                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 19a0440n.06

                                        Case No. 18-1511

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                     FILED
 MARCUS ROBINSON,                                 )                            Aug 21, 2019
                                                  )                        DEBORAH S. HUNT, Clerk
         Petitioner-Appellant,                    )
                                                  )          ON APPEAL FROM THE UNITED
 v.                                               )          STATES DISTRICT COURT FOR
                                                  )          THE EASTERN DISTRICT OF
 LES PARISH, Warden,                              )          MICHIGAN
                                                  )
         Respondent-Appellee,                     )                      OPINION
                                                  )



BEFORE: GILMAN, STRANCH, and NALBANDIAN, Circuit Judges.

       NALBANDIAN, Circuit Judge. Marcus Robinson appeals the district court’s denial of his

habeas corpus petition alleging ineffective assistance of counsel (“IAC”). His petition arises from

his conviction for second-degree murder and four related offenses. Robinson argues that the

Michigan Court of Appeals unreasonably applied Strickland when it denied him relief on his IAC

claim. We disagree and affirm the district court’s ruling.

                                                 I.

       In April 2012, Marcus Robinson and his friend, Cortez Howard, met Jared Boothe and

Brian Tolson in the parking lot of an apartment complex. The purpose of the meeting was to discuss

a situation involving Boothe’s younger brother and a female friend. Before the meeting, Howard

told Robinson that they should not expect violence because Howard was friends with Boothe and
No. 18-1511, Robinson v. Parish


Tolson. Howard also told Robinson that neither of them needed to carry a gun to the meeting. But

Robinson thought Boothe might bring a gun, so he decided to carry one anyway.

       Sure enough, Robinson drew his gun and flashed it at Boothe during the meeting. The two

exchanged words before Boothe began to walk to his apartment. Still wielding the gun, Robinson

started to follow Boothe before Tolson told him not to “creep up” on his brother. [Trial Tr. IV, R.

5-6, at PageID #2417.] Tolson then asked Robinson, “what are you going to do, shoot me[?]”

[Trial Tr. V, R. 5-7, PageID #2846.] Robinson responded, “I will, but don’t make me have to.”

[Id.] At that point, Tolson grabbed Robinson and tried to slam him to the ground. During this

altercation, Robinson shot Tolson in the chest, causing his death.

       Upon seeing Tolson shot on the ground, Boothe punched Robinson in the head several

times and attempted to slam him to the ground. Robinson eventually landed on top of Boothe and

shot him, also in the chest (although Boothe survived). Robinson then returned to the car and

brandished the gun at his victims as he drove away.

       In January 2013, a Michigan jury convicted Robinson of second-degree murder; assault

with intent to do great bodily harm less than murder; three counts of possession of a firearm during

the commission of a felony; being a felon in possession of a firearm; and carrying a concealed

weapon. He received a prison sentence of 45 to 75 years for second-degree murder, and lesser

concurrent terms for the remaining convictions.

       Robinson appealed his conviction to the Michigan Court of Appeals. See People v.

Robinson, No. 314906, 2014 WL 4930702 (Mich. Ct. App. Oct. 2, 2014) (per curiam). He first

argued that the trial court erred in refusing to instruct the jury on involuntary manslaughter. But

the court rejected that argument after concluding that the “facts inescapably showed that [he] acted

with malice.” Id. at *1. Robinson next argued that the trial court erred in failing to sua sponte



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instruct the jury on accident. The court rejected this argument as well, reasoning that he had waived

it by agreeing to the final jury instructions. Finally, Robinson argued that his trial counsel was

ineffective for failing to request the accident instruction. The court disagreed (over a dissent),

finding that counsel’s performance was neither professionally deficient nor prejudicial to

Robinson. It therefore affirmed Robinson’s conviction and rejected his IAC claim. Later, the

Michigan Supreme Court denied Robinson’s appeal for discretionary review.

         In May 2016, Robinson filed a federal habeas petition under 28 U.S.C. § 2254, raising

two claims: (1) that he was denied his right to effective assistance of counsel under the Sixth

Amendment when his trial attorney failed to request a jury instruction on accident, and (2) that the

trial court erred in failing to instruct the jury on the lesser offense of involuntary manslaughter.

The district court denied his petition and granted a certificate of appealability for only the first

claim. Robinson v. Winn, No. 4:16-CV-11738, 2018 WL 1522437, at *8 (E.D. Mich. Mar. 28,

2018).

                                                 II.

         The Supreme Court has described ineffectiveness claims as raising questions of mixed law

and fact. Strickland v. Washington, 466 U.S. 668, 698 (1984). In this context, we review the district

court’s judgment on such questions de novo. E.g., Moore v. Mitchell, 708 F.3d 760, 774 (6th Cir.

2013). And because Robinson’s habeas petition arises from state court, our review necessarily

encompasses the state court’s decision too. See id.

         If a state court dismisses a defendant’s IAC claim on the merits, a federal court should

review the state court’s determinations under the deferential standard set forth in the Antiterrorism

and Effective Death Penalty Act of 1996 (“AEDPA”). 28 U.S.C. § 2254(d)(1). In this case, there

is no dispute that the Michigan Court of Appeals adjudicated Robinson’s claim on the merits.



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        AEDPA precludes a federal court from granting relief unless the state court’s decision was

“contrary to” or “involved an unreasonable application of” clearly established federal law, 28

U.S.C. § 2254(d)(1), or it “resulted in a decision that was based on an unreasonable determination

of the facts,” id. § 2254(d)(2). Robinson argues that the state court’s decision was an unreasonable

application of Supreme Court precedent. A state-court decision “involve[s] an unreasonable

application of” federal law if it correctly identifies the governing legal principle from Supreme

Court precedent but unreasonably applies that principle to the case. Williams v. Taylor, 529 U.S.

362, 407-08 (2000). Moreover, for a federal court to grant relief, the state court’s application must

have been “objectively unreasonable” and not simply “incorrect.” Id. at 409-10.

        The Supreme Court set down the governing legal principle for IAC claims in Strickland:

“The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so

undermined the proper functioning of the adversarial process that the trial cannot be relied on as

having produced a just result.” 466 U.S. at 686. To that end, Strickland sets forth a two-prong test

for determining when a defendant can establish a viable IAC claim: The defendant must show

(1) that counsel’s performance was deficient, and (2) that such deficiency prejudiced the defense.

Id. at 687. Failure to satisfy either prong is fatal to an IAC claim. See id. Thus, if it is easier for a

court to dispose of an IAC claim on the second prong, as here, we should generally follow that

course. See id. at 697.

        The Supreme Court has stressed that the standards created by Strickland and § 2254 are

both highly deferential, and “when the two apply in tandem, deference is ‘doubly’ so.” Harrington

v. Richter, 562 U.S. 86, 105 (2011) (quoting Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)).

“A state court’s determination that a claim lacks merit precludes federal habeas relief so long as

‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Id. at 101



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(quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). “If this standard is difficult to meet,

that is because it was meant to be.” Id. at 102. Properly applying AEDPA deference ensures that

“state courts are the principal forum for asserting constitutional challenges to state convictions.”

Id. at 103.

        The question before this court, therefore, is whether the state court’s application of

Strickland was “so lacking in justification that there was an error well understood and

comprehended in existing law beyond any possibility of fairminded disagreement.” See id.

                                                 III.

        Robinson argues that his counsel was constitutionally deficient for not requesting an

accident instruction along with a self-defense instruction. According to Robinson, this is because

evidence in the record suggested that he did not intend to shoot Tolson; instead, the gun

accidentally discharged. In dismissing Robinson’s IAC claim, the Michigan Court of Appeals

concluded that “based on this chain of events,” Robinson’s conduct constituted a “malicious series

of intentional acts.” Robinson, 2014 WL 4930702, at *2 (emphasis added). And it determined that

defense counsel asked for a self-defense instruction instead of an accident instruction because self-

defense better matched the defense’s theory of the case: that Robinson acted intentionally but

justifiably when he shot Tolson. Id. at *3. Accordingly, the court held that “an accident argument

where a defendant must argue that the gunshot was unintentional and accidental” was “not

applicable.” Id. (emphasis added).

        To be sure, the court also acknowledged that “a defendant in a criminal matter may advance

inconsistent claims and defenses.” Id. (quoting People v. Cross, 466 N.W.2d 368, 369 (Mich. Ct.

App. 1991)). But it responded with two points. First, it noted that “failing to request an instruction

when it is inconsistent with a defense theory is a matter of trial strategy.” Id. (citing People v.



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Gonzalez, 664 N.W.2d 159, 164 (Mich. 2003)). The court explained that defense counsel’s main

theory at trial was self-defense and, given that self-defense is a defense based on (justifiable) intent,

the court reasoned that it would have been “inconsistent” to ask for both a self-defense instruction

and an accident instruction. Id. As such, the court refused to question counsel’s choice between

these defenses with the benefit of hindsight. Second, the court reinforced its view that counsel’s

choice was one of professional judgment by explaining that requesting both accident and self-

defense instructions might have risked confusing the jury. Id.

        Ultimately, however, we need not decide whether counsel’s performance was

constitutionally deficient. That is because the prejudice analysis here is far more straightforward.

Strickland, 466 U.S. at 697. To prove prejudice under Strickland, 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. A reasonable probability is one that is sufficient

to undermine confidence in the outcome. Id. This requires “a ‘substantial,’ not just ‘conceivable,’

likelihood of a different result.” Cullen v. Pinholster, 563 U.S. 170, 189 (2011) (quoting Richter,

562 U.S. at 112). And because the Michigan Court of Appeals determined that Robinson was not

prejudiced by counsel’s performance, he must do more than surmount this already deferential

standard. He must also show that the court’s determination of this issue was objectively

unreasonable. Williams, 529 U.S. at 409-10. Robinson has made no such showing here.

        As the Michigan Court of Appeals explained, the jury had to find that Robinson “possessed

some form of intent to establish the malice required for second-degree murder.” Robinson, 2014

WL 4930702, at *4. “Thus, the jury inherently rejected the notion that defendant’s act in shooting

the gun was unintentional or accidental.” Id. And absent a challenge to the sufficiency of evidence,

we presume that the “jury acted according to [the] law.” Strickland, 466 U.S. at 694.



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       Moreover, we presume that the jury followed the court’s instructions. See Richardson v.

Marsh, 481 U.S. 200, 211 (1987). And the jury instructions on second-degree murder stated that

“if the prosecutor has not proven every element beyond a reasonable doubt, then you must find the

Defendant not guilty.” [Trial Tr. VI, R. 5-8, PageID #3132 (emphasis added).] To convict

Robinson of second-degree murder, the jury had to find beyond a reasonable doubt that Robinson

either “intended to kill[,] … [or] intended to do great bodily harm[,] … [or] knowingly created a

very high risk of death or great bodily harm knowing that death or such harm would be the likely

results of his actions.” Robinson, 2018 WL 1522437, at *6. A Michigan state court’s finding of

any of these three mental states negates an accident defense. See People v. Hawthorne, 713 N.W.2d

724, 730 (Mich. 2006).

       Robinson seeks to distinguish his case from Hawthorne, where the Michigan Supreme

Court held that it was harmless error for the trial court not to instruct the jury on accident. Id.

There, as here, the defendant was convicted of second-degree murder. Id. at 725. Robinson points

out that, unlike in his case, the jury in Hawthorne was also instructed on involuntary manslaughter,

“which does not require a finding of malice.” Id. at 730. And the Michigan Supreme Court noted

that the jury’s vote to convict the defendant of second-degree murder despite that instruction erased

any doubts about whether the defendant had the requisite intent for murder. See id.

       Robinson’s attempt to distinguish Hawthorne is unpersuasive. The central holding of

Hawthorne was that the trial court’s failure to instruct on accident was harmless because, as here,

the jury had been instructed on second-degree murder. Id. The court reasoned that “[t]he jury

instructions explaining the intent element of murder made it clear that a finding of accident would

be inconsistent with a finding that defendant possessed the intent required for murder.” Id.




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(brackets in original). It merely bolstered that holding by observing that the jury had convicted the

defendant of murder despite the instruction it received on involuntary manslaughter. See id.

       Relatedly, Robinson argues that without the involuntary manslaughter instruction, the jury

was left with no choice but to convict if they did not believe that he acted in self-defense. The flaw

in this argument, of course, is that the jury did not have to convict Robinson of anything. If the

evidence was insufficient for the jury to conclude that Robinson acted with one of the three

necessary mental states, the court told them that “they must find the Defendant not guilty.” (Trial

Tr. VI, R. 5-8, PageID #3132 (emphasis added).) As the district court noted, “the [accident]

instruction [does] no more than provide one example of how a killing can occur without the

requisite mental state for murder or assault.” Robinson, 2018 WL 1522437, at *6.

       Because the jury found beyond a reasonable doubt that Robinson acted with malice when

he shot Tolson, there is not a substantial likelihood that the outcome at trial would have been

different had counsel requested an accident instruction. Thus, we cannot say that the Michigan

Court of Appeals’ determination that Robinson’s IAC claim failed for lack of prejudice was

objectively unreasonable.

       For these reasons, the district court’s judgment is AFFIRMED.




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