Moses Williams v. Cindi Curtin

Filing

OPINION filed : the district court's judgment denying Williams' petition for a writ of habeas corpus is AFFIRMED, decision not for publication. Martha Craig Daughtrey, David W. McKeague (Authoring), and Jane Branstetter Stranch (concurring), Circuit Judges.

Case: 13-1373

Document: 50-2

Filed: 05/27/2015

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0381n.06
Case No. 13-1373
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

FILED
MOSES WILLIAMS ,

)
)
)
)
)
)
)
)
)
)

Petitioner-Appellant,
v.
CINDI CURTIN,
Respondent-Appellee.

May 27, 2015
DEBORAH S. HUNT, Clerk
ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF MICHIGAN

OPINION

BEFORE: DAUGHTREY, McKEAGUE, and STRANCH, Circuit Judges.
McKEAGUE, Circuit Judge. Petitioner Moses Williams, a Michigan state prisoner
convicted of second degree murder, appeals from the denial of his petition for writ of habeas
corpus. One issue has been certified for appeal: whether the state trial court impermissibly
infringed Williams’ Sixth Amendment right to present a defense when it disallowed testimony of
a putative alibi witness because Williams failed to give timely notice of his alibi defense. The
district court denied relief holding that the state courts did not unreasonably apply clearly
established federal law. Finding no error, we affirm.
I
In December 2004, Moses Williams and Tommy Tiggs were jointly tried before two
separate juries in connection with the April 2004 shooting death of Edward Beasley in Flint,

Case: 13-1373

Document: 50-2

Filed: 05/27/2015

Page: 2

Case No. 13-1373
Williams v. Curtin
Michigan. The prosecution proofs showed that both men participated in the shooting. There was
little physical evidence implicating Williams.

The prosecution’s case depended on the

eyewitness testimony of Beasley’s friend, Carole Cooper. Cooper was with Beasley and the two
assailants in Beasley’s Cadillac during negotiations for the sale of the car immediately before the
shooting and was still in the car with Beasley at the time of the shooting. Cooper later identified
Williams as one of the shooters from a photo array. Williams did not testify or present any
defense proofs. After a four-day trial, Tiggs was found guilty of first degree murder and
Williams was found guilty of second degree murder. Tiggs was sentenced to life imprisonment;
Williams was sentenced to a prison term of 25 to 50 years. Both convictions were affirmed on
direct appeal.
In his direct appeal, Williams argued that the trial court abused its discretion and
effectively denied him his right to present a defense when it refused to allow alibi witness Kessa
Peters to testify.

Peters purportedly would have testified that Williams was with her,

approximately 250 miles away in Columbus, Ohio, at the time of the shooting. Williams
acknowledges that he failed to comply with the state law requirement that he give the
prosecution written notice of intent to present an alibi defense not less than ten days prior to trial.
Mich. Comp. Laws § 768.20(1). Although Williams’ counsel was aware of a possible alibi
defense five months prior to trial, he did not give the court and prosecutor notice until Friday,
December 3, 2004, at a pretrial conference four days prior to trial. At that time, counsel advised
that he had managed to contact Peters by phone that morning and that she lived in Columbus and
did not have a telephone. Despite the late notice, the prosecutor agreed to waive objection,
provided Peters contacted the investigating officer, Sergeant Besson, before Monday afternoon

-2-

Case: 13-1373

Document: 50-2

Filed: 05/27/2015

Page: 3

Case No. 13-1373
Williams v. Curtin
when Besson finished her duty, i.e., 3:00 p.m. on December 6th. R. 8-7, Pretrial Hrg. Tr. at 4–5,
Page ID 539–40.
Unfortunately, Peters did not meet this condition. Instead, she left a voicemail message
Monday at 3:51 p.m., indicating simply that she would testify that Williams was with her during
a certain time frame. She did not leave a telephone number or address. Hence, neither Sergeant
Besson nor the prosecution was able to contact Peters and question her or otherwise investigate
her story. At the start of trial Tuesday morning, the prosecution objected to the proposed late
addition of Peters as an alibi witness. Defense counsel requested more time to produce Peters,
noting “the alibi witness would probably not be called until at least Thursday afternoon.” R. 8-8,
Trial Tr. at 6, Page ID 553. The trial court noted that the time had come to pick a jury and,
unwilling to continue “playing the game,” advised Williams’ counsel that the request to allow
Peters to testify as an alibi witness would be denied unless there was anything else to support a
possible exception to the ten-day notice rule. Id. at 5–6, Page ID 552–53. Williams’ counsel did
not request a continuance but asked that the prosecutor be precluded from commenting on the
defense’s inability to produce witnesses corroborating any alibi defense. The court so instructed
the prosecutor and proceeded with jury selection.

Williams’ defense consisted solely of

counsel’s cross-examination of prosecution witnesses and counsel’s argument that the evidence
did not prove guilt beyond a reasonable doubt.
Following his conviction, the Michigan Court of Appeals rejected Williams’ claim that
the trial court abused its discretion in excluding Peters and denied him his right to present a
defense. People v. Williams, 2006 WL 2000101 (Mich. Ct. App. July 18, 2006). In evaluating
the trial court’s enforcement of the statutory alibi notice requirement, the court of appeals

-3-

Case: 13-1373

Document: 50-2

Filed: 05/27/2015

Page: 4

Case No. 13-1373
Williams v. Curtin
considered the factors prescribed by the Michigan Supreme Court in People v. Travis, 443 Mich.
668, 682; 505 N.W.2d 563 (1993):
(1) the amount of prejudice that resulted from the failure to disclose, (2) the
reason for nondisclosure, (3) the extent to which the harm caused by
nondisclosure was mitigated by subsequent events, (4) the weight of the properly
admitted evidence supporting the defendant’s guilt, and (5) other relevant factors
arising out of the circumstances of the case.
Williams, 2006 WL 2000101 at *2. None of these factors was deemed to weigh in favor of
finding an abuse of discretion.
After the Michigan Supreme Court denied leave to appeal, Williams sought postconviction relief. The trial court denied the motion and the Michigan Court of Appeals and
Michigan Supreme Court both denied leave to appeal. Williams petitioned for a writ of habeas
corpus, contending again, among other claims, that his right to present a defense had been
abridged when the trial court refused to allow Peters to testify. The district court denied relief,
holding that the Michigan Court of Appeals’ denial of the claim on direct review was not an
unreasonable application of clearly established federal law. R. 18, Opinion and Order at 10–11,
Page ID 1765–66, Williams v. Woods, 2013 WL 625750 at *6–7 (E.D. Mich. Feb. 20, 2013).
The district court concluded that the state court had identified and balanced the relevant factors
and had not acted arbitrarily. The court held this sufficient to satisfy the highly deferential
“benefit of the doubt” review that governed evaluation of Williams’ habeas petition, citing
Renico v. Lett, 559 U.S. 766, 773 (2010). Id. at 11, Page ID 1766, Williams, 2013 WL 625750 at
*7.
However, the district court granted a certificate of appealability and counsel was
appointed to represent Williams in this appeal. Williams maintains he is entitled to habeas relief
because the Michigan Court of Appeals’ decision, based on state law, and devoid of citation to

-4-

Case: 13-1373

Document: 50-2

Filed: 05/27/2015

Page: 5

Case No. 13-1373
Williams v. Curtin
United States Supreme Court decisions establishing the governing federal law, is “contrary to”
the clearly established federal law.
II
We review the district court’s denial of habeas relief de novo.

O’Neal v. Bagley,

743 F.3d 1010, 1014 (6th Cir. 2013). As the district court observed, under the provisions of the
Antiterrorism and Effective Death Penalty Act (“AEDPA”), habeas review of the state court’s
adjudication on the merits is extremely deferential. For claims adjudicated on the merits, habeas
relief may be granted only if the state court decision is “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court” or is “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)(1) and (2).
“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 v. Richter, 131 S. Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S.
652, 664 (2004)). This standard is difficult to meet by design. Id. A federal court may “not
lightly conclude that a State’s criminal justice system has experienced the ‘extreme
malfunctio[n]’ for which federal habeas relief is the remedy.” Burt v. Titlow, 134 S. Ct. 10, 16
(2013) (quoting Harrington, 131 S. Ct. at 786).1

1

Williams cites Sixth Circuit precedent for the notion that “modified AEDPA deference”
applies where, as here, the state court decision under review contained little analysis of the
substantive constitutional issue. Vasquez v. Jones, 496 F.3d 564, 569 (6th Cir. 2007). In
Harrington, however, the Court made it clear that AEDPA’s highly deferential review applies to
the result of the state court decision, irrespective of whether the state court decision includes
citation to Supreme Court cases or any reasoning at all. Harrington, 131 S. Ct. at 784.
Consequently, since Harrington, the notion of “modified AEDPA deference” lacks continuing
vitality. See Jackson v. Smith, 745 F.3d 206, 209–10 (6th Cir. 2014); Piscopo v. Michigan,
479 F. App’x 698, 703–04 (6th Cir. 2012); Smith v. Coleman, 453 F. App’x 625, 627 (6th Cir.
-5-

Case: 13-1373

Document: 50-2

Filed: 05/27/2015

Page: 6

Case No. 13-1373
Williams v. Curtin
Williams contends under § 2254(d)(1) that the Michigan Court of Appeals’ decision is
“contrary to” the clearly established federal law. The “contrary to” standard is met only if the
state court applied “a rule that contradicts the governing law set forth in [Supreme Court] cases.”
Williams v. Taylor, 529 U.S. 362, 405 (2000). The standard is met if the state court decision is
diametrically different from, or opposed in character or nature to, clearly established precedent.
Id. at 405–06. Or, the “contrary to” standard is met if the state court confronted a set of facts
materially indistinguishable from facts presented in a Supreme Court case and yet reached a
result different from that reached by the Supreme Court. Id. at 406.
Our review requires us to first identify the clearly established federal law. Marshall v.
Rodgers, 133 S. Ct. 1446, 1449 (2013). Federal law is clearly established under § 2254(d)(1) by
the holdings, as opposed to the dicta, in Supreme Court decisions. White v. Woodall, 134 S. Ct.
1697, 1702 (2010).

Because circuit precedent is not “clearly established Federal law, as

determined by the Supreme Court,” it “cannot form the basis for habeas relief under AEDPA.”
Parker v. Matthews, 132 S. Ct. 2148, 2155 (2012); see also Glebe v. Frost, 135 S. Ct. 429, 431
(2014) (per curiam); White, 134 S. Ct. at 1702 n.2.
III
The parties agree on the source and substance of the clearly established law that governs
here. In Taylor v. Illinois, 484 U.S. 400 (1988), the Court recognized that an accused has a
fundamental right to present witnesses in his own defense under the Sixth Amendment. But the
right is not unfettered.

“The right may, in appropriate cases, bow to accommodate other

legitimate interests in the criminal trial process.” Rock v. Arkansas, 483 U.S. 44, 55 (1987)
(quoting Chambers v. Mississippi, 410 U.S. 284, 295 (1973)) (internal quotation marks omitted).
2011). See also Treesh v. Bagley, 612 F.3d 424, 429 (6th Cir. 2010) (consistent with
Harrington).
-6-

Case: 13-1373

Document: 50-2

Filed: 05/27/2015

Page: 7

Case No. 13-1373
Williams v. Curtin
The right is subject to “rules of procedure that govern the orderly presentation of facts and
arguments to provide each party with a fair opportunity to assemble and submit evidence to
contradict or explain the opponent’s case.” Taylor, 484 U.S. at 411. “The trial process would be
a shambles if either party had an absolute right to control the time and content of his witnesses’
testimony.” Id. The Taylor Court expressly recognized the salutary purposes served by noticeof-alibi rules. Considering the ease with which an alibi defense can be fabricated, the Court
recognized that such discovery rules serve the prosecution’s interest in protecting itself against
an eleventh-hour defense as well as the public interest in a full and truthful disclosure of critical
facts. Id. at 411–12.
The Taylor Court declined to prescribe a comprehensive standard to guide the exercise of
discretion in every conceivable case. Instead, the Court discussed countervailing interests that
would often come into play and need to be considered:
[A] trial court may not ignore the fundamental character of the defendant's
right to offer the testimony of witnesses in his favor. But the mere invocation of
that right cannot automatically and invariably outweigh countervailing public
interests. The integrity of the adversary process, which depends both on the
presentation of reliable evidence and the rejection of unreliable evidence, the
interest in the fair and efficient administration of justice, and the potential
prejudice to the truth-determining function of the trial process must also weigh in
the balance.
A trial judge may certainly insist on an explanation for a party's failure to
comply with a request to identify his or her witnesses in advance of trial. If that
explanation reveals that the omission was willful and motivated by a desire to
obtain a tactical advantage that would minimize the effectiveness of crossexamination and the ability to adduce rebuttal evidence, it would be entirely
consistent with the purposes of the Compulsory Process Clause simply to exclude
the witness’ testimony.
The simplicity of compliance with the discovery rule is also relevant. As
we have noted, the Compulsory Process Clause cannot be invoked without the
prior planning and affirmative conduct of the defendant. Lawyers are accustomed
to meeting deadlines. Routine preparation involves location and interrogation of
potential witnesses and the serving of subpoenas on those whose testimony will
-7-

Case: 13-1373

Document: 50-2

Filed: 05/27/2015

Page: 8

Case No. 13-1373
Williams v. Curtin
be offered at trial. The burden of identifying them in advance of trial adds little to
these routine demands of trial preparation.
Id. at 414–16 (footnotes and citations omitted). In light of these considerations, the Taylor Court
upheld the exclusion of testimony of late-noticed witnesses. Even as it acknowledged that
alternative sanctions were available and that prejudice to the prosecution could have been
avoided, the Court held that exclusion was justified because of willful misconduct, as the record
supported the inference that “witnesses are being found that really weren’t there” and that notice
was given late to obtain tactical advantage. Id. at 416–17.
IV
Williams acknowledges that the Michigan Court of Appeals decision is not contrary to
clearly established federal law simply because it does not cite Taylor. He maintains, however,
that both the reasoning and result of the decision contradict the holding of Taylor. Yet, several
of the factors considered are common to both decisions. And the holdings of both decisions are
facially consistent: upholding the trial court’s exercise of discretion to exclude testimony in
enforcement of a discovery rule. In both cases, the defendant’s right to present his defense
bowed to the prosecution’s interest in protecting itself from an eleventh-hour defense, the court’s
interest in protecting the integrity of the adversary process, and the public’s interest in the
truthful disclosure of critical facts.
Still, despite these consistencies, Williams identifies two shortcomings in the Michigan
Court of Appeals decision that he says render it so contrary to the teaching of Taylor as to
compel agreement among all fairminded jurists that the Michigan Court of Appeals erred and
that he is entitled to habeas relief. In particular, Williams contends that the state court’s opinion
falls short because it includes no consideration of his fundamental right to present a defense.

-8-

Case: 13-1373

Document: 50-2

Filed: 05/27/2015

Page: 9

Case No. 13-1373
Williams v. Curtin
The state court’s analysis is thus said to contravene Taylor’s instruction that the fundamental
character of his right not be ignored.
To be sure, the Michigan Court of Appeals opinion contains little explicit recognition of
the importance of Williams’ right to present a defense. But neither is the right completely
ignored. The state court’s implicit recognition is evidenced first by its acknowledgement that the
trial court did not automatically deny Williams’ initial request, even though the request was
made six days after the statutory deadline and a mere two working days before the start of trial,
and even though Williams’ counsel, even then, was still unable to provide Kessa Peters’ contact
information to the prosecution. Williams, 2006 WL 2000101 at *2. The court of appeals
recognized that the trial court, instead of summarily denying the request as untimely, went along
with the prosecution’s proposed accommodation in an effort to preserve Williams’ right to
present an alibi defense. But Williams also failed to meet the prosecution’s condition the day
before trial was to begin. The court of appeals thus recognized that the trial court did not
actually deny Williams’ request until the day of trial. At that point, Williams still had failed to
provide the prosecution with notice that would have permitted verification of Peters’ supposed
testimony and investigation of the putative alibi. Then, as the trial court announced its intention
to deny the eleventh-hour request, it gave Williams’ counsel a final opportunity to address the
court—either to clarify his objection or propose an alternative remedy. Hearing neither, the trial
court proceeded with jury selection. But, as the court of appeals also recognized, the trial court
further honored Williams’ right to present a defense by acknowledging that he remained free to
testify and present other witnesses’ testimony in support of the alibi defense—without comment
by the prosecutor on Williams’ failure to otherwise corroborate the defense. Id. No, Williams’
right to present a defense was not ignored by the state courts.

-9-

Case: 13-1373

Document: 50-2

Filed: 05/27/2015

Page: 10

Case No. 13-1373
Williams v. Curtin
Williams also contends the Michigan Court of Appeals’ decision is contrary to
established law because it failed to address the trial court’s failure to consider alternative
sanctions before applying the drastic sanction of preclusion. To the contrary, the foregoing
discussion demonstrates the court of appeals’ recognition that the trial court did not rush to apply
preclusion as a sanction simply because the deadline passed, but patiently worked with the
parties to protect the relevant interests.
Moreover, the Taylor Court did not hold that the availability of alternative sanctions
would preclude use of the preclusion sanction. Far from it. Taylor actually upheld preclusion
even as it recognized that “a less drastic sanction is always available.” Taylor, 484 U.S. at 413.
The Court noted that “[p]rejudice to the prosecution could be minimized by granting a
continuance or a mistrial to provide time for further investigation” and that “further violations
can be deterred by disciplinary sanctions against the defendant or defense counsel.” Id. But
despite the availability of alternative sanctions, the Taylor Court upheld the exclusion of
testimony in enforcement of the discovery rule. The Court reasoned that use of alternative
sanctions, though facially suitable in a particular case, “would be less effective than the
preclusion sanction” and, in some cases, “would perpetuate rather than limit the prejudice to the
State and the harm to the adversary process.” Id. After all, the Court noted, “[o]ne of the
purposes of the discovery rule itself is to minimize the risk that fabricated testimony will be
believed.” Id. In an observation no less apt in the instant case, the Taylor Court noted that it is
“reasonable to presume that there is something suspect about a defense witness who is not
identified until after the 11th hour has passed.” Id. at 414.
There has been no finding in this case that Williams’ late notice was willful or
deliberately designed to gain unfair tactical advantage. It is undisputed, however, that his

- 10 -

Case: 13-1373

Document: 50-2

Filed: 05/27/2015

Page: 11

Case No. 13-1373
Williams v. Curtin
counsel was aware of the possibility of an alibi defense a full five months before trial. Yet, he
offered no explanation for the late notice except that, after trying unsuccessfully for a couple of
weeks, he did not manage to contact Kessa Peters until four days prior to trial. This does not
necessarily evidence willfulness but, at a minimum, it bespeaks a lack of due diligence. If
Carole Cooper’s identification of Williams as the second shooter really were erroneous, and if
Williams really were 250 miles away in Columbus at the time of the murder, due diligence
would have demanded a much more timely and thorough development of the defense. If counsel
had undertaken such efforts and been stymied by Peters’ elusiveness, then it should nonetheless
have been a simple matter for him to give timely notice of Williams’ intent to rely on the alibi
defense, alert the court and prosecution to his inability to contact Peters, and show cause for a
continuance of trial. The fact that defense counsel did not proceed in this manner is not
damning, but it is telling. As the Supreme Court noted in Taylor, “The simplicity of compliance
with the discovery rule is also relevant” in evaluating the appropriateness of preclusion.2 Id. at
415.
It follows that the state courts’ failure to more explicitly consider alternative sanctions
does not render their decision contrary to clearly established federal law. Instead, the manifest
reasons to question the truthfulness of the supposed alibi defense render the result reached by the
Michigan Court of Appeals entirely consonant with established federal law, as reflected in both
the analysis and result in Taylor.
2

No less telling is the fact that the record is still devoid of evidence of what Peters’
testimony would have been—even after direct review, collateral review, and these habeas
proceedings—if she had appeared to testify. To date, we have nothing more than trial counsel’s
representation as to what Peters told him over the phone. But counsel did not offer to make a
proffer establishing the contents of the anticipated testimony. Peters was not subpoenaed, never
appeared to testify, was never interviewed by the prosecution or defense counsel, and has not
even signed an affidavit.
- 11 -

Case: 13-1373

Document: 50-2

Filed: 05/27/2015

Page: 12

Case No. 13-1373
Williams v. Curtin
To the extent Williams’ “contrary to” argument rests on Michigan v. Lucas, 500 U.S. 145
(1991), it is plainly wrong. In Lucas, the Court overturned a decision holding that preclusion of
evidence for violation of a discovery rule is a per se violation of a defendant’s Sixth Amendment
right to present a defense. The Lucas Court simply vacated the ruling and remanded for further
proceedings in light of the teaching of Taylor v. Illinois. Lucas, 500 U.S. at 152–53. Citing dicta
in Lucas, Williams would have us construe Taylor as holding that the interests in favor of
enforcement of a discovery rule must be found to outweigh, or justify limitation of, the
defendant’s right to present a defense before the rule can be enforced to exclude evidence. But
dicta appearing in a Supreme Court opinion will not make out “clearly established Federal law,
as determined by the Supreme Court.” Only the opinion’s holding does that. White, 134 S. Ct.
at 1702.
Moreover, the Supreme Court, in Nevada v. Jackson, 133 S. Ct. 1990, 1993 (2013) (per
curiam), recently rejected the very construction of Lucas that Williams urges us to adopt. The
Jackson Court stated that Lucas “did not even suggest, much less hold, that it is unconstitutional
to enforce such a [notice] rule unless a case-by-case balancing of interests weighs in favor of
enforcement.” Id. at 1993. Instead, as Jackson notes, Lucas expressed no opinion as to whether
preclusion was justified in that case and remanded the matter to the state court for assessment in
light of the considerations outlined in Taylor. Id.3
Thus, Taylor’s holding, properly understood, teaches that various factors are potentially
relevant in evaluating the appropriateness of the preclusion sanction; it does not prescribe a

3

Williams’ reliance on our decision in Ferensic v. Birkett, 501 F.3d 469 (6th Cir. 2007),
is similarly misplaced. Ferensic, of course, is not a holding of the Supreme Court and is
therefore not “clearly established Federal law” under AEDPA. Parker, 132 S. Ct. at 2155.
Further, Ferensic relies in part on the same construction of Lucas that the Supreme Court
expressly disavowed in Jackson.
- 12 -

Case: 13-1373

Document: 50-2

Filed: 05/27/2015

Page: 13

Case No. 13-1373
Williams v. Curtin
comprehensive standard, and it does not mandate interest-balancing. It follows, that because
Taylor’s “rule” is a general one, state courts whose rulings are reviewed under AEDPA as being
contrary to or unreasonable applications of such rule, are entitled to “more leeway . . . in
reaching outcomes in case-by-case determinations.” Harrington, 131 S. Ct. at 786 (quoting
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
In this case, as both parties concede, the governing clearly established federal law is
made out by the holding of Taylor v. Illinois. The Michigan Court of Appeals’ decision, albeit
devoid of citation to Taylor, is not diametrically different from or opposite in character to the
Supreme Court’s ruling in Taylor.

The Michigan Court of Appeals’ decision rested on

consideration of several factors identified in Taylor as relevant considerations and the result
reached, upholding preclusion of testimony based on those considerations, is consistent with
Taylor. Our review, under the deferential standard prescribed by AEDPA, does not reveal such
an arbitrary enforcement of the preclusion sanction that all fairminded jurists would necessarily
find it to be contrary to Taylor and therefore violative of Williams’ Sixth Amendment right to
present a defense.
V
Finding no “extreme malfunction” of the state’s criminal justice system, we have no
warrant to grant habeas relief. Accordingly, we AFFIRM the district court’s judgment denying
Williams’ petition for writ of habeas corpus.

- 13 -

Case: 13-1373

Document: 50-2

Filed: 05/27/2015

Page: 14

Case No. 13-1373
Williams v. Curtin
STRANCH, J., concurring.

I write separately only to address footnote one of the

majority opinion. I acknowledge that our court has held, since the Supreme Court decided
Harrington v. Richter, 131 S. Ct. 770 (2011), that modified AEDPA deference should no longer
be applied. Jackson v. Smith, 745 F.3d 206, 209–10 (6th Cir. 2014); Piscopo v. Mich., 479 F.
App’x 698, 703–04 (6th Cir. 2012); Smith v. Coleman, 453 F. App’x 625, 627 (6th Cir. 2011).
Since Harrington, our court has also applied modified AEDPA deference in two published cases.
Peoples v. Lafler, 734 F.3d 503, 516–17 (6th Cir. 2013); Moore v. Mitchell, 708 F.3d 760, 795
(6th Cir. 2013). Our conflicting case law leaves me unable to agree with the conclusion in
footnote one.

- 14 -