Argued: May 1, 2019
from the United States District Court for the Eastern
District of Michigan at Detroit. No. 2:15-cv-13528-Laurie J.
Michelson, District Judge.
Elizabeth L. Jacobs, Detroit, Michigan, for Appellant. Ann M.
Sherman, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing,
Michigan, for Appellee.
Elizabeth L. Jacobs, Detroit, Michigan, for Appellant. Ann M.
Sherman, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing,
Michigan, for Appellee.
Before: DAUGHTREY, COOK, and GRIFFIN, Circuit Judges
CRAIG DAUGHTREY, CIRCUIT JUDGE.
Curtis Byrd seeks a writ of habeas corpus pursuant to 28
U.S.C. § 2254. Byrd is serving life in prison without
the possibility of parole for aiding and abetting a
first-degree felony murder, despite the fact that the
prosecutor in his case was interested in-and, indeed, would
have preferred-negotiating an agreement that could have
allowed Byrd to plead guilty to a lesser charge and receive a
lighter sentence. Byrd argues that his counsel's
ineffectiveness deprived him of the opportunity to secure a
plea deal. Specifically, he alleges that, based on an
egregious misunderstanding of the law, his attorney conveyed
to the prosecutor an unwillingness to consider a plea and
conveyed to Byrd an assurance of acquittal-effectively
halting plea negotiations before they could begin.
that Byrd's counsel was deficient and that it is
reasonably probable that, absent this incompetency, Byrd
would have negotiated a more favorable outcome. Accordingly,
we conclude that Byrd was denied his Sixth Amendment right to
effective counsel, reverse the judgment of the district
court, and remand the case for entry of a writ of habeas
corpus unless new state proceedings consistent with this
opinion are reopened within 180 days of the issuance of our
mandate in this matter.
AND PROCEDURAL BACKGROUND
February 2010, Byrd and his then-girlfriend, Charletta
Atkinson, attempted to rob Richard Joiner at a bank ATM.
Byrd, who had no criminal record to that point, suggested the
plan and provided the gun, but at the last minute had a
change of heart. He told Atkinson, "I can't do this.
This is not for me, I'm not going to do it." The
record is unclear as to whether Atkinson took the gun or Byrd
gave her the gun. It is clear, however, that, while armed,
Atkinson approached Joiner and demanded that he hand over his
money. Joiner resisted and, in a struggle with Atkinson, the
gun went off. Joiner suffered a fatal wound to the head.
Atkinson returned to the car and Byrd drove away. Later, the
couple drove by the scene, saw that paramedics and police had
arrived, and drove off. Shortly thereafter, Byrd turned
himself in to the police.
and Atkinson were charged with first-degree premediated
murder, first-degree felony murder, assault with intent to
rob while armed, and possession of a firearm while committing
a felony. Byrd was charged on a theory of aiding and
abetting. Because Michigan law provides that an aider and
abettor is subject to the same penalties as the principal,
Byrd faced a mandatory sentence of life without
the principal defendant, negotiated a plea agreement with the
prosecution, allowing her to plead guilty to charges of
second-degree murder and felony firearm. She received a
sentence of 30 to 50 years in exchange for providing
testimony in Byrd's trial. This outcome comports with the
Wayne County prosecutor's demonstrated record of
preferring plea deals over trials. As David Braxton, the
prosecutor in Byrd and Atkinson's cases, explained in an
evidentiary hearing in the district court, Wayne County
prosecutors have a practice of waiting for defense counsel to
request an offer before beginning negotiations. After a
request is made, the prosecutor will develop a proposal and
consult with the interested parties. Braxton testified that
once a principal defendant has pleaded guilty, prosecutors
have even more incentive to reach plea agreements with aiders
and abettors. He also explained that, in his experience,
Wayne County judges rarely reject plea agreements.
Nevertheless, Byrd was denied the opportunity to accept a
lesser charge and more lenient sentence because his trial
counsel, Marvin Barnett, never initiated plea negotiations
with the prosecutor's office.
the outset, Byrd's counsel was determined to go trial.
According to Byrd, Barnett met with him for approximately 30
minutes before Byrd's preliminary hearing and for another
30 minutes the night before trial began. Byrd and Barnett
also spoke on the phone once in between these meetings, at
which point Barnett told Byrd about Atkinson's plea
agreement. These brief conversations comprise the entirety of
Barnett's time in preparation with Byrd in advance of
trial. Byrd testified that, throughout their brief
interactions, Barnett insisted that they were going to trial,
assured Byrd that he would "hit a home run" for him
by securing an acquittal, and that Byrd would be "going
home" instead of going to prison. Byrd also asserts that
during their meetings, Barnett did not review the sentencing
guidelines with him and did not explain aiding and abetting
or other legal concepts underlying Byrd's case. Barnett
baldly denied these allegations but also testified that he
did not remember his conversations with Byrd
"precisely" or "particularly." In much of
his testimony, Barnett discussed his usual practices as a
defense attorney, but he did not confirm whether he engaged
in any specific ones in representing Byrd.
Barnett's assurances of acquittal, Byrd specifically
asked Barnett about the possibility of pleading guilty.
Barnett convinced Byrd that a guilty plea was unnecessary and
against his interest. In the district court, Barnett
testified that he did not seek a plea deal on Byrd's
behalf because Byrd asserted his innocence and "wanted
to go home." Further, Barnett apparently thought that
Byrd was not guilty as a matter of law solely due to
Byrd's supposed "abandonment" of the crime.
reliance on the abandonment defense reflects his confusion
about-and possibly his abject ignorance of-the law. Michigan
requires a defendant claiming abandonment as an affirmative
defense to establish "by a preponderance of the evidence
voluntary and complete abandonment of a criminal
purpose." People v. Akins, 675 N.W.2d 863, 873
(Mich. Ct. App. 2003). In Akins, the Michigan Court
of Appeals ruled that, despite the defendant's
protestation that he changed his mind about a robbery, his
abandonment defense failed because, among other things, he
"gave his gun to [the principal], knowing that it would
be used to commit the robbery." Id. This act,
in the eyes of the Akins court, showed that the
defendant intended to aid the commission of the crime and
that a jury could reasonably find him guilty of felony
this prior case law, which virtually mirrored the facts in
Byrd's case, Barnett continued to rely on and vastly
overestimate the strength of the abandonment defense. At the
preliminary hearing, he moved for dismissal of the charges,
describing the case to the trial judge as "real
simple" and "straightforward," i.e.,
a clear case of abandonment. Post-trial in the district
court, Barnett once again displayed confusion about the case
when he asserted his continued belief that abandonment was
"an excellent defense" for his client. He went so
far as to say that he believed "that Mr. Byrd should
have been found not guilty."
trial transcript demonstrates that the defense Barnett
crafted for Byrd was further hindered by Barnett's
misunderstanding of accomplice liability. For instance, in
closing, Barnett told the jury:
"[I]t don't matter how [Atkinson] got the gun . . .
. He's into this 'gave her the gun,' [she] took
the gun. She grabbed the gun. He took the gun. It don't
matter. If he gave her the gun and knew that she was going to
commit the offense, he's not guilty. Did you hear me? He
doesn't have to stop her . . . . If he gave her the gun
and knew that she was going to rob somebody, he'd be not
guilty unless he intended to help her, and he didn't know
cause the girl got out of the car."
legal proposition, this theory is flatly wrong. Michigan law
does not require an aider or abettor to intend the commission
of the crime. A defendant need only have knowledge of the
principal's intent. See Michigan Compiled Laws
§ 767.39; Michigan Model Criminal Jury Instruction
8.1(3)(c) ("[A]t the time the defendant must . . . have
known that the other person intended [the crime's]
commission . . . ."). Moreover, Byrd's felony-murder
charge meant that the prosecutor in Byrd's case needed to
establish only that Byrd knew of Atkinson's intention to
rob the victim; not that she intended to kill him.
See Michigan Compiled Laws § 750.316(1)(b);
Michigan Model Criminal Jury Instruction 16.4(3). As long as
Byrd was aware of Atkinson's plans, his actions in
support of those plans need not have been considerable
because "[t]he amount of advice, aid or encouragement is
not material if it had the effect of inducing the commission
of the crime." People v. Palmer, 220 N.W.2d
393, 378 (Mich. 1974). Thus, a decidedly low evidentiary
threshold stood between Byrd and conviction for aiding and
abetting felony murder.
surprisingly, the abandonment defense failed at trial. Byrd
was convicted of first-degree felony murder, assault with
intent to rob, and felony firearm, and he was sentenced to
life imprisonment without the possibility of
parole. Michigan courts denied Byrd's direct
appeal of his conviction and rejected his motion for
post-conviction relief. He then made his way to federal court
seeking a writ of habeas corpus.
district court dismissed all of Byrd's claims except one:
ineffective assistance based on Barnett's alleged
misunderstanding of the law and resultant failure of
representation at the pleading stage. Following an
evidentiary hearing, the district determined that, although
Byrd's petition "allowed for the possibility that
Barnett performed deficiently," Byrd did not make a
sufficient showing of prejudice because it was not clear that
Byrd would have accepted a plea. Byrd v. Bauman, No.
15-13528, 2018 WL 4005549, at *5 (E.D. Mich. Aug. 22, 2018).
The court denied Byrd a writ but granted a certificate of
consider a denial of habeas corpus relief under 28 U.S.C.
§ 2254, "we review the district court's legal
conclusion's de novo and its factual findings for clear
error." Magana v. Hofbauer, 263 F.3d 542, 546
(6th Cir. 2001). The Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA) governs habeas corpus petitions
filed after the act's effective date, as was Byrd's.
Pub. L. No. 104-132, 110 Stat. 1214 (1996). "However,
the stringent requirements of § 2254(d) apply only to
claims that were 'adjudicated on the merits in State
court proceedings.'" Bies v. Sheldon, 775
F.3d 386, 395 (6th Cir. 2014) (quoting Cullen v.
Pinholster, 563 U.S. 170');">563 U.S. 170,  (2011)). The parties
agree that no state court has adjudicated the merits of
Byrd's ineffective-assistance claim. Thus, we consider
the claim de novo. See id.
familiar two-part test announced in Strickland v.
Washington, 466 U.S. 668, 687 (1984), controls
ineffective-assistance claims. To satisfy
Strickland, a petitioner must establish "that
counsel's representation fell below an objective standard
of reasonableness" and that counsel's incompetence
prejudiced him. Id. at 687-88. To establish
prejudice, "a defendant must 'show that there is a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.'" Lafler v. Cooper,
566 U.S. 156, 163 (2012) (quoting Strickland, 466
U.S. at 694).
on an overly constrained reading of Lafler, the
dissent posits that we should not reach the merits of
Byrd's ineffective-assistance claim because, in our
colleague's view, it "falls outside the scope of the
Sixth Amendment." But the Sixth Amendment's
requirement that defendants receive "the effective
assistance of competent counsel" extends to all critical
stages of a criminal proceeding, Lafler, 566 U.S. at
163, including pretrial plea negotiation. See Padilla v.
Kentucky, 559 U.S. 356, 373 (2010) ("[W]e have long
recognized that the negotiation of a plea bargain is a
critical phase of litigation for purposes of the Sixth
Amendment right to effective assistance of counsel.").
See also Chaidez v. United States, 568 U.S. 342, 349
(2013) (explaining that "the Strickland
standard extends generally to the plea process.");
Lafler, 566 U.S. at 162; Hill v. Lockhart,
474 U.S. 52, 57-59 (1985). The Supreme Court has never
cabined that right to negotiations that take place only after
an offer has been made.
the dissent urges that we should ignore Byrd's
allegations of his counsel's ineffectiveness because if
the prosecution exercised its discretion not to offer a plea
to Byrd, "there is no constitutional right to plea
bargain." Weatherford v. Bursey, 429 U.S. 545,
561 (1977). This suggests a threshold requirement that, put
simply, has no place in this matter, because the
ineffectiveness of Byrd's counsel foreclosed the
possibility that the prosecution, under the unique facts of
this case, could exercise such discretion. Whether a
constitutional right to plea bargaining exists thus simply is
not relevant here. Indeed, as we explained recently, "in
the context of the right to effective assistance of counsel,
. . . the absence of a right to be offered a plea or to have
it accepted . . . is beside the point."
Rodriguez-Penton v. United States, 905 F.3d 481, 489
(6th Cir. 2018) (emphasis added).
Rodriguez-Penton, we determined that a defendant
could establish Strickland prejudice when his
counsel failed to alert him that accepting a plea offer could
subject him to deportation, even if the prosecutor never
offered a plea that excluded "adverse immigration
consequences." Id. at 488. We held that the
defendant could do so by establishing that he would have
negotiated a more favorable plea deal and that "with
proper advice, the outcome of those negotiations would have
been different." Id. at 490. The mere
potentiality of Rodriguez-Penton's negotiation of a more
favorable plea did not prevent us from determining that he
could succeed on his ineffective-assistance claim, much less
prevent us from considering the claim. Id. at
reaching our conclusion, we looked, first, to the Supreme
Court's rulings in Lafler and in Missouri v.
Frye, 566 U.S. 140 (2012). Id. at 487-88. We
recognized that those cases- contrary to the dissent's
contention-do not establish a threshold requirement of a more
favorable plea offer. Rather, they acknowledged the extensive
system of pleas that now dominates our criminal justice
process and affirmed a defendant's right to effective
counsel in these "crucial" negotiations.
Id. True, Lafler and Frye noted
that, despite the prevalence of plea bargaining, there is no
constitutional right to the prosecutor's maintenance of a
plea offer or a judge's acceptance of a plea offer.
See Lafler, 566 U.S. at 168; Frye, 566 U.S.
at 148-49. Thus, in light of the absence of such rights, the
Supreme Court clarified that when counsel's deficient
performance deprives a defendant of a fair opportunity in
plea negotiations, he must make additional showings to meet
the Strickland test. Frye, 566 U.S. at
148-49. Namely, a defendant must demonstrate a reasonable
probability that, absent counsel's errors, the prosecutor
would not have rescinded a plea offer and a judge would not
have rejected it. Id.; see also Lafler, 566
U.S. at 168; Rodriguez-Penton, 905 F.3d at 487-88.
turned to whether a defendant could establish prejudice based
on the assertion that "he would have negotiated
a plea deal" that did not leave him threatened with
deportation. Rodriguez-Penton, 905 F.3d at 488
(emphasis added). We looked to rulings from our sister
circuits for guidance and found that he could. Id.
For example, we approved of the Ninth Circuit's logic in
United States v. Rodriguez-Vega, which held that a
petitioner can establish prejudice by showing "a
willingness by the government to permit defendants charged
with the same or a substantially similar crime to plead
guilty to a non-removable defense." 797 F.3d 781, 788
(9th Cir. 2015). Likewise, we cited a decision from the
Seventh Circuit that found prejudice because a defendant
"could have tried to negotiate a different plea
deal," notwithstanding the fact that the prosecutor in
that case never offered a more favorable plea. DeBartolo
v. United States, 790 F.3d 775, 779 (7th Cir. 2015)
(emphasis supplied). In these cases, the courts found that
the petitioner satisfied Strickland by establishing
a reasonable probability that, absent counsel's errors,
the defendant would have bargained for a better plea. See
also Gabay v. Woodford, 418 Fed.Appx. 649, 651 (9th Cir.
2011) (suggesting defendant could have established prejudice
based on counsel's failure to engage in plea negotiations
if he had shown that government was willing to offer a plea
line of reasoning is easily applicable to Byrd's case:
because there is no right to a plea offer, where a petitioner
alleges ineffective assistance of counsel prevented plea
negotiations, demonstrating prejudice requires that he
establish a reasonable probability that but for counsel's
errors, the petitioner would have received a plea offer.
See Lafler, 566 U.S. at 163-64 (establishing the
requirement of a "reasonable probability" showing
for potential pleas); Frye, 566 U.S. at 148-49
(same). Finally, as explained in Lafler and
Frye, a petitioner must also show that he would have
accepted the offer, the prosecution would not have rescinded
the offer, and that the trial court would not have rejected
the plea agreement. See Lafler, 566 U.S. at 168;
Frye, 566 U.S. at 148-49; see also Delatorre v.
United States, 847 F.3d 837, 846 (7th Cir. 2017)
(explaining that, to establish prejudice where no plea was
offered, petitioner "had to show-at minimum-that the
prosecutor would have actually offered him a deal had his
attorney been competent."); cf. Ramirez v. United
States, 751 F.3d 604, 608 (8th Cir. 2014) (holding that
petitioner could not establish prejudice because he failed to
"show that a reasonable probability existed that the
government would have extended a plea offer" or to
establish his willingness to cooperate).
petitioner raising this variety of Strickland claim
thus faces a formidable standard, but we are convinced that
Byrd has met it. With regard to Strickland's
deficiency prong, the record shows Barnett's blatant
incompetence. His errors were apparent and abundant, and
without doubt, his representation fell far outside
"prevailing professional norms."
Strickland, 466 U.S. at 688.
Barnett manifested a shocking lack of comprehension regarding
the pertinent law in Byrd's case. This ignorance, coupled
with the inaccurate advice he gave his client about the
likelihood of his acquittal, is sufficient to deem
Barnett's performance constitutionally inadequate.
See Padilla, 559 U.S. at 369 (noting an
attorney's duty to give correct advice when the law is
clear); Maples v. Stegall, 340 F.3d 433, 439 (6th
Cir. 2003) (holding that "patently erroneous"
advice falls below an objectively reasonable standard of
assistance); Magana, 263 F.3d at 550 (6th Cir. 2001)
("[Counsel's] complete ignorance of the relevant law
under which his client was charged, and his consequent gross
misadvice to his client regarding the client's potential
prison sentence, certainly fell below an objective standard
of reasonableness under prevailing professional
norms."); Blackburn v. Foltz, 828 F.2d 1177,
1182 (6th Cir. 1987) (holding that counsel's assistance
was deficient where he displayed "a startling ignorance
of the law").
Barnett erred by failing to "provide [Byrd] with
competent and fully informed advice, including an analysis of
the risks that [he] would face in proceeding to trial."
Burt v. Titlow, 571 U.S. 12, 25 (2013) (Sotomayor,
J., concurring). As we previously explained in Smith v.
United States, 348 F.3d 545, 553 (6th Cir. 2003):
A criminal defendant has a right to expect at least that his
attorney will review the charges with him by explaining the
elements necessary for the government to secure a conviction,
discuss the evidence as it bears on those elements, and
explain the sentencing exposure the defendant ...