remaining silent during the entire plea withdrawal hearing. In failing to act as counsel in any

meaningful way at the plea withdrawal hearing, Hall clearly was affected by the actual conflict of

interest. See Davis, 239 F.3d at 287 (finding that “[d]efense counsel’s silence at [the plea withdrawal

motion] stage of the proceedings illustrates his actual conflict.”)


       Accordingly, even if I were to accept the majority’s erroneous contention that Hall’s presence

as counsel of record means that Peters was afforded the assistance of counsel during the plea

withdrawal hearing, I would still find that Peters was denied effective assistance of counsel at this

hearing because his only counsel of record was subject to an actual conflict of interest that adversely

affected counsel’s performance. The Kentucky Supreme Court’s contrary determination on this

point was not only an incorrect, but an unreasonable application of the Supreme Court’s conflict of

interest jurisprudence. Thus, Peters, who is being held in state custody in violation of his Sixth

Amendment right to counsel, should be granted his requested writ of habeas corpus.


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Peters v. Chandler


                                                IV.


       For the foregoing reasons, I respectfully dissent.




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