                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 09a0291n.06
                             Filed: April 20, 2009

                                            No. 07-1811

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


DENNIS KINCADE,                                           )
                                                          )
          Petitioner-Appellant,                           )
                                                          )
v.                                                        )    On Appeal from the United
                                                          )    States District Court for the
HUGH WOLFENBARGER,                                        )    Eastern District of Michigan
                                                          )
          Respondent-Appellee.                            )




Before:         BOGGS, Chief Judge; and GILMAN and ROGERS, Circuit Judges.

                BOGGS, Chief Judge. Petitioner-Appellant Dennis Kincade, proceeding pro se,

appeals a district court’s denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254.

The petition challenges Kincade’s state conviction for first-degree murder and possession of a

firearm during the commission of a felony on the basis of ineffective assistance of trial and appellate

counsel. Kincade claims that trial counsel was ineffective because he failed to apprise Kincade of

the state sentencing guidelines applicable to the state’s plea offer and failed to object to alleged

prosecutorial misconduct. Kincade alleges that appellate counsel was ineffective because he

abandoned claims of ineffective assistance of trial counsel and failed to raise meritorious claims on

direct appeal. We hold that the district court correctly denied Kincade’s petition and, therefore, we

affirm.
No. 07-1811
Kincade v. Wolfenbarger

                                                 I

                                                 A

       Dennis Kincade was charged in Wayne County, Michigan with first-degree murder, assault

with intent to commit murder, and possession of a firearm during the commission of a felony

(“felony firearm”). The charges stemmed from a shooting in Detroit on November 7, 1984. The

testimony at trial established that Kincade and Glenn Thomas approached Kevin Taylor and Carl

Branham, and Kincade fired a gun at Taylor. Taylor died from the resulting gunshot wounds.

Kincade fired additional gunshots at Branham, who nonetheless ran away uninjured.               The

prosecutor’s theory was that Kincade intended to shoot and kill Branham, either because he was

hired to kill Branham or because Branham saw him shoot Taylor. Thomas was also charged with

murder and assault, pleaded guilty to a lesser charge, and agreed to testify against Kincade. Both

Thomas and Branham testified that Taylor was not armed and did not threaten Kincade. Thomas

testified that he and Kincade visited Frederick Blakely at the latter’s home and Blakely gave Kincade

a gun. The three men left and encountered Taylor and Branham in an alley:

       Thomas concluded that defendant was going to rob them [i.e. Taylor and Branham].
       Defendant called for Taylor and Branham to “come here” and then told Thomas to grab
       Branham. Defendant pulled out the gun and fired two shots at Taylor and two or three shots
       at Branham as he ran away . . . . Thomas saw no weapons on Taylor or Branham at any time,
       nor did they make any threatening gestures towards defendant. According to Thomas’
       testimony, defendant later told Thomas that he shot the wrong person and would not get paid.
       Branham’s description of the shooting was similar to Thomas’, and Branham indicated that
       he and Taylor had talked to Blakely about selling drugs a short time before the shooting.

People v. Kincade, 412 N.W.2d 252, 252-53 (Mich. Ct. App. 1987). Kincade was the only witness

in his own defense. He admitted shooting Taylor, but claimed that he did so in self-defense:


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Kincade v. Wolfenbarger

         Defendant testified, however, that he received a call from someone named Roy and went to
         Blakely’s house to pick up money Taylor owed him from a drug deal. Blakely told defendant
         that Taylor had just left, and had money and a pistol. Defendant borrowed Blakely’s gun and
         held it visible in his hand as he walked towards Taylor, though defendant said it was at his
         side. Taylor walked towards defendant and told him he had no money. Defendant told
         Thomas to watch Branham and to hold him. As Taylor approached, defendant thought he
         was reaching for a gun and was going to shoot defendant, so he fired two shots. Taylor’s gun
         fell to the ground. Defendant fired two more shots in the air. He then picked up and kept
         Taylor’s gun.

Id. at 253.

         On July 23, 1985, a jury acquitted Kincade of the charge of assault with intent to murder

Branham, but found him guilty of first-degree murder and felony firearm. The trial court sentenced

Kincade to two years in prison for the felony firearm conviction and to a consecutive statutory term

of life imprisonment without the possibility of parole for the murder.

                                                    B

         This case has a lengthy procedural history, which is succinctly summarized by the district

court:

Direct-Appeal Proceedings:

         Petitioner [i.e. Kincade] appealed his convictions and was granted a remand so that he could
         file a motion for new trial and seek an evidentiary hearing on a claim of ineffective assistance
         of trial counsel. He and his attorney subsequently decided not to pursue the ineffectiveness
         claim. Instead, they alleged that it was error to admit Glenn Thomas’s guilty plea in
         evidence. On August 3, 1987, two judges of a three-judge panel affirmed Petitioner’s
         convictions in a published opinion. See People v. Kincade, 412 N.W.2d 252. The majority
         held that, although an accomplice’s guilty plea generally may not be used as substantive
         evidence at a defendant’s trial, the prosecutor used Glenn Thomas’s guilty plea to refute
         Petitioner’s theory of self defense and not as substantive evidence of Petitioner’s guilt. The
         dissenting judge voted to reverse Petitioner’s conviction on the basis that self defense goes
         to the heart of an alleged criminal act and, therefore, any evidence which negates self defense
         is substantive.


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Kincade v. Wolfenbarger

State Post-Conviction Proceedings, 1987-1998:

       Petitioner did not appeal the court of appeals decision to the Michigan Supreme Court. He
       did file two pro se motions for a new trial [the first filed in September 1987, the second on
       September 23, 1989], which the trial court denied. On appellate review of the trial court’s
       denial of the second motion for new trial, the Michigan Supreme Court remanded the case
       to the trial court for a hearing on Petitioner’s claim that he was denied effective assistance
       of counsel. See People v. Kincade, 461 N.W.2d 372 (Mich. 1990). The trial court appointed
       counsel for Petitioner and held a hearing on January 23-24, 1991, and April 26, 1991
       [“Ginther hearing”1]. On the final day of the hearing, the trial court denied relief after
       concluding that Petitioner received effective representation. The Michigan Court of Appeals
       affirmed the trial court’s decision, see People v. Kincade, No. 190068, 1997 Mich. App.
       LEXIS 2219 (Mich. Ct. App. Nov. 21, 1997), and the Michigan Supreme Court denied leave
       to appeal on September 28, 1998, see People v. Kincade, 586 N.W.2d 89 (Mich. 1998)
       (table).


First Habeas Corpus Petition, 1999-2001:

       Next, Petitioner filed a federal habeas corpus petition, which alleged (1) ineffective
       assistance of trial and appellate counsel, (2) prosecutorial misconduct during closing
       argument, and (3) denial of the right to poll the jurors following their verdict. This [federal
       district] Court dismissed the petition without prejudice for failure to exhaust state remedies
       for the second and third claims. See Kincade v. Stegall, No. 99-CV-76350-DT, 2001 U.S.
       Dist. LEXIS 3039 (E.D. Mich. Jan. 23, 2001).


State Post-Conviction Proceedings, 2002-2004:

       Petitioner then filed a motion for relief from judgment alleging ineffective assistance of trial
       and appellate counsel, prosecutorial misconduct during closing argument, and denial of the
       right to poll the jurors. [On October 21, 2002] [t]he trial court denied Petitioner’s motion.
       It found no merit in Petitioner’s ineffectiveness claims, and it stated that Petitioner could
       have raised his claim about polling the jury [and “new ineffective assistance of counsel
       issues”] on appeal from his convictions.[2] The Michigan Court of Appeals denied leave to


       1
           See People v. Ginther, 212 N.W.2d 922 (Mich. 1973).
       2
        The court did not specify which grounds for claiming ineffective assistance of counsel it
considered “new” and therefore precluded from consideration under Michigan Court Rule (MCR)
6.508(D)(3)(a)(b). People v. Kincade, No. 85-002809-01 (Mich. Cir. Ct. Oct. 21, 2002).
                                             -4-
No. 07-1811
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       appeal the trial court’s decision for failure to establish entitlement to relief under Michigan
       Court Rule 6.508(D). See People v. Kincade, No. 248330 (Mich. Ct. App. Sept. 4, 2003).
       On April 30, 2004, the Michigan Supreme Court denied leave to appeal for the same reason.
       See People v. Kincade, 679 N.W.2d 74 (Mich. 2004) (table).

Second Habeas Corpus Petition, 2004:

       Petitioner initiated this action by filing a habeas corpus petition on July 19, 2004. The
       habeas petition raised four claims: (1) ineffective assistance of trial counsel, (2) prosecutorial
       misconduct, (3) denial of the right to poll the jury, and (4) ineffective assistance of appellate
       counsel. Respondent moved for summary judgment on the ground that the habeas petition
       was barred by the one-year statute of limitations. The Court denied the motion and requested
       an answer on the merits of Petitioner’s claims. In the meantime, Petitioner filed an amended
       habeas petition, which does not include the claim about being denied the right to poll the
       jury. The Court deems that claim abandoned.


Kincade v. Wolfenbarger, No. 04-CV-72599-DT, 2007 U.S. Dist. LEXIS 33944, at *5-6 (E.D. Mich.

May 9, 2007) (bolded headings and alterations added; parallel citations omitted).

       The federal district court considered the petition on its merits and denied habeas relief.

Kincade filed a motion for a certificate of appealability and a notice of appeal. The district court

granted a certificate of appealability on Kincade’s appellate-counsel claim and the two related sub-

claims about trial counsel: trial counsel’s failure to advise Kincade that state sentencing guidelines

would apply were he to plead guilty, and counsel’s failure to object to the prosecutor’s use of

Thomas’s guilty plea. Kincade, 2007 U.S. Dist. LEXIS 43812, at *4. We construed the notice of

appeal as an application for a certificate of appealability, which we declined to issue with regard to

Kincade’s remaining claims.

                                                  II




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        Respondent Warden Hugh Wolfenbarger argues that, while the district court correctly denied

habeas relief, the petition should have been dismissed for non-compliance with the statute of

limitations because the district court erred in equitably tolling the statute and denying

Wolfenbarger’s motion for summary judgment.3 We disagree.

        In Dunlap v. United States, we held that the one-year limitation period contained in § 2244

of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) is a statute of limitations

subject to the doctrine of equitable tolling. 250 F.3d 1001, 1004 (6th Cir.), cert. denied, 534 U.S.

1057 (2001). We further held that “where the facts are undisputed or the district court rules as a

matter of law that equitable tolling is unavailable, we apply the de novo standard of review to a

district court’s refusal to apply the doctrine of equitable tolling; in all other cases, we apply the abuse

of discretion standard.” Id. at 1008. In this case, the district court’s decision to equitably toll the

statute was made in the exercise of the court’s discretion, which we review for abuse of discretion.4


        3
        While Wolfenbarger does not cross-appeal this issue, “matters raised below as alternative
grounds in support of a judgment are properly before this Court even in the absence of a
cross-appeal.” United States v. True, 250 F.3d 410, 419 (6th Cir. 2001).
        4
         This rule of law has occasionally been rephrased in a manner that appears to alter its
meaning: “[a]n abuse-of-discretion standard is applicable only when the underlying facts on which
tolling is based are in dispute. When, as here, those facts are undisputed and the district court's
decision to grant or deny equitable tolling involves only a question of law, our review is de novo.”
Bilbrey v. Douglas, 124 F. App’x 971, 973 (6th Cir. 2005) (citing, inter alia, Dunlap v. United
States, 250 F.3d 1001 (6th Cir. 2001)). This reformulation suggests de novo review of a decision
to apply equitable tolling in cases such as the one at bar, because it was made on the basis of
undisputed facts. We do not think that this is an appropriate interpretation of the applicable standard
of review. Although the facts are not in dispute in this case, it cannot be said that the decision to
equitably toll the statute was “only a question of law” because it was made in the exercise of the
court’s discretion. As we explained in Griffin v. Rogers, “[e]quitable tolling is a discretionary
doctrine that does not lend itself to bright line rules.” 399 F.3d 626, 639 (6th Cir. 2005) (internal
quotation marks and citation omitted). We think it would be incongruous to review de novo a
                                                  -6-
No. 07-1811
Kincade v. Wolfenbarger

        “To be entitled to equitable tolling, [a petitioner] must show ‘(1) that he has been pursuing

his rights diligently, and (2) that some extraordinary circumstance stood in his way’ and prevented

timely filing.” Lawrence v. Florida, 127 S. Ct. 1079, 1085 (2007) (quoting Pace v. DiGuglielmo,

544 U.S. 408, 418 (2005)). We have identified five factors that we felt were “pertinent” to an

application of equitable tolling: “(1) lack of actual notice of filing requirement; (2) lack of

constructive knowledge of filing requirement; (3) diligence in pursuing one’s rights; (4) absence of

prejudice to the defendant; and (5) a plaintiff’s reasonableness in remaining ignorant of the notice

requirement.” Andrews v. Orr, 851 F.2d 146, 151 (6th Cir. 1988).

        In addition, we have established a “mandatory” form of equitable tolling in the context of

post-AEDPA “mixed” petitions. Palmer v. Carlton, 276 F.3d 777 (6th Cir. 2002) (adopting

“mandatory equitable tolling” for habeas petitions containing both exhausted and unexhausted

claims, entitling petitioners to such tolling if they file in state court within 30 days of the dismissal

and return to federal court within 30 days following exhaustion of state remedies). We have also

clarified that this “mandatory” tolling does not foreclose the possibility of applying “traditional”

equitable tolling addressed in Andrews. Griffin v. Rogers, 399 F.3d 626, 631 (6th Cir. 2005).

        At the time AEDPA was enacted on April 24, 1996, Kincade was pursuing state remedies.

State proceedings came to a close on September 28, 1998. In his August 15, 2005 order denying

Wolfenbarger’s motion for summary judgment, District Judge Steeh tolled the limitation period

“another ninety days” beyond the close of state proceedings “or until December 27, 1998, for the

time that Petitioner could have sought review in the Supreme Court.” J.A. 164 (citing Bronaugh v.


decision to apply a discretionary remedy when it entails no application of a clear rule of law.
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Kincade v. Wolfenbarger

Ohio, 235 F.3d 280, 285 (6th Cir. 2000); Abela v. Martin, 348 F.3d 164, 172-73 (6th Cir. 2003), cert.

denied sub nom. Caruso v. Abela, 541 U.S. 1070 (2004)). Thus, according to the district court,

Kincade’s first petition was timely filed on September 13, 1999, with about three and a half months

remaining of the one-year limitation period (about 106 days).5

        The first habeas petition was dismissed without prejudice on January 23, 2001, and Kincade

filed a post-conviction motion in state court on March 4, 2002. Judge Steeh equitably tolled the time

limitation while Kincade’s first petition was pending before the federal court (September 13, 1990

– January 23, 2001), noting that “federal courts may deem the limitations period tolled for a first

federal habeas petition as a matter of equity.” J.A. 164 (citing Duncan v. Walker, 533 U.S. 167, 183

(2001) (Stevens, J., concurring)). On the date of dismissal of his first habeas petition, taking into

account the periods tolled, Kincade had approximately 106 days – or until approximately May 9,



        5
          The law on the effect of Supreme Court review has been reversed a number of times. The
first time we confronted the question, we held that “§ 2244(d)(2) does not toll the limitations period
to take into account the time in which a defendant could have potentially filed a petition for certiorari
with the United States Supreme Court, following a state court’s denial of post-conviction relief.”
Isham v. Randle, 226 F.3d 691, 694 (6th Cir. 2000) (emphasis added). Isham was subsequently
overruled by Abela v. Martin, 348 F.3d 164, 172 (6th Cir. 2003), in which the en banc court held that
the 90-day period to file a petition for a writ of certiorari to the United States Supreme Court after
denial of relief in a state post-conviction action would toll the limitation period. The Supreme Court
effectively overruled Abela in Lawrence v. Florida, 549 U.S. 327 (2007), which held that “the
AEDPA limitations period would not be tolled during the 90 days in which a prisoner can seek that
Court’s review of a state court’s denial of post-conviction relief.” Henderson v. Luoma, No. 05-
2542, 2008 U.S. App. LEXIS 24225, at *5 (6th Cir. 2008) (citing Lawrence, 549 U.S. 327). At the
time Kincade filed his first habeas petition on September 13, 1999, Isham had not yet been decided
and there was no clear rule of law on this issue. On August 15, 2005, when Judge Steeh issued his
order declining to dismiss Kincade’s petition as untimely, Abela was still good law; therefore, tolling
AEDPA’s limitations for 90-day after state post-conviction proceedings ended, following Abela, was
reasonable. See Henderson, 2008 U.S. App. LEXIS 24225, at *8-9.

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Kincade v. Wolfenbarger

2001 – to re-file his habeas petition, or to file for post-conviction state relief and toll the statute

again. Kincade’s March 2002 filing for post-conviction relief exceeded that date by nearly ten

months. Post-conviction relief was denied by the Michigan Supreme Court on April 30, 2004, and

Kincade’s second habeas petition was filed a little over two months later on July 8, 2004. Judge

Steeh considered that latter filing to be timely because the limitation period was statutorily tolled

during the pendency of post-conviction state proceedings and Kincade had ninety days from the

April 30, 2004 Michigan Supreme Court decision to seek Supreme Court review.6 Wolfenbarger

argues that the statute should not have been tolled by post-conviction state proceedings when these

were commenced after the statute of limitations has already run. Resp. Br. at 12. However, if the

district court did not abuse its discretion in equitably tolling the ten-month period prior to these state

proceedings, there is no reason why statutory tolling under § 2244 (d)(2) would not apply.

        Thus, the delay in filing the second petition that was arguably attributable to Kincade

amounts to approximately ten months beyond AEDPA’s time limit (the time period between the

dismissal of his first habeas petition and filing in state court for post-conviction relief). The district

judge determined that his “order of dismissal could have led Petitioner to believe that there was no

deadline for filing a post-conviction motion in state court and that the statute of limitations was not

a bar to filing another habeas petition in federal court.” J.A. 166. The district judge explained that

first, Kincade relied on a footnote in the order dismissing his first petition, stating that “the statute

of limitations contained in 28 U.S.C. § 2244(d)(1) would be tolled pursuant to § 2244(d)(2) while

this second motion for relief from judgment was pending before the Michigan courts.” J.A. 114.


        6
            See note 5, supra.
                                                  -9-
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Kincade v. Wolfenbarger

       Second, the court’s dismissal order “did not establish any timetable or conditions for

returning to state court.” Ibid. Moreover, at the time, this circuit had not yet decided Palmer, which

held that habeas petitioners must ordinarily return to state court within 30 days of a dismissal of a

habeas petition for failure to exhaust state remedies. Finally, the district court determined that

Wolfenbarger was not prejudiced by the delay.7 Based on these considerations, the district court

deemed it appropriate to apply equitable tolling. While we have noted that “absence of prejudice”

is not an independent basis for invoking equitable tolling, we have not required that any of the five

Andrews factors must be present to justify equitable tolling. Instead, we stated that “these factors

are not necessarily comprehensive and they are not all relevant in all cases. Ultimately, the decision

whether to equitably toll a period of limitations must be decided on a case-by-case basis.” Souter

v. Jones, 395 F.3d 577, 588 (6th Cir. 2005) (quoting Miller v. Collins, 305 F.3d 491, 495 (6th Cir.

2002)) (internal quotation marks omitted).

       Therefore, we hold that the district court did not commit reversible error in the exercise of

its discretion, and proceed to review the district court’s disposition of the substantive claims.

                                                 III

                                                  A

       AEDPA governs this court’s review of Kincade’s habeas petition. Under 28 U.S.C. § 2254,

a writ of habeas corpus may be granted only if the state court’s adjudication of the claims “(1)

resulted in a decision that was contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States; or (2) resulted


       7
           Nor does Wolfenbarger claim prejudice from the application of equitable tolling.
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Kincade v. Wolfenbarger

in a decision that was based on an unreasonable determination of the facts in light of the evidence

presented at the State court proceedings.” § 2254(d)(1).

       AEDPA’s deferential standard of review applies only to claims that were adjudicated on the

merits in state court proceedings. If the claims raised in the petition are procedurally defaulted in

state court, the petitioner must either “demonstrate cause for the default and actual prejudice as a

result of the alleged violation of federal law, or demonstrate that failure to consider the claims will

result in a fundamental miscarriage of justice.” Murphy v. Ohio, 551 F.3d 485, 502 (6th Cir. 2009)

(quoting Coleman v. Thompson, 501 U.S. 722, 732 (1991)). A petitioner procedurally defaults his

claims for habeas relief if he did not present those claims to the state courts in accordance with the

state’s procedural rules. See Wainwright v. Sykes, 433 U.S. 72, 87 (1977); Murphy, 551 F.3d at 501-

502. Whether a state court found the petitioner’s claim to be procedurally defaulted is a question

of law that we review de novo. Couch v. Jabe, 951 F.2d 94, 96 (6th Cir. 1991); Abela, 380 F.3d at

922. We review the district court’s denial of habeas corpus de novo; the district court’s findings of

fact will be upheld unless they are clearly erroneous. Simpson v. Jones, 238 F.3d 399, 405 (6th Cir.

2000) (citations omitted).

                                                  B

       Kincade argues that his trial counsel was ineffective in two respects. First, Kincade claims

that trial counsel’s ignorance and misrepresentation of the state’s sentencing guidelines violated

Kincade’s Sixth Amendment right because he was not able to make an informed decision with regard

to a possible guilty plea. Second, Kincade claims that his counsel failed to object to the introduction



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Kincade v. Wolfenbarger

and use of Thomas’s guilty plea, which Kincade alleges was used as substantive evidence of

Kincade’s guilt by association.

        Wolfenbarger contends first that Kincade’s ineffective-assistance claims are procedurally

defaulted. The district court noted that it is “not required to address a procedural-default issue before

deciding against the petitioner on the merits,” 2007 U.S. Dist. LEXIS 33944, at *6 (quoting Hudson

v. Jones, 351 F.3d 212, 215 (6th Cir. 2003)), and elected to address the merits of Kincade’s claims.

We now hold that Kincade’s claims were not procedurally defaulted and proceed to review the

district court’s decision on the merits.

        In Maupin v. Smith, this court adopted a three-part standard to determine whether a claim has

been procedurally defaulted in state courts. 785 F.2d 135, 138 (6th Cir. 1986). First, there must be

a state procedural rule in place that the petitioner failed to follow. Ibid. Second, the state court must

have actually denied consideration of the petitioner’s claim on the ground of the state procedural

rule. Ibid.8 Third, the state procedural rule must be an “adequate and independent” state ground to

preclude habeas review. Maupin, 785 F.2d at 138. To be “adequate,” a state rule must be “firmly

established and regularly followed at the time it is applied.” Abela, 380 F.3d at 921; Williams v.

Coyle, 260 F.3d 684, 693 (6th Cir. 2001). And to be “independent,” the state court must “actually

[have] relied on the rule to bar the claim at issue.” Abela, 380 F.3d at 921.




        8
        As we recently observed, this question arises frequently with respect to Michigan state
proceedings because the state courts persist in using a standard, one-sentence order, citing a
procedural rule with no further explanation. Alexander v. Smith, No. 06-1569 (6th Cir. Feb. 20,
2009) (unpublished); see also Abela, 380 F.3d 915; Burroughs v. Makowski, 282 F.3d 410, 414 (6th
Cir. 2002); Simpson, 238 F.3d 399.
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       Wolfenbarger argues that Kincade “never properly raised” the claims concerning trial counsel

“until he filed his motion for relief from judgment in March 2002,” pursuant to the federal district

court’s dismissal without prejudice of his first habeas petition. Resp. Br. at 19. That motion was

denied by the Michigan Circuit Court on the grounds that Kincade has not complied with Michigan

Court Rule (MCR) 6.508(D)(3)(a)(b), which precludes courts from granting relief to the defendant

when a motion “alleges grounds for relief . . . which could have been raised on appeal from the

conviction and sentence or in a prior motion under this subchapter, unless the defendant

demonstrates (a) good cause for the failure to raise such grounds on appeal or in the prior motion,

and (b) actual prejudice from the alleged irregularity that support the claim for relief.” The Michigan

Court of Appeals and then the Michigan Supreme Court, Kincade, 679 N.W.2d 74, denied the

application for leave to appeal, with the standard one-sentence order citing failure to establish

grounds for relief pursuant to MCR 6.508(D). Resp. Br. at 19.

        The Michigan Supreme Court decision does comply with the first and second parts of the

Maupin inquiry: MCR 6.508(D) is a state procedural rule that Kincade failed to follow, and,

following Alexander, No. 06-1569, and Simpson, 238 F.3d 399, the last “explained” or “reasoned

opinion” of the state court was based on a violation of that state procedural rule. However, MCR

6.508(D) did not constitute an “adequate and independent” ground for that decision.

       MCR 6.508(D) is not an adequate ground in this case because it was not a “firmly established

and regularly followed” rule at the time when Kincade would have violated it. MCR 6.508(D)

entered into effect on October 1, 1989, significantly altering Michigan’s procedural architecture for

criminal appeals and post-conviction relief. As the Michigan Supreme Court explains:

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       Before October 1, 1989, the procedure for collateral review of criminal convictions in
       Michigan did not make any provision for finality of judgments. As a consequence,
       defendants could, and did, repeatedly seek relief without limitation. To create a uniform
       system of procedure, Michigan Court Rules 6.501 et seq. were enacted. The rules present
       a carefully balanced scheme that liberally permits the assertion of claims on direct appeal,
       whether timely or not, while at the same time introducing a concept of finality to discourage
       repeated trips up and down the appellate ladder.


People v. Reed, 535 N.W.2d 496, 503 (Mich. 1995). We have declined “to adopt any per se

approach for pinpointing when MCR 6.508(D) became ‘firmly established’ with respect to all habeas

petitioners.” Luberda v. Trippett, 211 F.3d 1004, 1008 (6th Cir. 2000). Instead, we “decide on a

case-by-case basis whether, during the period that a defendant may, if he wishes, tailor his [direct]

appeal to avoid the consequences of a state procedural rule, the defendant . . . could . . . be deemed

to have been apprised of [the procedural rule’s] existence.” Ibid. (citing Ford v. Georgia, 498 U.S.

411, 423 (1991)) (internal quotation marks omitted). In that case, we found that although Luberda’s

conviction occurred prior to the enactment of MCR 6.508, “there was no reason why Luberda could

not have requested permission to add the constitutional arguments raised in the present petition prior

to the submission of his direct appeal in November 1990. There was a period of 13 months in which

he might have done so.” Ibid. By contrast, in Gonzales v. Elo, we held that MCR 6.508 was not a

firmly established rule in the case of a habeas petitioner whose conviction was affirmed by the

Michigan Court of Appeals in January 1986, prior to the enactment of the rule. 233 F.3d 348, 354

(6th Cir. 2000).

       In this case, the Michigan Circuit Court stated that Kincade “had every opportunity to raise

any issue he had” regarding ineffective counsel either on direct appeal or “to the Court of Appeals,”


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without specifying the particular appearance before the Court of Appeals at issue. People v.

Kincade, No. 85-002809-01 (Mich. Cir. Ct. Oct. 21, 2002). However, Kincade’s conviction, direct

appeal and the final decision on his direct appeal (August 3, 1987) all occurred prior to the effective

date of MCR 6.508. Moreover, his second motion for a new trial, which came before the Court of

Appeals and eventuated in a remand by the Michigan Supreme Court for a Ginther hearing, was filed

on September 23, 1989 – also prior to the effective date of MCR 6.508. While the Michigan courts

are less than clear with respect to when Kincade could or should have raised these claims, we think

Kincade could not “be deemed to have been apprised of” MCR 6.508 at the relevant times. Thus,

his ineffectiveness-of-trial-counsel claims are not procedurally defaulted. Because these claims are

not procedurally defaulted and Michigan courts have not considered them on the merits, this court’s

review is de novo. Murphy, 551 F.3d at 494 (citing Hartman v. Bagley, 492 F.3d 347, 356 (6th Cir.

2007)).

                                                  C

          To establish that counsel has been ineffective, a defendant must show that (1) “counsel’s

performance was deficient,” and (2) “the deficient performance prejudiced the defense.” Strickland

v. Washington, 466 U.S. 668, 687 (1984). To establish constitutionally deficient performance, a

defendant must demonstrate “that counsel’s representation fell below an objective standard of

reasonableness.” Id. at 688. To establish prejudice, a defendant must demonstrate “a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been

different.” Id. at 694.



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        We have held that “incompetently advising a defendant to go to trial rather than plead guilty

may amount to the ineffective assistance of counsel.” Tyler v. United States, No. 97-1616, 1998 U.S.

App. LEXIS 27085, at *6-7 (6th Cir. 1998) (citing Turner v. Tennessee, 858 F.2d 1201, 1205 (6th

Cir. 1988)). To establish that advice with regard to a guilty plea had a prejudicial effect under

Strickland, a defendant must establish “a reasonable probability that, but for counsel’s errors, he

would . . . have pleaded guilty and would [not] have insisted on going to trial.” Turner, 858 F.2d

at 1206 (quoting Hill v. Lockhart, 474 U.S. 52, 58-59 (1985)).

        During plea negotiations, the state offered to dismiss Kincade’s first-degree murder charge

if he pleaded guilty to second-degree murder, with no specific sentence recommendation. Kincade

claims that he was prejudiced by trial counsel’s deficient performance because counsel did not know,

and therefore did not inform Kincade, that the under state sentencing guidelines, a plea to second-

degree murder would have resulted in a recommended sentence of twelve years to life with the

possibility of parole. Appellant’s Br. at 16.

        At the Ginther hearing, Kincade’s trial attorney testified that he did not know whether the

sentencing guidelines were applicable at the time, although case law indicates that the guidelines

were in effect and that they were advisory. Kincade, 2007 U.S. Dist LEXIS 33944, at *11 (citing

People v. James, 368 N.W.2d 892, 893 (1985)). Even if ignorance of the applicable sentencing

guidelines amounted to deficient assistance of counsel, Kincade cannot establish that this deficiency

prejudiced his decision with regard to the plea. His trial counsel testified that Kincade was not

interested in pleading guilty, a proposition that finds ample support in the record. Kincade indeed

stated, at the 1991 Ginther hearing and at some points prior to trial, that he was interested in pleading

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guilty. However, he ultimately rejected, on the record and before trial, the state’s plea offer on terms

that he understood to be at least as attractive as the ones his counsel would have presented to him

had counsel been aware of the state guidelines. On the first day of trial, after Kincade indicated that

he “might not want to go ahead with his trial” and take the plea, the court questioned the parties

about the plea offer:

        Mr. Slameka [counsel for Kincade]: . . . Mr. Kincade asked me if I could get him a plea. I
        told him the only plea that’s being offered is second degree murder. He asked me about a
        sentence. I said there’s been no sentence offered whatsoever. The statute, as I read it after
        the Supreme Court decision, indicates he gets anywhere from one year and a day up to life.


        Mr. Reynolds [prosecution]: Anywhere from a microsecond to life.
        ...

        Mr. Slameka: However, you did tell me if he had some information that might be helpful to
        the police, that that might be a consideration in his sentence. Am I not correct?

        Mr. Reynolds: That certainly stands to reason. It’s logical. It’s not part of any plea
        agreement . . .


Kincade initially indicated that he wanted to take this plea, but when he was given the guilty-plea

form to sign, he declined, stating that he “can’t do this.” He was offered – and rejected – a plea with

a sentence that he understood to range from “a microsecond to life,” plus whatever reduction he may

have been granted for cooperation with the police. There is no reasonable probability that Kincade

would have agreed to a plea with the likely sentence ranging from twelve years to life, when he did

not agree to a plea with a sentence ranging from a “microsecond” to life. Because Kincade does not

establish that his trial counsel’s performance prejudiced him with regard to the plea offer, we need

not decide whether counsel’s performance was in fact deficient.

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                                                  D

       Kincade also claims that trial counsel was ineffective because he failed to object to the use

of Thomas’s guilty plea, which was improperly employed by the prosecutor as substantive evidence

of Kincade’s guilt. We have held that “a failure to object to prosecutorial misconduct can amount

to ineffective assistance of counsel.” Hodge v. Hurley, 426 F.3d 368, 377 (6th Cir. 2005) (citing

Gravley v. Mills, 87 F.3d 779, 785-86 (6th Cir. 1996)). To succeed on this claim, Kincade needs to

establish that prosecutorial misconduct has taken place, that his trial counsel’s failure to object to

it was deficient, and that this failure prejudiced the defense.

       During opening statements, the prosecutor described Thomas’s plea bargain, emphasizing

that “while Thomas was getting ‘something out of it [i.e. testifying against Kincade],’ he was also

a person who ‘did something wrong’ but was going ‘to face up to it.’” Kincade, 412 N.W.2d at 253.

The prosecutor questioned Thomas extensively about the plea at the beginning of Thomas’s direct

testimony, to which Kincade’s attorney did not object; instead, the attorney inquired about the

reduced charge and “suggested that Thomas’ guilty plea was ‘no big deal’ because he had violated

his parole and likely would have gone to prison anyway.” Ibid. Thomas’s plea agreement was

introduced as an exhibit without objection from defense. During closing arguments, the prosecutor

sought to impress on the jury the import of Thomas’s plea. If Kincade acted in self-defense, the

prosecutor asked, Thomas too would have a defense – he was “helping someone defend himself” –

and would not “book[] the next five years in prison.” Id. at 84.

       We have explained that although guilty pleas of co-conspirators or co-defendants “are never

admissible as substantive evidence of the defendant’s guilt,” they “may be introduced into evidence

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Kincade v. Wolfenbarger

if the co-conspirator or co-defendant testifies at trial, so that the factfinder will have appropriate facts

on hand to assess the witness’s credibility.” United States v. Sanders, 95 F.3d 449, 454 (6th Cir.

1996) (internal citations omitted). Kincade maintains that the prosecution went beyond mere

disclosure of the plea bargain for the purposes of establishing Thomas’s credibility and used his

guilty plea as substantive evidence of Kincade’s guilt by association. This impropriety prejudiced

the outcome of the trial, Kincade argues – all the more so in view of the trial court’s failure to give

“cautionary instructions” as required by this circuit’s law. Sanders, 95 F.3d at 454 (“When a guilty

plea . . . is introduced into evidence, the . . . court is required to give a cautionary instruction to the

effect that the jury may use the conviction or guilty plea only to determine the testifying witness’s

credibility.” ).

        We need not decide whether the prosecutor’s use of Thomas’s guilty plea constituted

prosecutorial misconduct or whether Kincade’s trial counsel was deficient in failing to object to its

use. See Strickland, 466 U.S. at 694 (stating that courts need not address both components of the

inquiry “if the defendant makes an insufficient showing on one”). Even if we assume that trial

counsel was deficient in not objecting to the prosecutor’s tactics, Kincade has not established

prejudice under Strickland. Strickland’s prejudice inquiry requires the court to “consider the totality

of the evidence before the judge or jury.” 466 U.S. at 695 (emphasis added). “[T]he prejudice

determination,” as we clarified, “is necessarily affected by the quantity and quality of other evidence

against the defendant.” Hodge, 426 F.3d at 376. In this case, the quantity and quality of other

evidence against Kincade substantially and unambiguously outweighs any evidence for his self-

defense theory.

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       Kincade admitted shooting Taylor. The only issue at trial was whether the shooting was in

self-defense. Kincade was the only one to testify in his own defense, claiming that he thought Taylor

reached for his gun and that Kincade picked up and kept Taylor’s gun after the murder. The police

could not find the gun and Kincade could not produce it. Nor could Kincade proffer any evidence,

aside from his own testimony, that Taylor made any threatening movements. Kincade’s self-defense

theory was contradicted by Thomas, who testified that Kincade said that he shot the wrong person

and would not get paid, and Branham, who stated that Taylor was not armed. In view of the totality

of the evidence, Kincade cannot show that but for his attorney’s failure to object to the use of

Thomas’s guilty plea, there was a reasonable probability that the jury would have harbored

reasonable doubt regarding his guilt. Therefore, we affirm the district court’s determination that this

claim does not warrant granting the writ of habeas corpus.

                                                  IV

       Kincade’s final claim alleges ineffective assistance of appellate counsel. An appellate

attorney’s performance is also evaluated in accordance with the Strickland standard. Mapes v. Tate,

388 F.3d 187, 191 (6th Cir. 2004). To be constitutionally adequate under Strickland, appellate

counsel is not required to raise every non-frivolous argument on appeal. Caver v. Straub, 349 F.3d

340, 348 (6th Cir. 2003) (citing Jones v. Barnes, 463 U.S. 745, 751(1983)). To demonstrate that an

appellate attorney has rendered deficient performance under Strickland, “the petitioner must

demonstrate that the issue not presented ‘was clearly stronger than issues that counsel did present.’”

Ibid. (quoting Smith v. Robbins, 528 U.S. 259, 289 (2002)). The prejudice standard in the context

of an alleged failure to raise issues on appeal requires showing “a reasonable probability that

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Kincade v. Wolfenbarger

inclusion of the issue would have changed the result of the appeal.” Howard v. Bouchard, 405 F.3d

459, 485 (6th Cir. 2005) (citing Greer v. Mitchell, 264 F.3d 663 (6th Cir. 2001), cert. denied, 546

U.S. 1100 (2006)).

        The certificate of appealability granted by the district court limited the scope of Kincade’s

claims about appellate counsel to failure to raise “meritorious claims” on appeal and abandoning

claims about trial counsel after being granted a remand. Appellate counsel’s failure to raise

meritorious claims moreover, is limited to his failure to raise claims “ related to the claim[s] about

trial counsel” – that is, the same allegations of ineffective trial counsel considered above.

        Kincade argues that the abandonment of claims on remand itself constituted ineffective

assistance because “[c]ounsel had an obligation to consult with petitioner concerning the remand

hearing and by his own admission he failed to do so.” Appellant’s Br. at 21. At the 1991 Ginther

hearing, appellate counsel testified that he “advised [Kincade] that his lawyer has a very good

reputation as a skilled and excellent trial lawyer and that . . . he could not have possibly done a better

job.”   Appellate counsel further responded in writing to Kincade’s inquiry about raising

ineffective-assistance claims, explaining that he would raise issues he thought were viable in his

professional judgment. Ibid. Thus, to the extent Kincade alleges appellate counsel did not consult

with him, the record belies the allegation. Moreover, as the district court points out, “[e]ven

assuming that [Kincade] was unaware of the state appellate court’s remand,” appellate counsel’s

abandonment of claims had no prejudicial effect on Kincade’s challenge to his conviction: “[T]he

trial court ultimately considered Petitioner’s claims about trial counsel and afforded Petitioner an

evidentiary hearing on the claims. The trial court determined that Petitioner’s trial attorney was not

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Kincade v. Wolfenbarger

ineffective, and the Michigan Court of Appeals agreed.” 2007 U.S. Dist. LEXIS 33944, at *34.

        With regard to the failure to include meritorious claims on direct appeal, Kincade does not

establish that counsel’s performance was deficient because he does not demonstrate that the omitted

claims were “clearly stronger” than the issue actually presented (the improper admission of

Thomas’s guilty plea). Nor can Kincade demonstrate prejudice from the omission of these claims

on direct appeal: had appellate counsel pursued the same claims we now find to lack merit, there is

no reasonable probability that the result of the appeal would have changed. Kincade’s strongest

claim with regard to trial counsel was the latter’s failure to object to the prosecution’s use of

Thomas’s guilty plea. See Kincade, 2007 U.S. Dist. LEXIS 33944, at *34. A closely related issue,

the admission of Thomas’s guilty plea, was considered on direct review; a two-judge majority

determined on the merits that the plea was not admitted improperly. At the same time, that one of

three judges dissented demonstrates the strength of the issue appellate counsel chose to raise. As the

district court points out: “The [same] judges in all likelihood would have found no merit in the

contention that defense counsel should have objected to the evidence” if the admission of that

evidence itself was not improper. Id. at *35.

        Ultimately, in view of our determination that trial counsel’s performance did not prejudice

the defense, the conclusion that appellate counsel’s failure to raise claims about this same

performance likewise caused no prejudice is inevitable. Greer, 264 F.3d at 676 (“[B]y definition,

appellate counsel cannot be ineffective for a failure to raise an issue that lacks merit.”); Howard, 405

F.3d at 485.



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                                                  V

          For the reasons set forth above, we AFFIRM the district court’s denial of a writ of habeas

corpus.




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