                     RECOMMENDED FOR FULL-TEXT PUBLICATION
                          Pursuant to Sixth Circuit Rule 206
                                 File Name: 11a0092p.06

              UNITED STATES COURT OF APPEALS
                             FOR THE SIXTH CIRCUIT
                               _________________


                                              X
                                               -
 HOLLAND HARDAWAY,
                                               -
                          Petitioner-Appellant,
                                               -
                                               -
                                                   No. 08-1156
         v.
                                               ,
                                                >
                                               -
                     Respondent-Appellee. -
 KENNY ROBINSON,
                                               -
                                              N
                 Appeal from the United States District Court
               for the Eastern District of Michigan at Detroit.
              No. 01-70230—George C. Steeh, District Judge.
                            Argued: November 30, 2010
                         Decided and Filed: April 14, 2011
Before: BATCHELDER, Chief Judge; ROGERS and KETHLEDGE, Circuit Judges.

                                 _________________

                                     COUNSEL
ARGUED: B. Kurt Copper II, JONES DAY, Columbus, Ohio, for Appellant. John S.
Pallas, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan,
for Appellee. ON BRIEF: B. Kurt Copper II, Chad A. Readler, Erik J. Clark, JONES
DAY, Columbus, Ohio, for Appellant. Brad H. Beaver, B. Eric Restuccia, OFFICE OF
THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee. Holland
Hardaway, Detroit, Michigan, pro se.
                                 _________________

                                      OPINION
                                 _________________

       ROGERS, Circuit Judge. Holland Hardaway appeals the denial of a habeas
petition challenging his 1994 murder conviction on two grounds. Hardaway’s first
argument, that his due process rights were violated when the trial judge gave the jury a
coercive Allen instruction, lacks merit. However, Hardaway is entitled to relief on his



                                           1
No. 08-1156        Hardaway v. Robinson                                             Page 2


second ground, because the ineffective assistance of appellate counsel—who failed to
file an appellate brief and thereby deprived Hardaway of a direct appeal—was not cured
by the ability to appeal from later state collateral proceedings.

       Hardaway shot and killed Norman Spruiel, a Detroit police officer, on October
2, 1993. Hardaway’s defense was that he did not know Spruiel was a police officer, and
that he returned fire in self-defense. Officer Spruiel and his partner had been working
undercover, investigating a murder near a body shop where Hardaway was employed.
Believing the two men were about to rob the repair shop, Hardaway went home,
retrieved a rifle, and returned to the shop. Shots were fired, and Officer Spruiel was
fatally wounded. Both sides claimed the other shot first.

       Hardaway was charged with three counts—murder, assault with intent to murder,
and possession of a firearm during the commission of a felony—and tried on May 9-18,
1994. On the second day of deliberations, the jury sent a note to the trial judge stating
that it was “[h]opelessly deadlocked on first and second counts.” The trial court
responded with the following supplemental instruction:

               Now, you have returned from deliberations indicating that you
       believe you cannot reach a verdict. I am going to ask you to please
       return to the jury room and resume your deliberations in the hope that
       after further discussion, you will be able to reach a verdict.
               As you deliberate, please keep in mind the guidelines I gave you
       earlier. Remember, it is your duty to consult with your fellow jurors and
       try to reach agreement if you can do so without violating your own
       judgment. To return a verdict, you must all agree and the verdict must
       represent the judgment of each of you.
              As you deliberate, you should carefully and seriously consider the
       views of your fellow jurors. Talk things over in a spirit of fairness and
       frankness. It’s natural there will be differences of opinion. You should
       each not only express your opinion but also give the facts and the reasons
       on which you base it. By reasoning the matter out, jurors can often reach
       agreement.
              And when you continue your deliberations, do not hesitate to
       rethink your own views and change your opinion if you decide it was
       wrong. However, none of you should give up your honest beliefs about
No. 08-1156         Hardaway v. Robinson                                              Page 3


        the weight or effect of the evidence only because of what your fellow
        jurors think or only for the sake of reaching agreement.
               So once again, ladies and gentlemen, this was a long trial, we
        were in trial all week and you’ve got plenty of time. Take your time.
        We are going to break now for 15 – let you have a 15-minute break and
        then you will return to the courtroom, to the jury room and you will
        deliberate for as long as necessary for you to reach agreement.

R. 17 at 986-87 (emphasis added). Defense counsel’s objection to the supplemental
charge as coercive was overruled.

        On the third day of deliberations, the jury indicated that it was “[s]till hopelessly
deadlocked on Counts 1 and 2.” Over defense counsel’s objection, the trial judge again
rejected the jury’s conclusion, sent the jurors to lunch, and informed them that they
would resume deliberations when they returned. On the fourth day of deliberations, the
jury reached a verdict, convicting Hardaway of second-degree murder and possession
of a firearm during the commission of a felony, but acquitting him of assault with intent
to murder. The trial court sentenced Hardaway as a habitual offender to consecutive
terms of 40-80 years in prison for the murder conviction and five years in prison for the
felony firearm conviction.

        On June 30, 1994, Hardaway filed a timely claim of appeal through his attorney,
Paul Curtis. However, the Michigan Court of Appeals dismissed the appeal on August
18, 1995, because Curtis failed to file an appellate brief. Hardaway filed a delayed
application for leave to appeal through different appellate counsel, which was denied as
untimely. The Michigan Supreme Court denied leave to appeal the state appellate
court’s decision, but suggested that Hardaway file a motion for relief from judgment in
the trial court and argue that his first appellate counsel’s neglect of the appeal of right
established cause for Hardaway’s failure to raise his claims on direct appeal.

        Hardaway did exactly that. As relevant to this appeal, Hardaway’s motion for
state post-conviction relief asserted claims of jury coercion, ineffective assistance of trial
counsel, and ineffective assistance of appellate counsel. The motion was denied on
August 4, 1999, in an opinion that reached the merits of Hardaway’s jury coercion and
No. 08-1156         Hardaway v. Robinson                                             Page 4


ineffective assistance of trial counsel claims, but did not address the merits of
Hardaway’s ineffective assistance of appellate counsel claim. The Michigan Court of
Appeals upheld the district court’s ruling in an order stating, “the delayed application
for leave to appeal is denied, for lack of merit in the grounds presented.” The Michigan
Supreme Court, also in a one-sentence order, declined review.

        Hardaway next sought federal habeas relief. His petition was initially dismissed
as time-barred, and both the district court and this court denied a certificate of
appealability. Hardaway then filed a Rule 60(b) motion to vacate the judgment and
reinstate his petition, arguing that the prior dismissal mistakenly used the wrong filing
date in concluding that his petition was time-barred. The district court granted the
motion on March 11, 2005, and then denied Hardaway’s claims on the merits. The
district court held that the trial court’s supplemental instruction on the whole was not
coercive, and that Hardaway was not prejudiced by appellate counsel’s ineffective
assistance because Michigan’s collateral post-conviction procedure was an adequate
substitute for his direct appeal. Hardaway now appeals the district court’s denial of
habeas relief.

        Although the failure of Hardaway’s counsel to effect an appeal requires reversal,
as explained below, Hardaway is not entitled to habeas relief on his jury coercion claim.
This is because, in light of the entire supplemental instruction, the Michigan trial court’s
determination that the Allen charge was not coercive is not an unreasonable application
of federal law.

        The Michigan trial court on collateral review denied relief on Hardaway’s jury
coercion claim, stating, “[i]n this case, the overall effect of the comment was not
coercive, rather it stressed the need of the jurors to seriously engage in deliberations.”
Even if we disagreed with that result, the state court’s determination is entitled to
deference under the Antiterrorism and Effective Death Penalty Act (AEDPA), which
prohibits federal courts from granting habeas relief unless the state court’s adjudication
of a claim “was contrary to, or involved an unreasonable application of, clearly
No. 08-1156         Hardaway v. Robinson                                               Page 5


established Federal law, as determined by the Supreme Court of the United States.”
28 U.S.C. § 2254(d).

        The state court’s determination was a reasonable application of federal law. As
the district court below reasoned, although the trial judge’s comment was ill-advised, the
supplemental charge included several remarks that were sufficient to mitigate any
coercive effect the comment might have had. For example, the trial judge also instructed
the jurors to “try to reach agreement if you can do so without violating your own
judgment.” And the court emphasized that “none of you should give up your honest
beliefs about the weight or effect of the evidence” for the sake of reaching agreement.

        The Supreme Court has long maintained that a trial judge may properly
encourage a deadlocked jury to continue deliberating by issuing a supplemental
instruction that urges the jury to reach a unanimous verdict. Allen v. United States, 164
U.S. 492, 501-02 (1896). These so-called Allen charges serve the important purpose of
avoiding the social costs of a retrial, including the time, expense, and potential loss of
evidence that a new trial would entail. See Lowenfield v. Phelps, 484 U.S. 231, 237-38
(1988); id. at 252 (Marshall, J., dissenting). This court has also generally upheld
“verdict-urging” charges, even when they contain flaws, e.g., Williams v. Parke, 741
F.2d 847, 850 (6th Cir. 1984), and despite “troubling” references to trial expense and
effort, e.g., United States v. Clinton, 338 F.3d 483, 490 (6th Cir. 2003).

        The Supreme Court’s decision in Jenkins v. United States, 380 U.S. 445, 446
(1965), does not require habeas relief in this case. It is true that, taken in isolation, the
trial court’s statement that “you will deliberate for as long as necessary for you to reach
agreement” is similar to the mandatory language held to be coercive in Jenkins. There
the trial judge told a deadlocked jury, “[y]ou have got to reach a decision in this case,”
and the Supreme Court ordered a new trial. See id. The Court explained that “the
principle that jurors may not be coerced into surrendering views conscientiously held is
so clear as to require no elaboration.” Id. But the Court carefully refrained from stating
a categorical rule. Instead, it held that “[u]pon review of the record . . . in its context and
under all the circumstances the judge’s statement had the coercive effect attributed to it.”
No. 08-1156         Hardaway v. Robinson                                             Page 6


Id. The state court in this case, undertaking a similar review of the record, in context and
under the circumstances, could come to a contrary conclusion.

        Our finding that the Michigan trial court did not unreasonably apply federal law
in rejecting Hardaway’s Allen charge claim on post-conviction review does not foreclose
any state law challenges that could be raised on direct appeal to the Michigan Court of
Appeals. Nor does our decision necessarily foreclose a federal law challenge to the
Allen charge on direct appeal, because we hold only that the state trial court’s application
of federal law was not unreasonable.

        Turning then to petitioner’s second ground for habeas relief, Hardaway was
prejudiced by his appellate counsel’s deficient performance, because the failure to file
an appellate brief rendered Hardaway’s direct appeal “entirely nonexistent.” See Roe
v. Flores-Ortega, 528 U.S. 470, 484 (2000). In such circumstances, prejudice is
presumed under Flores-Ortega, and Michigan’s collateral post-conviction proceeding
is not an adequate substitute for a direct appeal of right.

        As the district court held below, Hardaway’s appellate counsel’s failure to file
a timely appellate brief constituted deficient performance under the first prong of
Strickland v. Washington, 466 U.S. 668 (1984), and the state does not argue to the
contrary. Cf. Deitz v. Money, 391 F.3d 804, 810 (6th Cir. 2004); White v. Schotten, 201
F.3d 743, 752 (6th Cir. 2000).

        Moreover, Hardaway was prejudiced by counsel’s deficient performance because
the deficiency “deprived [Hardaway] of the appellate proceeding altogether.” See
Flores-Ortega, 528 U.S. at 483-84. In Flores-Ortega, the Supreme Court held that the
defendant was entitled to a presumption of prejudice “with no further showing . . . of the
merits of his underlying claims when the violation of the right to counsel rendered the
proceeding . . . entirely nonexistent.” Id. at 484. Similarly, in Rodriquez v. United
States, 395 U.S. 327, 330 (1969), the Court held that counsel’s failure to file a notice of
appeal entitled the defendant to a new appeal without any further showing.
No. 08-1156             Hardaway v. Robinson                                                         Page 7


         The district court ruled below that Hardaway’s collateral motion for relief from
judgment—which was addressed on the merits of Hardaway’s claims—along with
appellate review of the denial of such collateral relief, was an adequate substitute for his
direct appeal. We do not reject the idea that a state court could correct for an
unconstitutional denial of effective counsel on direct appeal by providing for the
constitutional equivalent of a new direct appeal. The appeal from the denial of collateral
review in this case, however, could not reasonably be deemed a sufficient substitute.1

         The strongest argument that there was a sufficient substitute for a counseled
direct appeal in this case is that it was provided by the appeal from the merits-based
denial of collateral review. But appeal from the denial of collateral relief in Michigan
is different from a direct appeal from a conviction. A defendant must apply for leave to
appeal from the denial of a motion for relief from judgment. See Mich. Ct. R. 6.509.
The disposition of an application for leave to appeal is within the discretion of the
Michigan Court of Appeals, and is a preliminary step to having the case proceed as an
appeal of right. See Mich. Ct. R. 7.205(D)(2), (3). The Court of Appeals may respond
to a leave application in several different ways: it “may grant or deny the application;
enter a final decision; grant other relief; request additional material from the record; or
require a concise statement of proceedings and facts from the court . . . whose order is
being appealed.” Id. Only if the leave application is granted will the case proceed as an
appeal of right. See Mich. Ct. R. 7.205(D)(3).

         Thus, when the Michigan Court of Appeals issues a one-sentence order denying
leave to appeal “for lack of merit in the grounds presented,” we have no way of knowing
how the state appellate court resolved the various issues presented by the application.

         1
            This conclusion makes it unnecessary for us to decide whether AEDPA deference applies to this
inquiry. The Michigan courts did not address the ineffective-assistance-of-appellate-counsel prejudice
issue in so many words. However, the Michigan Supreme Court on direct review suggested that
ineffective assistance of appellate counsel would serve as cause to permit the state trial court on collateral
review to reach the merits. R. 21 at 1 (citing Mich Ct. R. 6.508(D)(3)(a)). When the state trial court did
just that, a generous reading would be that the state trial court on collateral review was itself providing a
remedy for the ineffective appellate assistance that all assumed occurred. Presumably the court was of the
view that providing such a remedy, along with the possibility of appellate review of its own decision, was
sufficient to provide what was constitutionally required. In light of the analysis below, however, such a
conclusion would not have been a reasonable one, especially since part of our analysis relies on the
summary nature of the Michigan appellate court’s ruling. When the state trial court ruled, it of course did
not know what the Michigan appellate court was going to do on review of its very decision.
No. 08-1156         Hardaway v. Robinson                                             Page 8


There is no way to tell whether the state court simply declined to hear the appeal because
of delay or other procedural defect, or whether the court’s disposition was a summary
affirmance on the merits. Furthermore, unlike the appellant in an appeal of right, the
applicant denied leave to appeal does not receive the benefit of oral argument. See
Mich. Ct. R. 7.205(D)(1). Nor does the defendant have a right to appointed counsel on
post-conviction review, although Hardaway was represented by counsel on his collateral
appeal in this case. See People v. Walters, 624 N.W.2d 922, 923-24 (Mich. 2001).
Taken together, these differences render Michigan’s collateral post-conviction
proceeding too unlike an appeal of right to constitute a sufficient substitute.

        The Supreme Court emphasized the importance of the first level of direct review
in Douglas v. California, 372 U.S. 353, 356-57 (1963), explaining that such an appeal
entails adjudication on the merits, and that it differs from subsequent appellate stages “at
which the claims have once been presented by a lawyer and passed upon by an appellate
court.” Likewise in Halbert v. Michigan, 545 U.S. 605, 618 (2005), the Court
distinguished first-tier direct review in the Michigan Court of Appeals from review in
the Michigan Supreme Court, noting that the purpose of first-tier appellate review is to
correct errors in the lower court, while the Michigan Supreme Court sits primarily to
decide matters of “significant public interest.” See Mich. Ct. R. 7.302(B)(2). The
policies underlying these distinctions between first-tier and second-tier appeals do not
support substituting a discretionary appeal—with tougher procedural hurdles—in place
of an appeal of right. This is particularly true where these additional obstacles would be
imposed on defendants simply because counsel failed entirely to perfect a direct appeal.

        We reached a similar conclusion in Dorn v. Lafler, 601 F.3d 439, 445 (6th Cir.
2010), a case that involved a right of access claim rather than an ineffective assistance
claim. The petitioner in Dorn argued that the prison’s mishandling of his appeal papers
caused him to lose his appeal of right, violating his Fourteenth Amendment right of
access to the courts. Id. at 443. We applied Flores-Ortega in holding that the petitioner
was entitled to a presumption of prejudice. Id. at 445. We also rejected the argument
that a delayed application for leave to appeal was an adequate substitute for a direct
No. 08-1156         Hardaway v. Robinson                                             Page 9


appeal, because of the additional hurdles that those collateral proceedings impose on
prisoners. Id.

        Our decision today does not address the situation that would have arisen had the
Michigan Court of Appeals granted rather than denied the application for leave to
appeal, insured that petitioner had a right to appellate counsel, permitted the case to
proceed as an appeal of right under Mich. Ct. R. 7.205(D)(3), and disposed of the merits
to the same extent that it would have on a direct appeal. That is not the case before us.

        The district court below relied on Abela v. Martin, 380 F.3d 915, 923 (6th Cir.
2004), in concluding that the Michigan Court of Appeals’ one-sentence denial of relief
“for lack of merit in the grounds presented” was a merits determination, and therefore
that Hardaway’s post-appeal review was the functional equivalent of a direct appeal.
But Abela stands for the proposition that a dismissal “for lack of merit in the grounds
presented” does not unambiguously invoke a procedural bar, not that the same one-
sentence order is unambiguously a merits decision, much less an “adequate substitute”
for a direct appeal. See id. at 922-24; Guilmette v. Howes, 624 F.3d 286 (6th Cir. 2010)
(en banc). These cases address the distinction between an order that enforces a
procedural rule barring the claim and an order that rejects the claim on its merits, not the
issue of whether an unexplained order reflects the result of a proceeding that is an
adequate substitute for a direct appeal.

        Respondent argues that there is no reasonable probability that the result of
Hardaway’s direct appeal would have been different if counsel had filed a timely
appellate brief. Under Flores-Ortega, that is beside the point. The purpose of
presuming prejudice is to eliminate the need for a prisoner to make any further showing
beyond establishing that the lost proceeding was “entirely nonexistent.” See Flores-
Ortega, 528 U.S. at 483-84; Rodriquez, 395 U.S. at 330.

        For these reasons, we reverse the denial of habeas relief and remand to the
district court with instructions to issue a conditional writ directing the state to afford
Hardaway a direct appeal.
