           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                       2    Willis v. Smith                              No. 02-2445
        ELECTRONIC CITATION: 2003 FED App. 0444P (6th Cir.)
                    File Name: 03a0444p.06                                                   _________________
UNITED STATES COURT OF APPEALS                                                                   OPINION
                                                                                             _________________
                  FOR THE SIXTH CIRCUIT
                    _________________                                       BOYCE F. MARTIN, JR., Circuit Judge. Barry Anthony
                                                                         Willis, a pro se Michigan prisoner, appeals a district court
                                                                         judgment dismissing his petition for a writ of habeas corpus
 BARRY ANTHONY WILLIS,            X                                      filed under 28 U.S.C. § 2254. This case has been referred to
         Petitioner-Appellant, -                                         a panel of the court pursuant to Sixth Circuit Rule 34(j)(1).
                                   -                                     Upon examination, this panel unanimously agrees that oral
                                   -  No. 02-2445                        argument is not needed. FED . R. APP . P. 34(a).
           v.                      -
                                    >
                                   ,                                                                    I.
 DAVID SMITH,                      -
        Respondent-Appellee. -                                             Following a bench trial in 1995, Willis was found guilty of
                                  N                                      conspiring to distribute six hundred fifty grams or more of
      Appeal from the United States District Court                       cocaine. The court sentenced Willis to life imprisonment
     for the Eastern District of Michigan at Detroit.                    without the possibility of parole and subsequently denied
  No. 02-70028—Bernard A. Friedman, District Judge.                      Willis’s motion for a new trial. On direct appeal, the
                                                                         Michigan Court of Appeals denied Willis’s motion for a
                 Submitted: December 2, 2003                             remand and affirmed his conviction and sentence. The
                                                                         Michigan Supreme Court denied leave to appeal.
            Decided and Filed: December 16, 2003                           Thereafter, Willis filed a petition for post-conviction relief
                                                                         that asserted several claims. The trial court denied Willis
        Before: MARTIN and MOORE, Circuit Judges;                        relief on his ineffective assistance of counsel claims, but
                McKEAGUE, District Judge.*                               granted relief on his sentencing claim, making him eligible
                      _________________                                  for parole after serving seventeen and one-half years of his
                                                                         sentence. Willis filed a motion to amend his post-conviction
                           COUNSEL                                       petition in order to assert a new claim alleging ineffective
                                                                         assistance of trial counsel, which the trial court denied
ON BRIEF: Janet A. Van Cleve, OFFICE OF THE                              because Willis had failed to demonstrate “good cause” under
ATTORNEY GENERAL, Lansing, Michigan, for Appellee.                       Michigan Court Rule 6.508(D)(3)(a) for failing to assert that
Barry Anthony Willis, New Haven, Michigan, pro se.                       claim in his appeal as of right. The Michigan Court of
                                                                         Appeals entered an order dismissing Willis’s appeal for lack
                                                                         of jurisdiction, which the Michigan Supreme Court vacated.
    *
                                                                         On remand, the Michigan Court of Appeals considered
      The Ho norable D avid W . McKeague, United States District Judge   Willis’s application but denied it because Willis had “failed
for the Western District of Michigan, sitting by designation.

                                  1
No. 02-2445                               Willis v. Smith     3    4      Willis v. Smith                             No. 02-2445

to meet the burden of establishing entitlement to relief under     of the evidence presented to the state courts. 28 U.S.C.
[Rule] 6.508)(D).” The Michigan Supreme Court also denied          § 2254(d).
leave to appeal for the same reason.
                                                                      Upon review, we conclude that the district court properly
   Willis then filed the instant section 2254 petition,            held that Willis has procedurally defaulted his ineffective
essentially arguing that: 1) his trial counsel rendered            assistance of trial counsel claim and that his ineffective
ineffective assistance by advising him to accept a bench trial     assistance of appellate counsel claim lacks merit. “When a
before a judge who, while presiding over the trial of Willis’s     habeas petitioner fails to obtain consideration of a claim by a
brother and co-defendant, Antawn Willis, commented that “I         state court, either due to the petitioner’s failure to raise that
agree with some of what defense counsel[’s] theory is going        claim before the state courts while state-court remedies are
to be – that Barry [Willis] is the big guy – may be the big guy.   still available or due to a state procedural rule that prevents
It sure looks like it from talking to these witnesses;”            the state courts from reaching the merits of the petitioner’s
2) appellate counsel rendered ineffective assistance by failing    claim, that claim is procedurally defaulted and may not be
to challenge trial counsel’s ineffectiveness in his appeal as of   considered by the federal court on habeas review.” Seymour
right; 3) the Michigan courts improperly failed to allow           v. Walker, 224 F.3d 542, 549-50 (6th Cir.), cert. denied, 532
expansion of the record by way of an evidentiary hearing           U.S. 989 (2001) (citing Wainwright v. Sykes, 433 U.S. 72, 80,
under Michigan law; and 4) the Michigan Supreme Court              84-87 (1977); Picard v. Connor, 404 U.S. 270, 275-80
violated the Michigan Constitution by failing to give facts and    (1971)); see also Maupin v. Smith, 785 F.2d 135, 138 (6th
reasons as to why an evidentiary remand was unwarranted.           Cir. 1986). We have previously explained that procedural
The district court concluded that Willis had procedurally          default results where three elements are satisfied: (1) the
defaulted his first claim and that his remaining claims lacked     petitioner failed to comply with a state procedural rule that is
merit. However, the district court granted Willis a certificate    applicable to the petitioner’s claim; (2) the state courts
of appealability as to his first and second claims. This court     actually enforced the procedural rule in the petitioner’s case;
denied him a certificate of appealability on his third and         and (3) the procedural forfeiture is an “adequate and
fourth claims. Willis timely filed the instant appeal,             independent” state ground foreclosing review of a federal
reasserting his claims that his trial and appellate counsel        constitutional claim. Maupin, 785 F.2d at 138.
rendered ineffective assistance.
                                                                     The first element is satisfied here because Willis failed to
                              II.                                  comply with Michigan Court Rule 6.508(D)(3), a state
                                                                   procedural rule applicable to his case. Rule 6.508(D)
   This court reviews de novo a district court’s disposition of    provides, in pertinent part:
a habeas corpus petition. Harris v. Stovall, 212 F.3d 940, 942
(6th Cir. 2000). The district court shall not grant a habeas           (D) Entitlement to Relief. The defendant has the burden
petition with respect to any claim that was adjudicated on the         of establishing entitlement to the relief requested. The
merits in the state courts unless the adjudication resulted in a       court may not grant relief to the defendant if the motion
decision that: (1) was contrary to, or involved an                     ...
unreasonable application of, clearly established federal law as
determined by the United States Supreme Court; or (2) was                (3) alleges grounds for relief, other than jurisdictional
based upon an unreasonable determination of the facts in light           defects, which could have been raised on appeal from
No. 02-2445                                Willis v. Smith      5    6     Willis v. Smith                               No. 02-2445

    the conviction and sentence or in a prior motion under           below an objective standard of reasonableness” and that there
    this subchapter, unless the defendant demonstrates               is “a reasonable probability that, but for counsel’s
                                                                     unprofessional errors, the result of the proceeding would have
       (a) good cause for failure to raise such grounds on           been different.” Strickland v. Washington, 466 U.S. 668, 688,
       appeal or in the prior motion, and                            694 (1984); see also McMeans v. Brigano, 228 F.3d 674, 682
                                                                     (6th Cir. 2000). We have held that “appellate counsel cannot
       (b) actual prejudice from the alleged irregularities          be ineffective for a failure to raise an issue that lacks merit.”
       that support the claim for relief.                            See Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir. 2001).
                                                                     Thus, in order to determine whether cause exists for the
The second element is also satisfied because the state courts        procedural default of Willis’s ineffective assistance of trial
enforced Rule 6.508(D)(3) in Willis’s case. Willis first raised      counsel claim, we must, ironically, consider the merits of that
his ineffective assistance of trial counsel claim in his motion      claim.
to amend his post-conviction petition. The state trial court
denied that motion on the ground that Willis had failed to              We agree with the district court’s conclusion that Willis’s
demonstrate entitlement to relief under Rule 6.508(D), and           trial counsel did not render ineffective assistance and,
the Michigan Court of Appeals and Michigan Supreme Court             therefore, that his appellate counsel’s failure to raise that issue
each denied Willis’s motion for leave to appeal for the same         does not constitute cause for the procedural default. Willis
reason. Finally, Willis’s failure to comply with Rule                argues that the judge’s comments during Antawn Willis’s trial
6.508(D) constitutes an adequate and independent state               – i.e.,“I agree with some of what the defense counsel[‘s]
ground on which to foreclose habeas review because the rule          theory is going to be – that Barry [Willis] is the big – may be
was “firmly established and regularly followed” at the time it       the big guy. It sure looks like it from talking to these
was applied in Willis’s case. Rogers v. Howes, 144 F.3d 990,         witnesses” – reveal that the judge had formed a preconceived
992 (6th Cir. 1998). Because all three elements are satisfied,       notion of Willis’s guilt. Willis argues that in those
Willis has procedurally defaulted his ineffective assistance of      circumstances, it was objectively unreasonable for his trial
trial counsel claim.                                                 counsel to advise him to accept a bench trial before that judge
                                                                     rather than exercise his right to a jury trial, particularly
  A procedural default may be excused, however, if the               without conducting a pre-trial investigation to determine
petitioner demonstrates “that there was cause for the default        whether the judge had “predetermined the verdict.”
and prejudice resulting from the default, or that a miscarriage
of justice will result from enforcing the procedural default in        We cannot accept Willis’s assertion that the trial judge’s
the petitioner’s case.” Seymour, 224 F.3d at 550; see also           comments reveal a preconceived notion of Willis’s guilt such
Coleman v. Thompson, 501 U.S. 722, 749-50 (1991). Willis             that it was objectively unreasonable for Willis’s counsel to
apparently relies on his appellate counsel’s failure to raise this   recommend a bench trial. The Supreme Court has explained
claim on direct appeal as cause to excuse the default.               that “opinions held by judges as a result of what they learned
Attorney error may constitute cause if it rises to the level of      in earlier proceedings” cannot alone establish “bias” or
constitutionally ineffective assistance of counsel. Gravley v.       “prejudice” against an individual or his case. Liteky v. United
Mills, 87 F.3d 779, 785 (6th Cir. 1996). In order to succeed         States, 510 U.S. 540, 551 (1994); see also Paradis v. Arave,
on a claim of ineffective assistance of appellate counsel, a         20 F.3d 950, 958 (9th Cir. 1994) (explaining that a trial
petitioner must show that his “counsel’s representation fell         judge’s exposure to evidence, standing alone, does not
No. 02-2445                               Willis v. Smith     7    8    Willis v. Smith                             No. 02-2445

demonstrate bias). Despite the judge’s comments, Willis’s          excuse a procedural default, a court does not need to address
attorney could have reasonably believed that it was better         the issue of prejudice.”) (citing Smith v. Murray, 477 U.S.
strategy for Willis to be tried by the judge rather than a jury,   527, 533 (1986); Long v. McKeen, 722 F.2d 286, 289 (6th
and Willis has failed to offer any evidence to the contrary.       Cir. 1983)).
   Moreover, the record illustrates that at the beginning of         Nor has Willis demonstrated that, notwithstanding the
Willis’s trial, the judge discussed the situation with Willis to   procedural default, we should review his ineffective
ensure that his decision to waive his right to a jury trial in     assistance of trial counsel claim to avoid a miscarriage of
favor of a bench trial was made knowingly and voluntarily.         justice. To secure review of his procedurally defaulted claim
During this discussion, the judge candidly acknowledged that       for that reason, Willis must submit new and reliable evidence
he had made comments about Willis during his brother’s trial,      of his actual innocence. See Schlup v. Delo, 513 U.S. 298
but assured Willis that despite those comments he had no           (1995). Willis has submitted no such evidence.
feelings for or against Willis and that he would disqualify
himself if he had such feelings. Willis then confirmed that he       For the foregoing reasons, we hold that Willis is barred by
wished to be tried by the judge instead of a jury, stating that    reason of procedural default from obtaining adjudication of
“it’s my will” and “I decided this.”                               his ineffective assistance of trial counsel claim, and that his
                                                                   ineffective assistance of appellate counsel claim lacks merit.
  Even if Willis’s counsel performed in an objectively             Accordingly, we AFFIRM the district court’s judgment
unreasonable manner, Willis cannot show “a reasonable              denying Willis’s petition for a writ of habeas corpus.
probability” that “the result of the proceeding would have
been different” but for his counsel’s errors. Strickland, 466
U.S. at 694. Willis has presented no evidence that the judge’s
rulings were biased in any way or that the trial was otherwise
unfair. Moreover, Willis’s conviction was fully supported by
the overwhelming evidence presented by the government.
  Because Willis’s claim of ineffective assistance of trial
counsel lacks merit, his appellate counsel’s failure to raise
that claim on direct appeal cannot be deemed constitutionally
deficient performance. See Greer, 264 F.3d at 676; see also
Seymour, 224 F.3d at 551 (reasoning that counsel need not
raise every conceivable colorable claim on appeal in order to
fulfill his or her duty to a client). Therefore, Willis cannot
rely upon ineffective assistance of appellate counsel as cause
to excuse for the procedural default. In light of our
conclusion that no cause exists for the procedural default, we
decline to consider whether Willis has demonstrated the
requisite prejudice. Simpson v. Jones, 238 F.3d 399, 408 (6th
Cir. 2000) (“When a petitioner fails to establish cause to
