In habeas proceedings brought by a defendant convicted of first-degree home invasion claiming ineffective assistance of counsel, grant of a conditional writ is reversed and remanded where: 1) defendant has not shown that his trial counsel were ineffective and he cannot establish that he was prejudiced by the alleged ineffectiveness; 2) defendant's appellate counsel was therefore also not ineffective, for appellate counsel cannot be ineffective for a failure to raise an issue that lacks merit; and 3) defendant failed to establish cause and prejudice for his procedural default of an ineffective assistance claim, and is barred from raising the issue on habeas review.
Argued: October 16, 2009
Decided and Filed: January 12, 2010
Opinion by Circuit Judge Rogers
For Appellant: Janet A. Van Cleve, Michigan Attorney General's Office
For Appellee: Kimberly Thomas, University of Michigan, Michigan Clinical Law Program