Gerald Werth v. Thomas Bell

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 12a0288p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

X

-

GERALD L. WERTH,

-

Petitioner-Appellant,

-

-

No. 10-2183

v.

,

>

-

Respondent-Appellee. -

THOMAS BELL, Warden,

N

Appeal from the United States District Court

for the Eastern District of Michigan at Ann Arbor.

No. 5:09-cv-11472—John Corbett O’Meara, District Judge.

Argued: July 24, 2012

Decided and Filed: August 28, 2012

Before: BOGGS, GILMAN, and DONALD, Circuit Judges.

_________________

COUNSEL

ARGUED: Jeffrey A. Mandell, JONES DAY, Washington, D.C., for Appellant. Raina

I. Korbakis, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing,

Michigan, for Appellee. ON BRIEF: Jeffrey A. Mandell, JONES DAY, Washington,

D.C., for Appellant. Raina I. Korbakis, OFFICE OF THE MICHIGAN ATTORNEY

GENERAL, Lansing, Michigan, for Appellee. Gerald L. Werth, Adrian, Michigan, pro

se.

_________________

OPINION

_________________

BOGGS, Circuit Judge. Gerald Werth, charged with robbing a Flint, Michigan

convenience store, pleaded guilty to breaking and entering with the intent to commit

larceny and to possession of burglar’s tools. Before he pleaded guilty, however, Werth

attempted no fewer than seven times to assert his Sixth Amendment right to self-

representation. The trial court denied his request summarily the first six times. The

1

No. 10-2183 Werth v. Bell Page 2

seventh time, the judge explained the nature of the charges against Werth, told him that

she could not give him special training or treatment, and denied his request without

giving him an opportunity to speak. Some three weeks later, the judge denied Werth’s

subsequent motion to withdraw his guilty plea, in which he argued that his plea was the

product of duress because, among other things, the court would not let him proceed pro

se. After being sentenced, Werth filed an application for leave to appeal.1 Both the

Michigan Court of Appeals and the Michigan Supreme Court denied his application in

brief summary orders that referred to the merits of his claims. The district court,

adopting a magistrate judge’s recommendation, denied Werth’s petition for a writ of

habeas corpus. Applying AEDPA deference, it held that Werth waived his self-

representation claim by pleading guilty. The district court granted a certificate of

appealability on the question of whether the Michigan courts violated clearly established

federal law in holding that a defendant may challenge the denial of his request to

represent himself, after entering a knowing and voluntary unconditional guilty plea. For

the reasons that follow, we affirm.

I

Around 5:30 a.m. on November 7, 2007, someone broke into Khirfan’s Blue

Collar Market, a business located near a General Motors plant in Flint, Michigan.

Investigation led to charging Werth with breaking and entering with the intent to commit

larceny and with possession of burglar’s tools. Because he had six prior felony

convictions, Werth faced a maximum sentence of life in prison on each of the two

counts. At arraignment, he pleaded not guilty to both, and the trial court set a final

pretrial-motion cutoff date of February 8, 2008, and a trial date of February 13, 2008.

At the February 8 hearing, Werth began to ask for permission to represent

himself, pursuant to Faretta v. California, 422 U.S. 806 (1975). He did so both in a

1

Because he pleaded guilty, Werth was not entitled to an appeal as a matter of right under

Michigan law.

No. 10-2183 Werth v. Bell Page 3

written motion that he instructed his lawyer to file and orally in open court.2 Werth

believed that Crystal Davidson, owner of the trailer in which both Werth and the stolen

property were found, had “purged [sic] herself” during his preliminary examination, and

Werth wanted his lawyer to subpoena cell-phone records as proof. Werth’s then-

attorney, Roger Lange, did not understand the reason for his client’s request, and took

no action. “[T]hat,” Werth explained, “[is] why I want to represent myself.” The trial

judge’s reaction to this initial request was to probe why Werth wanted the phone records

in the first place.3 The judge suggested that, if “we take care of the other issues that

[Werth] wants raised,” she did not need to address his request to represent himself.

Although Lange called Werth’s request “a wild goose chase,” the trial judge postponed

the trial for sixty days to give Werth an opportunity to obtain Davidson’s cell-phone

records. Still, Werth persisted in his self-representation request, telling the judge, “I do

not want Mr. Lange representing me . . . . I’ll represent myself, your Honor.” This time,

the judge responded: “You know what, there’s a test involved. And I don’t think that

you’re going to meet the test.” After a brief discussion about the logistics of preparing

a subpoena for Davidson’s records, Werth, undeterred, told the court, “I want an

adjournment because . . . I do want to present this [the phone records] to the Court and

I do want to represent myself.” The court replied: “I’m not . . . . prepared to allow that

to happen at this time.”

After another delay related to cell-phone records, the court held a final pretrial

conference on April 14, 2008. There, Werth again asked to represent himself. Again,

his requests were both written and oral. He sent a written “communication . . . to the

Court entitled motion to grant speedy trial . . . . [that contained a] request[] to represent

himself and . . . to withdraw his counsel in this case and represent himself in this matter.”

Before the hearing, “[h]e indicated [to his then-attorney Mark W. Latchana] . . . that he

wanted to tell the Court that he wanted to represent himself.” Attorney Latchana, in

2

The written motion does not appear in the record, but Werth’s attorney referred to a written

motion “to dismiss me from the case” during the hearing.

3

Werth’s explanation suggests that he would have used the phone records to show that Davidson

lied at the preliminary examination and thus had a propensity to lie.

No. 10-2183 Werth v. Bell Page 4

response, “indicated to [Werth] that [he] would be happy to abstain [as his] counsel and

assist him in whatever way [he] could.” Then, during the hearing, Werth said to the

court:

I have a constitutional right and a state right to represent myself. Also,

Michigan Court Rule 6.005 states that I have a right to court appointed

counsel. I also have a right under that court rule to waive that counsel.

Mr. Latchana has done nothing for me. There should have been motions

filed into this Court all ready [sic]. I don’t believe the prosecutor can

make her case.

The judge’s immediate response focused only on Werth’s last statement about the

sufficiency of the evidence against him. Werth, though, did not let the self-

representation issue lie. He instead persisted, stating: “So, your honor, you’re saying

that I - - I can’t exercise my constitutional right to represent myself.” The following

dialogue ensued:

THE COURT: No, I’m not going to do it. Let me first tell you, I’m

required under the court rule. As you’re so familiar with it. So you

understand that right--

THE DEFENDANT: I’m not saying I’m familiar with it, your Honor. I

just want to represent myself. I have that right. And I’m asking to

exercise that right. That’s all.

THE COURT: That’s only if I can count on you not to behave

improperly and I can’t.

THE DEFENDANT: How am I going to--your Honor, I have a right to

do this.

THE COURT: Count one, let me go through this. Count one, breaking

and entering a building with intent to commit a larceny. That’s a felony.

Maximum sentence by statute ten years. With sentence enhancement,

life. Count two, possession of burglar tools, also a felony. Maximum

statutory penalty ten years. With sentence enhancement, life. Those are

the mandatory facts. You were on parole. The sentence must be

consecutive to the sentence you’re now serving. And then of course, as

you’re clearly aware, there are multiple risks involved with self

representation including--

THE DEFENDANT: And I’m willing to take those risks, your Honor.

THE COURT: --lack of knowledge of the rules of evidence and the court

rules. There are no ways that I can give you special training overnight.

Nor can I give you any special treatment once we go to trial. You’d be

held to the same standards [the prosecutor] is expected to do in here to

with respect to the court rules and the rules of evidence. And the Court

No. 10-2183 Werth v. Bell Page 5

is not in a position under the circumstances, to allow you to represent

yourself. Now that’s the ruling of the Court, denied.

Trial began the next day, Tuesday, April 15, 2008. On Wednesday, April 16,

Werth decided to plead guilty. The plea agreement provided that, although Werth was

guilty of both counts, he would be sentenced as though he were a “habitual offender

two,” not a “habitual offender four.” This meant that Werth faced statutory-maximum

sentences of fifteen years, not life, on each count. Before accepting the plea, the judge

engaged Werth in a lengthy colloquy, explaining that the plea would act as a waiver of

his rights to trial by jury, to be presumed innocent until proven guilty, to make the State

prove his guilt beyond a reasonable doubt, to call witnesses in his favor and question

witnesses against him, to remain silent, not to have his silence used against him, and to

testify on his own behalf. The court also ensured that Werth understood that he could

not claim that the plea “was the result of a promise or threat that was not disclosed right

now on this record during this plea taking proceeding[.]” The court did not tell Werth

that he would waive (or might be waiving) an appeal on his denial-of-self-representation

claim if he pleaded guilty. After establishing a factual basis, the court accepted the plea,

finding that the agreement was “made understandingly, voluntarily, accurately, and

knowingly.” The court scheduled sentencing for Monday, May 19.

In motions dated April 30, 2008, and May 6, 2008, Werth, in propria persona,

and his counsel each moved to withdraw the guilty plea in separate motions. Werth’s

lengthy motion claimed that, because he was not allowed to represent himself and

because Latchana did not comply with a number of requests concerning the presentation

of his defense, he pleaded guilty “under duress.” Latchana’s motion argued that

withdrawal of the plea would be in the interest of justice, and would cause the State no

prejudice. The court denied the motions in a May 19, 2008 hearing.4 It reasoned that

the only sign of duress was “the fact that the evidence [at trial, which had started,] was

proving to be overwhelming,” and noted that “the Court has not heard one valid reason

to allow [Werth] to withdraw his plea.” As the judge finished her ruling, Werth

4

The hearing on Werth’s motion to withdraw his plea took place during the morning; his

sentencing hearing took place in the afternoon.

No. 10-2183 Werth v. Bell Page 6

interjected: “Your Honor, if you would give me the opportunity please to speak on my

behalf so that I can also - -,” to which the judge responded: “But I denied the motion.

Thank you. I’ll see you at 2:00 for sentencing.”

The sentencing hearing went forward that afternoon, as scheduled. Before the

judge imposed her sentence, she asked Werth if he wanted to speak. His only response

was to ask whether “the[] reasons that [he] listed” in his pro se motion to withdraw

guilty plea were “preserved for appeal.”5 The judge told him: “They are filed with the

court file. It is the first thing in file and will be right under the judgment of sentence that

will be filed after I finish here today.” The judge asked if Werth had anything else to

say. He reiterated: “I just want to make sure they are preserved for the appeal.” The

court imposed concurrent sentences of not less than forty-seven months and not more

than fifteen years of imprisonment on count one, and not less than thirty months and not

more than fifteen years of imprisonment on count two.

Werth filed a delayed application for leave to appeal on October 3, 2008. He

claimed, through counsel, that the trial court abused its discretion by denying his motion

to withdraw the guilty plea, violated his “constitutional, statutory, and rule-based rights

to represent himself,” and “erroneously denied [his] motion to withdraw his guilty plea

. . . [because] the plea was the product of ineffective assistance of his attorney.” The

Michigan Court of Appeals “order[ed] that the delayed application for leave to appeal

is DENIED for lack of merit in the grounds presented.” Werth then filed a pro se

application for leave to appeal in the Michigan Supreme Court, raising the same three

arguments that the Court of Appeals found lacked merit. The Michigan Supreme Court

denied the application because it was “not persuaded that the questions presented should

be reviewed by this Court.”

Werth filed this timely petition for a writ of habeas corpus in the United States

District Court for the Eastern District of Michigan. He again raised the self-

representation and ineffective-assistance-of-counsel claims that he pressed in state court.

5

The first of the listed reasons was: “On February 8, 2008, this Court denied a request by the

Defendant to act as his own Attorney, and represent himself at [t]rial.”

No. 10-2183 Werth v. Bell Page 7

A magistrate judge, applying the highly deferential standard of the Antiterrorism and

Effective Death Penalty Act (AEDPA), recommended that the district court deny the

petition. The magistrate judge reasoned that, although Werth had “a strong, if not

meritorious, claim that he was denied his Sixth Amendment right to self-representation,”

Werth waived any such claim by entering a knowing and voluntary unconditional guilty

plea. Werth’s ineffective-assistance claim failed, the magistrate judge suggested,

because Werth could establish neither deficient performance nor prejudice. The

magistrate judge recommended granting a certificate of appealability for Werth’s self-

representation claim, but not his ineffective-assistance claim. Over Werth’s objection,

the district court adopted the magistrate judge’s recommendation in full. Werth appeals,

and asks for a certificate of appealability on his ineffective-assistance claim.6

II

At the threshold, we must decide which standard to apply to Werth’s self-

representation claim: de novo review or AEDPA deference. Under AEDPA,

[a]n application for a writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a State court shall not be granted

with respect to any claim that was adjudicated on the merits in State

court proceedings unless the adjudication of the claim--

(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 in a decision that 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). However, “[w]here . . . the state court did not assess the merits of

a claim properly raised in a habeas petition, the deference due under AEDPA does not

apply.” Maples v. Stegall, 340 F.3d 433, 436 (6th Cir. 2003).

We have, before, had occasion to address whether Michigan Court of Appeals

and Michigan Supreme Court orders identical to the orders in this case qualify as

6

Because we conclude below that the district court properly applied AEDPA deference, we

decline to grant a certificate of appealability on Werth’s ineffective-assistance claim.

No. 10-2183 Werth v. Bell Page 8

adjudication “on the merits” under AEDPA. See 28 U.S.C. § 2254(d). In Dorn v. Lafler,

the Michigan Court of Appeals denied a delayed application for leave to appeal “for lack

of merit in the grounds presented,” and the Michigan Supreme Court declined to hear

the case “because it was not ‘persuaded that the questions presented should be

reviewed.’” 601 F.3d 439, 443 (6th Cir. 2010). We held:

Because the state court may have various reasons for denying an

application for leave to appeal “for lack of merit in the grounds

presented,” and we cannot discern from that language alone whether that

decision was based on the merits of the case, we cannot conclude that it

was an “adjudication on the merits” pursuant to 28 U.S.C. § 2254(d).

Accordingly, de novo review is appropriate.

Ibid.

After Dorn, however, the Supreme Court decided Harrington v. Richter, 131 S.

Ct. 770 (2011). Harrington resolved, inter alia, the question “whether § 2254(d) applies

when a state court’s order is unaccompanied by an opinion explaining the reasons relief

has been denied.” Id. at 784. The Court explained that AEDPA

refers only to a “decision,” which resulted from an “adjudication.” As

every Court of Appeals to consider the issue has recognized, determining

whether a state court’s decision resulted from an unreasonable legal or

factual conclusion does not require that there be an opinion from the state

court explaining the state court’s reasoning.

Ibid.7 “Where a state court’s decision is unaccompanied by an explanation,” the Court

continued, “the habeas petitioner’s burden still must be met by showing there was no

reasonable basis for the state court to deny relief.” Ibid. Furthermore, “[w]hen a federal

claim has been presented to a state court and the state court has denied relief, it may be

presumed that the state court adjudicated the claim on the merits in the absence of any

indication or state-law procedural principle to the contrary.” Id. at 784–85. In sum, the

7

The Supreme Court cited our decision in Harris v. Stovall, 212 F.3d 940, 943, n.1

(6th Cir. 2000), to support this proposition. It did not note the potential conflict between Harris and our

holding in Dorn.

No. 10-2183 Werth v. Bell Page 9

Court held, Ҥ 2254(d) does not require a state court to give reasons before its decision

can be deemed to have been adjudicated on the merits.” Id. at 785.

We have not yet addressed Harrington’s impact on Dorn. Of course, the general

principle that we review de novo a claim properly presented in a habeas petition, but not

addressed on the merits by a state court, is good law. See Maples, 340 F.3d at 436.

However, absent some “indication or [Michigan] procedural principle to the contrary,”

we must presume that an unexplained summary order is an adjudication “on the merits”

for AEDPA purposes. Harrington, 131 S. Ct. at 785. Dorn took precisely the opposite

tack. It reasoned that de novo review was appropriate because the Michigan courts’

denial could have been for reasons unrelated to the merits. Dorn, 601 F.3d at 443. It

presumed, in other words, that denial of an application for leave to appeal was not a

decision on the merits for AEDPA purposes, unless the Michigan courts said so. After

Harrington, this logic is untenable.8 Harrington thus abrogates Dorn. We hold that

AEDPA deference applies to Michigan orders like the orders in this case, absent some

“indication or [Michigan] procedural principle to the contrary.” Harrington, 131 S. Ct.

at 785.

The question remains, however, whether there is a principle of Michigan law or

circumstance of this case that overcomes the Harrington presumption. There is not.

First, at argument, Werth urged that Harrington does not apply because of differences

between the Michigan procedure that Werth attempted to use here and the California

procedure that Richter attempted to use in Harrington.9 To this end, he cites Michigan

precedent indicating that “[w]hen the [Michigan Supreme] Court denies leave to appeal,

it does not comment on the merits of a case,” Beasley v. State, 765 N.W.2d 608, 608

8

A number of district-court judges have recognized as much. See Reddrick v. Howes, No.

2:09–CV–13133, 2011 WL 2580671, at *2 (E.D. Mich. June 29, 2011) (noting that Dorn’s “holding has

been superceded [sic] by Richter”); Parks v. Warren, 773 F. Supp. 2d 715, 722 (E.D. Mich. 2011)

(suggesting that “[t]he approach espoused by Dorn was called into doubt by Harrington v. Richter”);

Snyder v. Lafler, No. 09–13773, 2011 WL 309056, at *3 (E.D. Mich. Jan. 27, 2011) (acknowledging Dorn,

but applying Harrington framework to determine that AEDPA deference was appropriate, where denials

of application for review were identical to denials at issue here). But see Matthews v. Birkett, No.

1:08–cv–1114, 2011 WL 2174504, at *7 (W.D. Mich. March 8, 2011) (applying Dorn without considering

whether “one-sentence order” was merits decision in light of Harrington).

9

Werth applied for leave to appeal; Harrington applied for a state writ of habeas corpus.

No. 10-2183 Werth v. Bell Page 10

(Mich. 2009) (Kelly, C.J., concurring), and that “a denial of leave to appeal by the

Supreme Court, without explanation, is generally not considered a decision on the merits

and is not precedentially binding.” People v. Shook, No. 233346, 2002 WL 31379664,

at *2 (Mich. App. Ct. Oct. 22, 2002).

This is “generally,” ibid. (emphasis added), true “but with the caveat that denials

of leaves to appeal based on lack of merit may constitute rulings on the merits of a case.”

Lawrence v. 48th Dist. Court, 560 F.3d 475, 479 (6th Cir. 2009) (emphasis added)

(citing People v. Collier, No. 253151, 2005 WL 1106501, at *1 (Mich. Ct. App. May 10,

2005) (“Although denial of an application for leave to appeal where the court expresses

no opinion on the merits does not implicate the law of the case doctrine, this Court has

consistently held that denial of an application ‘for lack of merit in the grounds presented’

is a decision on the merits of the issues raised.”)) (collecting cases); see also People v.

Kline, No. 212106, 2001 WL 879016, at *1 (Mich. Ct. App. Aug. 3, 2001). Here, as in

Lawrence, the Michigan appellate courts specified that they denied Werth’s application

for reasons involving the substance of his claims. These decisions, then, were “on the

merits” as a matter of Michigan law, and thus qualify for AEDPA deference.10

Nor does any Michigan statute or court rule compel a contrary conclusion. It is

true that Michigan Court Rule 7.321 provides: “The reasons for denying leave to appeal

. . . are not to be published, and are not to be regarded as precedent.” But this does not

resolve the issue that we face under Harrington. Published or unpublished, our focus

is whether the decision was “on the merits.” Likewise, Michigan Court Rule

7.215(E)(1), which explains that “[a]n order denying leave to appeal is not deemed to

dispose of an appeal,” does not automatically resolve the Harrington inquiry. Rule

7.215(e)(1) only governs how other Michigan courts treat the denial of an application

for leave to appeal for precedential and jurisdictional purposes; it has no bearing on the

issuing court’s reasons for denying the application. See People v. Lown, No. 299564,

2012 WL 247775, at *2 (Mich. Ct. App. Jan. 26, 2012) (quoting Johnson v. White, 682

10

This principle also disposes of Werth’s claim that we may not defer to the denials of his

petitions for review because they are no more than “a decision . . . not to decide at all.” Greene v. Fisher,

132 S. Ct. 38, 45 (2011). Under Michigan law, this is simply not so.

No. 10-2183 Werth v. Bell Page 11

N.W.2d 505, 513 (Mich. Ct. App. 2004)); Kasben v. Hoffman, 751 N.W.2d 520, 522

(Mich. Ct. App. 2008).

Finally, Werth offers no “reason to think some other explanation for the state

court’s decision is more likely,” Harrington, 131 S. Ct. at 785, in this particular case,

pointing only to the ambiguous language of the Michigan courts’ orders, and Michigan

cases and court rules. Indeed, Werth does not even offer the kind of purely speculative

explanation that the Court rejected in Harrington, 131 S. Ct. at 785 (“[Richter] mentions

the theoretical possibility that the members of the California Supreme Court may not

have agreed on the reasons for denying his petition. It is pure speculation, however, to

suppose that happened in this case.”).

Thus, neither Michigan law nor the specific background of this case gives us

“reason to think some other explanation for the state court’s decision is more likely.”

Harrington, 131 S. Ct. at 785. The Harrington presumption that an unexplained state-

court decision was on the merits controls, and we apply AEDPA deference to Werth’s

claim.

III

Under AEDPA, we may not grant a writ of habeas corpus on a claim that a state

court has resolved on the merits unless the decision:

(1) . . . 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) . . . 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). “A state court’s determination that a claim lacks merit precludes

federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of

the state court’s decision.” Harrington, 131 S. Ct. at 786 (quoting Yarborough v.

Alvarado, 541 U.S. 652, 664 (2004)). Under this standard, “even a strong case for relief

does not mean the state court’s contrary conclusion was unreasonable.” Ibid. Rather,

before we may grant the writ, “a state prisoner must show that the state court’s ruling on

No. 10-2183 Werth v. Bell Page 12

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.” Id. at 786–87. Where, as here, the state court did not

elucidate the reasons for its decision, “the habeas petitioner’s burden still must be met

by showing there was no reasonable basis for the state court to deny relief.” Id. at 784.

As with all of its legal conclusions, we review the district court’s application of

this stringent standard de novo. Davis v. Lafler, 658 F.3d 525, 530 (6th Cir. 2011) (en

banc). Review of district-court factual findings is for clear error. Ibid.

IV

“Generally, a voluntary and unconditional guilty plea ‘bars any subsequent

non-jurisdictional attack on the conviction.’” United States v. Corp, 668 F.3d 379, 384

(6th Cir. 2012) (internal quotations omitted). This is so because

a guilty plea represents a break in the chain of events which has preceded

it in the criminal process. When a criminal defendant has solemnly

admitted in open court that he is in fact guilty of the offense with which

he is charged, he may not thereafter raise independent claims relating to

the deprivation of constitutional rights that occurred prior to the entry of

the guilty plea.

Tollett v. Henderson, 411 U.S. 258, 267 (1973). Thus, after the entry of an

unconditional guilty plea, the defendant may challenge only the court’s jurisdiction and

the voluntary and intelligent character of the plea itself. United States v. Ferguson,

669 F.3d 756, 763 (6th Cir. 2012).

Whether this principle prevents a defendant allegedly denied his right to self-

representation from making a Faretta challenge on appeal is a question that has divided

the state and federal courts. Some treat a Faretta challenge exactly like any other non-

jurisdictional challenge, holding that a defendant waives his self-representation claim

by entering a knowing and voluntary unconditional guilty plea. See United States v.

Moussaoui, 591 F.3d 263, 279–80 (4th Cir. 2010); Gomez v. Berge, 434 F.3d 940, 943

(7th Cir. 2006); United States v. Seybold, 979 F.2d 582, 585–86 (7th Cir. 1992);

No. 10-2183 Werth v. Bell Page 13

Rowland v. Thayer, No. 4:09–CV–630–A, 2010 WL 4511023, at *5 (N.D. Tex. Nov. 1,

2010); State v. Kovach, No. 08-MA-125, 2009 WL 1710752, at *2 (Ohio App. 7th Dist.

June 12, 2009); Miller v. State, No. 08-02-00405-CR, 2003 WL 21574275, at *1 (Tex.

App.-El Paso July 10, 2003); State v. Szemple, 753 A.2d 732, 736 (N.J. Super. Ct. App.

Div. 2000); People v. Shields, 613 N.Y.S.2d 281, 282 (N.Y. Super. Ct. App. Div. 1994).

At least one other federal circuit has held that, by allowing counsel to plea bargain, the

defendant implicitly waives his Faretta rights. United States v. Montgomery, 529 F.2d

1404, 1406 (10th Cir. 1976) (holding that because “the defendant allowed [the] Public

Defender . . . to conduct plea bargaining on his behalf. . . . he demonstrated that he was

no longer asserting his right to represent himself”).

Only one federal court has held that a defendant who pleads guilty

unconditionally may still maintain his Faretta challenge on appeal. In United States v.

Hernandez, 203 F.3d 614, 626–27 (9th Cir. 2000) (Reinhardt, J.), the Ninth Circuit held

that a guilty plea by a defendant wrongfully deprived of his right to self-representation

was automatically involuntary because the defendant was “forced . . . to choose between

pleading guilty and submitting to a trial the very structure of which would be

unconstitutional.” Id. at 626; see also United States v. Kaczynski, 239 F.3d 1108, 1116

(9th Cir. 2001) (following Hernandez as binding circuit precedent). A number of

California courts have reached the same result, see, e.g., People v. Marlow, 96 P.3d 126,

135 (Cal. 2004); People v. Butler, No. B213049, 2010 WL 2000332, at *8 n.7 (Cal. App.

2d Dist. May 20, 2010); People v. Robinson, 65 Cal. Rptr. 2d 406, 409–10 (Cal. App.

3d Dist. 1997) (holding that defendant who obtained certificate of probable cause could

challenge denial of right to self-representation after guilty plea),11 as did the Michigan

11

These California cases are not precisely analogous to other cases considering whether a

defendant waives his appellate Faretta challenge by pleading guilty. California allows a defendant who

pleads guilty or nolo contendere to challenge his conviction based on “reasonable constitutional,

jurisdictional, or other grounds going to the legality of the proceedings.” Cal. Penal Code § 1237.5.

Before he can mount such an attack, though, the defendant must obtain a certificate of probable cause.

Cal. Rules of Court, Rule 8.304. In this context, the California courts have held that Faretta error is a

“reasonable constitutional . . . ground[] going to the legality of the proceedings,” ibid., amenable to

challenge if the defendant obtains a certificate of probable cause. See Marlow, 96 P.3d at 135 (“Although

not relying on the absence of a certificate of probable cause, respondent argues the claim of erroneous

denial of a Faretta motion is not one going to the ‘legality of the proceedings’ and thus is not cognizable

on appeal. We disagree.” (citations omitted)).

No. 10-2183 Werth v. Bell Page 14

Court of Appeals in an unpublished opinion. People v. Hoffman, No. 266560, 2007 WL

397224, at *2 (Mich. Ct. App. Feb. 6) (citing Hernandez, 203 F.3d at 626–27), leave to

appeal denied, 737 N.W.2d 767 (Mich. 2007). The Supreme Court has not spoken on

the issue. See Appellant’s Reply Br. at 15 (“Neither this court nor the Supreme Court

has addressed the specific question of whether the violation of a defendant’s right to self-

representation renders a guilty plea invalid. This question has divided the courts that

have confronted it.”).

If nothing else, these cases show that fairminded jurists could (and do) debate

whether a defendant waives his right to self-representation by entering a knowing and

voluntary unconditional guilty plea. Under AEDPA, this is enough. Harrington,

131 S. Ct. at 786. It did not violate clearly established Supreme Court precedent for the

Michigan appellate courts to conclude that Werth’s guilty plea foreclosed his Faretta

challenge.

Werth’s contrary arguments are unavailing. First, he urges that Tollett’s waiver

analysis does not apply because “the violation of Mr. Werth’s rights was of an ongoing

nature.” Appellant’s Br. at 38. This argument fails, first, because Werth points to no

clearly established Supreme Court precedent that acknowledges such an exception to the

Tollett rule. But even if he did, his argument would fail as a matter of fact. The state

court denied Werth’s self-representation motion two days before he pleaded guilty. At

the time of his plea, Werth did not renew his request to represent himself. Thus, the

alleged violation, the court’s denying his self-representation request, had already

occurred at the time of his plea. True, its effects were, in some sense, ongoing when

Werth pleaded guilty. But this would be true in almost any case. Take Tollett. There,

the constitutional violation alleged was the systematic exclusion of African-Americans

from the grand jury that indicted defendant Henderson. Henderson later pleaded guilty

to the very crimes that the supposedly defective indictment charged. The effect of the

alleged violation was at the heart of the guilty plea at the time that Henderson pleaded

guilty. Nevertheless, the Supreme Court held that “a guilty plea represents a break in

the chain of events which has preceded it in the criminal process.” Tollett, 411 U.S. at

No. 10-2183 Werth v. Bell Page 15

267. Thus, to hold that the ongoing effects of a constitutional violation mend Tollett’s

broken chain is to ignore the very facts that gave rise to the doctrine in the first instance.

Werth’s claim that the state court’s supposed Faretta violation was ongoing at the time

of his plea therefore misses the mark. If anything was ongoing, it was the effect of the

alleged violation. And that, under Tollett, does not change the break-in-the-chain

analysis.

Second, Werth argues that “[b]ecause the trial court’s refusal to allow Mr. Werth

to exercise his constitutional right to self-representation directly contributed to his

decision to plead guilty, his plea was not offered voluntarily and intelligently, and

therefore cannot satisfy the prerequisites for waiver under Tollett.” Appellant’s Br. at

39. This argument has some force—indeed, it carried the day in Hernandez, 203 F.3d

at 626–27. It met with a frostier reception, however, in Moussaoui, where the Fourth

Circuit wrote:

With all due respect, we are not persuaded by the analysis in Hernandez.

. . . The Hernandez court’s conclusion that the defendant’s guilty plea

was involuntary was based on a faulty premise, namely, that his only

alternative was to submit to an unconstitutional trial. This premise fails

to account for the fact that if the defendant proceeded to trial and was

convicted, he could seek an appellate remedy for the constitutional

violations he alleged.

591 F.3d at 280. We need not resolve, or even weigh in on, this debate between our

sister circuits. It is enough to say that fairminded jurists could disagree whether the

denial of a motion for self-representation necessarily renders a guilty plea involuntary

and therefore invalid. Werth’s second argument cannot succeed, given the deference

that we must apply under AEDPA. Harrington, 131 S. Ct. at 786.

Third, Werth suggests that, because the Michigan courts would allow him to

“plead guilty without forfeiting his right to judicial review” of his self-representation

claim, he may present the claim here. Lefkowitz v. Newsome, 420 U.S. 283, 293 (1975).

The only Michigan case to address the question whether a defendant waives his Faretta

claim by entering a knowing and voluntary unconditional guilty plea is Hoffman, 2007

No. 10-2183 Werth v. Bell Page 16

WL 397224, at *2. That decision is an unpublished opinion, which is “not precedentially

binding” under Michigan law. Mich. Court Rule 7.215(c)(1).

It is not clear whether such an opinion qualifies as “state law,” within the

meaning of Lefkowitz. As Werth points out, we may consider and follow an unpublished

state-court decision on state law, absent a contrary published decision, for “it remains

our overarching duty to ensure that we correctly apply [state] law.” Bennett v. MIS

Corp., 607 F.3d 1076, 1096 (6th Cir. 2010). Lefkowitz, however, involved a statutory

provision that gave the defendant an opportunity to plead guilty, but still contest an

adverse ruling on a motion to suppress. See Lefkowitz, 420 U.S. at 285. The Court

justified its result with reference not to state common law, but to the formal

consequences of the plea under relevant New York statutes. Id. at 290 (“[A]lthough

termed by the New York Criminal Procedure Law a ‘guilty plea,’ the same label given

to the pleas entered by the defendants in the Brady trilogy of cases and Tollett v.

Henderson, Newsome’s plea had legal consequences quite different from the

consequences of the pleas entered in traditional guilty-plea cases.”); New Jersey v.

Portash, 440 U.S. 450, 455 n.4 (1979) (noting that Lefkowitz “was another case where

provisions of state law allowed federal review that may not otherwise have been

available.” (emphasis added)). The Supreme Court did not specify whether “state law”

included common law and, if so, which state decisions it meant to include. See Fields

v. Attorney Gen. State of Md., 956 F.2d 1290, 1295–96 (4th Cir. 1992) (“The meaning

of ‘state law’ in [Lefokwitz’s] holding, however, is arguably ambiguous. It clearly

includes state statutory law, as was the case in Lefkowitz. At least two circuits have

extended Lefkowitz beyond state statutory law to include state common law and

procedural practice. Fields invites us to adopt this expansive view. We decline this

invitation.”). And while we have considered a binding holding of a state supreme court

as “state law” for the purposes of Lefkowitz analysis, Canary v. Bland, 583 F.2d 887,

889–90 (6th Cir. 1978), we have never done the same with published—much less

unpublished, non-precedential—intermediate-appellate opinions. Nor, in the end, could

we use Canary to resolve this ambiguity in Lefkowitz. As the Supreme Court’s recent

decision in Parker v. Matthews teaches, it would be “plain and repetitive error for the

No. 10-2183 Werth v. Bell Page 17

Sixth Circuit to rely on its own precedents,” rather than clearly established Supreme

Court precedent, in resolving Werth’s habeas claim. 132 S. Ct. 2148, 2155–56 (2012).

We must, therefore, acknowledge that fairminded jurists could conclude that

Lefkowitz applies only to state statutory law. This precludes Werth from qualifying for

the exception that Lefkowitz carves out.12

Finally, Werth attempts to distinguish the cases that the magistrate judge cited.

But even if we agreed with him at every turn, at least Moussaoui remains directly

opposed to the position that he would have us take, a position based almost entirely on

Hernandez. See Appellant’s Br. at 52–53 (“In Moussaoui, the Fourth Circuit directly

confronted the Hernandez decision and concluded that it was based on a faulty premise

because the defendant could have proceeded to trial and sought a remedy on appeal if

convicted.”). Werth concedes as much, but suggests that the Moussaoui rule would be

“extraordinarily punitive when applied to the facts here.” Id. at 53. Be that as it may,

the direct conflict between the Hernandez and Moussaoui panels precludes habeas relief

here, unless we conclude that three jurists on one of our sister circuits were not

fairminded. We, of course, do not reach that conclusion.

V

In sum, under the standard that we are bound to apply, Werth’s guilty plea is a

waiver of his Faretta claim. We therefore AFFIRM the district court’s denial of Werth’s

petition.

12

Also, it is worth noting that Lefkowitz affirmed district-court and circuit-court decisions

holding that New York courts, under New York law, could allow a defendant to appeal an adverse

suppression decision, even after a knowing and voluntary guilty plea. Werth asks for something different.

He argues that we should reverse the Michigan courts’ decisions based on a different Michigan case. To

adopt his argument would be to dictate how the Michigan courts should have applied Michigan law. This

result would—at minimum—be odd, since the Supreme Court has “repeatedly held that federal habeas

corpus relief does not lie for errors of state law.” Wilson v. Corcoran, 131 S. Ct. 13, 16 (2010) (citations

and internal quotation marks omitted).