Flick v. Warren

Filing 65

OPINION and ORDER Denying re 1 Petition for Writ of Habeas Corpus. IT IS FURTHER ORDERED that a Certificate of Appealability is Granted on the issues of ineffective assitance of trial and appellate counsel and Denied as to all other issues. Signed by District Judge Marianne O Battani. (BThe)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION
DAVID PAUL FLICK, Petitioner, v. MILLICENT WARREN, Respondent. / OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS Petitioner David Paul Flick has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that he is incarcerated in violation of his constitutional rights.1 Petitioner is currently incarcerated at the Thumb Correctional Facility, in Lapeer, Michigan, pursuant to a conviction for second-degree murder. For the reasons set forth below, the Court denies the petition. I. Facts Petitioner's conviction arises from the death of 8-month-old David McBain. Petitioner's conviction was the result of a second trial for this offense, the first ended in a hung jury. David McBain was the son of Petitioner's live-in girlfriend, Tina McBain. Petitioner and Tina began dating one another when Tina was 3-4 months pregnant. During David's short life, Petitioner provided much of the day-to-day care of David. At the time of his death, Petitioner worked during the day and cared for David at night, while Tina went to work. Petitioner filed his petition pro se. The Court subsequently appointed counsel to represent Petitioner.
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Case Number: 2:05-CV-73367 HON. MARIANNE O. BATTANI

According to the testimony adduced at trial, on May 8, 1998, Petitioner dropped Tina off at her job at approximately 4:00 p.m., and then took David home with him. At approximately 8:00 p.m., that evening, Petitioner banged on the door of a neighbor, William Jackson. Jackson testified that his son, Aaron, answered the door. Petitioner was holding David in his arms. David appeared limp and unresponsive. His breathing was irregular and labored. Jackson testified that Petitioner asked for help. Jackson told his son to call 911. While waiting for paramedics to arrive, Petitioner told Jackson that earlier in the day David had fallen off a waterbed and a dog may have jumped on David. Petitioner told Jackson that after David fell from the bed he appeared to be fine. A few hours later, after he had visited his mother and father's house, Petitioner fed David. After feeding David, David became limp. Petitioner did not mention anything to Jackson about David falling from his arms or hitting his head on a door. Brenda Sue Kenreich testified that she is a paramedic and she and her partner, Terry Germain, responded to the 911 call from Jackson's home. She treated David and attempted to provide him with some oxygen while asking Petitioner questions in an attempt to better assess David's injuries. Petitioner told her that a large dog had jumped on David's stomach. After she questioned him about a bump on the baby's head, he then informed her that David also fell from a waterbed. Kenreich testified that Petitioner never mentioned to her that he had dropped David or banged his head on a door. David was transported to Lakeland Hospital in St. Joseph, Michigan. Dr. Wayne Carlson testified that he was working as an emergency room physician at Lakeland Hospital on May 8, 1998, when David arrived by ambulance, at approximately 9:20 p.m. Dr. Carlson testified that David was in grave condition and had obviously suffered serious

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head injuries. In advance of David's arrival at the hospital, arrangements had been made to transport David by helicopter to Bronson Hospital in Kalamazoo, Michigan because of the severity of his injuries. Dr. Carlson talked to Petitioner in an attempt to discover the cause of David's injuries. Petitioner informed him that, at approximately 6:00 p.m., David had fallen off a waterbed. Petitioner stated that a dog had jumped off a couch and landed on David's abdomen. Dr. Carlson testified that neither a fall from a bed nor being jumped on by a dog was consistent with the severe trauma to the brain that David appeared to have experienced. Dr. Carlson suspected child abuse and completed a Protective Services Report. Police Officer Todd Hopke testified that, on May 8, 1998, he responded to a call to investigate suspicious injuries to a baby at Lakeland Hospital. He testified that he interviewed Petitioner at the hospital. Petitioner told him that at approximately 6:00 p.m., David fell off a waterbed, but appeared to be fine after the fall. Later in the day, a dog jumped on the baby's abdomen. Petitioner stated that, shortly after that, the baby's breathing became labored and Petitioner ran to a neighbor's house for assistance. Officer Hopke's interview was cut short because the helicopter arrived to transport David to Bronson Hospital. Officer Hopke later went to Petitioner's house and determined that the waterbed was approximately 18 inches high. Dr. Mark Tagett, a trauma surgeon, testified that he was working at Bronson Hospital when David arrived. Dr. Tagett observed that both sides of David's head were swollen, and both of his cheeks were swollen and red. Dr. Tagett did not believe David's injuries could be caused by a fall from an 18" high waterbed, a dog jumping on his abdomen, a fall from someone's arms, or running into a door. Dr. Robert Page testified that he is a pediatrician and was working at Bronson Hospital

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when David was brought to the emergency room. He ordered a CT scan of David's brain. The CT scan showed three skull fractures. Petitioner informed him that the baby had fallen from a waterbed that was approximately 18 inches high and had been jumped upon by a dog. Dr. Page believed that a fall from a waterbed could not have caused David's injuries. David was transferred to the pediatric ICU, where he stabilized for a short time. At approximately 2:15 a.m., David's blood pressure and heart rate elevated and his pupils were unequal and not reacting. Dr. Page contacted neurosurgeon Mark Meyer, who ordered another CT scan. The CT scan showed generalized swelling of the brain. Dr. Page observed retinal hemorrhages, which he testified were indicative of Shaken Baby Syndrome. He testified that these hemorrhages would not be caused by a fall from a bed or a person's arms. He also testified that David's skull fractures would not have been caused from a 40-inch fall. The neurologist, Dr. Meyer testified that David's injuries were the result of being shaken repeatedly and having his head impacted against a hard, flat surface with considerable force several times. He further testified that David's injuries would not be expected from a fall from an 18-inch high waterbed, running into a door, or from a five-foot fall onto the floor. Dr. Stephen Higgins, an ophthalmologist, testified that he observed severe bleeding in both David's retina and vitreous humor. He testified that the most common cause of such extensive hemorrhaging is Shaken Baby Syndrome. Dr. Higgins would not expect any retinal hemorrhaging in a baby who fell off a waterbed or who was held by someone who ran into a door. He would have expect to see only a small amount of retinal hemorrhaging in a baby who fell on his head from someone's arms. Dr. Daniel Fain, a pediatric neurologist, testified that he was consulted on David's case

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on the morning of May 9, 1998, to determine if David was brain dead and should be removed from life support. Dr. Fain observed bumps with swelling of the scalp on both sides of David's head. He also observed bruises on David's face, abdomen, and legs. Dr. Fain observed extensive retinal hemorrhage. He determined that David was brain dead. Dr. Fain testified that David died from severe trauma caused by prolonged, severe shaking, which caused severe shearing. He testified that the cause of death was not herniation, which occurs when pressure builds up inside the brain and causes compression of the brain stem.2 Dr. Waledman A. Palutke, a forensic pathologist, testified that he performed an autopsy on David McBain on May 11, 1998. Dr. Palutke testified that he saw several bruises of David's right knee, several bruises above the left knee, an abrasion on the right lower front chest wall, several more bruises at the base of the jaw on both sides, a large bruise on the left forehead, several bruises on the right side of David's face, a cluster of bruises on the right side of David's forehead, and large bruises above and under David's right eye. David's skull was extensively bruised and there were severe, blunt force injuries on both sides of David's head. Dr. Palutke testified that the cause of death was blunt force injuries of the head and brain. He testified that the injuries were not consistent with a fall from an 18" high waterbed. The head injuries also would not have been caused by a dog jumping onto the baby's abdomen. He testified that the extent of the baby's injuries would not have been caused by the baby falling out of someone's arms or his head being struck on a door. Tina McBain, David's mother, testified that on the evening of May 8, while at Bronson

Dr. Fain also testified at Petitioner's first trial. At the first trial, Dr. Fain did not testify that shearing caused David's death. Inconsistencies between Dr. Fain's testimony in the first and second trials form the basis for several of Petitioner's claims for habeas relief. 5

2

Hospital, Petitioner told her that David had fallen off the waterbed, been jumped upon by the dog, and that he accidentally struck David's head on a door as he rushed to reach the next-doorneighbor's house. On September 10, 1998, Petitioner told her that David had actually fallen from his arms on May 8, and that he had not told her sooner because he was scared. She testified that she did not believe Petitioner caused David's death. Marilyn McDonald testified for the defense. She testified that she is a professional counselor and Tina McBain asked her to see Petitioner after he was arrested. Initially, he told her that David had fallen off a waterbed, but she sensed Petitioner was not entirely forthcoming. Eventually, in late June or early July 1998, Petitioner told her that he had dropped David from his arms when he was reaching into a crib to get a rattle. Petitioner testified in his own defense. He testified that, while holding David and reaching into David's crib to retrieve a rattle, David fell from his arms, hit his head on the ground and stopped breathing. Petitioner attempted CPR and David resumed breathing. David vomited and then stopped breathing again. Petitioner ran next door to get help. As he was running next door, he thought that he should not tell anyone that he had dropped the baby. He was scared to tell the police and McBain that he had dropped David, so he did not tell them. He testified that the fall was accidental and he had no reason to want to hurt David. II. Procedural History Following a jury trial in Berrien County Circuit Court, Petitioner was convicted of second-degree murder. On April 12, 1999, he was sentenced as a fourth habitual offender to 30 to 75 years imprisonment. Petitioner filed an appeal of right in the Michigan Court of Appeals, presenting the

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following claims: I. Mr. Flick was denied effective assistance of counsel, where, after Dr. Daniel Fain changes his opinion s to cause of death between the first and second trials, defense counsel failed to impeach Fain with prior inconsistent testimony from the first trial which would have rebutted Fain's explanation for his change in opinion. Mr. Flick was denied his due process right to a properly instructed jury and/or the effective assistance of counsel, where the trial court failed to give the jury any instruction on the defense theory of accident, when it was the central theory of defense and there was evidence presented to support that defense. Mr. Flick was denied his due process right to a fair trial, where the prosecutor improperly used facts not in evidence to appeal to the emotions and sympathy of the jury, and to ask them to be the only ones to "stand up" for the victim. Mr. Flick was denied effective assistance of counsel, where counsel failed to request an instruction on the "intent to injure" form of involuntary manslaughter as a lesser offense. Mr. Flick's conviction for second-degree murder violated the protection against double jeopardy under state and/or federal constitutions, because there was no manifest necessity for a mistrial where the judge failed to poll the jury as to whether it had unanimously agreed on a partial verdict, on whether defendant was not guilty of second-degree murder before discharging them.

II.

III.

IV.

V.

Petitioner raised the following claims in a supplemental brief filed in pro per: I. The trial court created a reversible error by abusing its discretion when sentencing defendant. The trial court's decision lacks the principles of proportionality and violated the Eighth Amendment of the Constitution, cruel and unusual punishment. Appellant was denied his Sixth Amendment right to effective assistance of counsel, where counsel failed to investigate the medications given, where, if properly investigated, would have shown grossly erroneous medical treatment, which ultimately could have rendered a different verdict. A. Defense counsel's failure to investigate expert's opinion, which possibly could have provided exculpatory evidence, constituted ineffective assistance of counsel.

II.

III.

Trial counsel's failure to move for a mistrial over Fain's prejudicial and contradicting testimony, constituted ineffective assistance of counsel and denied 7

defendant a fair trial. A. There was insufficient evidence for the jury to find intent as required for the crime of second-degree murder.

The Michigan Court of Appeals affirmed Petitioner's convictions. People v. Flick, No. 219434 (Mich. Ct. App. Aug. 17, 2001). Petitioner filed an application for leave to appeal in the Michigan Supreme Court presenting the same claims raised before the Michigan Court of Appeals. The Michigan Supreme Court denied leave to appeal. People v. Flick, 464 Mich. 964 (Mich. 2002). Petitioner then filed a motion for relief from judgment in the trial court, raising the following claims: I. Defendant was denied his state and federal constitutional right to the effective assistance of appellate counsel, where counsel fell ill, during which time defendant was not represented by counsel for ten months, thereby prejudicing him to the extent that all meritorious issues were not raised. Appellate counsel's failure to request that an evidentiary (Ginther) hearing be held on trial counsel's ineffective representation, denied defendant his Sixth Amendment right to the effective assistance of appellate counsel, and his due process right to a full and fair determination of th issues raised on appeal. The absence of appellate counsel constructively denied defendant his Sixth Amendment right to the effective assistance of counsel on appeal. The defendant was denied his Fifth, Sixth, and Fourteenth Amendment rights, where the trial court refused to instruct on accident, when it was the central issue in the trial, resulting in trial by judge, rather than trial by jury. Where the Michigan Court of Appeals ruled in this case, on direct appeal, that second-degree murder was a specific intent crime, the court of appeals erroneously reviewed defendant's appeal under the wrong element of seconddegree murder, thereby prejudicing the defendant's right to direct review and denying him his due process right to a full and fair hearing, or, in the alternative, rendered his conviction unconstitutional. The defendant was denied his due process right to a fair trial, where the 8

II.

III. IV.

V.

VI.

prosecutor withheld material evidence, which related to testimony from its key witness, on a new and different cause of death between trial one and two, thereby prejudicing the defense to adequate preparation. VII. Defendant was denied his Sixth Amendment right to effective assistance of counsel where counsel misinformed defendant of the applicable law regarding the assistance of expert testimony for his defense. Defendant was denied his Sixth Amendment right to the effective assistance of counsel, and hi due process right to present a defense where defense counsel failed to request a continuance, and obtain expert testimony when the prosecution's key witness changed his testimony between the first and second trials on the cause of David's death.

VIII.

Petitioner also moved the trial court to grant an evidentiary hearing to expand the record on the claims raised on direct appeal, in the motion for relief from judgment, and on a claim of newly discovered evidence from a doctor who questioned the official cause of the baby's death. On March 24, 2003 the trial court denied relief. Petitioner sought leave to appeal the denial of his motion for relief from judgment in the Michigan Court of Appeals and Michigan Supreme Court Both state appellate courts denied leave to appeal. People v Flick, No. 254194, (Mich. Ct. App. August 20, 2004); People v Flick, No. 127221, 472 Mich 914 (Mich. 2005) Petitioner then filed the pending petition for a writ of habeas corpus, raising the following grounds for relief: I. Mr. Flick was denied effective assistance of counsel where, after Dr. Daniel Fain changed his opinion as to the cause of death between the first and second trials, defense counsel failed to impeach Fain with prior inconsistent testimony from the first trial which would have rebutted Fain's explanation for his change in opinion. A. Petitioner was denied his sixth amendment right to effective assistance of counsel where defense counsel failed to move for a mistrial over Fain's prejudicial and contradicting testimony. Petitioner was denied his sixth amendment right to effective assistance of 9

B.

counsel where counsel failed to investigate expert's opinion, which possibly could have provided exculpatory evidence. II. Mr. Flick was denied his due process right to a properly instructed jury and/or the effective assistance of counsel, where the trial court failed to give the jury any instruction on the defense and there was evidence presented to support that defense. A. B. III. Petitioner was denied a fair trial by the trial court's refusal to give a requested instruction on the defense of accident. The failure to give any instruction on the defense of accident was plain error or the result of ineffective assistance of counsel.

Mr. Flick was denied his due process right to a fair trial, where the prosecutor improperly used facts not in evidence to appeal to the emotions and sympathy of the jury, and to ask them to be the only ones to "stand up" for the victim. Mr. Flick was denied effective assistance of counsel, where counsel failed to request an instruction on the "intent to injure" form of involuntary manslaughter as a lesser offense. Mr. Flick's conviction for second-degree murder violated the protection against double jeopardy under state and/or federal constitutions, because there was no manifest necessity for a mistrial where the judge failed to poll the jury as to whether it had unanimously agreed on a partial verdict, on whether petitioner was not guilty of second-degree murder, before discharging them. The writ must be granted where the evidence of intent to murder was constitutionally insufficient to support the conviction in this case, thus denying petitioner due process right under the federal constitution (us cons amends v, vi, xiv) to a jury determination of guilt beyond a reasonable doubt based on sufficient evidence. The state courts denied petitioner his due process right to a full and fair hearing where they refused to review petitioner's newly discovered evidence, which offers a "colorable showing" of "actual" and "factual" innocence thereby resulting in a manifest miscarriage of justice. Where appellate counsel was absent for 10 months during a critical stage of petitioner's appeal of right, petitioner was constructively denied the assistance of counsel on appeal. Appellate counsel violated petitioner's rights as guaranteed by the U.S. Const., 10

IV.

V.

VI.

VII.

VIII.

IX.

Am VI; Mich Const 1963, art 1 § 20, where counsel failed to raise several "dead bang winners" on appeal. X. Appellate counsel's failure to request an evidentiary hearing on inter alia, petitioner's claims of trial counsel's ineffective representation where the record was inadequate for any court to ascertain whether these errors were prejudicial, denied petitioner a full and fair hearing on his appeal of right and denied him the effective assistance of counsel on appeal. Petitioner was denied his state and federal constitutional right to the effective assistance of counsel and his due process right to present a defense where defense counsel failed to request a continuance to obtain expert testimony when the prosecution's key witness changed his testimony between the first and second trials on the cause of death. Petitioner received ineffective assistance of defense counsel where counsel erroneously informed petitioner that even though petitioner was indigent, he was not entitled to an expert witness at public expense, and that petitioner would have to retain such assistance because his parents, who are financially independent from him, obtained and paid an attorney. Petitioner was denied his due process right where the prosecutor withheld material evidence, which related to its key witness changing the cause of death between the first and second trials, thereby prejudicing the defense to adequate preparation due to unfair surprise.

XI.

XII.

XIII.

XIV. Michigan's post-conviction procedure, to wit, M.C.R. 6.500 et seq, is an inadequate procedure and is contrary to the us constitution violates the supremacy clause, and has resulted in equal protection being denied to petitioner. Petitioner also filed a motion for evidentiary hearing. The Court granted an evidentiary hearing and appointed counsel to represent Petitioner. The Court held an evidentiary hearing on November 21, 2008. A single witness testified at the hearing, Dr. Ronald Uscinski. Dr. Uscinski testified that he reviewed medical records regarding David's treatment and death, including the Emergency Medical Services report, hospital reports, autopsy reports and photographs, and several CT scans. Based upon his review of these records, Dr. Uscinski concluded that David died as a result of a fall, which resulted in blunt head injury and respiratory

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arrest. Further details of Dr. Uscinski's testimony will be discussed below. Following the evidentiary hearing, the Court concluded further testimony was necessary regarding Petitioner's ineffective assistance of trial and appellate counsel claims. The Court scheduled an evidentiary hearing for January 6, 2009, and directed Petitioner to present the testimony of his trial and appellate attorneys. The hearing did not take place because Petitioner was unable to secure the presence of these witnesses, at least one of whom was beyond the Court's subpoena power. Petitioner's counsel informed the Court that he would attempt to depose both witnesses. Petitioner's counsel scheduled a deposition of trial attorney Robert McDowell for February 27, 2009 and appellate counsel Ronald Steinberg on June 11, 2009. The parties have filed supplemental briefs addressing the testimony adduced at the evidentiary hearing and the depositions of McDowell and Steinberg. Petitioner has filed copies of the deposition transcripts. III. Standard of Review Section 2254(d) of Title 28 U.S.C., imposes the following standard of review for habeas cases: An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the 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 resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.

(2)

28 U.S.C. § 2254(d). Additionally, this Court must presume the correctness of state court factual 12

determinations. 28 U.S.C. § 2254(e)(1). A decision of a state court is "contrary to" clearly established federal law if the state court arrives at a conclusion opposite to that reached 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, 405-06 (2000). An "unreasonable application occurs" when "a state-court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case." Id. at 409. 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. Rather, that application must also be unreasonable." Id. at 410-11. Where a claim is fairly presented in state court, but the state court, although denying the claim, fails to address it, a federal court on habeas review must conduct an independent review of the state court's decision. Harris v. Stovall, 212 F.3d 940 (6th Cir. 2000). This independent review requires the federal court to "review the record and applicable law to determine whether the state court decision is contrary to federal law, unreasonably applies clearly established law, or is based on an unreasonable determination of the facts in light of the evidence presented." Id. at 943. However, the independent review "is not a full, de novo review of the claims, but remains deferential because the court cannot grant relief unless the state court's result is not in keeping with the strictures of the AEDPA." Id. IV. Discussion A. Ineffective Assistance of Counsel Petitioner asserts several claims of ineffective assistance of counsel. First, Petitioner

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argues that his attorney's handling of prosecution witness Dr. Daniel Fain's testimony was so seriously flawed as to constitute ineffective assistance of counsel. He argues that counsel erred in failing to request a mistrial when Dr. Fain's testimony changed, failing to impeach Dr. Fain with his prior inconsistent testimony and failing to request a continuance to retain an expert witness when Dr. Fain's testimony changed. Second, Petitioner argues that trial and appellate counsel were ineffective in failing to retain an expert to highlight the lack of scientific support for the methods of evaluating and diagnosing Shaken Baby Syndrome. Third, Petitioner argues that his attorney was ineffective in failing to investigate Dr. Palutke's testimony, which may have supported Petitioner's claim that David's injuries were sustained when David fell from Petitioner's arms rather than from violent shaking. Fourth, Petitioner argues that counsel was ineffective in failing to request an instruction on the intent to injure form of involuntary manslaughter. Fifth, Petitioner claims that counsel was ineffective in failing to request the correct accident instruction. Finally, Petitioner claims counsel was ineffective because he incorrectly informed Petitioner that he was not entitled to an expert witness at public expense. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court established a twopronged test for determining whether a habeas petitioner has received ineffective assistance of counsel. First, a petitioner must prove that counsel's performance was deficient. This "requires a showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed by the Sixth Amendment." Id. at 687. Second, a petitioner must show that counsel's deficient performance prejudiced petitioner. To satisfy the prejudice prong, a petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability

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sufficient to undermine confidence in the outcome." Id. at 694. A court's review of counsel's performance must be "highly deferential." Id. at 689 1. Dr. Fain's Testimony Dr. Fain is a pediatric neurologist working at Benson Methodist Hospital in Kalamazoo, Michigan. He testified that he was contacted to consult on David's case on May 9, 1998. He was called in to determine whether David was brain dead. After conducting a number of neurological tests, Dr. Fain determined that David was brain dead. During the first trial, Dr. Fain testified brain swelling produced herniation3 which led to David's death. David suffered from a biparietal skull fracture and an occipital skull fracture. He testified that David's injuries could not have been caused from an accidental fall from a bed or an accidental fall from someone's arms. Dr. Fain also testified that some of David's injuries were consistent with Shaken Baby Syndrome. In the second trial, Dr. Fain testified that David died as a result of brain shearing, caused by someone shaking him. In contrast to his testimony during the first trial, he now testified that brain herniation due to edema did not cause the death and that he saw no evidence of herniation. In his opinion, nothing medically could have been done after the shearing occurred to save David because the brain tissue was, at that point, damaged beyond repair.4 Dr. Fain admitted that his

Herniation is defined as: "[P]rotrusion of an anatomic structure (e.g. intervertebral disk) from its normal anatomic position." Stedman's Medical Dictionary 27th ed. 179890 (2000). Petitioner attributes the change in Dr. Fain's testimony to a medical malpractice lawsuit initiated by David's mother, Tina McBain, after the first trial, but prior to the second. Based upon the information gleaned from the record before the Court, it appears that the medical malpractice lawsuit is based at least in part on the claim that David's death was caused by doctors' failure to swiftly administer medicine to control edema of David's brain. Thus, 15
4

3

testimony as to the cause of death was different at the second trial than at the first. He attributed this difference to his opportunity to personally examine both CT scans before the second trial (he had only examined the second CT scan prior to the first trial) and that for the first trial he had relied upon another physician's finding regarding herniation in reaching his conclusion that herniation had caused David's death. Prior to the second trial, he researched the support for herniation and found that it was not supported by the medical evidence. First, Petitioner argues that his attorney should have impeached Dr. Fain by playing Dr. Fain's videotaped testimony from the first trial. The Michigan Court of Appeals considered this ineffective assistance of counsel claim against the standard established in Strickland. The state court held that Petitioner failed to show that the videotape portion of Dr. Fain's testimony was such a crucial piece of evidence that had counsel shown the videotape there was a reasonable probability of a different outcome. The court of appeals held that the videotape would have provided an additional basis for impeaching Dr. Fain's testimony, but that Dr. Fain's testimony already had been sufficiently impeached by counsel's cross-examination and other witnesses' testimony. Flick, slip op. at 2. Thus, the state court concluded counsel was not ineffective in failing to show the videotape or failing to request a mistrial. Id. Although Dr. Fain's testimony as to the cause of death differed from the first trial to the second, he testified in both trials that the cause of David's injuries could not have been a fall from a bed or a fall from someone's arms. In addition, Dr. Fain, while not specifically

according to Petitioner, it was in the treating physicians' professional interest that Dr. Fain testify shearing caused David's death because, once the shearing occurred, David's death would have be inevitable and any actions or inactions by treating physicians would not have contributed to his death. 16

attributing David's death to Shaken Baby Syndrome in the first trial, testified in that trial that David's injuries were consistent with Shaken Baby Syndrome. Defense counsel cross-examined Dr. Fain regarding inconsistencies between his testimony at the first and second trial. Thus, this Court concludes that the Michigan Court of Appeals decision that counsel was not ineffective in this regard was not contrary to or an unreasonable application of Strickland. Second, Petitioner argues that counsel was ineffective in failing to request a mistrial when Dr. Fain changed his testimony. The Michigan Court of Appeals held that counsel did not err in declining to move for a mistrial. The trial court held, in pertinent part: Generally, a defendant is not entitled to a new trial where the testimony of a witness is corroborated by other testimony or where impeachment evidence not produced at trial merely furnishes an additional basis on which to impeach a witness whose credibility has already been shown to be questionable. People v. Lester, 232 Mich. App. 262, 283; 591 N.W.2d 267 (1998). Here, Dr. Fain's testimony that the victim's condition was irreversibly fatal from the outset corroborated that of Dr. Meyers and Dr. Page. Moreover, his testimony that retinal hemorrhaging was present, which is an indicator or Shaken Baby Syndrome, was consistent with his testimony at the first trial. . . . Accordingly, defendant has not shown that counsel's failure to move for a mistrial on the basis of Dr. Fain's changed opinion constitutes ineffective assistance of counsel. Flick, slip op. at 2-3. Petitioner has not shown that the state court's conclusion that he was not entitled to a new trial on the basis of Dr. Fain's change in testimony was incorrect. Therefore, he cannot show that his attorney was ineffective in failing to make a meritless request for a mistrial. Next, Petitioner alleges that counsel was also ineffective in failing to request a continuance or to retain an investigator following the change in Dr. Fain's expert opinion. Respondent argues that this claim is procedurally defaulted. The doctrine of procedural default provides: 17

In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991). Such a default may occur if the state prisoner files an untimely appeal, Coleman, 501 U.S. at 752, if he fails to present an issue to a state appellate court at his only opportunity to do so, Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994), or if he fails to comply with a state procedural rule that required him to have done something at trial to preserve his claimed error for appellate review, e.g., to make a contemporaneous objection, or file a motion for a directed verdict. United States v. Frady, 456 U.S. 152, 167-69 (1982); Simpson v. Sparkman, 94 F.3d 199, 202 (6th Cir. 1996). Application of the cause and prejudice test may be excused if a petitioner "presents an extraordinary case whereby a constitutional violation resulted in the conviction of one who is actually innocent." Rust, 17 F.3d at 162; see Murray v. Carrier, 477 U.S. 478, 496 (1986); Dretke v. Haley, 541 U.S. 386, 393 (2004). For the doctrine of procedural default to apply, a firmly established state procedural rule applicable to the petitioner's claim must exist, and the petitioner must have failed to comply with that state procedural rule. Williams v. Coyle, 260 F.3d 684, 693 (6th Cir. 2001), cert. denied, 536 U.S. 947 (2002); see also Warner v. United States, 975 F.2d 1207, 1213-14 (6th Cir. 1992). Additionally, the last state court from which the petitioner sought review must have invoked the state procedural rule as a basis for its decision to reject review of the petitioner's federal claim. Coleman, 501 U.S. at 729-30. "When a state court judgment appears to have rested primarily on federal law or was interwoven with federal law, a state procedural rule is an independent and adequate state ground[] only if the state court rendering judgment in the case clearly and 18

expressly stated that its judgment rested on a procedural bar." Simpson, 94 F.3d at 202. Whether the independent state ground is adequate to support the judgment is itself a federal question. Lee v. Kemna, 534 U.S. 362, 375 (2002). If the last state court from which the petitioner sought review affirmed the conviction both on the merits and, alternatively, on a procedural ground, the procedural default bar is invoked and the petitioner must establish cause and prejudice in order for the federal court to review the petition. Rust, 17 F.3d at 161. If the last state court judgment contains no reasoning, but simply affirms the conviction in a standard order, the federal habeas court must look to the last reasoned state court judgment rejecting the federal claim and apply a presumption that later unexplained orders upholding the judgment or rejecting the same claim rested upon the same ground. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). "Whether a state court has actually enforced a procedural sanction depends on whether `the last state court from which the petitioner sought review . . . invoked the stated procedural rule as a basis for its decision to reject reviewing the petitioner's federal claims.'" Ivory v. Jackson, 509 F.3d 284, 291 (6th Cir. 2007), quoting Abela v. Martin, 380 F.3d 915, 921 (6th Cir. 2004). Petitioner first properly raised this ineffective assistance of counsel claim during state collateral proceedings. The Michigan Court of Appeals and the Michigan Supreme Court denied leave to appeal on the ground that Petitioner failed "to meet the burden of establishing entitlement to relief under [Michigan Court Rule] 6.508(D)." People v. Flick, No. 254194 (Mich. Ct. App. Aug. 20, 2004); People v. Flick, No. 127221 (Mich. May 31, 2005). In Simpson v. Jones, 238 F.3d 399, 407-08 (6th Cir. 2000), and in Burroughs v. Makowski, 282 F.3d 410, 413-14 (6th Cir. 2002), the Sixth Circuit held that this language invokes a state procedural rule, which is sufficient to preclude federal habeas review. 19

In contrast, in Abela v. Martin, 380 F.3d 915 (6th Cir. 2004), the Court of Appeals held that denials of leave to appeal by both Michigan appellate courts that were identical to those at issue in Simpson and Borroughs, did not invoke a state procedural rule sufficient to preclude federal habeas review. These seemingly inconsistent decisions can be resolved by considering the differences in the respective trial court decisions. In Simpson and Burroughs, the trial court did not address the merits of the petitioner's claims. In contrast, in Abela, the lower state court ruled on the merits of the petitioner's claims, but the Michigan Supreme Court denied leave to appeal for failure to establish entitlement to relief under Rule 6.508(D). The Sixth Circuit concluded that, under the circumstances, Simpson and Burroughs were inapplicable and the petitioner's claims were not procedurally defaulted. See Abela 380 F.3d at 922-24. In Ivory v. Jackson, 509 F.3d 284, 292-93 (6th Cir. 2007), cert. denied, __ U.S. __, 128 S. Ct. 1897 (2008), the Sixth Circuit resolved the differences between the Simpson and Burroughs cases and Abela by concluding that Ivory's case was more like Simpson and Burroughs than Abela because no state court addressed the merits of Ivory's claims during post-conviction proceedings. The pending case presents a procedural history similar to that of Ivory, Simpson, and Borroughs. The trial court specifically invoked Michigan Court Rule 6.508(D)(3) in denying Petitioner's motion for relief from judgment. Mich. Ct. R. 6.508(D)(3) is a firmly established and regularly followed state ground precluding subsequent federal habeas review absent a showing of cause and prejudice. Luberda v. Trippett, 211 F.3d 1004, 1007 (6th Cir. 2000), citing Rogers v. Howes, 144 F.3d 990 (6th Cir. 1998). Thus, the Court finds that the doctrine of procedural default is invoked. Petitioner alleges ineffective assistance of appellate counsel as cause to excuse his procedural default. In the alternative, he argues that his actual innocence should excuse the 20

procedural default. The Court first considers whether Petitioner's claims of ineffective assistance of appellate counsel excuse his default for this claim. The Supreme Court has held that "cause" under the cause and prejudice standard must be "something external to the petitioner, something that cannot be fairly attributed to him." Coleman, 501 U.S. at 753. The Court further held that "[a]ttorney ignorance or inadvertence is not `cause' because the attorney is the petitioner's agent when acting, or failing to act, in furtherance of the litigation, and the petitioner must `bear the risk of attorney error' . . . . Attorney error that constitutes ineffective assistance of counsel is cause, however." Id. at 753-54 (internal citations omitted). The Supreme Court has held that a petitioner does not have a constitutional right to have appellate counsel raise every non-frivolous issue on appeal. Jones v. Barnes, 463 U.S. 745, 754 (1983). "[A]ppellate counsel who files a merits brief need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal." Smith v. Robbins, 528 U.S. 259, 288 (2000). Strategic and tactical choices regarding which issues to pursue on appeal are "properly left to the sound professional judgment of counsel." United States v. Perry, 908 F.2d 56, 59 (6th Cir. 1990). The prejudice standard in the context of an alleged failure to raise issues on appeal requires a showing that there is "a reasonable probability, but for counsel's unreasonable failure . . . he would have prevailed on his appeal." Smith, 528 U.S. at 285. The process of "`winnowing out weaker arguments on appeal' " is "the hallmark of effective appellate advocacy." Smith v. Murray, 477 U.S. 527, 536 (1986) (quoting Barnes, 463 U.S. at 751-52). "`[O]nly when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of [appellate] counsel be overcome.'" Monzo v. Edwards, 281 F.3d 568, 579 (6th Cir.2002) (quoting Gray v. 21

Greer, 800 F.2d 644, 646 (7th Cir.1986)). "An appellate advocate may deliver deficient performance and prejudice a defendant by omitting a `dead-bang winner,' even though counsel may have presented strong but unsuccessful claims on appeal." U.S. v. Cook, 45 F.3d 388, 395 (10th Cir. 1995) (quoting Page v. U.S., 884 F.2d 300, 302 (7th Cir. 1989)). See also Coddington v. Langley, 202 F. Supp. 2d 687, 698 (E.D. Mich. 2002) ("A `dead-bang winner' has been defined as `an issue which was obvious from the trial record.'") (quoting Cook, 45 F.3d at 395). Petitioner's appellate attorney was deposed on June 11, 2009, in connection with Petitioner's habeas petition. He testified that, in preparing Petitioner's appeal, he focused on examining the differences between the first trial, which resulted in a hung jury (two jurors would have voted for acquittal and ten jurors would have voted for involuntary manslaughter), and the second trial. Appellate counsel focused on the fact that Dr. Fain's testimony changed from the first trial to the second. Appellate counsel explained that he raised a claim that trial counsel was ineffective in failing to obtain a transcript of the first trial or replay the video testimony which was available at the time. Appellate counsel was not asked during the deposition whether he considered raising a claim on appeal that counsel was ineffective in failing to request a continuance to retain an expert regarding Dr. Fain's changed testimony. Correspondence between Petitioner and appellate counsel both before and after the appellate brief was filed shows that appellate counsel's decision as to which issues to raise on direct appeal was the result of careful and informed consideration. Appellate counsel's deposition testimony shows that he carefully reviewed the record and recognized the importance of Dr. Fain's testimony. Petitioner was given an opportunity to develop a factual record in this Court regarding his ineffective assistance of counsel claims. He failed to develop a factual record which would rebut the presumption that his attorney's decision not to raise this claim was 22

a reasoned, strategic one. Poindexter v. Mitchell, 454 F.3d 564, 585 (6th Cir. 2006) (holding that appellate counsel was not ineffective in failing to raise a claim on appeal where petitioner failed to present any facts that would "lend particular importance" to the unraised claim). Importantly, while Dr. Fain's testimony changed from the first to the second trials, a critical aspect of his testimony was consistent from the first trial to the second. In the first trial, Dr. Fain testified that David's injuries were consistent with Shaken Baby Syndrome and inconsistent with a fall from an 18-inch bed or a fall from someone's arms. In the second trial, Dr. Fain also testified that David's injuries were consistent with Shaken Baby Syndrome and inconsistent with the other accidents Petitioner recounted. Thus, trial counsel's failure to request a continuance to obtain an expert when critical testimony of Dr. Fain's remained consistent, is not an issue that appellate counsel was ineffective in failing to raise. Accordingly, this claim is barred from federal habeas review unless failure to unless he can establish that a constitutional error resulted in a fundamental miscarriage of justice. Schlup v. Delo, 513 U.S. 298 (1995). The Supreme Court explicitly has tied the miscarriage of justice exception to procedural default to a petitioner's innocence. Id.. at 321. Thus, Petitioner must assert a constitutional error along with a claim of innocence. To make a showing of actual innocence, "a petitioner must show that it is more likely than not that no reasonable juror would have found the petitioner guilty beyond a reasonable doubt." Id. at 327. The Court further explained this standard as follows: The . . . standard is intended to focus the inquiry on actual innocence. In assessing the adequacy of petitioner's showing, therefore, the district court is not bound by the rules of admissibility that would govern at trial. Instead, the emphasis on "actual innocence" allows the reviewing tribunal to consider the probative force of relevant evidence that was either excluded or unavailable at 23

trial. . . . The habeas court must make its determination concerning the petitioner's innocence in light of all the evidence, including . . . evidence tenably claimed to have been wrongly excluded or to have become available only after trial. .... . . . [A]ctual innocence does not merely require a showing that a reasonable doubt exists in the light of the new evidence, but rather that no reasonable juror would have found the defendant guilty. It is not the district court's independent judgment as to whether reasonable doubt exists that the standard addresses; rather the standard requires the district court to make a probabilistic determination about what reasonable, properly instructed jurors would do. Thus, a petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt. Id. (internal quotation omitted). In support of his claim of innocence, Petitioner presents the affidavit and evidentiary hearing testimony of Dr. Uscinski. Dr. Uscinski testified that the diagnosis of Shaken Baby Syndrome is based upon the misinterpretation of experimental work performed over thirty years ago. He testified that it is impossible to shake a baby hard enough to give it a head injury. It is possible to injure a child by shaking it, but the injuries would be in the nature of a crushed chest or a neck injury. Dr. Uscinski testified that David likely died as a result of a fall, from which he suffered a blunt head injury. David's CT scan revealed that David suffered a skull fracture that extended from one side of his head to the other. The skull fracture was caused by a single impact to the head. In his opinion, the impact could have been caused by a fall of forty inches. Dr. Uscinski's educational and professional experience is impressive. The Court found his testimony relevant and his conclusions the result of a careful review of David McBain's medical record. There remains, however, considerable evidence implicating Petitioner. Petitioner's account of what transpired on the day of David's injury changed over time. Seven 24

physicians who treated David following this traumatic injury, themselves with impressive educational and professional experience, testified that David's injuries could not have been caused by any of the incidents described by Petitioner. Dr. Uscinski's exculpatory testimony is simply insufficient in the face of this overwhelming testimony to persuade the Court that, in light of this new evidence, no juror, acting reasonably, would have voted to find Petitioner guilty beyond a reasonable doubt. Therefore, the Court concludes that this claim is procedurally defaulted. 2. Failing to Retain an Expert to Attack the Science Underlying Shaken Baby Syndrome

Petitioner argues that trial counsel was ineffective in failing to seek an expert who would testify regarding the controversy surrounding Shaken Baby Syndrome and that some in the scientific community were questioning doctors' basic understanding of the syndrome and the methods for diagnosing it, and that appellate counsel was ineffective in failing to raise this issue on appeal. In support of his argument that the controversy was widespread and should have been known by counsel at the time of Petitioner's trial, Petitioner cites Dr. Uscinski's testimony and research, the high-profile murder trial of nanny Louise Woodward for the death of Matthew Eappen, an article appearing in Discover Magazine in December 2008 entitled "Does Shaken Baby Syndrome Really Exist?", and an article regarding Shaken Baby Syndrome published in 1999 in The American Journal of Forensic Medicine and Pathology. During his deposition testimony, Petitioner's trial attorney was not asked specifically whether he attempted to locate an expert witness who could testify regarding the controversy surrounding Shaken Baby Syndrome. The trial attorney testified that he contacted three experts to evaluate Petitioner's case. He contacted Dr. Laurence Simson by letter dated, July 7, 1998, 25

Dr. Warner Spitz by letter dated, September 15, 1998, and Dr. Chris Sperry, a forensic pathologist in Georgia. Trial counsel testified that Dr. Sperry reviewed the case file and characterized the matter as a "case of flagrant child abuse." McDowell Deposition,2/27/09 at 102. Counsel testified that, after consulting these experts, he made a strategic decision not to call an expert on behalf of the defense. With regard to a claim that counsel was ineffective for failing to conduct an adequate investigation: [D]ecisions made by trial counsel after "less than complete investigation," . . . "are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Brown v. Smith, 551 F.3d 424, 430 (6th Cir. 2008), quoting Strickland, at 690-91. In this case, the Court finds that counsel's decision against continued investigation was a reasonable one. Counsel's letters to Drs. Spitz and Simson evidenced an understanding of the issues presented in the case. He attempted to obtain an expert who would support the defense's case. He discontinued his investigation only after three witnesses failed to provide him with any analysis favorable to the defense. The Court also concludes that counsel was not ineffective in failing to reinitiate his search for an expert after the first trial. No testimony adduced at the first trial would necessarily have led defense counsel to conclude that his search for an expert would suddenly prove fruitful. In addition, the Court finds that neither trial nor appellate counsel was ineffective in failing to specifically seek to obtain an expert able to testify regarding any controversy surrounding a Shaken Baby Syndrome Diagnosis. It appears that, between the time of 26

Petitioner's trials and today, the science underlying Shaken Baby Syndrome has been the subject of some controversy. However, Petitioner has not shown that criticism of the science underlying Shaken Baby Syndrome was so widespread or widely known at the time of Petitioner's trial and appeal that counsel should have sought such an expert. Dr. Uscinski's curriculum vitae lists his first publication or presentation addressing Shaken Baby Syndrome as occurring in September 2000. The two articles cited by Petitioner appeared in late 1998 and early 1999. Thus, it was not unreasonable for trial counsel to have been unaware of them. Appellate counsel testified that he was unaware of any controversy surrounding Shaken Baby Syndrome at the time of Petitioner's appeal to the Michigan Court of Appeals. While the articles cited by Petitioner were published before the Michigan Court of Appeals issued its decision on direct appeal, by citing two articles, Petitioner has not shown that any controversy surrounding Shaken Baby Syndrome was so widespread that appellate counsel was acting outside the wide range of reasonably competent professional assistance in failing to investigate further. Moreover, the author of one of the papers cited by Petitioner, Dr. John Plunkett, in a subsequent author's note, recognized that his paper questioning Shaken Baby Syndrome represented the minority view. The Court will not try to identify a point in time when the minority view had been voiced a sufficient number of times and in a sufficient number of publications so as to require an attorney, acting competently, to, at a minimum, explore its relevance to a defendant's case. The Court does find that such a critical point had not been reached at the time of Petitioner's trial or appeal. Accordingly, trial counsel was not ineffective in failing to discover and explore this minority viewpoint, and appellate counsel was not ineffective in failing to raise this issue on appeal. 3. Failing to Investigate Dr. Palutke's Testimony 27

Petitioner argues that counsel was ineffective in failing to recall the medical examiner Dr. Palutke in response to Dr. Fain's change in testimony. When Dr. Fain changed his testimony, defense counsel indicated to the trial judge that, had he previously been made aware that Dr. Fain would change his testimony, he would have questioned Dr. Palutke about Dr. Fain's conclusion that David died from brain shearing caused by being shaken. The trial court offered defense counsel the possibility of recalling Dr. Palutke to question him regarding Dr. Fain's conclusion. The record does not reflect any attempts by defense counsel to recall Dr. Palutke. Petitioner argues that this failure was ineffective assistance. The Michigan Court of Appeals denied this claim in a summary fashion, stating: Counsel's failure to call witnesses or present other evidence can constitute ineffective assistance of counsel only when it deprives the defendant of a substantial defense, i.e., one that might have made a difference, in the outcome of the trial. . . .We find no deficiency apparent on the record that might have affected the outcome of the trial. Flick, slip op. at 3. "[W]here the state court decides a claim on the merits but does not articulate the reasons for its decision," a federal court on habeas review is "'obligated to conduct an independent review of the record and applicable law to determine whether the state court decision is contrary to federal law, unreasonably applies clearly established law, or is based on an unreasonable determination of the facts in light of the evidence presented.'" Daniels v. Lafler, 192 F. App'x 408, 419 (6th Cir.2006) (quoting Harris v. Stovall, 212 F.3d 940, 943 (6th Cir.2000)). This "independent review" is "not a full, de novo review of the claims, but remains deferential because the court cannot grant relief unless the state court's result is not in keeping with the strictures of the AEDPA." Harris, 212 F.3d at 943. Dr. Palutke testified that David died as a result of blunt force trauma to the brain and 28

head. Dr. Palutke did not mention brain shearing, nor did he testify that David died as a result of being shaken. Dr. Palutke's testimony in this regard did not support Dr. Fain's finding of Shaken Baby Syndrome. Nevertheless, while inconsistent to some extent with Dr. Fain's testimony, Dr. Palutke's testimony was not helpful to Petitioner's defense. Dr. Palutke testified that David's injuries could not have been caused by David falling from a waterbed, banging his head against a door, or a fall from someone's arms. Given that Dr. Palutke's testimony clearly did not support Petitioner's version of events, it was not unreasonable for counsel to decide that recalling Dr. Palutke would only serve to confirm to the jury that his expert opinion did not support Petitioner's defense. Thus, the Court concludes that the result reached by the Michigan Court of Appeals was not contrary to or an unreasonable application of Strickland.

4. Jury Instruction Petitioner next argues that the trial court denied him a fair trial in denying a requested instruction on the defense of accident and that counsel was ineffective in failing to request an instruction on accident under CJI2d 7.1. Petitioner further alleges that counsel was ineffective in failing to request an instruction on the "intent to injure" form of involuntary manslaughter as a lesser offense. Counsel request an accident instruction under CJI2d 7.2, which is given where a defendant acknowledges that his act was voluntary but the consequences of the act were unintended. The trial court judge held that this instruction was unnecessary. CJI2d 7.1, which was not requested by counsel, is relevant where a defendant alleges that the act itself was entirely accidental and involuntary. The Michigan Court of Appeals held that Petitioner was not denied his right to a properly 29

instructed jury, reasoning, in pertinent part: Reviewing the jury instructions in their entirety, People v. Canales, 243 Mich. App. 571, 574; 624 N.W.2d 439 (2000), we conclude that the instructions sufficiently protected defendant's rights. The trial court instructed the jury on the crimes of second-degree murder and involuntary manslaughter. Because seconddegree murder includes intent as one of its elements, the occurrence of the crime is inconsistent with accident and is excusable if the killing is accidental. . . . In contrast, the crime of involuntary manslaughter, with which the jury in this case was also instructed, is not an intent crime and accident is not a defense to this offense. . . . The jury was given a clear choice of finding that defendant acted with the specific intent to commit second-degree murder, that he acted with gross negligence ­ which is more than mere accident ­ or that neither of these were proven and that defendant was not guilty. The jury rejected the concept of "gross negligence" -- as either committed by defendant or by the doctors who treated the victim ­ and found beyond a reasonable doubt that defendant had the necessary specific intent for second-degree murder. Defendant has not shown that the trial court's failure to issue an instruction on accident resulted in a miscarriage of justice or constituted a plain error that adversely affected defendant's substantial rights, i.e., that defendant was actually innocent or the alleged error seriously affected the fairness, integrity, or public reputation of the judicial proceedings. . . . Defendant's claims of instructional error are without merit. Flick, slip op. at 5. Generally, a claim that a state trial judge gave erroneous jury instructions is not cognizable in a federal habeas action unless the instruction "`so infected the entire trial that the resulting conviction violates due process.'" Estelle v. McGuire, 502 U.S. 62, 72 (1991), quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973). "[I]t must be established not merely that the instruction is undesirable, erroneous, or even `universally condemned', but that it violated some [constitutional] right.'" Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). Further, "[i]t is well established that the instruction `may not be judged in artificial isolation,' but must be considered in the context of the instructions as a whole and the trial record." Estelle, 502 U.S. at 72 (1991), quoting Cupp, 414 U.S. at 147. 30

In this case, the jury was instructed regarding the elements of second-degree murder, including the malice element, that is that Petitioner "intended to kill, or . . . intended to do great bodily harm to David McBain, or he knowingly created a very high risk of death or great bodily harm knowing death or such harm was the likely result of his actions." Tr., Vol. III at 1500. Petitioner was not impeded in his ability to present evidence and arguments in support of his contention that the killing was not done with malice, but was accidental. Thus, the Court concludes that the Michigan Court of Appeals' decision that it was not error to omit an accident instruction was not contrary to or an unreasonable application of Supreme Court precedent. Moreover, Petitioner cannot show that his attorney was ineffective in not requesting the CJI2d 8.1 accident instruction because Petitioner has not shown that he was prejudiced by the absence of such an instruction. The jury was not precluded from considering whether David's injuries were accidental. The jury was instructed on involuntary manslaughter, which required a finding only that Petitioner acted in a grossly negligent manner, and rejected this lesser offense. Accord Dukes v. Trombley, No. 07-CV-10549, 2008 WL 5381823, * 5 (E.D. Mich. December 22, 2008) (holding attorney not ineffective in failing to request accident instruction where jury considered and rejected lesser offense of involuntary manslaughter). Petitioner also claims that counsel was ineffective in failing to request a jury instruction regarding the "intent to injure" form of voluntary manslaughter. The last state court to issue a reasoned opinion regarding this claim, the Michigan Court of Appeals, stated, in relevant part: Defense counsel did not request the instruction on the "intent to injure" theory, otherwise known as the "misdemeanor-manslaughter rule." See CJI2d 16.10(4) and People v. Datema, 448 Mich. 585; 533 N.W.2d 272 (1995). Under that rule, if a defendant commits an assault and battery with a specific intent to inflict injury and causes unintended death, the defendant may be found guilty of involuntary manslaughter. Id. at 608. 31

Even assuming that there was evidence presented by the prosecutor to support an instruction on the "intent to injure" version of involuntary manslaughter, this instruction would have conflicted with the theory advanced by the defense ­ that defendant had no intent to injure the baby and that defendant did not commit an assault and battery on the baby. The evidence tended to show that the alleged batteries inflicted on the eight-month-old child were extremely forceful and would naturally tend to, and did in fact, cause serious injury. It was not unreasonable, and clearly not against sound trial strategy, for defense counsel to present only the "gross negligence" theory of involuntary manslaughter that was consistent with defendant's testimony, which did not admit an intent to injure. . . . For defense counsel to then request an involuntary manslaughter instruction that is premised on an intent to injure might have undermined defendant's case. We will not substitute our judgment for that of counsel regarding matters of trial strategy. . . . And we will not analyze the propriety of defense counsel's possible strategic decision with the benefit of hindsight that counsel's strategy did not work. . . . Defendant has not overcome the strong presumption that his counsel's decision was a matter of sound trial strategy, and he has not shown that he was deprived of the effective assistance of counsel. Flick, slip op. at 3-4. The Court finds that the state court's decision was not contrary to or an unreasonab