                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 16a0374n.06

                                                  No. 14-2016

                              UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT

                                                                                                 FILED
JOHN HENRY RAY,                                           )                                Jul 05, 2016
                                                          )                           DEBORAH S. HUNT, Clerk
        Petitioner-Appellant,                             )
                                                          )
v.                                                        )    ON APPEAL FROM THE UNITED
                                                          )    STATES DISTRICT COURT FOR THE
DUNCAN MACLAREN, Warden,                                  )    EASTERN DISTRICT OF MICHIGAN
                                                          )
        Respondent-Appellee.                              )

        BEFORE: MOORE and COOK, Circuit Judges; PEARSON, District Judge.*

        PEARSON, District Judge.                Petitioner John Henry Ray is serving a life sentence

without the possibility of parole for convictions of murder, killing an unborn child, assault,

armed robbery, home invasion, and being a felon in possession. Prior to trial, Ray had reason to

believe that one of the complaining witnesses had an ongoing relationship with the police

department that investigated his case. When Ray sought production of evidence to substantiate

his belief, the prosecutor requested that the trial judge review the evidence ex parte and in

camera. Neither Ray nor his counsel were present during the review of the evidence. Following

the ex parte review, the trial judge ruled that there was no relevant relationship between Ray’s

case, the complaining witness, and the police department. Consequently, Ray was denied access

to the evidence reviewed and the transcript of the in camera review.

        Appealing from the district court’s denial of his petition for a writ of habeas corpus, Ray

raises two grounds for granting his petition. He argues that he was deprived of counsel during a


        *
          The Honorable Benita Y. Pearson, United States District Judge for the Northern District of Ohio, sitting
by designation.
No. 14-2016, John Henry Ray v. Duncan MacLaren, Warden

critical stage when his counsel was not permitted to attend the in camera hearing. He also argues

that his appellate counsel was ineffective for failing to raise that critical stage issue on direct

appeal. For the reasons set forth below, we VACATE in part the district court’s denial of habeas

relief and REMAND the case for further proceedings.

       Factual and Procedural Background

       In 2004, Ray was tried alongside two co-defendants, Jarius Perkins and Juanita Elam, for

multiple felonies arising out of a robbery of a known drug dealer. The following facts are

adduced from Ray’s state court proceedings, and presumed correct here. 28 U.S.C. § 2254(e)(1).

On direct review, the Michigan Court of Appeals set forth the following facts:

       Defendant Perkins, aged twenty-one, his girlfriend, defendant Elam, aged twenty-
       eight, and defendant Ray, aged thirty-eight, were involved in the killing of a man,
       Deshone Douglas Moore, aged twenty-eight, and a pregnant woman, Amanda
       Zarbaugh, aged twenty, and her unborn child, during the course of an armed
       robbery at Zarbaugh’s residence in Romulus, Michigan in July 2004. Defendant
       Elam was already in the house with the two victims when defendants Perkins and
       Ray arrived with guns. Defendant Perkins and Ray encountered Christopher
       Straughter and Ebonie Booker exiting the house when they arrived. Defendant
       Perkins ran into the house just prior to fatal shots being heard, and defendant Ray
       stayed outside and held the witnesses at gunpoint.

People v. Perkins, No. 259865, 2006 WL 1330320, at *1 (Mich. Ct. App. May 16, 2006) (per

curiam).1 The following additional facts were included in the state trial court’s opinion denying

Ray relief from judgment:


              This case arises from the planned armed robbery of Christopher Straughter
       by Juanita Elam, her boyfriend Jarius Perkins and friend John Ray. Straughter was
       a robbery target because the defendants believed he was a dope dealer who


       1
          The Rule 5 Materials submitted to the district court did not include the even-numbered
pages of this opinion. The district court relied on the opinion available on Westlaw.

                                                2
No. 14-2016, John Henry Ray v. Duncan MacLaren, Warden

       carried large sums of cash.

               Defendant Ray (twenty one years old) and two co-defendants Elam
       (twenty eight) and Perkins (thirty eight)2 went to Amanda Zarbaugh’s house to
       rob Straughter. Zarbaugh was pregnant with an unborn child and was in the house
       with Deshone D. Moore.

               Elam knew both Straughter and Zarbaugh. Elam went to Zarbaugh’s
       alone. Elam enticed Straughter via phone to come to Zarbaugh’s house under the
       guise that she wanted to buy drugs and to talk business with him. Elam became
       insistent that Straughter come to Zarbaugh’s house. She said she would remain
       there until Straughter arrived.

              Elam then called Perkins’ cell phone. The inference from that call is that
       Elam alerted Perkins and Ray to come to the house.

              Straughter came to the house and entered with Ebonie Booker. They spoke
       with Elam. Elam also spoke with Moore, who was in the house with Zarbaugh.
       Straughter and Booker headed out the front door. They encountered Perkins and
       Ray, who were waiting outside the house with guns. Perkins and Ray rushed
       Straughter and Booker with drawn handguns. Perkins and Ray robbed Straughter
       and Booker at gunpoint and forced them to the ground.

              Ray stood over Straughter and Booker at gunpoint outside the house while
       Perkins went into the house. Elam, Zarbaugh and Moore were still inside the
       house. Shots were fired. Perkins and Elam came out of the house.

              Zarbaugh and Moore were discovered executed, as was Zarbaugh’s
       unborn child. Cash was also taken.

              Straughter and Booker were threatened as they lay on the ground. They
       overheard discussions about killing them. They got up and ran. Straughter and
       Booker were shot at, but the guns did not discharge because they were either
       empty or jammed. Straughter and Booker continued to run from the scene. All
       three perpetrators, Elam, Ray and Perkins, fled the scene in Perkins’ silver
       Explorer.




       2
          The trial court incorrectly stated Ray’s age (thirty-eight) as Perkins’s age (twenty-one)
and vice versa. The Michigan Court of Appeals accurately states Ray as thirty-eight years old.

                                                3
No. 14-2016, John Henry Ray v. Duncan MacLaren, Warden

       The State’s case against Ray relied on the testimony of Straughter to identify Ray as one

of the participants in the robbery. Ray’s counsel sought to discredit Straughter through evidence

of an ongoing relationship between Straughter and the Romulus Police Department. Counsel

thought that Straughter and the Police Department had a history because of a note, written by one

of the Department’s detectives, that stated that “Straughter continues to call [the detective] for

money.” When asked about this evidence, the prosecutor requested to discuss the issue in

camera with the judge. Ray’s counsel did not attend the in camera proceeding. Following the

proceeding, the judge ruled on the record that there was “no relevant relation between this case

and Mr. Christopher Straughter and the Romulus Police Department.”

       Before the start of trial, Ray’s counsel sought to strike Straughter’s testimony if his client

was not permitted to review the transcript of the in camera proceeding. Unsuccessful in this

attempt, Ray’s counsel argued throughout trial that Ray’s guilt could not be established through

the testimony of Straughter because of Straughter’s lack of credibility and because Straughter

was lying to cover for his association with the robbed drug house.

       The jury found Ray guilty under an aiding and abetting theory of two counts of first-

degree felony murder, two counts of second-degree murder, one count of killing an unborn child,

two counts of assault with intent to do great bodily harm less than murder, two counts of armed

robbery, one count of first-degree home invasion, and one count of being a felon in possession of

a firearm and possession of a firearm while committing a felony. For these crimes, Ray was

sentenced to life in prison without parole.

       Ray appealed his conviction. Through different counsel, Ray raised four substantive

claims on direct appeal: the adequacy of jury selection, prosecutorial misconduct, the

                                                 4
No. 14-2016, John Henry Ray v. Duncan MacLaren, Warden

insufficiency of the evidence, and a Double Jeopardy challenge due to Ray’s conviction of both

felony murder and the underlying felony of home invasion. Ray prevailed on the Double

Jeopardy challenge. The Michigan Court of Appeals remanded the case to correct the home

invasion judgment, but otherwise affirmed Ray’s conviction. Perkins, 2006 WL 1330320, at

*18–19. Ray did not object to the ex parte proceeding either through counsel, or through a

separately-filed pro per brief.3

          Ray filed a pro per application for leave to appeal to the Michigan Supreme Court, and

presented eleven questions for review—none of which are at issue in this appeal. The Michigan

Supreme Court denied leave to appeal, believing that the questions presented did not warrant

review.

          Ray then initiated state collateral proceedings by filing a pro per motion for relief from

judgment with the Wayne County Circuit Court. Later, Ray was appointed counsel for purposes

of his collateral proceedings. Ray filed a motion for relief from judgment through his attorney,

and filed a supplemental brief in pro per. In his pro per brief, Ray raised for the first time his

argument that he was denied counsel at a critical stage of trial when the in camera proceeding

was conducted outside the presence of his counsel. The trial court characterized the issue in the

following way:

          The court erred in failure [sic] to provide Straughter’s relation with Romulus
          Police as an informant as revealed in an in-camera proceeding (raised in
          defendant’s pro per supplemental motion, Oct. 16, 2008).


          3
          In Michigan, an indigent criminal defendant “who insists that a particular claim or
claims be raised on appeal against the advice of counsel” has the right, under Standard 4 of
Administrative Order 2004-6, 471 Mich. cii (2004) to file a brief presenting the claims within
84 days of the appellant’s brief filed by his attorney.

                                                  5
No. 14-2016, John Henry Ray v. Duncan MacLaren, Warden


The trial court rejected Ray’s critical stage argument:

       The defendant alleges error because evidence of Straughter’s relationship with the
       Romulus Police as an informant was not introduced into evidence. MCR 6.508(D)
       provides that this court may not grant relief on a ground raised and decided
       against the defendant on a prior appeal. This ground was raised by the defendant
       on a prior appeal. See Opinion, Court of Appeals, People v. Ray, III, Defendant
       Ray, paragraph B, page 14. Moreover, Straughter’s relationship with the police,
       informant or not, has not been shown by defendant to be relevant to any issue at
       trial. Irrelevant evidence is not admissible for any purpose. MRE 401. Because
       this ground was raised on appeal, relief on this ground is denied.

To Ray’s claim for ineffective assistance of appellate counsel, the trial court answered:

               The defendant also has the right to effective assistance of counsel on
       appeal. See Evitts v Lucey, 468 US 387 (1985). Defendant asserts he was deprived
       of effective assistance of appellate counsel. The issue that defendant was deprived
       of counsel on appeal is unsupported by any fact of record.

               The test of ineffective assistance of appellate counsel is whether counsel’s
       performance was so deficient that he could not have been functioning by counsel
       [sic] required by the Sixth Amendment. That is, whether the conduct of counsel
       on appeal so undermined the functioning of the process that it did not produce a
       just result. The presumption on appeal is that counsel was effective. See US v
       Cronic, 466 US 648 ([1]984); Strickland v Washington, 466 US 668 (1984).

               On appeal, counsel may make strategic decisions as to which issues are to
       be raised on appeal. Counsel does not have a[] duty to raise every non-frivolous
       issue demanded by defendant on appeal. Jones v Barnes, 463 US 745 (1983);
       People v Pickens, 446 Mich 298; 520 NW2d 797 (1994).

              Counsel was not ineffective for not raising the issues presented in this
       motion on appeal. Defendant has not demonstrated he is entitled to relief. MCR
       6.508(D). Relief on this ground is denied.

       Both the Michigan Court of Appeals and Michigan Supreme Court rejected Ray’s

applications for leave to appeal, without further elaboration, because he had failed to establish

entitlement to relief under Mich. Ct. R. 6.508(D).



                                                 6
No. 14-2016, John Henry Ray v. Duncan MacLaren, Warden

        Ray filed a pro se petition for a writ of habeas corpus on March 16, 2011. One of the

eighteen grounds for relief asserted by the petition was Ray’s belief that he was deprived of the

right to counsel at a critical stage when the trial court conducted the in camera proceeding

outside the presence of his counsel. Ray also asserted ineffective assistance of appellate counsel

for failing to raise the critical-stage error on direct appeal.

        The district court denied the petition in its entirety.4 Relevant to the instant appeal, the

district court rejected both Ray’s critical-stage and related ineffective-assistance-of-appellate-

counsel arguments. As to the critical-stage claim the district court said:

               In his seventeenth claim, the petitioner alleges that he was deprived of
        counsel at a “critical stage of the proceedings due to an ex parte communication
        between the trial court and prosecutor during an in-camera review to determine
        whether to admit evidence of prior instances of cooperation between Christopher
        Straughter and the Romulus Police Department. After conducting this in-camera
        review, the trial judge indicated on the record that there was no relevant relation
        between this case and Mr. Straughter and the Romulus Police.

                The complete denial of counsel during a critical stage of a judicial
        proceeding mandates a presumption of prejudice. United States v. Cronic,
        466 U.S. 648, 659 (1984). However, the Supreme Court never has held that an
        improper ex parte conference between a judge and a prosecutor during trial
        amounts to a Cronic error. See Hereford v. Warren, 536 F. 3d 523, 529 (6th Cir.
        2008). The Sixth Circuit has “refused to label ex parte communications critical
        stages in all cases.” Id. at 530 n.4 (citing United States v. Carmichael, 232 F.3d
        510, 517 (6th Cir. 2000) (holding that ex parte discussions between a prosecutor
        and a judge concerning the contents of Title III wiretap transcripts is not a critical
        stage)). In United States v. Minsky, 963 F.2d 870 (6th Cir.1992), the court implied
        that an ex parte discussion between a judge and prosecutor as part of an in camera


        4
          After noting that the State had asserted both statute of limitations and procedural default
as bars to review, the district court proceeded to resolve the petition on the merits in the interests
of judicial economy. See Hudson v. Jones, 351 F.3d 212, 215 (6th Cir. 2003) (noting that a
district court need not resolve procedural issues “before deciding against the petitioner on the
merits”). On appeal, the State has not objected to the district court’s approach, and has confined
its arguments to the merits of Ray’s habeas petition.

                                                    7
No. 14-2016, John Henry Ray v. Duncan MacLaren, Warden

       review of FBI investigation forms is a critical stage. Although the court held that
       an ex parte conference can only be justified if there are “compelling state
       interests,” Minsky, 963 F.2d at 874, “the language found in Minsky is not a
       Supreme Court holding that reflects clearly established federal law.” Heresford,
       536 F. 3d at 532. “Clearly established Federal law for purposes of § 2254(d)(1)
       includes only the holdings, as opposed to the dicta, of [the Supreme] Court’s
       decisions.” White v. Woodall, --- U.S. ---, 134 S. Ct. 1697, 1702 (2014) (internal
       quotation marks and citations omitted). Therefore, habeas relief cannot be
       grounded on Minsky’s rationale.

As to the ineffective-assistance-of-appellate-counsel claim, the district court stated:

               In his fifteenth and sixteenth claims, the petitioner contends that his
       appellate counsel was ineffective by failing to raise some of his claims on his
       direct appeal. Not so. The petitioner was not entitled to compel his appointed
       attorney to raise all nonfrivolous claims on appeal if counsel, as a matter of
       professional judgment, elected not to raise the claims. Jones v. Barnes, 463 U.S.
       745, 751 (1983). In fact, “the process of winnowing out weaker arguments on
       appeal and focusing on those more likely to prevail . . . is the hallmark of
       effective appellate advocacy.” O’Sullivan v. Boerckel, 526 U.S. 838, 858 (1999)
       (quotation marks and citations omitted).

               The Court has found no merit in the claims advanced here by the
       petitioner. Therefore, there is no reasonable probability that, but for appellate
       counsel’s failure to raise those claims, the petitioner would have prevailed on
       appeal. Appellate counsel was not constitutionally ineffective. See Shaneberger v.
       Jones, 615 F.3d 448, 452 (6th Cir. 2010) (explaining that “[a]ppellate counsel
       cannot be found to be ineffective for ‘failure to raise an issue that lacks merit’”
       (quoting Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir. 2001))); see also Fuller v.
       Lafler, 826 F. Supp. 2d 1040, 1065 (E.D. Mich. 2011) (concluding that, because
       there was no reasonable probability that the petitioner would have prevailed on
       appeal were it not for appellate counsel’s failure to raise the claims, “the
       petitioner’s right to competent counsel on appeal was not violated, and the state
       court’s adjudication of the petitioner’s claim was not contrary to or an
       unreasonable application of Strickland”).

       The district court certified Ray’s critical-stage issue for appeal, noting that “reasonable

jurists could debate whether the claim that the petitioner was deprived of counsel at a critical

stage due to ex parte communications between the trial court and prosecutor should have been

resolved in a different manner.” On March 13, 2015, this Court expanded the issues on appeal to

                                                  8
No. 14-2016, John Henry Ray v. Duncan MacLaren, Warden

include Ray’s ineffective-assistance-of-appellate-counsel claim grounded in his contention that

counsel should have raised the critical-stage error on direct appeal.

       Standard of Review

       A habeas petitioner may not obtain relief in federal court on claims adjudicated on the

merits in state court unless the adjudication “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 “was based on an unreasonable determination of the

facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).

“This standard . . . is difficult to meet.” White v. Woodall, 134 S. Ct. 1697, 1702 (2014) (quoting

Metrish v. Lancaster, 133 S. Ct. 1781, 1786 (2013)) (internal quotation marks omitted).

       A state court decision is contrary to clearly established federal law if the state court

“arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law” or

if it “confronts facts that are materially indistinguishable from a relevant Supreme Court

precedent” and arrives at an opposite result. Williams v. Taylor, 529 U.S. 362, 405 (2000). For

purposes of AEDPA, “clearly established Federal law” means only the holdings from Supreme

Court cases, not its dicta, Howes v. Fields, 132 S. Ct. 1181, 1187 (2012), nor precedent from the

federal courts of appeals, see Marshall v. Rodgers, 133 S. Ct. 1446, 1450−51 (2013) (noting that

circuit precedent may not be used to refine a general principle from a Supreme Court decision

into a more specific legal rule not yet announced by the Supreme Court).

       A decision is an unreasonable application of clearly established federal law when the

state court “correctly identified the correct legal principle from Supreme Court precedent but

unreasonably applied that principle to the facts of the case before it.” Dennis v. Mitchell,

                                                 9
No. 14-2016, John Henry Ray v. Duncan MacLaren, Warden

354 F.3d 511, 517 (6th Cir. 2003) (citing Williams, 529 U.S. at 412−13). Relief will not be

granted unless the petitioner can “show that the state court’s ruling on the claim being presented

in federal court was so lacking in justification that there was an error well understood and

comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington

v. Richter, 562 U.S. 86, 103 (2011).

       Analysis

       A. Ray’s Cronic Claim

       The right to counsel under the Sixth Amendment secures for a criminal defendant the

right to a fair trial. United States v. Wade, 388 U.S. 218, 226 (1967). The right to counsel

guarantees that the accused will have representation at all critical stages of the criminal process.

Iowa v. Tovar, 541 U.S. 77, 87 (2004). When counsel is either totally absent from, or prevented

from assisting the accused during, a critical stage of trial, the Supreme Court presumes that the

accused has suffered constitutional error without requiring a corresponding showing of prejudice.

United States v. Cronic, 466 U.S. 648, 659 & n.25 (1984) (concluding that a trial is unfair if the

accused is deprived of counsel during a critical stage of trial).

       The Supreme Court has offered various general characterizations of what constitutes a

critical stage. In Hamilton v. Alabama, 368 U.S. 52, 54 (1961), the Supreme Court defined

“critical stage” as a phase of trial in which “[a]vailable defenses may be . . . irretrievably lost, if

not then and there asserted.” In White v. Maryland, 373 U.S. 59, 60 (1963) (per curiam), the

Supreme Court, without explicitly adopting it, repeated an appellate court’s description of “a

critical stage in a criminal proceeding” as one “where rights are preserved or lost.” And, in Bell

v. Cone, 535 U.S. 685, 696 (1984), the Supreme Court defined “critical stage” as “a step of a

                                                  10
No. 14-2016, John Henry Ray v. Duncan MacLaren, Warden

criminal proceeding . . . that [holds] significant consequences for the accused.” Nonetheless, the

precise contours of Cronic remain unclear. Woods v. Donald, 135 S. Ct. 1372, 1377 (2015).

       Ray advances two theories upon which this Court could grant habeas relief. Initially, Ray

argued that the state court decision unreasonably applied Cronic to the facts of his case. In his

reply brief, however, Ray raised for the first time both that the state court decision was contrary

to clearly established federal law and that the state court neglected to adjudicate the merits of his

Cronic claim at all.5 Ray’s last argument is his most persuasive.

       Because the deference owed to a state court decision can be dispositive of the claim, a

federal court reviewing a habeas petition must first address this “threshold question of the proper

standard of review”—specifically, whether AEDPA deference or de novo review applies.

Robinson v. Howes, 663 F.3d 819, 822 (6th Cir. 2011). In order for AEDPA’s deferential

standard of review to apply, a petitioner’s claims must have been “adjudicated on the merits in

State court proceedings.” 28 U.S.C. § 2254(d); see also English v. Berghuis, 529 F. App’x 734,

740 (6th Cir. 2013) (“Before a reviewing court reaches the question of the reasonableness and

conformity to relevant precedent of the state court adjudication, however, it must first confront a


       5
           During oral arguments, the State objected to Ray raising this argument in reply and
urged this Court to consider it waived. “As a general rule, this Court does not entertain issues
raised for the first time in an appellant’s reply brief.” United States v. Demjanjuk, 367 F.3d 623,
637 (6th Cir. 2004). There are exceptions to this rule. “[A] party cannot ‘waive’ the proper
standard of review by failing to argue it.” Brown v. Smith, 551 F.3d 424, 428 n.2 (6th Cir. 2008),
abrogated on other grounds as recognized by Williams v. Lafler, 494 F. App’x 526, 529 (6th Cir.
2012); see also Moritz v. Lafler, 525 F. App’x 277, 285 n.5 (6th Cir. 2013) (“[N]othing suggests
that Brown’s ruling on waiver of the AEDPA standard of review is any less persuasive.”). Ray’s
belatedly raised argument, in part, discourages the Court from applying the deferential standard
of review under AEDPA and, as such, is not waived. As will be explained below, however, the
State will have the opportunity to respond to this argument in the first instance before the district
court.

                                                 11
No. 14-2016, John Henry Ray v. Duncan MacLaren, Warden

more primal question: whether the defendant’s claim was actually adjudicated by the state

courts.”). “Claims that were not ‘adjudicated on the merits in State court proceedings’ receive

the pre-AEDPA standard of review: de novo for questions of law (including mixed questions of

law and fact), and clear error for questions of fact.” Robinson, 663 F.3d at 823 (citing Brown v.

Smith, 551 F.3d 424, 428, 430 (6th Cir. 2008)). It is presumed that the state court adjudicated on

the merits all claims presented to it, absent indicia to the contrary. Harrington, 562 U.S. at 99.

That presumption may be overcome, however, “when there is reason to think some other

explanation for the state court’s decision is more likely.”        Id. at 99−100 (citing Ylst v.

Nunnemaker, 501 U.S. 797, 803 (1991)).

       In this case, the record indicates that Ray may be able to rebut the presumption that his

Cronic claim was adjudicated on the merits in state court. Ray raised his critical stage claim in

his state habeas petition and a supplemental motion.            Specifically, Ray argued in his

Supplemental Motion for Relief that his “defense was irretrievably lost by the trial court’s failure

to allow defense counsel’s presence at the in-camera review, as well as the denial of the request

for review of the record, as was requested by trial counsel . . . At that period, moment, and event

in the course of his criminal proceeding was a ‘CRITICAL STAGE.’” The Wayne County

Circuit Court characterized this claim as follows: “The court erred in failure to provide

Straughter’s relation with Romulus Police as an informant as revealed in an in-camera

proceeding (raised in defendant’s pro per supplemental motion, Oct. 16, 2008) . . . .” It then

denied Ray’s claim without any discussion of Cronic, the Sixth Amendment, or critical stage




                                                12
No. 14-2016, John Henry Ray v. Duncan MacLaren, Warden

jurisprudence.6 Instead, the state court rejected Ray’s argument based on its conclusion that, as a

matter of state evidentiary law, Straughter’s relationship with the police was irrelevant.

Relevance, however, is not the proper inquiry for a constitutional claim under Cronic; as

mentioned above, the Cronic analysis turns on whether an individual was denied counsel during

a critical stage of trial. Cronic, 466 U.S. at 659. The state court’s analysis of Ray’s Cronic

claim, therefore, strongly suggests that the claim “was inadvertently overlooked in state court.”

Johnson v. Williams, 133 S. Ct. 1088, 1097 (2013).

       There is another strong reason to conclude that the Wayne County Circuit Court failed to

adjudicate Ray’s Cronic claim on the merits. In rejecting Ray’s Cronic claim, the Wayne

County Circuit Court wrote: “This ground was raised by the defendant on a prior appeal. See

Opinion, Court of Appeals, People v. Ray, III, Defendant Ray, paragraph B, page 14.” That

statement and the citation supporting it are both erroneous. Ray did not raise a Cronic claim in

his direct appeal to the Michigan Court of Appeals. He did, however, raise a related Brady

claim: in his Pro Per Supplemental Brief, Ray argued that the prosecution improperly withheld

exculpatory impeachment evidence when it failed to disclose information about Straughter’s

relationship with the Romulus Police Department—information, Ray wrote, that the trial court

had reviewed in camera.




       6
          Although a state court decision need not expressly mention clearly established federal
law to receive AEDPA deference, see Early v. Packer, 537 U.S. 3, 8 (2002), nothing else about
the decision reveals that the court adjudicated the Cronic claim on its merits. The absence of any
discussion of Cronic, therefore, is not a reason for concluding that the state court’s adjudication
of the Cronic claim was contrary to clearly established federal law, but rather reason to doubt
that the Cronic claim was adjudicated on the merits at all.

                                                13
No. 14-2016, John Henry Ray v. Duncan MacLaren, Warden

       The Michigan Court of Appeals—in paragraph B, on page *13 of its 2006 opinion—

rejected this Brady claim. Perkins, 2006 WL 1330320, at *13. It thus appears that the Wayne

County Circuit Court confused Ray’s Brady claim (which he raised in his appeal as of right) with

his Cronic claim (which he raised on state collateral review). That explains why the Wayne

County Circuit Court did not cite Cronic or its progeny in its opinion. Put simply, the Wayne

County Circuit Court’s treatment of Ray’s Cronic claim “leads very clearly to the conclusion

that” that court “inadvertently overlooked” this claim. Williams, 133 S. Ct. at 1097.

       Despite the strong reason to believe that Ray can rebut the presumption that the state

court adjudicated the merits of his Cronic claim, the district court analyzed Ray’s Cronic claim

with AEDPA deference without making the preliminary determination that the deferential

standard should be applied. This omission was understandable. Ray was pro se before the

district court, and the notion that the state court decision failed to adjudicate Ray’s Cronic claim

on the merits was first raised by appointed counsel in Ray’s reply brief on appeal. Nonetheless,

the district court’s decision omitted a crucial, preliminary analytical step, one that carries serious

implications for the merits of Ray’s petition. See Olson v. Little, 604 F. App’x 387, 390 (6th Cir.

2015) (recognizing the importance of determining whether to apply “§ 2254’s deferential

standard of review . . . ‘[b]ecause the requirements of § 2254(d) are difficult to meet.’” (quoting

Johnson, 133 S. Ct. at 1091)), cert. denied, 136 S. Ct. 551 (2015).

       We hold that the district court committed reversible error in failing to determine whether

Ray’s Cronic claim was adjudicated on the merits before applying AEDPA deference to the state

court decision. Rather than performing a de novo review of Ray’s claim, however, we remand

the case to the district court to allow it to analyze whether there was an adjudication on the

                                                 14
No. 14-2016, John Henry Ray v. Duncan MacLaren, Warden

merits. An argument concerning the standard of review cannot be waived. Brown, 551 F.3d at

428 n.2. The fact remains, however, that the State has not been afforded the opportunity to

respond to Ray’s non-waivable yet belatedly raised argument. Remanding the case will afford

the State that opportunity, and will permit the issue of whether an adjudication on the merits

occurred to receive full consideration by the court better situated to make the determination in

the first instance. See, e.g., Rosebrough v. Buckeye Valley High Sch., 690 F.3d 427, 433 (6th Cir.

2012) (remanding to the district court to consider in the first instance elements of the plaintiff’s

prima facie case neither party briefed on appeal); Zambetti v. Cuyahoga Cmty. Coll., 314 F.3d

249, 261−62 (6th Cir. 2002) (remanding the case to the district court and permitting the district

court to consider in the first instance an argument raised by plaintiff on appeal). This is true

even in cases in which the issue to be decided on remand involves a question of law. See, e.g.,

Adkisson v. Jacobs Eng’g Grp., Inc., 790 F.3d 641, 649 (6th Cir. 2015), cert. denied, 136 S. Ct.

980 (2016) (remanding to the district court for considering in the first instance whether the

defendant was entitled to government-contractor immunity as a matter of law); Sorrell v. Rinker

Materials Corp., 395 F.3d 332, 338 (6th Cir. 2005) (remanding for considering in the first

instance whether a legal duty under 29 C.F.R. § 825.305(d) was triggered). Habeas corpus is no

exception. See, e.g., In re Smith, 690 F.3d 809, 810 (6th Cir. 2012) (remanding to the district

court for determination in the first instance whether a habeas petition raised successive claims

within the meaning of 28 U.S.C. § 2244(b)). We therefore vacate the portion of the district

court’s decision denying Ray relief on his Cronic claim, and remand the case to the district court

with instructions to allow the parties to brief (1) whether there was an adjudication on the merits



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as to Ray’s Cronic claim, and (2) whether Ray is entitled to relief under the appropriate standard

of review.

        B. Ray’s Ineffective Assistance of Appellate Counsel Claim

        To establish ineffective assistance of counsel, Ray must satisfy two requirements:

               First, the defendant must show that counsel’s performance was deficient.
        This requires showing that counsel made errors so serious that counsel was not
        functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.

                Second, the defendant must show that the deficient performance
        prejudiced the defense. This requires showing that counsel’s errors were so
        serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
        Unless a defendant makes both showings, it cannot be said that the conviction or
        death sentence resulted from a breakdown in the adversary process that renders
        the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984). Counsel’s performance is deficient when

the representation falls below an “objective standard of reasonableness.” Id. at 688. Ray must

overcome the strong presumption that counsel’s conduct fell “within the wide range of

reasonable professional assistance,” and that “the challenged action ‘might be considered sound

trial strategy.’”   Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).           To

demonstrate prejudice, Ray “must show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at

694.

        Although the failure to raise an issue on appeal can amount to constitutionally ineffective

assistance, appellate counsel does not have an obligation to raise every possible claim that a

client may have. McFarland v. Yukins, 356 F.3d 688, 710 (6th Cir. 2004) (citing Jones v.

Barnes, 463 U.S. 745, 751–54 (1983)). The decision of which issues to pursue is typically left to


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counsel’s professional judgment; “‘winnowing out weaker arguments on appeal and focusing on’

those more likely to prevail, far from being evidence of incompetence, is the hallmark of

effective appellate advocacy.” Smith v. Murray, 477 U.S. 527, 536 (1986) (quoting Jones,

463 U.S. at 751–52).

       In determining whether appellate counsel’s performance was deficient, the Sixth Circuit

has identified the following factors as useful for analysis:

       (1) Were the omitted issues “significant and obvious”? (2) Was there arguably
       contrary authority on the omitted issues? (3) Were the omitted issues clearly
       stronger than those presented? (4) Were the omitted issues objected to at trial?
       (5) Were the trial court’s rulings subject to deference on appeal? (6) Did appellate
       counsel testify in a collateral proceeding as to his appeal strategy and, if so, were
       the justifications reasonable? (7) What was appellate counsel’s level of experience
       and expertise? (8) Did the petitioner and appellate counsel meet and go over
       possible issues? (9) Is there evidence that counsel reviewed all the facts?
       (10) Were the omitted issues dealt with in other assignments of error? (11) Was
       the decision to omit an issue an unreasonable one which only an incompetent
       attorney would adopt?

McFarland, 356 F.3d at 711 (quoting Mapes v. Coyle, 171 F.3d 408, 427–28 (6th Cir. 1999)).

“Counsel’s performance is strongly presumed to be effective,” see McFarland, 356 F.3d at 710

(quoting Scott v. Mitchell, 209 F.3d 854, 880 (6th Cir. 2000)), and “‘only when ignored issues

are clearly stronger than those presented, will the presumption of effective assistance of

[appellate] counsel be overcome,’” Joshua v. DeWitt, 341 F.3d 430, 441 (6th Cir. 2003)

(alteration in original) (quoting Monzo v. Edwards, 281 F.3d 568, 579 (6th Cir. 2002)).

       Ray argues that appellate counsel was deficient in two respects. He urges that appellate

counsel was deficient for missing the “significant and obvious” Cronic error by ignoring both

clearly established Supreme Court and Sixth Circuit law and trial counsel’s objections to not

having the evidence reviewed during the in camera hearing. Ray also contends that the omitted

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claim was significantly stronger than the others raised on direct appeal. These arguments are all

logically dependent on the merits of the underlying Cronic claim—an issue we do not reach

today. Ivory v. Jackson, 509 F.3d 284, 294 (6th Cir. 2007) (“Whether raising the issue might

have changed the result of the appeal, in turn, goes to the merits of the claim itself.”).

Accordingly, we also vacate the district court’s denial of habeas relief on Ray’s ineffective-

assistance-of-appellate-counsel claim, and remand to the district court to consider the claim in

light of its resolution of Ray’s Cronic claim on remand.

       Conclusion

       For the foregoing reasons, we VACATE in part the district court’s denial of habeas relief

and REMAND the case for further proceedings consistent with this opinion.




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