                        NOT RECOMMENDED FOR PUBLICATION
                               File Name: 18a0255n.06

                                          No. 16-2106

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                 FILED
                                                                               May 23, 2018
MARLAN MCRAE,                                           )                  DEBORAH S. HUNT, Clerk
                                                        )
       Petitioner-Appellant,                            )
                                                        )     ON APPEAL FROM THE
v.                                                      )     UNITED STATES DISTRICT
                                                        )     COURT FOR THE WESTERN
UNITED STATES OF AMERICA,                               )     DISTRICT OF MICHIGAN
                                                        )
       Respondent-Appellee.                             )
                                                        )

BEFORE: DAUGHTREY, GIBBONS, and WHITE, Circuit Judges.

       HELENE N. WHITE, Circuit Judge.                Petitioner-Appellant Marlan McRae was

convicted of conspiracy to distribute and possess with intent to distribute five kilograms or more

of cocaine, in violation of 21 U.S.C. § 841(a) and § 846. McRae moved to vacate his conviction

under 28 U.S.C. § 2255, asserting ineffective assistance of counsel. The district court denied the

motion, and we AFFIRM.

                                                I.

       McRae was charged with conspiracy to distribute and possess with intent to distribute

five kilograms or more of cocaine for his part in a chain conspiracy that involved the delivery of

cocaine from California to Detroit for distribution throughout Michigan.         Represented by

attorney Marvin Barnett, McRae was tried with two of his co-defendants, Dr. Owusu Firempong

and Roberto Farias.

       Several of McRae’s co-defendants pleaded guilty and testified against McRae at trial.

Co-defendant James Dylan Hayes testified that two other co-defendant suppliers shipped him an
No. 16-2106
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average of 70 kilograms of cocaine per month from the late 1990s until 2007, and that he

supplied McRae with 10-to-20 kilograms of cocaine from each 70-kilogram shipment he

received. Hayes estimated that, from the late 1990s until 2007, he supplied McRae with a total

of more than 500 kilograms of cocaine from these shipments.

       Hayes’ brother, Alvin Anderson, testified that he, too, delivered cocaine to McRae. Both

Hayes and Anderson testified that they primarily delivered cocaine to McRae at a house on

Hamburg Street in Detroit, but occasionally met McRae at other locations around the city.

Anderson kept a handwritten ledger, admitted into evidence, showing that Anderson delivered

twenty-nine kilograms of cocaine to McRae.

       Officer Michael Patti of the Detroit Police Department testified that on July 6, 2006,

officers executed a search warrant at the house on Hamburg Street, and found a large amount of

cash, cocaine, heroin, marijuana, several handguns, and multiple safes. McRae stipulated that

one of the safes contained a brown paper bag that had two of his fingerprints on it and contained

two bricks of cocaine.    Tommie Hodges, a federal inmate serving a marijuana-trafficking

sentence at the time of trial, also testified. Hodges was not a member of the charged conspiracy,

but was McRae’s friend since elementary school. Hodges testified that he saw McRae daily

from the mid-1990s until approximately 2002 and witnessed McRae receive distribution-

quantities of cocaine and marijuana on numerous occasions. Hodges saw McRae cook cocaine

into crack-cocaine, sell crack-cocaine, and, on one occasion, possess five-to-ten kilograms of

cocaine. Hodges’ testimony was only relevant to McRae; he presented no evidence regarding

any other co-defendant.

       On cross-examination, Attorney Barnett asked Hodges whether he received anything in

exchange for his cooperation. Hodges responded that he received a sentence reduction for


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assisting in the investigation of the murder of a federal witness in an unrelated case. On redirect,

the government asked Hodges to describe that assistance, and in response, Hodges invoked his

Fifth Amendment privilege against self-incrimination. Outside the presence of the jury, Hodges

stated he would continue to invoke the Fifth Amendment in response to any question concerning

his assistance. The district court appointed counsel to advise Hodges.

       After further discussion, the district court ruled that Hodges had no Fifth Amendment

privilege regarding any cooperation he provided during the murder investigation.               The

government proposed that the Court strike Hodges’ redirect testimony and take his plea

agreement out of evidence. Counsels for co-defendants Farias and Firempong moved for a

mistrial. Barnett opposed the motion for a mistrial, asserting that there was no basis for that

remedy, and instead asked the court to strike Hodges’s testimony in its entirety. The court

adopted Barnett’s proposed remedy, reasoning that mistrials are to be granted only in “striking

and extraordinary circumstances” and that a curative instruction could remedy the situation. The

court instructed the jury as follows:

               Ladies and gentlemen of the jury, earlier during this trial you heard
               the testimony of Tommie Hodges. I instruct you that you are to
               disregard entirely the testimony of Tommie Hodges from your
               consideration of this case. You should consider this case as if he
               had not testified.

[R.774, Tr. Trans. vol. IX at 7552–53].

       On May 12, 2011, the jury found McRae guilty of conspiracy to distribute and possess

with intent to distribute cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1).1 On November 11,

2011, the district court sentenced McRae to a 235-month term of imprisonment and entered a


       1
         The jury also found Firempong guilty of participating in the drug conspiracy and a
related money-laundering conspiracy. The jury acquitted Farias.


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$17,280,000 forfeiture judgment against him. McRae appealed his conviction and this court

affirmed. United States v. Logan, 542 F. App’x 484, 501 (6th Cir. 2013).

                                                 II.

       It appears that Attorney Barnett committed several ethical violations during trial. First,

after Hodges invoked the Fifth Amendment, counsel for McRae’s co-defendants informed the

district court that Barnett had attempted to intimidate Hodges through Hodges’ appointed

counsel. Specifically, the attorneys asserted that Barnett told Hodges’ counsel that he wanted “to

give a message” to Hodges. The “message” was that if Hodges did not continue to invoke his

Fifth Amendment privilege, Barnett would ensure that the transcript of his testimony, including

any testimony about his cooperation, would become unsealed, and therefore available to the

public, and that cooperating witnesses like Hodges get “assassinated” when such information

about their cooperation becomes public.

       Additionally, according to affidavits filed by McRae and his wife, McRae asked Barnett

to move for a mistrial after Hodges invoked the Fifth Amendment, but Barnett refused to do so

unless McRae paid him an additional $50,000 to retry the case. After McRae told Barnett he

could not pay the additional $50,000, Barnett opposed co-defendants’ motion for a mistrial.

       In 2014, Judge Paul Maloney, who had presided over the trial, filed a formal complaint

against Barnett with the Michigan Attorney Grievance Board (“the Board”), citing the

allegations of misconduct during McRae’s trial. The Board also received unrelated complaints

against Barnett in two separate matters and held a formal hearing at which Judge Maloney was a

witness.   When asked about the events immediately following Hodges’ Fifth Amendment

invocation, Judge Maloney testified:

               I was anticipating motions for mistrial . . . . I ruled that the invocation
               of the Fifth Amendment was improper under the law, because I didn’t

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               see anything about the factual material that the witness did not want
               to talk about in any way implicated him in a crime. So I ruled that it
               was an improper invocation of the Fifth Amendment, and given trial,
               I anticipated motions for mistrial from the defense lawyers.

[R.3-6 at PID 138]. Counsel for the Attorney Grievance Commission noted that counsel for

McRae’s co-defendants moved for a mistrial and asked if those motions were denied “because

the testimony did not go to their clients,” to which Judge Maloney responded:

               Correct. Mr. – that’s absolutely correct. I didn’t think there was any
               substantial prejudice to Dr. Firempong or Mr. Farais in light of the
               nature of [Hodges’] testimony.

               Of course, they made an argument which I thought was weak that,
               well, it is basically guilt by association here. I didn’t think that
               merited a mistrial.
               ...

               [Counsel for the Attorney Grievance Commission]: [T]aking the
               totality of the circumstances into consideration, if Mr. Barnett had
               filed a motion for mistrial, do you believe it would have been based
               on – grounded on fact and law?

               [Judge Maloney]: Oh, certainly there was an argument – certainly
               there was an argument on behalf of Mr. McRae for a mistrial.

[Id. at PID 138, 145].

       The Board suspended Barnett’s license for three years. Among other findings, the Board

found that Barnett had engaged in misconduct during McRae’s trial and ordered Barnett to pay

McRae $47,000 in restitution.

                                               III.

       McRae asserted an ineffective-assistance-of-trial-counsel claim on direct appeal based on

Barnett’s refusal to move for a mistrial without payment. This court determined that the claim

should be pursued in a habeas petition, and McRae filed this timely motion to vacate his

conviction under 28 U.S.C. § 2255. Rejecting McRae’s argument that he is entitled to a


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presumption of prejudice based on Barnett’s conflict of interest under Cuyler v. Sullivan,

446 U.S. 335 (1980), the district court held that Strickland v. Washington, 466 U.S. 668 (1984),

provides the applicable standard for evaluating McRae’s ineffective-assistance-of-counsel claim.

The district court found that McRae could not demonstrate prejudice under that standard and

denied habeas relief without an evidentiary hearing. This court granted McRae a Certificate of

Appealability regarding his ineffective-assistance-of-counsel claim arising from Barnett’s

alleged extortion attempt, which arguably involved a conflict of interest between Barnett’s own

pecuniary interest and the duty of loyalty he owed to McRae.

                                               IV.

        Ineffective-assistance-of-counsel claims are mixed questions of law and fact and are

reviewed de novo. Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006). Although a district

court’s decision not to conduct an evidentiary hearing is reviewed for abuse of discretion, an

evidentiary hearing “is required unless the record conclusively shows that the petitioner is

entitled to no relief.” Campbell v. United States, 686 F.3d 353, 357 (6th Cir. 2012).

                                                V.

       The Sixth Amendment affords criminal defendants the right to assistance of counsel
because of the effect that assistance “has on the ability of the accused to receive a fair trial.”
United States v. Cronic, 466 U.S. 648, 658 (1984). “Derivative of the right to counsel under the
Sixth Amendment is the right to have counsel provide effective assistance, and assistance which
is ineffective in preserving fairness does not meet the constitutional mandate.” Moss v. United
States, 323 F.3d 445, 454 (6th Cir. 2003) (citations omitted). The Sixth Amendment right to
counsel includes a “correlative right to representation that is free from conflicts of interest.”
Wood v. Georgia, 450 U.S. 261, 271 (1981).
       Generally, a defendant alleging ineffective assistance of counsel must demonstrate both
(1) that counsel’s performance was constitutionally deficient and (2) “a reasonable probability

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that, but for counsel’s unprofessional errors, the result of the proceedings would have been
different.” Strickland v. Washington, 466 U.S. 668, 694 (1984). A “reasonably probability”
means “a probability sufficient to undermine confidence in the outcome.” Id. However, in
certain circumstances, courts “will discharge the defendant’s Strickland obligation to
demonstrate a probable effect on the outcome and instead presume such prejudice.” Moss,
323 F.3d at 455 (citations omitted). Courts will presume prejudice when: (1) a defendant is
completely denied counsel “at a critical stage” of trial; (2) counsel fails to “subject the
prosecution’s case to meaningful adversarial testing”; or (3) counsel “is called upon to render
assistance where competent counsel very likely could not.” Id. (citing Cronic, 466 U.S. at 658–
59).
       The “presumption of prejudice” also applies in particular circumstances when defense
counsel operates under a conflict of interest. In Holloway v. Arkansas, 435 U.S. 475 (1978) and
Cuyler v. Sullivan, 446 U.S. 335 (1980), two cases in which one attorney represented multiple
co-defendants, the Supreme Court held 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.” Sullivan, 446 U.S. at 349–50 (citing Holloway, 435 U.S. at 487–91). In the
multiple-representation context, if a defendant objects to the conflict prior to or during trial, the
trial court must inquire regarding the extent of the conflict, or subject any subsequent conviction
to automatic reversal. Holloway, 435 U.S. at 489–92. In the absence of an objection, a showing
of an actual conflict and its adverse effect on counsel’s performance will void the conviction.
Moss, 323 F.3d at 455 (citing Mickens v. Taylor, 535 U.S. 162, 174–75 (2002)).
                                                 A.

       The first question is whether the district erred in declining to apply Sullivan’s

presumption of prejudice to the pecuniary conflict at issue here. We conclude that it did not;

McRae’s petition is properly analyzed under the Strickland standard. Neither the Supreme Court

nor the Sixth Circuit has applied Sullivan to this type of conflict. See Faison v. United States,



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650 F. App’x 881, 889 (6th Cir. 2016) (“This Court has yet to apply Sullivan, a higher standard

than Strickland, to a fee dispute.”) (citing Mickens, 535 U.S. at 176). Nevertheless, McRae

argues we should apply Sullivan because Barnett actively represented his own conflicting interest

when he demanded an additional $50,000 to retry the case and opposed mistrial when McRae

could not pay.

       The Supreme Court has explicitly cautioned against “appl[ying] Sullivan ‘unblinkingly’

to ‘all kinds of alleged attorney ethical conflicts.’” Mickens, 535 U.S. at 174 (citation omitted).

Mickens involved successive (rather than multiple) representation. Summarizing lower court

cases, the Court disapprovingly cited opinions that:

                 [I]nvoked the Sullivan standard not only when (as here) there is a
                 conflict rooted in counsel’s obligations to former clients, but even
                 when representation of the defendant somehow implicates
                 counsel’s personal or financial interests, including a book deal, a
                 job with the prosecutor’s office, the teaching of classes to Internal
                 Revenue Service agents, a romantic “entanglement” with the
                 prosecutor, or fear of antagonizing the trial judge.

Id. at 174–75 (citations omitted). Because “the language of Sullivan itself does not clearly

establish, or indeed even support, such expansive application,” the Court warned that “[t]he

purpose of [the Supreme Court’s] Holloway and Sullivan exceptions from the ordinary

requirements of Strickland . . . is not to enforce the Canons of Legal Ethics, but to apply needed

prophylaxis in situations where Strickland itself is evidently inadequate to assure vindication of

the defendant’s Sixth Amendment right to counsel.” Id. at 175, 176 (citations omitted).

        In the sixteen years since Mickens was decided, circuit courts have been hesitant to apply

Sullivan’s presumption outside the multiple- or serial-representation context. See, e.g., United

States v. Young, 315 F.3d 911, 915 n.5 (8th Cir. 2003); United States v. Mota-Santana, 391 F.3d

42, 46 (1st Cir. 2004); Whiting v. Burt, 395 F.3d 602, 619 (6th Cir. 2005); United States v.


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Goodley, 183 F. App’x 419, 422 (5th Cir. 2006); Cruz v. United States, 188 F. App’x 908, 913–

14 (11th Cir. 2006); Torres v. Donnelly, 554 F.3d 322, 325–26 (2d Cir. 2009); United States v.

Williamson, 859 F.3d 843, 856 (10th Cir. 2017). Weighing further against the extension of

Sullivan here is the rationale behind it: in cases of multiple representation, “it is difficult to

measure the precise effect on the defense of representation corrupted by conflicting interests.”

Strickland, 466 U.S. at 692; see also Mickens, 535 U.S. at 175 (“Both Sullivan itself and

Holloway stressed the high probability of prejudice arising from multiple concurrent

representation, and the difficulty of proving that prejudice. Not all attorney conflicts present

comparable difficulties.”) (internal citations omitted).

       Here, assuming Barnett actively represented conflicting interests when he demanded an

additional $50,000 to retry the case, McRae can point to a measurable harm: Barnett’s failure to

move for a mistrial. This is not the type of conflict that evades vindication under Strickland’s

prejudice requirement. See United States v. Walter-Eze, 869 F.3d 891, 906 (9th Cir. 2017)

(“Thus, even if Sullivan’s presumption of prejudice can extend . . . to the type of circumstances

implicating counsel’s financial interests as are faced here, this is not a case where the

presumption applies. . . . [W]here, as here, the actual conflict is relegated to a single moment of

the representation and resulted in a single identifiable decision that adversely affected the

defendant, the Supreme Court’s reasoning regarding when prejudice should be presumed does

not control.”).

       Because there is no difficulty identifying the specific harm caused by the conflict here,

and because the Supreme Court directed courts to exercise restraint in extending Sullivan to

conflicts that do not involve multiple representation, we conclude the district court correctly

declined to apply Sullivan’s presumption of prejudice to this case.


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                                                B.

       Under Strickland, McRae must demonstrate (1) Barnett’s performance was deficient; and

(2) “a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceedings would have been different.” Strickland, 466 U.S. at 694.

       Barnett’s decision to push for the exclusion of Hodges’ testimony rather than move for a

mistrial would normally be entitled to deference.2 Campbell v. Coyle, 260 F.3d 531, 551 (6th

Cir. 2001) (citing Strickland, 466 U.S. at 689).          Nevertheless, in assessing counsel’s

performance, this court may consider “the skills a lawyer should possess, the guidelines of

professional organizations such as the ABA, and the specific circumstances of each case.” Id. at

551 (emphasis added) (citation omitted). Under the ABA’s canons of professional ethics, “[a]

lawyer’s own interests should not be permitted to have an adverse effect on representation of a

client.” Comment 10, Model Rules of Prof’l Conduct R. 1.7 (2013); see also Rickman v. Bell,

131 F.3d 1150, 1154–55 (6th Cir. 1997) (“Indicia of objective unreasonableness include the

violation of ‘certain basic duties’ inherent in the representation of a criminal defendant, among

them a ‘duty of loyalty’ to the client, from which derive ‘the overarching duty to advocate the


       2
         “Strickland cautions [] that any court applying this analysis must do so with tremendous
deference to trial counsel’s decisions. . . [T]he defendant must overcome the presumption that,
under the circumstances, the challenged action might be considered sound trial strategy.’”
Campbell v. Coyle, 260 F.3d 531, 551 (6th Cir. 2001) (citing Strickland, 466 U.S. at 689). Here,
it would have been reasonable for counsel to conclude that the option of striking Hodges’
testimony in its entirety was preferable to a retrial in which Hodges might be pressured to testify
under threat of contempt. However, because Barnett injected his financial interests into the
equation, we do not know what he thought was the best strategic outcome. He may have thought
a mistrial was best but opposed it to avoid the need to devote time to the retrial without
additional payment; or he may have thought that having Hodges’ testimony stricken in its
entirety was preferable, but he saw an opportunity to obtain an extra $50,000, and so was willing
to move for a mistrial, provided he was paid. Under the circumstances, because Barnett was
pursuing his own financial interests, there was no exercise of professional judgment deserving of
deference.


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defendant’s cause and the more particular duties to consult with the defendant on important

decisions and to keep the defendant informed of important developments in the course of the

prosecution.’”) (citing Strickland, 466 U.S. at 688).

       We therefore assume that Barnett’s performance in demanding money and opposing the

mistrial was deficient. McRae must still show a reasonable probability that “the result of the

proceedings would have been different.” Strickland, 466 U.S. at 694. The district court found

McRae could not demonstrate prejudice because:

               Even if McRae had been given a new trial, there is no reason to
               believe that the outcome would have been different. There was
               substantial evidence of McRae’s guilt aside from Hodges
               testimony: Hayes and Anderson both testified to supplying McRae
               with cocaine, and officers found cash, guns, and drugs in McRae’s
               house, along with McRae’s fingerprints on a bag of cocaine.

[R.34 at PID 313]. In essence, the district court found that even if McRae could show that Judge

Maloney would have granted a motion for mistrial—which is not at all clear—the overwhelming

evidence of McRae’s guilt made it impossible to establish prejudice. See Mickens, 535 U.S. at

166 (“[D]efects in assistance that have no probable effect upon the trial’s outcome do not

establish a constitutional violation.”); Sylvester v. United States, 868 F.3d 503, 511–12 (6th Cir.

2017) (finding that, although counsel’s failure to move to dismiss due to a Speedy Trial Act

violation constituted deficient performance, the defendant could not demonstrate prejudice

because he could not show that the court would have dismissed the indictments with prejudice).

       We agree that the substantial evidence of McRae’s guilt makes it difficult for him to

demonstrate prejudice, but “an analysis focusing solely on mere outcome determination, without

attention to whether the result of the proceeding was fundamentally unfair or unreliable, is

defective.” See Lockhart v. Fretwell, 506 U.S. 364, 369 (1993). Although overwhelming

evidence of guilt may offer a reviewing court confidence in the reliability of the proceeding, it

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does not necessarily establish fairness. Our Sixth Amendment analysis, therefore, cannot rest

solely on the weight of the evidence against McRae.

       Here, the only allegation that Barnett’s performance was deficient stems from Barnett’s

refusal to move for a mistrial. Barnett’s actions were clearly unethical, but those actions did not

render the trial fundamentally unfair. Although Judge Maloney stated he thought McRae could

have made “an argument” for mistrial, he also explained that such a remedy “should be reserved

for ‘extraordinary and striking circumstances.’” [R. 774 at PID 7435] (citing Renico v. Lett,

559 U.S. 766, 784 (2010)).      And even after Barnett’s extortion attempt, he continued to

vigorously represent McRae and, over government objection, successfully moved to strike

Hodges’ entire testimony, which would have been particularly damaging to McRae. The court

then gave an adequate curative instruction. On balance, we cannot say that Barnett’s failure to

move for a mistrial “so undermined the proper functioning of the adversarial process that the trial

cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686.

                                               VI.

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




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