OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF HABEAS CORPUS (ECF No. 1) AND (2) GRANTING IN PART AND DENYING IN PART A CERTIFICATE OF APPEALABILITY

MATTHEW F. LEITMAN, District Judge.

Petitioner David Burnet Powell is a state prisoner in the custody of the Michigan Department of Corrections. Through counsel, Powell has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 seeking relief from his state-court conviction and sentence for second-degree criminal sexual conduct, Mich. Comp. Laws § 750.520c(1)(a). (See Pet., ECF No. 1.) Powell claims that he received ineffective assistance of counsel and that mandatory lifetime electronic monitoring without an individualized risk assessment violates his due process rights. (See id.)

The Court has carefully reviewed Powell's claims and the record and concludes that he is not entitled to federal habeas relief. Accordingly, the Court will DENY his petition. The Court will also GRANT IN PART AND DENY IN PART a certificate of appealability.

I

A

On August 18, 2014, Powell appeared in state court for a plea hearing in two separate cases. (See Plea Hrg. Tr., ECF No. 5-6, Page.ID 412.) He was represented by retained counsel Ronald Bayot in both cases. (See id.)

In the first case, Powell pleaded no contest to one count of second-degree criminal sexual conduct ("CSC2") with a child under the age of 13. (See id., PageID.416.) The child was the daughter of Powell's then girlfriend, a woman named Jacolyn Sheldon. Powell entered a no contest plea because he was unable to "recall the events to form a factual basis" due to intoxication. (Id., PageID.412.) The factual basis for the plea came from the police report. That report quoted E.B., the child victim2, as saying that "Daddy" (referring to Powell) penetrated her "privates" with his finger. (Id., PageID.416-417.)

During Powell's plea colloquy on the CSC2 charge, and prior to Powell's entry of his plea, both the court and Bayot informed Powell that if he pleaded no contest, he would be subject to lifetime electronic monitoring. The court first told Powell that his sentence "does involve lifetime electronic monitoring." (Id., PageID.415.) Then, immediately before Powell offered his no contest plea, there was a short break in the proceedings, and after that break, Bayot stated on the record that Powell "has now been advised of the necessity of the electronic monitoring." (Id., PageID.416.)

In the second case, Powell pleaded guilty to charges of conspiracy to commit a controlled substance offense, unlawful use of a motor vehicle, and lying to a peace officer. (See id., PageID.416, 420.) One of Powell's co-conspirators and co-defendants in the controlled-substance case was Sheldon. (See id., PageID.418.)

B

Shortly after the plea hearing, Bayot filed a motion to withdraw Powell's plea to the CSC2 charge. (See Bayot Mot., ECF No. 1-15, Page.ID 123-124.) Bayot argued that Powell should be permitted to withdraw his plea because he (Bayot) had not advised Powell about the lifetime electronic monitoring requirement before the plea hearing, and, as a result, Powell had not had enough time to consider that aspect of his sentence before entering the no contest plea. (See id.)

A few weeks later, Powell retained a new attorney, Shannon Smith. Smith then filed a second motion to withdraw Powell's no contest plea. (See Smith Mot., ECF No. 1-16.) The primary basis of Smith's motion was that Bayot, Powell's former counsel, had an irreconcilable conflict of interest:

(Id. PageID.128-130; emphasis in original.) Smith also argued that the court should allow Powell to withdraw his plea because Bayot had failed to adequately advise Powell with respect to the requirement of lifetime electronic monitoring:

(Id., PageID.130.)

D

The trial court granted an evidentiary hearing on the conflict of interest issue. Powell, Bayot, and attorney Stephanie Farkas (an associate of Smith, Powell's newly-retained counsel) testified at the hearing.

Farkas testified first. She explained that she had reviewed certain filings in the official court file for a case involving the termination of Sheldon's parental rights of E.B. She said that she found a report by a social worker attached as an exhibit to one of the motions in that case. In the report, the social worker noted that E.B. had reported being sexually abused by a person other than Powell. (See 11/17/2014 Evid. Hrg. Tr. at 19, ECF No. 1-17, PageID.202). Farkas said that this report would have been favorable to Powell's defense against the CSC2 charges. Farkas further testified that Bayot was Sheldon's attorney in the parental rights termination case when the report was filed with the court and that a proof of service had been filed showing that Bayot received the report.

Powell and Bayot testified after Farkas, and they offered substantially different versions of events. Powell testified he had no idea that Bayot represented Sheldon in the parental rights termination case and he never saw the report on E.B. that was potentially favorable to him. (See id. at 27-28, PageID.204.) He said that he hired Bayot because he heard Bayot was effective in CSC cases, and he insisted that he never would have hired Bayot had he known that Bayot also represented Sheldon. (See id. at 26-27, PageID.204.) Powell felt that Bayot's failure to investigate witnesses and possible other perpetrators was the result of a conflict of interest and Bayot's loyalty to Sheldon. (See id.) Powell did acknowledge though that he told Bayot he did not want E.B. to have to testify at Powell's trial. (See id. at 35, PageID.206.)

Bayot testified that Powell knew when he (Bayot) was hired that Bayot also represented Sheldon in the parental termination case. (See id. at 48-49, PageID.209.) Bayot said that Powell believed that Bayot's involvement in the parental termination case would give Bayot inside knowledge that would aid Powell in his CSC case. (See id. at 45-46, PageID.208-209.) Bayot also testified that he reviewed the social worker's report on E.B. with Powell "line by line." (Id. at 51, PageID.210.)

With respect to the alleged conflict of interest, Bayot testified that he did not believe that there was a conflict in his simultaneous representation of Sheldon (in the parental rights termination case) and Powell. (See id at 63, PageID.213.) Bayot then said that even though he personally did not believe there was a conflict, he nonetheless (1) informed Powell that he represented Sheldon in the parental rights termination case and (2) asked Powell if Powell had any objection to his (Bayot's) simultaneous representation of Powell and Sheldon. (See id. at 50, PageID.210.) According to Bayot, Powell said that he had no objection. (See id.) Bayot also testified that he and Powell "discussed" the conflict issue and that Powell "waived any conflicts" that may have existed in Bayot's simultaneous representation of Powell and Sheldon. (See id. at 64, PageID 213.) However, Bayot acknowledged that he neither obtained a conflict waiver in writing nor placed Powell's waiver of the conflict on the record. (See id. at 63, 66, PageID.213-214.)

E

Following the hearing, the trial court issued an Order and Opinion denying the motions to withdraw Powell's plea. As explained in further detail below, the court held that to the extent Bayot's simultaneous representation of Powell and Sheldon created a conflict, Powell waived that conflict. (See ECF No. 1-19, PageID.239.) The court also held, in the alternative, that Powell had not established that any alleged conflict prejudiced him. (See id., PageID.240.) Finally, the court held that Powell's plea was knowing and voluntary because he was fully informed prior to his plea that he would be subject to lifetime electronic monitoring. (See id.)

Powell moved for reconsideration of the court's opinion, and the court denied that motion. (See ECF No. 1-21.)

F

On January 20, 2015, the state court sentenced Powell to a term of seventy-two months to fifteen years incarceration on the CSC2 charge. (See Sent. Hrg. Tr., ECF No. 5-9, PageID.465.) He received a sentence of time served for the three other charges. (See id., PageID.464.)

G

Following Powell's sentencing, he filed an application for leave to appeal with the Michigan Court of Appeals, raising the following issues:

(ECF No. 5-10, PageID.483.) The Michigan Court of Appeals denied leave to appeal "for lack of merit in the grounds presented."3 (ECF No. 1-25, PageID.348.) Powell also sought leave to appeal in the Michigan Supreme Court, raising only the first two issues quoted above: ineffective assistance of counsel and the unconstitutionality of mandatory lifetime electronic monitoring. (See ECF No. 5-11, PageID.897.) That court denied leave "because [it was] not persuaded that the questions presented should be reviewed by this Court." People v. Powell, 880 N.W.2d 536 (Mich. 2016).

II

Powell, through counsel, filed his petition on June 2, 2017. (See Pet., ECF No. 1.) In the petition, Powell raises the following two issues:

(Id., PageID.28, 33.)

III

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), codified at 28 U.S.C. § 2241 et seq., sets forth the standard of review that federal courts must use when considering habeas petitions brought by prisoners challenging their state-court convictions. AEDPA provides in relevant part:

28 U.S.C. § 2254(d).

"The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable—a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007).

In reviewing a claim under AEDPA, this Court must "give appropriate deference to the last state court to issue a reasoned opinion on the issue." Hoffner v. Bradshaw, 622 F.3d 487, 505 (6th Cir. 2010) (quoting Payne v. Bell, 418 F.3d 644, 660 (6th Cir. 2005). Where a state appellate court issues an unexplained order on the merits of a petitioner's claim, this Court "should `look through' the unexplained decision to the last related state-court decision that does provide a relevant rationale. It should then presume that the unexplained decision adopted the same reasoning." Wilson v. Sellers, ___ U.S. ___ 138 S.Ct. 1188, 1192 (2018).

In this case, as explained above, the state trial court issued a reasoned decision on the merits of Powell's ineffective assistance claims, and the Michigan Court of Appeals denied leave to appeal for "lack of merit" presented. While the Court of Appeals' order is a merits adjudication for AEDPA purposes, see Werth v. Bell, 692 F.3d 486, 493 (6th Cir. 2012), the Court will "look through" that order and give deference to the state trial court's decision on the ineffective assistance claims.

IV

Powell argues that he was denied the effective assistance of counsel because (1) Bayot had an actual conflict of interest due to Bayot's representation of Sheldon and (2) Bayot failed to provide proper advice about the requirement of lifetime electronic monitoring. The Court will examine each of these grounds separately.

A

Ineffective-assistance claims are reviewed under the two-part test described in Strickland v. Washington, 466 U.S. 668 (1984). First, a defendant must show that his counsel's performance was deficient. See id. at 687. "This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. Counsel is "strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690. Second, a defendant must show that the deficient performance prejudiced the defense such that the defendant was denied a fair trial. The test for prejudice is whether "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. On habeas review, the question is "not whether counsel's actions were reasonable," but "whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Harrington v. Richter, 562 U.S. 86, 105 (2011) ("The standards created by Strickland and § 2254(d) are both `highly deferential,' and when the two apply in tandem, review is `doubly' so.")

The Sixth Circuit has explained that a district court should apply the following standards in assessing conflict-of-interest-based ineffective assistance claims on habeas review:

Leonard v. Warden, Ohio State Penitentiary, 846 F.3d 832, 843-44 (6th Cir. 2017).

B

The Court first turns to Powell's claim that he was denied the effective assistance of counsel because his counsel, Bayot, had a conflict of interest due to Bayot's concurrent representation of Sheldon. The state trial court considered that claim in the context of Powell's motions to withdraw his CSC2 plea and denied relief:

(ECF No. 1-19, PageID.238-240; emphasis added; internal footnote omitted.)

Powell has failed to show that the state trial court's decision rejecting this claim was contrary to, or an unreasonable application of, clearly established federal law. Powell focuses the majority of his argument attacking the state court's ruling that Bayot's conflict of interest did not adversely affect his representation of Powell and did not cause Powell cognizable prejudice. But the state trial court denied relief on a separate and independent ground: namely, that Powell waived any conflict that may have existed. Indeed, the state court said that the waiver issue was the "primary" issue before it. (Id., PageID.238.) And Powell has failed to show that the state court's treatment of the waiver issue was contrary to, or involved an unreasonable application of, clearly established federal law.

With respect to the waiver issue, Powell first contends that the conflict "was not" waived. (Pet., ECF No. 1, PageID.41.) In support of this argument, Powell cites only one case — the Supreme Court's decision in Glasser v. United States, 315 U.S. 60 (1942). In Glasser, the Supreme Court held that a trial court should "indulge every reasonable presumption against the waiver" of an actual conflict of interest, id. at 70, and the Supreme Court held that the record before it was insufficient to support a finding that the defendant waived such a conflict. But the evidence of waiver before the trial court in this case was stronger than in Glasser. In Glasser, the defendant merely remained silent when the issue of a conflict was raised, and he did not expressly agree to waive the conflict. See id. at 69. In Powell's case, in contrast, Bayot directly testified that he informed Powell that he was representing Sheldon in the parental rights termination case and that Powell "waived" any conflict (11/17/2014 Evid. Hrg. Tr. at 64, ECF No. 1-17, PageID.213.) Powell attacks Bayot's testimony and highlights certain potential inconsistencies in the testimony, but the state trial court found the testimony to be credible. And while Powell's criticisms of Bayot's testimony are reasonable, he has not persuaded this Court that the state trial court's acceptance of Bayot's testimony was unreasonable.4 Nor has Powell cited any Supreme Court cases (or any other cases for that matter) that hold that evidence like Bayot's testimony is insufficient to (1) overcome the presumption against waiver and (2) support a finding that a defendant waived a conflict of interest.5 Under these circumstances, and in light of the AEDPA deference owed to the state court's factual findings and legal determinations, Powell has not shown that he is entitled to habeas relief on the ground that he did not waive Bayot's purported conflict of interest.

Second, Powell argues that even if he did not waive Bayot's conflict of interest, he is still entitled to relief based upon the conflict because the conflict "could not be waived." (Pet., ECF No. 1, PageID.41.) Glasser is again the only case that Powell cites in support of this argument. But the Supreme Court in Glasser did not address whether any particular conflicts are not waivable. And Powell has not cited any Supreme Court decision — or any decision from any court — that holds that a defendant may not waive a conflict like the one that may have existed here. Given Powell's failure to cite any "clearly established federal law" in support of his argument that the conflict here was not waivable, the Court cannot grant habeas relief on that basis.

C

The Court next turns to Powell's claim that Bayot rendered ineffective assistance because Bayot failed to inform him (Powell) that as consequence of pleading no contest to the CSC2 charge, he would be subject to lifetime electronic monitoring. The state trial court considered this claim in the context of Powell's motions to withdraw his CSC2 plea, and rejected it:

(ECF No. 1-19, PageID.240.)

Powell has failed to show that the state trial court's decision rejecting his conflict of interest claim was contrary to, or an unreasonable application of, clearly established federal law. To be valid, a guilty plea must be made voluntarily and intelligently." King v. Dutton, 17 F.3d 151, 153 (6th Cir. 1994) (citing Boykin v. Alabama, 395 U.S. 238, 242 (1969)). In addition, "[t]he plea must be made with knowledge of the `relevant circumstances and likely consequences.'" Id. (citing Brady v. United States, 397 U.S. 742, 748 (1970)).

Here, Powell has failed to show that Bayot's alleged ineffectiveness caused him (Powell) to involuntarily or unknowingly enter his no contest plea. Before Powell offered that plea, the state trial court told him that his sentence "does involve lifetime electronic monitoring." (Plea Hrg. Tr., ECF No. 5-6, PageID.415.) Then there was a short break in the proceedings. When the parties returned, and before Powell offered his plea, Bayot stated on the record that Powell "ha[d] now been advised of the necessity of the electronic monitoring." (Id., PageID.416.) Because Powell was twice advised on the record that he could be subject to lifetime electronic monitoring, the state court did not unreasonably conclude that he entered his plea knowing that he was subject to lifetime electronic monitoring. Likewise, the state trial court did not unreasonably reject Powell's ineffective assistance claim based upon Bayot's failure to inform him, before the day of the plea hearing, of the monitoring requirement. The state court did not unreasonably conclude that any deficiency in Bayot's representation did not prejudice Powell because Powell was fully informed of the monitoring before entering his plea. Accordingly, Powell is not entitled to federal habeas relief on this claim.

V

Finally, the Court turns to Powell's argument that he was denied due process when "he was sentenced to mandatory lifetime electronic monitoring without an assessment of risk or consideration of his likelihood to re-offend." (Pet., ECF No. 1, PageID.13.) Powell did not raise this issue in the state trial court. However, he did raise the claim in his application for leave to appeal in the Michigan Court of Appeals, and, as noted above, that court denied leave to appeal for "lack of merit" in the grounds presented. (ECF No. 1-25, PageID.348.) That denial is a merits adjudication for AEDPA purposes. See Werth, 692 at 493 (holding that AEDPA deference applies to a Michigan Court of Appeals order that used the same "lack of merit" language used in that court's order in this case).

Powell has not shown that the Michigan Court of Appeals' rejection of this claim was contrary to, or involved an unreasonable application of, any decisions of the United States Supreme Court. In support of this claim, Powell cites various state statutes and state court decisions on this issue. (See Pet., ECF No. 1, PageID.48-50.) But he does not cite any decisions from the United States Supreme Court holding that a sentence of mandatory lifetime electronic monitoring without an individualized risk assessment violates a defendant's due process rights. Accordingly, Powell has not shown that he is entitled to federal habeas relief on this claim.

VI

In order to appeal the Court's decision, Powell must obtain a certificate of appealability, which requires a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). To demonstrate this denial, the applicant must show that reasonable jurists could debate whether the petition should have been resolved in a different manner, or that the issues presented are adequate to deserve encouragement to proceed further. See Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). A federal district court may grant or deny a certificate of appealability when the court issues a ruling on the habeas petition. See Castro v. United States, 310 F.3d 900, 901 (6th Cir. 2002).

Here, jurists of reason could debate the Court's conclusion with respect to Powell's ineffective assistance claim arising out of Bayot's alleged conflict of interest. Jurists of reason could not debate the Court's conclusion that he has failed to demonstrate an entitlement to habeas relief with respect to any of his other claims. Therefore, the Court will GRANT Powell a certificate of appealability limited only to his claim of ineffective assistance due to Bayot's alleged conflict of interest. A certificate of appealability is DENIED in all other respects.

VII

For all of the reasons stated above, the Court (1) DENIES WITH PREJUDICE Powell's petition for a writ of habeas corpus (ECF No. 1) and (2) a Certificate of Appealability is GRANTED IN PART AND DENIED IN PART.

IT IS SO ORDERED.