                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 19a0320n.06

                                           No. 19-1238

                          UNITED STATES COURT OF APPEALS                                 FILED
                               FOR THE SIXTH CIRCUIT
                                                                                   Jun 25, 2019
                                                                               DEBORAH S. HUNT, Clerk
EARL ALLEN NORTHROP, JR.,                                )
                                                         )
       Petitioner-Appellant,                             )    ON APPEAL FROM THE UNITED
                                                         )    STATES DISTRICT COURT FOR
v.                                                       )    THE EASTERN DISTRICT OF
                                                         )
                                                              MICHIGAN
CONNIE HORTON, Warden,                                   )
                                                         )
       Respondent-Appellee.                              )
                                                         )            ORDER
                                                         )


       Earl Allen Northrop, Jr., a Michigan prisoner proceeding through counsel, appeals a district
court judgment denying his petition for a writ of habeas corpus filed under 28 US.C. § 2254.
Northrop requests a certificate of appealability. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).
       A jury found Northrop guilty of kidnapping, second-degree child abuse, three counts of
first-degree criminal sexual conduct, and three counts of second-degree criminal sexual conduct.
The principal evidence against him was the testimony of the complainant, his 15-year-old
daughter; no injuries were found during a physical examination and the minimal amount of DNA
recovered from her thigh matched one out of two white males (including the defendant). Northrop
was sentenced as a fourth-offense habitual offender to serve thirty to fifty years of imprisonment
for the kidnapping conviction, four to fifteen years for the child abuse conviction, forty to sixty
years for each first-degree criminal sexual conduct conviction, and nineteen to thirty-five years for
each second-degree criminal sexual conduct conviction, to run concurrently. The Michigan Court
of Appeals affirmed Northrop’s convictions and sentences. People v. Northrop, No. 315972, 2014
WL 1921289 (Mich. Ct. App. May 13, 2014). The Michigan Supreme Court denied leave to
appeal. People v. Northrop, 857 N.W.2d 37 (Mich. 2014).
No. 19-1238, Northrop v. Horton

       On direct appeal, Northrop argued only that this conviction was legally insufficient and
against the weight of the evidence; he did not present the claims asserted in his habeas corpus
petition. See Northrop, 2014 WL 1921289. Northrop did present these claims on post-conviction
review, but the state trial court rejected them on procedural grounds under Michigan Court Rule
6.508(D)(3), finding that he could have raised them on direct appeal and failed to show either
“good cause” for failing to do so or “actual prejudice.” The Michigan Court of Appeals denied
leave to appeal the state trial court’s denial of post-conviction relief, and the Michigan Supreme
Court denied leave to appeal for failure “to meet the burden of establishing entitlement to relief
under [Michigan Court Rule] 6.508(D).” People v. Northrop, 888 N.W.2d 107 (Mich. 2017).
       After unsuccessfully pursuing state post-conviction relief, Northrop filed, through counsel,
a habeas corpus petition, asserting the following grounds for relief: (1) he was denied effective
assistance of trial counsel because counsel “failed to investigate, failed to present an essential
expert witness, failed to present evidence of prior false allegations, and failed to seek school
records”; (2) the trial court erroneously admitted “his involuntary statement as impeachment
evidence,” and trial counsel was ineffective for failing “to move to suppress his statement or to
object to its admission during trial”; (3) the trial court erroneously admitted “evidence of [his]
attempted flight”; and (4) “the cumulative effect of the errors by [his] attorney denied [him] a fair
trial and significantly undermined the confidence in the reliability of the verdict.” The district
court denied Northrop’s habeas corpus petition and denied a certificate of appealability,
concluding that Northrop’s claims were procedurally defaulted.
       A certificate of appealability may issue only if a petitioner makes “a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “At the COA stage, the only
question is whether the applicant has shown that ‘jurists of reason could disagree with the district
court's resolution of his constitutional claims or that jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further.’” Buck v. Davis, 137 S. Ct. 759, 773 (2017)
(quoting Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)). When a habeas corpus petition is denied
on procedural grounds, as it was here, the petitioner must show both “that jurists of reason would
find it debatable whether the petition states a valid claim of the denial of a constitutional right and


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No. 19-1238, Northrop v. Horton

that jurists of reason would find it debatable whether the district court was correct in its procedural
ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
       To determine whether a brief, unexplained order citing Rule 6.508(D) is based on a
procedural default or a merits ruling, this court reviews “the last reasoned state court opinion to
determine the basis for the state court’s rejection of [Northrop’s] claim.” Guilmette v. Howes, 624
F.3d 286, 291 (6th Cir. 2010) (en banc). Under this procedure, federal habeas courts presume that
“[w]here there has been one reasoned state judgment rejecting a federal claim, later unexplained
orders upholding that judgment or rejecting the same claim rest upon the same ground.” Id. at
291-92 (alteration in original) (quoting Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)).
       In this case, the last reasoned state court decision was entered by the trial court, which
denied relief on procedural grounds—Northrop’s inability to show “good cause” for failing to raise
his claims on direct appeal and “actual prejudice.” Although the bulk of the trial court’s five-page
opinion addresses the merits of Northrop’s claims, its conclusion nonetheless relied on Michigan
Court Rule 6.508(D)(3). Michigan Court Rule 6.508(D)(3) bars post-conviction relief for claims
that “could have been raised on appeal from the conviction and sentence.” It is “an independent
and adequate state ground sufficient for procedural default.” Amos v. Renico, 683 F.3d 720, 733
(6th Cir. 2012). The district court therefore correctly concluded that the last-reasoned state court
decision relied upon and enforced a procedural bar. See Baze v. Parker, 371 F.3d 310, 320 (6th
Cir. 2004) (“[W]hen a state court relies on an independent procedural ground to deny relief, a
discussion of the merits will not supersede the procedural bar to habeas relief.”); see also Harris
v. Reed, 489 U.S. 255, 264 n.10 (1989) (noting that application of a state procedural bar bars
federal habeas review even if the state court reaches the merits in an alternative holding).
       Nonetheless, jurists of reason could debate whether cause exists to excuse this procedural
default because Northrop’s trial counsel also represented him on direct appeal. This court “has
never squarely determined whether having the same counsel at trial and on appeal constitutes cause
excusing procedural default of an ineffectiveness claim.” Duyst v. Rapelje, 483 F. App’x 36, 44-




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No. 19-1238, Northrop v. Horton

45 n.3 (6th Cir. 2012).1 Other circuits, however, have concluded that being represented by the
same attorney at trial and on appeal constitutes cause because there is an inherent “conflict between
[Northrop’s] interest in presenting and prevailing in his ineffective assistance claim and [his
attorney’s] interest in protecting himself from the damage such an outcome would do to his
professional reputation and from exposure to potential malpractice liability or bar discipline.”
Manning v. Foster, 224 F.3d 1129, 1134 (9th Cir. 2000); see also, e.g., Maples v. Thomas, 565
U.S. 266, 285 n. 8 (2012) (noting that “a significant conflict of interest arose for the firm” when
“the firm's interest in avoiding damage to its own reputation was at odds with Maples' strongest
argument—i.e., that his attorneys had abandoned him”); Sasser v. Hobbs, 735 F.3d 833, 852 (8th
Cir. 2013) (“Although new appellate counsel is not, by itself, sufficient to guarantee capital
defendants a meaningful opportunity to challenge their trial counsel's effectiveness on direct
appeal, it is a necessary part of such a guarantee. Otherwise, appointed trial counsel must question
his own effectiveness . . . .”); Gray v. Pearson, 526 F. App’x 331, 334 (4th Cir. 2013) (“We find
that a clear conflict of interest exists in requiring Gray's counsel to identify and investigate
potential errors that they themselves may have made in failing to uncover ineffectiveness of trial
counsel while they represented Gray in his state post-conviction proceedings.”). A finding that
Northrop’s appellate attorney had an actual conflict of interest that adversely affected his
performance by causing him to not raise the issue of ineffective assistance of trial counsel would
provide both cause and prejudice to excuse the procedural default. See Cuyler v. Sullivan, 446
U.S. 335, 348 (1980); Gunner v. Welch, 749 F.3d 511, 516 (6th Cir. 2014).2


1
  We have, however, previously determined that under Ohio (not federal) law, no procedural bar
applies in such a situation. Although Ohio, like Michigan, bars state courts from considering
claims on postconviction review that could have been raised on direct appeal, in Hicks v. Collins
we applied Ohio’s own res judicata rule to conclude that “if the defendant was represented by the
same counsel at trial and on direct appeal, claims of ineffective assistance of trial counsel are not
defaulted” just because they were not raised on direct appeal. 384 F.3d 204, 211 (6th Cir. 2004).
2
  If Northrop’s appellate counsel was constitutionally ineffective, this would also constitute cause
and prejudice under Rule 6.508(D)(3). People v. Reed, 535 N.W.2d 496, 499 (Mich. 1995). Thus,
for the reasons discussed above, jurists of reason could find debatable whether Northrop’s claim
was in fact not procedurally defaulted because the state trial court’s decision “improperly invoked”
Rule 6.508(D)(3)’s procedural bar. See Richey v. Bradshaw, 498 F.3d 344, 359 (6th Cir. 2007).


                                                -4-
No. 19-1238, Northrop v. Horton

       Reasonable jurists could therefore debate the district court’s conclusion that Northrop’s
claims of ineffective assistance of trial counsel are procedurally defaulted and that no cause to
excuse this default exists. See Slack, 529 U.S. at 484. But to obtain a certificate of appealability,
Northrop must also demonstrate “that jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right.” Slack, 529 U.S. at 484. He cannot.
       Northrop claimed that trial counsel was ineffective for failing to investigate his case,
present an expert witness and evidence of the victim’s prior false allegations, obtain the victim’s
school records, and file a motion to suppress his statement and challenge its admission at trial. He
also claimed that evidence of his attempt to flee was erroneously admitted.
       The Michigan trial court briefly addressed the merits of most of these claims on post-
conviction review. The state trial court found that an expert witness was not necessary because
“the DNA evidence did not play a significant role in this case because the results were vague and
inconclusive,” that trial counsel emphasized the inconclusive DNA evidence during closing
argument, and that trial counsel’s emphasis on the lack of conclusive DNA evidence was strategic.
The state trial court found that the victim’s school records were not necessary because Northrop
and the victim testified “regarding an alleged incident at the victim’s school” and that “anything
found in the school records regarding a collateral matter would have been inadmissible.” The state
trial court found that trial counsel was not ineffective for failing to challenge Northrop’s statement
because, even if he was intoxicated, he “was given his Miranda rights, interviewed at home, and
did not allege any of the factors that would tend to show that his statement was involuntary.” The
state trial court found no error in the admission, over trial counsel’s objection, of flight evidence.
The state trial court did not address the sworn affidavits provided by three of Northrop’s family
members, alleging that the complainant had made false prior accusations of sexual abuse and that
they would have been prepared to testify to this at trial had trial counsel contacted them. But, in
the light of the strength of the evidence in this case and AEDPA’s deferential standard of review,


Similarly, jurists of reason could also find debatable whether Rule 6.508(D)(3) is an “adequate”
procedural ground to bar federal habeas review in this case because Northrop was represented by
the same attorney at trial and on appeal. See, e.g., Cannon v. Mullin, 383 F.3d 1152, 1172–73
(10th Cir. 2004), abrogated on other grounds by Cullen v. Pinholster, 563 U.S. 170 (2011).


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No. 19-1238, Northrop v. Horton

jurists of reason could not debate whether the claim that Northrop’s counsel was ineffective is
“arguably valid or meritorious.” Dufresne v. Palmer, 876 F.3d 248, 254 (6th Cir. 2017).
       Because jurists of reason would not “find it debatable whether the petition states a valid
claim of the denial of a constitutional right,” Slack, 529 U.S. at 484, Northrop’s application for a
certificate of appealability is DENIED.


                                              ENTERED BY ORDER OF THE COURT




                                              Deborah S. Hunt, Clerk




                                               -6-
