                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0662n.06

                                            No. 09-2569

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                        FILED
                                                                                   Jun 22, 2012
MARCUS JACKSON,                                 )
                                                )                            LEONARD GREEN, Clerk
       Petitioner-Appellant,                    )
                                                )       ON APPEAL FROM THE UNITED
                                                )       STATES DISTRICT COURT FOR
v.                                              )       THE EASTERN DISTRICT OF
                                                )       MICHIGAN
                                                )
LINDA M. METRISH,                               )             OPINION
                                                )
       Respondent-Appellee.                     )
                                                )


BEFORE: BATCHELDER, Chief Judge; NORRIS and STRANCH, Circuit Judges.

       ALAN E. NORRIS, Circuit Judge. Marcus Jackson appeals from the denial of his petition

for a writ of habeas corpus, 28 U.S.C. § 2254, by the district court. Petitioner sought a certificate

of appealability, 28 U.S.C. § 2253(c)(1)(A), which this court ultimately granted on the sole claim

that trial counsel provided ineffective assistance.

       A jury found petitioner guilty of first-degree felony murder, assault with intent to murder,

armed robbery, possessing a firearm during the commission of a felony, and being a felon in

possession of a firearm. The trial court sentenced him to an effective term of life in prison. The

Michigan Court of Appeals affirmed the trial court’s judgment, People v. Jackson, No. 237766, 2003

WL 1365232 (Mich. Ct. App. Mar. 18, 2003), and the Michigan Supreme Court denied leave to



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                                                                                          No. 09-2569


appeal. People v. Jackson, 670 N.W.2d 221 (Mich. 2003) (table). Petitioner then filed a motion for

relief from judgment in the trial court. He raised his claim of ineffective assistance for the first time

in that motion. The trial court declined to grant relief, and the Michigan Court of Appeals and

Michigan Supreme Court denied leave to appeal, citing Michigan Court Rule 6.508(D).

        As it did below, the State contends that the ineffective assistance claim has been procedurally

defaulted. The district court agreed with this proposition, noting that “the procedural bar set forth

in Rule 6.508(D) constitutes an adequate and independent ground on which the Michigan Supreme

Court may rely in foreclosing review of federal claims.” Opinion and Order, Nov. 13, 2009, R. 38

at 17. Since the district court’s opinion issued, however, this court has clarified that “[b]rief orders

citing Michigan Court Rule 6.508(D) are not explained orders invoking a procedural bar.” Guilmette

v. Howes, 624 F.3d 286, 289 (6th Cir. 2010) (en banc). In reaching that conclusion, we observed that

some Michigan cases have cited Rule 6.508(D) when denying post-conviction relief on the merits

while others have invoked the rule when “affirming the lower court’s determination that a

petitioner’s claims are procedurally defaulted.” Id. at 290.

        In this case, both the Michigan Court of Appeals and the Michigan Supreme Court denied

relief in form orders that cited Rule 6.508(D) without further explanation.                Under such

circumstances, “[w]e must . . . look to the last reasoned state court opinion to determine the basis

for the state court’s rejection of [petitioner’s] claim.” Id. at 291 (citing Ylst v. Nunnemaker, 501 U.S.

797, 803 (1991)). In the instant case, the trial court’s opinion denying petitioner’s motion for relief

from judgment represents the last reasoned state court opinion. The trial court specifically invoked


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                                                                                         No. 09-2569


the procedural default subsection of the rule throughout the course of its analysis. That subsection

precludes a court from granting relief to a defendant who “alleges grounds for relief, other than

jurisdictional defects, which could have been raised on appeal from the conviction and sentence or

in a prior motion” unless he demonstrates cause and prejudice for his omission. MCR 6.508(D)(3).

The Michigan trial court specifically relies upon this subsection, therefore, petitioner procedurally

defaulted his ineffective assistance of trial counsel claim.

       Even though petitioner procedurally defaulted his ineffective assistance of trial counsel claim

in the Michigan courts, he can still prevail if he can establish “cause for the default and actual

prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider

the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722,

750 (1991). He has not done so. Although he has not raised it as an independent claim, petitioner

contends that ineffective assistance of appellate counsel provides the cause for the default of his

ineffective assistance of trial counsel claim. As the district court observed below, counsel is not

obliged to raise every possible claim. Opinion and Order, Nov. 13, 2009, R. 38 at 18 (citing Jones

v. Barnes, 463 U.S. 745, 751-54 (1983)). We have observed that “the decision of which among the

possible claims to pursue is ordinarily entrusted to counsel’s professional judgment.” McFarland

v. Yukins, 356 F.3d 688, 710 (6th Cir. 2004). Moreover, failure to raise an issue on appeal is only

ineffective if there is a reasonable probability that the inclusion of the issue would have changed the

result of the appeal. See Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir. 2001). Both the Michigan

trial court judge in her opinion denying post-conviction relief and the district court judge in his


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                                                                                            No. 09-2569


opinion denying a writ of habeas corpus examined the alleged deficiencies of trial counsel and found

that, contrary to petitioner’s contention, counsel’s representation did not fall below an objective

standard of reasonableness. See Strickland v. Washington, 466 U.S. 668, 688 (1984). Given that

trial counsel provided the level of representation required by the Sixth Amendment, appellate

counsel had no obligation – particularly under the deferential standard of Strickland – to raise

ineffective assistance on appeal. Hence, petitioner has failed to show cause for his procedural

default. Even if we were to assume that trial counsel’s performance was somehow wanting,

petitioner has not established either prejudice or the possibility that failure to consider his ineffective

assistance claim will result in a miscarriage of justice. As explained by the courts below, even if we

were to discount the evidence that petitioner challenges (and contends that trial counsel should have

disputed), the remaining evidence introduced against him at trial was overwhelming and sufficient

to establish guilt beyond a reasonable doubt.

        The judgment is affirmed.




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