Manuel Sheard v. Paul Klee

Filing

OPINION filed : AFFIRMED, decision not for publication. Gilbert S. Merritt, Circuit Judge, dissenting; Ronald Lee Gilman, Circuit Judge and Bernice Bouie Donald, Authoring Circuit Judge.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0337n.06
Case No. 15-1813
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

FILED
MANUEL SHEARD, IV,

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Petitioner-Appellant,
v.
PAUL KLEE,
Respondent-Appellee.

Jun 15, 2017
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF
MICHIGAN

OPINION

BEFORE: MERRITT, GILMAN, and DONALD, Circuit Judges.
BERNICE BOUIE DONALD, Circuit Judge. Petitioner Manuel Sheard appeals the
district court’s dismissal of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
For the reasons that follow, we AFFIRM the district court’s denial of habeas relief.
I.
A.

Factual Background

Sheard’s conviction arose from allegations that he sexually assaulted his daughter, N.S.,1
when she was between the ages of six and nine. The Michigan Court of Appeals, on direct
appeal, summarized the facts as follows:

1

The victim, a minor at the time of the events in question and at trial, has been referred to by her initials in the state
court and the district court below. We likewise identify her only by her initials.

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[Sheard’s] charges arise from evidence that he sexually assaulted his daughter,
who was nine at the time of his trial. She testified that the incidents began in
August 2007 and continued until June 2009. She gave compelling testimony
about the nature and extent of the abuse and stated that the abuse ended only after
she told her aunt about it. There was also expert medical testimony that the child
had injuries to her genital area including a healed scar on the perineum, which had
been sutured in a previous medical visit, as well as a transection of the hymen,
which had not completely healed. The physician testified that, although the
transected hymen could be the result of a single penetration, it was “more of a
sign of potentially repeated penetration.” This is because there was “no healing of
that area. It left it in two pieces that never joined together.”
Defendant’s theory of the case was that his daughter’s physical injuries were
caused by a bicycle accident and that her allegations of abuse were inconsistent
and contrived.
After hearing the evidence, the jury found defendant guilty on all four counts.
People v. Sheard, No. 299084, 2011 WL 4952329, at *1 (Mich. Ct. App. Oct. 18, 2011).
B.

Prosecutor’s Conduct at Trial

At trial, the prosecutor repeatedly referenced Sheard’s marital infidelity. Beginning with
his opening statement on the first day of trial, the prosecutor raised the issue, stating: “What
you’re also going to hear is that the defendant, while married to Monique Sheard, who is the
mother of [N.S.], biological mother and father, married; during the course of that marriage
relationship Mr. Sheard takes up with a Sarah Hale and has a child to [sic] her.” (R. 6-7, PageID
# 220–21.) Defense counsel at this point asked to approach the bench, and after a bench
conference that was not made part of the record, the prosecutor continued, reemphasizing: “And
you will hear that Manuel Sheard, the defendant, took up with Sarah Hale and had a child to [sic]
her.” (Id. at 221.)
The prosecutor’s references to Sheard’s extramarital affair continued throughout the
witness examination portion of the trial. During his direct examination of the victim, N.S., the
prosecutor asked her whether she knew Sarah Hale, who she was, and whether Sarah had a baby
with N.S.’s father. Again with Tonia Lozano, Sheard’s sister, the prosecutor inquired into the
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nature of Sheard’s relationship with Hale, asking whether Sheard was still married to N.S.’s
mother, Monique Sheard, when he had a child with Sarah Hale. During his direct examination of
Monique Sheard, the prosecutor again brought up Sheard’s relationship with Sarah Hale, asking
questions like: “And during the time that you have been married to Manuel Sheard is that when
Sarah conceived their joint child?” “So while you are married to the defendant he has a baby
with Sarah?” “You feel stressed about the fact that he is seeing another lady?” (R. 6-8, PageID #
280.)
On cross examination of Sheard, the prosecutor again drew attention to Sheard’s
relationship with Hale in the following exchange:
Q: Now, when you got up here, you took an oath to tell the truth right?
A: Yes, sir.
Q: That’s like a vow?
A: Yeah.
Q: Correct?
A: Correct.
Q: And if you had ridden your daughter from behind and gone into her butt as she
said, you would tell the jury that, would you?
A: Yes, I would.
Q: And if you had penetrated her repeatedly with your penis into her vagina, you
would tell this jury that?
A: I would have pled guilty off the bat, sir, if that would have been the case.
Q: And if you would have put your penis in her mouth and ejaculated or put your
penis in her mouth and pulled it out and ejaculated, you would tell the jury that?
A: They would have known that because I would have pled guilty.
Q: Now, you’re married to Monique?
A: Yeah.
Q: And you took an oath to her too, didn’t you?
A: Before I took the oath I started having an affair, my mistake.
Q: You took an oath to Monique as your wife?
A: Yes, I did.
Q: And while you are married to her, having taken an oath to her, you’re having
an affair with Sarah?
A: Yeah, with Sarah, but not my eight year old daughter.
Q: And at some point you’ve made promises or made oaths to Sarah?
...
Q: All right. But you’re making promises to Sarah, she’s writing you letters
saying love, your wifey, so you’ve talked to her about possibly marrying her?
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...
Q: So the oath to Monique doesn’t mean a lot, does it?
...
Q: And the oath to Sarah doesn’t mean a lot either, does it?
...
Q: So if the oath suits you, it’s a good oath, and as soon as it doesn’t suit you,
doesn’t mean anything, doesn’t bind you?
(R. 6-9, PageID # 349–50.)
During his closing argument, the prosecutor continued his references to Sheard’s
extramarital affair, stating:
He takes an oath before he testifies. Swears to tell the truth, the whole truth and
nothing but the truth. And then tells you, why, if I had repeatedly put my penis in
her mouth, members of the jury, I would tell you that. Do you believe that?
Members of the jury, if I repeatedly put my penis in her vagina, I would tell you
that. Do you believe that? Members of the jury, if I repeatedly rode her from the
back and put my penis in her anus, I would tell you that. Do you believe that?
We know how important his oaths are. He marries Monique and takes an oath to
love, honor, cherish, whatever the wedding vows were. And what does he do
with his oath to Monique, the mother of his two children? Why, he picks up a
girlfriend. So while Monique is out earning money to support the family, he’s
home grilling, drinking, with his girlfriend Sarah on the front porch. That’s how
much his oath is worth to Monique, a woman he’s lived with and is married to
and has children with. Does he know you? And we know how much his oath is
worth because he has Sarah [] and he promises her, I’m gonna marry you. Is he
divorced? Has he filed for divorce? Does he do anything but father a child with
Sarah?
...
What’s the cost to confessing to something that’s not at issue? There’s no
cost. . . . He wants you to believe what he’s telling you. Whether he had an affair
and lied to Sarah about his intentions is important as to whether he can be
believed. Whether he lied to Monique while he’s married to her is important to
you in the context of whether he can be believed. If he’s lying with the women he
sleeps with, if he’s lying with the women he has babies with, if he confesses to
things that have no costs, is there a cost in this case? There sure is. Four counts
of criminal sexual conduct first degree.
(Id. at PageID # 357, 359.) Although less damaging, as it was made after Sheard had been
convicted and outside the presence of the jury, the prosecutor carried his “theory of the case”

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through to Sheard’s sentencing, stating: “This defendant was married when this happened. This
defendant had a girlfriend when this happened.

He fathered children to both of them.

Apparently, his sexual appetites were such that when neither of the adult females were around,
his daughter, from six, to seven, to eight, became the focus of his sexual appetites.” (R. 6-11,
PageID # 398–99.)
C.

Procedural Background

Following a three-day trial and only a few hours of deliberation, the jury convicted
Sheard of four counts of first-degree criminal sexual conduct against his daughter, N.S. At
sentencing, the district court sentenced Sheard to twenty-five to fifty years for each count, with
the sentences to run consecutively to each other, resulting in a total sentence of 100–200 years in
prison.
Sheard appealed his conviction and sentence to the Michigan Court of Appeals, arguing,
among other things, that the prosecutor committed misconduct by introducing improper character
evidence, namely that he had an extramarital affair, and that his defense counsel was ineffective
for failing to object to this misconduct. Sheard, 2011 WL 4952329, at *1. The court of appeals
agreed that the prosecutor’s conduct was improper and that counsel had rendered deficient
performance, concluding that “it is plain that the prosecutor’s efforts to elicit testimony about
defendant’s affair and his comments on the affair were improper. Moreover, given the limited
circumstances under which such evidence would be admissible, it was plain error for the trial
court to permit the testimony and comments.” Id. at *2. However, the court held that Sheard
was not entitled to a new trial because “[g]iven the overwhelming weight” of the evidence
against him, he could not show prejudice from the misconduct or the deficient performance. Id.
at *3. Sheard filed an application for permission to appeal to the Michigan Supreme Court,

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which was denied. People v. Sheard, 810 N.W.2d 576 (Mich. 2012) (table). Sheard did not
appeal to the United States Supreme Court or seek state collateral relief.
In 2013, Sheard filed a petition for federal habeas relief in the United States District
Court for the Eastern District of Michigan. Sheard’s habeas petition raised several claims;
relevant to this appeal are his claims for prosecutorial misconduct and ineffective assistance of
counsel. The district court held that the state court of appeals’ decision that the prosecutor’s
misconduct was harmless error and that counsel’s failure to object to the misconduct did not
prejudice Sheard was not an unreasonable application of clearly established law. Sheard v. Klee,
No. 13-CV-11681, 2015 WL 3634104, at *5–6 (E.D. Mich. June 9, 2015). The district court,
however, granted a certificate of appealability on Sheard’s prosecutorial misconduct claim and
related ineffective assistance of counsel claim. Id. at *8. Sheard now appeals.
II.
In habeas proceedings, we review a district court’s legal conclusions “de novo and its
findings of fact for clear error.” Akins v. Easterling, 648 F.3d 380, 385 (6th Cir. 2011) (quoting
Braxton v. Gansheimer, 561 F.3d 453, 457 (6th Cir. 2009)). Sheard’s petition is also governed
by the Antiterrorism and Effective Death Penalty Act (“AEDPA”) because the petition was filed
after AEDPA’s effective date. See id. (citing Lindh v. Murphy, 521 U.S. 320, 326–27 (1997)).
Under AEDPA, a federal court may not grant a writ of habeas corpus on a claim that has
been adjudicated on the merits by a state court unless the state court’s adjudication of that 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). Under the first prong of § 2254(d), a state court decision is contrary to
clearly established federal law if the state court “arrives at a conclusion opposite to that reached
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by [the Supreme Court] on a question of law or if the state court decides a case differently than
[the Supreme Court] has on a set of materially indistinguishable facts.” Williams v. Taylor, 529
U.S. 362, 413 (2000). “Under the ‘unreasonable application’ clause, a federal habeas court may
grant the writ if the state court identifies the correct governing legal principle from [the Supreme
Court’s] decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id.
Importantly, “a federal habeas court may not issue the writ simply because that court
concludes in its independent judgment that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly.” Renico v. Lett, 559 U.S. 766, 773 (2010)
(quoting Williams, 529 U.S. at 411).

“Rather, that application must be ‘objectively

unreasonable.’” Id. (citations omitted). “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, 562 U.S. 86, 101 (2011) (citations omitted).
“AEDPA thus imposes a ‘highly deferential standard for evaluating state-court rulings,’ and
‘demands that state-court decisions be given the benefit of the doubt.’” Lett, 559 U.S. at 773
(internal citations omitted).
A.

Prosecutorial Misconduct

Respondent first argues that Sheard’s prosecutorial-misconduct claim is procedurally
defaulted and may not be reviewed absent a showing of cause and prejudice. Sheard does not
dispute this, but asserts that his claim of ineffective assistance of counsel supplies the requisite
grounds to excuse this default. The Supreme Court has held that “in certain circumstances
counsel’s ineffectiveness in failing properly to preserve the claim for review” will suffice to
establish cause. Edwards v. Carpenter, 529 U.S. 446, 451 (2000). “Not just any deficiency in
counsel’s performance will do, however; the assistance must have been so ineffective as to

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violate the Federal Constitution.” Id. Here, the strength of Sheard’s ineffective assistance claim
relies on the merits of his prosecutorial-misconduct claim; as such, the analyses merge so that it
is more beneficial to first address the merits of Sheard’s prosecutorial-misconduct claim. See,
e.g., Washington v. Hofbauer, 228 F.3d 689, 698 (6th Cir. 2000) (addressing first the
prosecutorial-misconduct claim because the petitioner’s “claim of Strickland ineffectiveness
hinge[d] on whether the prosecutor’s misconduct was plain enough for a minimally competent
counsel to have objected.”).2
We turn to the merits of Sheard’s prosecutorial-misconduct claim. The district court and
state court of appeals both concluded that the prosecutor’s commentary and emphasis on
Sheard’s extramarital affair and resulting bad character were improper. Respondent does not
dispute this finding, nor can he. Like its federal counterpart, the Michigan Rules of Evidence
provide that, subject to certain enumerated exceptions, none of which apply here, “[e]vidence of
a person’s character or a trait of character is not admissible for the purpose of proving action in
conformity therewith on a particular occasion.” Mich. R. Evid. 404(a); see also Fed. R. Evid.
404(a) (same). In this case, the prosecutor’s case strategy relied very heavily on tying Sheard’s
marital infidelity to his ability to be truthful. The state court of appeals aptly summarized the
nature of this misconduct:
These statements show that the prosecutor argued that people who violate their
oaths are liars and, because [Sheard] violated his marital oath, he too must be a
liar. That is, the prosecutor emphatically asserted that [Sheard’s] marital
infidelity was proof that he had a bad character—a propensity to lie—and acted in
conformity with that character by committing perjury at trial.

2

Because we ultimately conclude that Sheard’s prosecutorial-misconduct claim lacks merit, we need not directly
rule on the State’s procedural-default defense. See Johnson v. Lee, 132 S. Ct. 1802, 1806 (2016) (per curiam) (citing
Lambrix v. Singletary, 520 U.S. 518, 525 (1997) (noting that “the procedural-bar issue [need not] invariably be
resolved first” and that, if another basis for denial “were easily resolvable against the petitioner,” the non-procedural
basis may be invoked instead in order to avoid “issues of state [procedural] law.”)).

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Sheard, 2011 WL 4952329, at *2. It is clear that the prosecutor’s continuous use of Sheard’s
affair with Sarah Hale to imply bad character and an inability to be truthful contravenes the rules
of evidence and was improper.
This finding of impropriety, however, does not resolve the issue. We must still address
the question of whether the prosecutor’s misconduct was harmless. In other words, whether the
prosecutor’s introduction of the improper character evidence “had substantial and injurious effect
or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)
(quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). Although Brecht is a preAEDPA case, the Supreme Court has subsequently held that the Brecht test “subsumes” the
AEDPA requirements such that a formal application of both tests is unnecessary. Fry v. Pliler,
551 U.S. 112, 120 (2007). Thus, the law in this Circuit is that “Brecht is always the test, and
there is no reason to ask both whether the state court ‘unreasonably’ applied Chapman[3] under
the AEDPA and, further, whether the constitutional error had a ‘substantial and injurious’ effect
on the jury’s verdict.” Ruelas v. Wolfenbarger, 580 F.3d 403, 412 (6th Cir. 2009). This,
however, does not render the state court’s harmless-error determination irrelevant.

As the

Supreme Court has most recently clarified, “a prisoner who seeks federal habeas corpus relief
must satisfy Brecht, and if the state court adjudicated his claim on the merits, the Brecht test
subsumes the limitations imposed by AEDPA.” Davis v. Ayala, 135 S. Ct. 2187, 2199 (2015).
To succeed on his prosecutorial-misconduct claim, Sheard must show that he was
“actually prejudiced” by the prosecutor’s comments, “a standard that he necessarily cannot
satisfy if a fairminded jurist could agree with the [Michigan Court of Appeals’] decision that this

3

In Chapman v. California, the Supreme held that some constitutional errors can, consistent with the Constitution,
be deemed harmless, but only where the court can conclude that “it was harmless beyond a reasonable doubt.” 386
U.S. 18, 22, 24 (1967).

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[conduct] met the Chapman standard of harmlessness.” Id. In concluding that the prosecutor’s
reference to Sheard’s marital infidelity was harmless, the state court noted that
[Sheard’s] daughter presented very compelling testimony about repeated sexual
abuse. Further, there was medical testimony that the injuries to her vagina were
consistent with having been repeatedly penetrated. Expert witnesses also opined
that the injuries were not consistent with a bicycle injury, as [Sheard] would have
the jury believe. Given the overwhelming weight of the testimony and physical
evidence, we conclude that the prosecutor’s misconduct—although quite serious
and completely unnecessary given the proofs—did not prejudice [Sheard]. And,
for that reason, it did not amount to plain error warranting a new trial.
Sheard, 2011 WL 4952329, at * 3. This conclusion is not entirely unreasonable.
Relying on Darden v. Wainwright, 477 U.S. 168, 181–82 (1986), Sheard argues that the
prosecutor’s statements amounted to a manipulation of the evidence against him and was not
invited by, or in response to, Sheard’s defense. Therefore, Sheard argues, the prosecutor’s
actions were “substantial and injurious” and cannot be considered harmless error. Sheard further
argues that the remaining evidence against him was not overwhelming and his trial hinged on the
jury’s perception of the credibility of him and the victim, N.S.
At trial, the jury heard testimony from the victim, N.S. She testified concerning the first
incident, stating that her father raped her in the bed by putting “his private in [her] private.” (R.
6-7, PageID # 226.) N.S. further testified that on this day, she started bleeding and that it was a
lot of blood that “started gushing out [of her] back area.” (Id. at PageID # 227.) According to
N.S., when she arrived at the hospital, she told the doctors that she had fallen off her bicycle by
accident because her dad told her to. When asked how many times her father put his penis inside
her vagina, N.S. testified that it was more than five times. N.S. further testified that her father
put his penis inside her butt, and that this happened fewer than five times. She also testified that
her father put his penis in her mouth more than one time but fewer than five times. According to

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N.S., when her father put his penis in her mouth, “white stuff” came out, and he would either
take his penis out of her mouth and it would go on the floor, or he would leave it in her mouth.
On cross examination, defense counsel elicited testimony concerning N.S.’s prior
recantations. In response, N.S. testified that she told her mother that she lied about her father
raping her because she was scared. Defense counsel also questioned N.S. about other perceived
inconsistencies in her testimony and asked her whether the only reason for telling her aunt Tonia
that her father had raped her was so that she could spend all her time with her aunt. Defense
counsel further inquired into a letter written by N.S. stating that none of this actually happened.
N.S. responded that she said that she was lying only because she did not want her father to go to
jail.
The jury also heard medical testimony concerning N.S. Dr. Lori Wylie testified to
examining N.S. when N.S. came into the emergency room with what she had reported as a
bicycle straddle injury. According to Dr. Wylie, while N.S. was experiencing vaginal bleeding,
there was no external bruising that would have been consistent with a traumatic injury.
Additionally, there was a tear that almost went through the hymen. Ultimately, Dr. Wylie
refused to form an opinion as to the cause of N.S.’s vaginal laceration; however, she noted that
bicycle injuries typically leave more bruising and swelling than was present in N.S.’s case. In
addition, the jury heard testimony from Dr. Michelle McLean, who testified to interviewing N.S.
on the night she was brought in following her disclosure. According to Dr. McLean, N.S. had
informed her that her privates hurt, and upon examination, Dr. McLean noted marked redness
and irritation in N.S.’s private area. Dr. Harry Fredrick also testified that there was a complete
transection of N.S.’s hymen that never healed. According to Dr. Fredrick, the fact that the
hymen was completely cut in two and had not healed since the initially-reported 2007 bicycle

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injury was a sign of potentially repeated penetration.

On cross examination, Dr. Fredrick

admitted that there could be an injury that would cause the hymen to completely cut in two, but
he testified that such injuries are rare and are not usually bicycle accidents.
Sheard testified in his own defense, stating that he never touched his daughter in a
manner that would be considered inappropriate. Sheard testified that on the day of the alleged
bicycle accident, he was watching both of his kids while they were riding their bikes. He
testified that he went inside briefly to grab a beer when he heard screaming. According to
Sheard, when he went outside he saw N.S. at the bottom of the stairs off the seat of her bicycle,
but with her legs clinched around its frame. Sheard testified that N.S. told him that she did not
stop in time when she was going up to the porch on her bicycle and slid off the chair and hit the
bicycle bar. Sheard stated that he then carried her into the house and laid her down on the bed
and went back outside. According to Sheard, he heard N.S. screaming again and went back in.
N.S. was complaining of pain, and when he pulled her pants down, he noticed a spot of blood. It
was at this time that Sheard took her to the hospital.
Based on this evidence, the jury convicted Sheard on all four counts. The weight of the
evidence against Sheard, even if not overwhelming, was certainly compelling.

Given the

pervasive nature of the prosecutor’s improper comments, we could easily conclude that these
comments had some effect on the jury’s verdict. That, however, is not the standard with which
we must decide the issue. Rather, the standard is whether the prosecutor’s comments had a
“substantial and injurious” effect on the jury’s verdict. Brecht, 507 U.S. at 638. This question is
much more difficult to answer, and is complicated by our restraints under AEDPA. “[E]ven if
reasonable minds reviewing the record might disagree about the” prejudicial effect of the
prosecutor’s comments, “on habeas review that does not suffice to supersede” the state court’s

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determination of harmlessness. Ayala, 135 S. Ct. at 2201 (internal citations and alterations
omitted).
Sheard relies heavily on our decision in Washington v. Hofbauer, where we granted
habeas relief based on the prosecutor making similar impermissible “bad character” commentary.
228 F.3d at 700. We note, however, that an important procedural difference between this case
and Washington precludes us from reaching a similar result. In Washington, the state court of
appeals refused to address the merits of the petitioner’s prosecutorial-misconduct claim, finding
that petitioner’s counsel had failed to object to the allegedly improper remarks. Id. at 697. That
is not the case here. The Michigan Court of Appeals reviewed Sheard’s claim on the merits, and
under AEDPA, we may not disturb that decision if “fairminded jurists could disagree” as to the
correctness of this decision. Harrington, 562 U.S. at 101. Considering the evidence presented to
the jury at trial, it was reasonable for the state court to conclude that the weight of the evidence
against Sheard rendered the prosecutor’s misconduct harmless. As a result, the district court
properly denied Sheard relief on this ground.
B.

Ineffective Assistance of Counsel

We turn next to Sheard’s claim that his trial counsel was ineffective for failing to object
to the prosecutor’s improper and continuous reference to his extramarital affair. A petitioner
alleging ineffective assistance of counsel must make two showings: (1) “that counsel made errors
so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment”; and (2) “that counsel’s errors were so serious as to deprive the defendant of
a fair trial, a trial whose result is reliable.” Strickland v. Washington, 466 U.S. 668, 687 (1984).
On habeas review, however, we must also consider the state court’s adjudication of the claim and
examine whether, under § 2254(d), the state court’s determination was unreasonable. Williams,

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529 U.S. at 412.

“The standards created by Strickland and § 2254(d) are both ‘highly

deferential,’ and when the two apply in tandem, review is ‘doubly’ so.” Harrington, 562 U.S. at
105 (internal citations omitted). At this stage, “[t]he pivotal question is whether the state court’s
application of the Strickland standard was unreasonable. This is different from asking whether
defense counsel’s performance fell below Strickland’s standard.” Id. at 101.
As with Sheard’s prosecutorial-misconduct claim, the state court of appeals concluded
that Sheard’s trial counsel rendered deficient performance. Particularly, the state court noted that
“to the extent that defendant’s trial counsel failed to object to [the prosecutor’s] misconduct, the
failure to object fell below an objective standard of reasonableness under prevailing norms.”
Sheard, 2011 WL 4952329, at *2. Respondent does not challenge this finding and, again, it
would be difficult to do so. Other than a brief interruption during the prosecutor’s opening
statement and a resulting bench conference, which counsel failed to place on the record, trial
counsel did not make any objection to the prosecutor’s improper statements. Trial counsel’s
silence with every mention of Sheard’s “character” as it related to his beginning an affair with
Sarah Hale, and worse, as it related to his ability to be truthful as a witness evidenced an
ignorance of the law more than it did any trial strategy. See Washington, 228 F.3d at 704 (noting
that counsel’s failure to object to improper character evidence arose from incompetence and
ignorance of the law where counsel failed to understand that evidence of the defendant’s
character was admissible for some uses and not others).
Under Strickland, however, “[a]n error by counsel, even if professionally unreasonable,
does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on
the judgment.” 466 U.S. at 691. The state court held that its finding of harmlessness stemming
from the prosecutorial misconduct precluded a finding that, but for Sheard’s counsel’s failure to

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object to the misconduct, there was a reasonable probability that the outcome would have been
different. Sheard, 2011 WL 4952329, at *3. We may not disturb this finding “so long as
‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Harrington,
562 U.S. at 101. The state court’s decision that the prosecutor’s misconduct did not have a
substantial and injurious effect on the outcome of Sheard’s trial was not unreasonable and is
detrimental to Sheard’s ability to show prejudice stemming from his trial counsel’s deficient
performance. As such, the state court’s finding that Sheard failed to show prejudice was not
unreasonable under Strickland, and the district court properly denied habeas relief on this claim.
III.
The state court’s adjudication of Sheard’s claim on the merits did not result in an
unreasonable application of clearly established law under AEDPA. We AFFIRM.

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MERRITT, Circuit Judge, dissenting. I agree with our Court’s opinion that there was
gross ineffective assistance of counsel here. The state courts and the district court below
recognized the failure of counsel to represent his client, a failure that seems to have led directly
to what turns out to be a life sentence. I disagree, however, that we should overlook the error. I
would issue the writ and let the state retry the defendant in a trial in which he has decent counsel
and the opportunity to receive a more humane sentence. Our criminal justice system should not
allow a man to be condemned to life imprisonment when he has been so egregiously deprived of
counsel.

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