Habeas corpus; 28 USC § 2254; Motion for a certificate of appealability (COA); § 2253(c); Procedurally defaulted plea-breach claim; Whether the default was excused by appellate counsel’s alleged ineffectiveness for failing to raise the issue on direct appeal

[This appeal was from the ED-MI.] In an order, the court denied petitioner-Dennis a COA, holding that the procedural default of his plea-breach claim was not excused by ineffective assistance of appellate counsel for failing to raise it on direct appeal. Because his plea-breach claim lacked arguable merit, he could not show that he would have prevailed even if appellate counsel had raised the issue. Dennis was charged with four counts of CSC I involving a minor under 13. On the day of trial, the prosecution informed the trial court that it was offering Dennis a plea deal where “in exchange for a plea of guilty or no contest to the four counts, each carrying a mandatory minimum sentence of 25 years” (with a life maximum), the government would “‘not ask for more than 25 years on the minimum.’” It also agreed not to bring charges regarding another victim. The trial court explained to Dennis that it could impose a higher sentence if it chose. He pled no contest, and the trial court sentenced him to 30 to 50 years on each count, with counts one and three to be served consecutively to each other and concurrently with counts two and four. He argued that it should have allowed him to withdraw his plea when it decided to vary from the plea agreement. The trial court noted that it had informed him that it was under no obligation to conform to the prosecution’s sentencing recommendation. After his state court appeals were unsuccessful, he filed a habeas petition in the district court, arguing that the prosecution had breached the plea agreement by “‘covertly advocating for consecutive sentences.” The district court ruled that his claim was procedurally defaulted and that the default was not excused by appellate counsel’s failure to raise the claim on direct appeal. It then declined to issue a COA. He now moved the court for a COA. The court explained that to obtain a COA under § 2253(c), “a petitioner must make ‘a substantial showing of the denial of a constitutional right.’” Dennis conceded that his plea-breach claim was procedurally defaulted and sought to excuse this default by arguing ineffective assistance of appellate counsel. But the court concluded that reasonable “jurists could not disagree with the district court’s conclusion that appellate counsel’s failure to raise the plea-breach claim did not amount to deficient performance. The record does not establish that the prosecutor ‘covertly advocated’ for consecutive sentencing.”