Austin v. Sherry

Filing 8

OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus- Signed by District Judge David M. Lawson. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SHERMAN AUSTIN,
Petitioner,

Case No. 08-11364
Honorable David M. Lawson

v.
CAROL R. HOWES,
Respondent.
_______________________________/
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Michigan prisoner Sherman Austin seeks the issuance of a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. In his petition, filed through counsel, the petitioner challenges his convictions
for first-degree murder, Mich. Comp. Laws § 750.316, and possession of a firearm during the
commission of a felony, Mich. Comp. Laws § 750.227b. He was found guilty of those charges by
a jury in the Wayne County, Michigan circuit court. The petitioner argues that the trial court
improperly recognized a Fifth Amendment privilege for a defense witness, he was denied his right
to present a defense, his right to confrontation was violated by admission of the victim’s dying
declarations, he received ineffective assistance of counsel, and the prosecutor committed
misconduct. The respondent filed a response to the petition arguing that the claims lack merit and
that review of the Confrontation Clause issue is barred because the petitioner did not preserve it in
the state proceedings by making a contemporaneous objection. The Court does not reach the
procedural violation issue because it finds that the petitioner’s claims lack merit. The Court,
therefore, will deny the petition.

I.

The petitioner was charged with first-degree murder and felony firearm for shooting and
killing Earl Bowen on April 20, 2001 in Detroit. Bowen was the former boyfriend of the petitioner’s
daughter, Shatoya “Toya” Austin.
Monica Bowen, Earl Bowen’s cousin, testified that she lived in the same home as Earl at the
time of the shooting. She testified that she was awakened at approximately 5:40 a.m. on April 20,
2001 by the sound of gunshots. She called 911, then heard Bowen calling to her from outside. He
told her that his leg was going numb and could not talk. The 911 operator repeatedly asked Monica
Bowen to ask her cousin who shot him. Bowen finally responded, “Toya’s daddy.” Trial Tr., Vol.
II, June 3, 2004, at 82.
Detroit Police Officer Khary Mason testified that when he responded to the 911 call, he
found Bowen lying on the ground with two bullet holes in his upper chest. Officer Mason asked
Bowen who shot him, but Mason could not understand Bowen’s response. Officer Mason
accompanied Bowen to the hospital and continued questioning him. Eventually, he was able to
understand that Bowen said the petitioner shot him.
Derrick Green testified that he was incarcerated at the Wayne County Jail awaiting
sentencing on a murder conviction. In late December 2003, the petitioner was also incarcerated at
the Wayne County Jail. The two began talking about their cases and the petitioner told Green that
he had killed a man named Earl. He referred to the victim as his son-in-law. Green further testified
that the petitioner told him that he hid in the bushes, waited for the victim to get into his car, and
then shot the victim. The victim tried to crawl out from the passenger’s side. Green testified that
he was not testifying pursuant to a plea agreement, although his sentencing was postponed until after
his testimony in the petitioner’s case.

-2-

Bureau of Alcohol, Tobacco, and Firearms (ATF) Special Agent Michael Yott testified that
he became involved in the investigation of Bowen’s murder because Bowen previously had been
an informant for ATF. Yott interviewed the petitioner on April 3, 2003. The petitioner told him that
the relationship between his daughter, Shatoya, and Bowen had sometimes been violent. At one
point, the petitioner and Bowen were involved in a fistfight prompted by Bowen’s alleged assault
of Shatoya. The evening before the homicide, police were called to the petitioner’s father’s
residence because of an altercation between Shatoya and Bowen. When Yott asked the petitioner
about the homicide, the petitioner leaned back in his chair, laughed, and indicated there were no
witnesses to the crime.
The Chief Medical Examiner for Wayne County testified that Bowen died from five gunshot
wounds.
The defense presented several witnesses, including Shatoya Austin, Deborah Simpson, and
the petitioner. Shatoya testified that Earl Bowen previously had been her boyfriend and was the
father of her child. On April 19, 2001, she and Bowen argued about her failure to return one of his
phone calls. He pushed and punched her and took some of her belongings and carried them out of
her grandfather’s home. She locked him out of the home. Bowen threw a rock through the
windshield of her vehicle. He then left. Shatoya testified that she called police, who responded to
the scene and took a statement from her. The petitioner came to the home when the police were
there and was aware of the fight. He left the home that evening to pick up his girlfriend, Deborah
Simpson. Shatoya also left the home. Hours later, at approximately 4:00 a.m., Shatoya returned to
her grandfather’s home. As she was getting out of her vehicle, Bowen tried to run her over. She

-3-

escaped unharmed. She did not call the police and denied calling her father. She testified that she
simply went into her grandfather’s home and fell asleep.
Deborah Simpson testified that at the time Bowen was shot, she and the petitioner were a
couple. However, she could not remember whether she and the petitioner were living together at
the time of the shooting or whether the petitioner was with her when the shooting was said to have
occurred.
The petitioner also tried to call Donald DeShazo as a witness to rebut the testimony of
prosecution witness Derrick Green. DeShazo asserted a Fifth Amendment privilege, and the trial
court barred all his testimony.
The petitioner, testifying in his own defense, said that he was living with Simpson at the time
of the shooting. On the evening of April 19, 2001, he picked Simpson up from work at
approximately 11:00 p.m. He testified that he drove her home, arriving at approximately 11:30 p.m.,
and did not leave the home until the next morning at approximately 7:00 a.m. He denied laughing
when Agent Yott accused him of killing Bowen. He denied shooting Bowen.
The jury apparently did not credit the petitioner’s testimony and found him guilty of firstdegree murder and felony firearm. On June 24, 2004, he was sentenced to life imprisonment without
possibility of parole for the murder conviction and two years’ imprisonment for the felony firearm
conviction.
The petitioner filed a direct appeal in the Michigan Court of Appeals, raising the following
claims: (i) trial court erred in recognizing a Fifth Amendment privilege against self-incrimination
for a defense witness; (ii) the petitioner was denied his right to present a defense when the trial court
precluded all testimony from a defense witness based on the Fifth Amendment privilege; (iii) the

-4-

victim’s hearsay statement improperly admitted; (iv) ineffective assistance of counsel; and (v)
prosecutorial misconduct. The Michigan Court of Appeals affirmed the petitioner’s convictions.
People v. Austin, No. 256612, 2005 WL 3440479 (Mich. Ct. App. Dec. 15, 2005). The Michigan
Supreme Court denied leave to appeal. People v. Austin, 477 Mich. 872, 721 N.W.2d 582 (2006).
The petitioner then filed the pending petition for a writ of habeas corpus. He raises the same
claims raised in state court. The state filed a response contesting the merits of those claims.
II.
The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.
L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), which govern this case, “circumscribe[d]” the
standard of review federal courts must apply when considering an application for a writ of habeas
corpus raising constitutional claims, including claims of ineffective assistance of counsel. See
Wiggins v. Smith, 539 U.S. 510, 520 (2003). As amended, 28 U.S.C. § 2254(d) permits a federal
court to issue the writ only if the state court decision on a federal issue “was contrary to, or involved
an unreasonable application of, clearly established Federal law, as determined by the Supreme
Court,” or it amounted to “an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2); Franklin v. Francis, 144 F.3d
429, 433 (6th Cir. 1998). Under that review standard, mere error by the state court does not justify
issuance of the writ; rather, the state court’s application of federal law “must have been objectively
unreasonable.” Wiggins, 539 U.S. at 520-21 (quoting Williams v. Taylor, 529 U.S. 362, 409 (2000)
(internal quotes omitted)). Additionally, this Court must presume the correctness of state court
factual determinations. 28 U.S.C. § 2254(e)(1) (“In a proceeding instituted by an application for a
writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a

-5-

determination of a factual issue made by a State court shall be presumed to be correct.”); see also
West v. Seabold, 73 F.3d 81, 84 (6th Cir. 1996) (stating that “[t]he court gives complete deference
to state court findings of historical fact unless they are clearly erroneous”).
The Supreme Court has explained the proper application of the “contrary to” clause as
follows:
A state-court decision will certainly be contrary to [the Supreme Court’s] clearly
established precedent if the state court applies a rule that contradicts the governing
law set forth in our cases. . . .
A state-court decision will also be contrary to this Court’s clearly established
precedent if the state court confronts a set of facts that are materially
indistinguishable from a decision of this Court and nevertheless arrives at a result
different from [the Court’s] precedent.
Williams, 529 U.S. at 405-06.
The Supreme Court has held that a federal court should analyze a claim for habeas corpus
relief under the “unreasonable application” clause of § 2254(d)(1) “when a state-court decision
unreasonably applies the law of this Court to the facts of a prisoner’s case.” Id. at 409. The Court
has explained that an unreasonable application of federal law is different from an incorrect
application of federal law. Under that language, “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.” Williams, 529 U.S. at 413.
The Supreme Court has continued to emphasize the limited nature of this review. In its recent
unanimous decision in Harrington v. Richter, --- U.S. ---, 131 S. Ct. 770 (2011), the Court reiterated
that the AEDPA requires federal habeas courts to review state court decisions with “deference and
latitude,” and “[a] state court’s determination that a claim lacks merit precludes habeas relief so long

-6-

as ‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Id. at 785-86
(quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
The distinction between mere error and an objectively unreasonable application of Supreme
Court precedent creates a substantially higher threshold for obtaining relief than de novo review.
The 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.” Renico v. Lett, --- U.S. ---,
---, 130 S. Ct. 1855, 1862 (2010) (finding that the state court’s rapid declaration of a mistrial on
grounds of jury deadlock was not unreasonable even where “the jury only deliberated for four hours,
its notes were arguably ambiguous, the trial judge’s initial question to the foreperson was imprecise,
and the judge neither asked for elaboration of the foreperson’s answers nor took any other measures
to confirm the foreperson’s prediction that a unanimous verdict would not be reached” (internal
quotation marks and citations omitted)); see also Bray v. Andrews, 640 F.3d 731, 737-39 (6th Cir.
2011); Phillips v. Bradshaw, 607 F.3d 199, 205 (6th Cir. 2010); Murphy v. Ohio, 551 F.3d 485,
493-94 (6th Cir. 2009); Eady v. Morgan, 515 F.3d 587, 594-95 (6th Cir. 2008); Davis v. Coyle, 475
F.3d 761, 766-67 (6th Cir. 2007); King v. Bobby, 433 F.3d 483, 489 (6th Cir. 2006); Rockwell v.
Yukins, 341 F.3d 507, 511 (6th Cir. 2003) (en banc). Moreover, habeas review is “limited to the
record that was before the state court.” Cullen v. Pinholster, --- U.S. ---, 131 S. Ct. 1388, 1398
(2011).
A.
The petitioner argues that the trial court violated his right to present a defense because the
court recognized a Fifth Amendment privilege against self-incrimination for a defense witness,
Donald DeShazo, when the proposed questions could not have yielded incriminating answers. The

-7-

petitioner contends that the trial court compounded the error by precluding all testimony from
DeShazo rather than requiring him to invoke the privilege on a question-by-question basis.
The petitioner sought to call DeShazo as a witness to rebut the testimony of prosecution
witness Derrick Green, who related the petitioner’s jailhouse confession. Green testified that while
incarcerated on the same cell block as the petition in late 2003, the petitioner told him that he had
killed a man named Earl, whom he referred to as his son-in-law. Green testified that the petitioner
told him that he hid in the bushes and shot the man while he was still in his car and that the man tried
to crawl from the passenger door. The petitioner told him that the crime occurred in 2000.
Before Green testified there was an extensive colloquy about proposed defense witness
DeShazo. The defense represented that DeShazo would undermine Green’s credibility because he
would testify that he saw Green sneak into the petitioner’s cell and rifle through the petitioner’s
discovery material, thereby explaining Green’s knowledge about specific facts of the case. The
prosecutor disclosed that if DeShazo testified, he would cross-examine DeShazo about his potential
bias and motives for testifying, since DeShazo claimed to be the victim of record-pilfering as well.
It appears that DeShazo and two co-defendants, Potter and Williams, were charged with homicide
in an unrelated case. Potter had already stood trial and was convicted in large part on the testimony
of two jailhouse informants. In an effort to undermine the credibility of the informants, Potter
presented testimony in his own trial that the jailhouse informants stole discovery material from his
cell. Those same jailhouse informants were expected to testify against DeShazo at his upcoming
trial. In this case, the prosecutor advised the trial court judge that if DeShazo testified, he would
question DeShazo about the jailhouse informants, the similar circumstances of an alleged cell-breakin, and DeShazo’s motivation to undermine Green’s credibility.

-8-

DeShazo’s attorney then informed the Court that he would advise his client to exercise his
Fifth Amendment right to be free from compelled self-incrimination with respect to all questions
related in any way to his homicide case. The trial court suggested that DeShazo could testify about
his observations at the jail without incriminating himself, but DeShazo rightfully could invoke his
Fifth Amendment privilege with respect to all questions related to the pending criminal charges
against him. After a thoughtful and thorough discussion of the issues presented, the trial court
decided that allowing DeShazo to testify with the knowledge that he would invoke his Fifth
Amendment privilege would hamstring any efforts by the prosecution to explore his bias and
motives for testifying. The trial court decided that DeShazo could not be as a witness.
The Michigan Court of Appeals held that the trial court acted properly when excluding
DeShazo’s testimony, reasoning:
Under the Fifth Amendment, an individual may decline to testify at any criminal
proceeding where the answers may incriminate him in a future criminal proceeding.
If a potential defense witness has a Fifth Amendment privilege against incriminating
himself, that privilege overrides a defendant’s right to compel testimony. However,
this privilege against self-incrimination may only be asserted where the trial court
determines that there is a reasonable basis for a witness to fear incrimination. People
v. Dyer, 425 Mich. 572, 578, 390 N.W.2d 645 (1986). “[A] trial court may compel
a witness to answer a question only where the court can foresee, as a matter of law,
that such testimony could not incriminate the witness.” Id. at 579. Thus, the trial
court decides whether a witness’s silence is justified based on the facts in evidence.
In this case, the witness, “DeShazo,” was an inmate facing trial on a homicide
charge. One of DeShazo’s codefendants had already been convicted, largely through
the testimony of a jailhouse witness. DeShazo was expected to testify that he saw
inmate Derrick Green, a prosecution witness, in defendant’s cell going through
defendant’s discovery materials while defendant was not present. The prosecutor
indicated that he intended to ask DeShazo about how his codefendant presented
witnesses at his trial to show that the jailhouse witness stole discovery materials to
fabricate his testimony and to show that defendant wished to use a similar tactic to
discredit Green’s testimony. Defense counsel stated that if the prosecutor asked any
questions about DeShazo’s pending trial, he would advise DeShazo to invoke his
Fifth Amendment right against self-incrimination. The trial court conducted the
-9-

proper inquiry and determined that testimony about the case pending against him
would be potentially incriminating to DeShazo and that DeShazo would invoke his
constitutional privilege. The trial court did not abuse its discretion by refusing to
allow defendant to call DeShazo to the stand.
Further, the trial court did not have to allow defense counsel to call DeShazo and
have DeShazo invoke his Fifth Amendment privilege on a question-by-question
basis. A lawyer may not knowingly call a witness when he is aware that the witness
will claim a valid privilege not to testify. . . . Because DeShazo would have a valid
right to invoke his Fifth Amendment privilege on relevant questions that the
prosecutor would ask, the trial court did not abuse its discretion by refusing to allow
DeShazo to testify.
Austin, 2005 WL 3440479 at *1-2 (citations omitted).
The Sixth Circuit has recognized, albeit in an unpublished opinion, that “allowing a
privilege-invoking witness to testify requires a balancing of potential prejudice.” United States v.
Ballard, 280 F. App’x 468, 470 (6th Cir. 2008). The Sixth Circuit explained:
When a defendant calls a witness to the stand with the understanding that the witness
will assert his Fifth Amendment privilege, it becomes impossible to determine
whether the privilege is asserted to obfuscate the factfinder or whether it is invoked
out of a genuine desire to avoid self-incrimination. Although witnesses can only
invoke their Fifth Amendment privilege “where it is ‘grounded on a reasonable fear
of danger of prosecution,’” United States v. Gibbs, 182 F.3d 408, 431 (6th Cir. 1999)
(quoting United States v. Gaitan-Acevedo, 148 F.3d 577, 588 (6th Cir. 1998)), and
a witness “cannot meet the reasonable fear-of-prosecution prong by simply making
a blanket assertion of the privilege,” id., because such a witness cannot be examined
or cross-examined, the jury proceeds through inferences and therefore there exists
no explicit statements from which the witness may be held accountable. This,
coupled with the fact that the jury may draw an improper inference of guilt from the
witnesses’s invocation of silence, creates potential for collusion between the witness
and defendant.
Id. at 470-71.
Ballard involved a case on direct review of a criminal conviction, but the reasoning and
principles applied in that case apply here with equal force. Additionally, the petitioner has not cited
and the Court has found no Supreme Court precedent that contradicts Ballard or would require

-10-

allowing a witness to testify under similar circumstances. The state court’s conclusion that the
privilege would be properly invoked and that allowing the witness to testify and invoke the privilege
on a question-by-question basis would unfairly preclude meaningful cross-examination was not
contrary to or an unreasonable application of clearly-established Supreme Court precedent.
B.
Next, the petitioner argues that the trial court improperly admitted the victim’s dying
declarations identifying him as the shooter in violation of his rights under the Confrontation Clause.
The respondent argues that this claim is procedurally defaulted because defense counsel did not
challenge the admissibility of the dying declaration at trial. “[F]ederal courts are not required to
address a procedural-default issue before deciding against the petitioner on the merits.” Hudson v.
Jones, 351 F.3d 212, 215 (6th Cir. 2003) (citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997)).
“Judicial economy might counsel giving the [other] question priority, for example, if it were easily
resolvable against the habeas petitioner, whereas the procedural-bar issue involved complicated
issues of state law.” Lambrix, 520 U.S. at 525. In this case, the Court finds that the interests of
judicial economy are best served by addressing the merits of the claim.
The Confrontation Clause of the Sixth Amendment provides: “In all criminal prosecutions,
the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const.
amend. VI. “The Sixth Amendment’s right of an accused to confront the witnesses against him is
. . . a fundamental right and is made obligatory on the States by the Fourteenth Amendment.”
Pointer v. Texas, 380 U.S. 400, 403 (1965). The rights of confrontation and cross-examination
“have ancient roots” which the “Court has been zealous to protect . . . from erosion.” Id. at 404-05
(internal quotation omitted). The right to a trial by jury is predicated upon the belief “‘that the

-11-

‘evidence developed’ against a defendant shall come from the witness stand in a public courtroom
where there is full judicial protection of the defendant’s right of confrontation, of cross-examination,
and of counsel.’” Id. at 405 (quoting Turner v. Louisiana, 379 U.S. 466, 472-73 (1965)).
In Crawford v. Washington, 541 U.S. 36, 68 (2004), the Supreme Court held that out-ofcourt statements that are testimonial in nature are barred by the Confrontation Clause, regardless of
whether the trial court finds the statements to be reliable, unless the witness is unavailable and the
defendant had a prior opportunity for cross-examination. The Supreme Court, however, indicated
that dying declarations may be an historical exception to the rule against admission of hearsay
testimony:
The one deviation we have found involves dying declarations. The existence of that
exception as a general rule of criminal hearsay law cannot be disputed. Although
many dying declarations may not be testimonial, there is authority for admitting even
those that clearly are. We need not decide in this case whether the Sixth Amendment
incorporates an exception for testimonial dying declarations. If this exception must
be accepted on historical grounds, it is sui generis.
Id. at 56 n.6 (citations omitted). The Supreme Court recognized this long-standing exception to the
exclusion of testimonial dying declaration statements again in Giles v. California, 554 U.S. 353, 358
(2008) (“We have previously acknowledged that two forms of testimonial statements were admitted
at common law even though they were unconfronted. The first of these were declarations made by
a speaker who was both on the brink of death and aware that he was dying.” (internal citation
omitted)).
The Supreme Court’s recent decision of Michigan v. Bryant, --- U.S. ---, 131 S. Ct. 1143
(2011), does not address the question whether a dying declaration is an historical exception to the
confrontation Clause. But it does conclude that a statement given in circumstances similar to Earl
Bowen’s statement here was nontestimonial under the definition announced in Davis v. Washington,
-12-

547 U.S. 813, 822 (2006) (holding that a statement is testimonial “when the circumstances
objectively indicate . . . that the primary purpose of the interrogation is to establish or prove past
events potentially relevant to later criminal prosecution.”). In Bryant, the Court determined that a
statement made to the police by a dying man who was shot through the door of the shooter’s house,
drove to a gas station several blocks away, and was found on the ground in the parking lot next to
his car, was nontestimonial because the primary purpose of the police interrogation was “to enable
police assistance to meet an ongoing emergency.” Bryant, 131 S. Ct. at 1167 (quoting Davis, 547
U.S. at 822).

The Court determined that “the police responded to a call that a man had been

shot. . . ., they did not know why, where, or when the shooting had occurred [or] . . . the location of
the shooter or anything else about the circumstances in which the crime occurred”; “[t]he questions
they asked . . . were the exact type of questions necessary to allow the police to assess the situation,
the threat to their own safety, and possible danger to the potential victim and to the public”; and “the
informality of the situation and the interrogation” all supported the conclusion that the primary
purpose of the interrogation was not to establish the facts of the case for use in a later prosecution.
Id. at 1166-67. Therefore, the Court concluded, admission at trial of the deceased’s statement to the
police did not violate the Confrontation Clause.
The Court’s Bryant decision is not without its critics. See Bryant v. Michigan, 131 S. Ct.
1143, 1168 (2011) (Scalia, J., dissenting) (“Today’s tale — a story of five officers conducting
successive examinations of a dying man with the primary purpose, not of obtaining and preserving
his testimony regarding his killer, but of protecting him, them, and others from a murderer
somewhere on the loose — is so transparently false that professing to believe it demeans this
institution. But reaching a patently incorrect conclusion on the facts is a relatively benign judicial

-13-

mischief; it affects, after all, only the case at hand. In its vain attempt to make the incredible
plausible, however — or perhaps as an intended second goal — today’s opinion distorts our
Confrontation Clause jurisprudence and leaves it in a shambles. Instead of clarifying the law, the
Court makes itself the obfuscator of last resort.”). But it does shed light on the Supreme Court’s
conception of dying declarations and the Confrontation Clause.
Considering Bryant along with the dicta in Crawford and Giles that dying declarations
historically were exempt from the requirements that the Confrontation Clause was intended to
enforce, it can hardly be said that there is clearly established Supreme Court precedent that might
favor the petitioner’s argument on this issue. In fact, the contrary may well be true. In all events,
he has not established entitlement to a writ of habeas corpus as a result of the admission at trial of
Earl Bowen’s statement to the police.
C.
In his fourth habeas claim, the petitioner argues that the prosecutor committed misconduct
by engaging in improper, argumentative cross-examination of him and denigrating him and defense
counsel in closing argument.
It is well-established that prosecutors must “‘refrain from improper methods calculated to
produce a wrongful conviction.’” United States v. Young, 470 U.S. 1, 7 (1985) (quoting Berger v.
United States, 295 U.S. 78, 88 (1935)). However, “[c]laims of prosecutorial misconduct are
reviewed deferentially on habeas review.” Millender v. Adams, 376 F.3d 520, 528 (6th Cir. 2004)
(citing Bowling v. Parker, 344 F.3d 487, 512 (6th Cir. 2003)). Prosecutorial misconduct may
warrant habeas corpus relief only if the misconduct “‘so infected the trial with unfairness as to make
the resulting conviction a denial of due process.’” Darden v. Wainwright, 477 U.S. 168, 181 (1986)

-14-

(quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). “To constitute a denial of due
process, the misconduct must be ‘so pronounced and persistent that it permeates the entire
atmosphere of the trial.’” Byrd v. Collins, 209 F.3d 486, 529-30 (6th Cir. 2000) (quoting Pritchett
v. Pitcher, 117 F.3d 959, 964 (6th Cir. 1997)). The Court must examine “<the fairness of the trial,
not the culpability of the prosecutor.’” Pritchett, 117 F.3d at 964 (quoting Serra v. Michigan Dep’t
of Corr., 4 F.3d 1348, 1355 (6th Cir. 1993)).
The Court first considers whether the prosecutor’s conduct or remarks were improper. Slagle
v. Bagley, 457 F.3d 501, 515-16 (6th Cir. 2006). If they were, the Court then must decide whether
the improper acts were so flagrant as to warrant relief. Id. at 516. The Sixth Circuit applies a fourfactor test to any inappropriate prosecutorial conduct to determine whether it was flagrant: “(1)
whether the evidence against the defendant was strong, (2) whether the conduct of the prosecution
tended to mislead the jury or prejudice the defendant; (3) whether the conduct or remarks were
isolated or extensive; and (4) whether the remarks were made deliberately or accidentally.” Ibid.
(citation omitted).
The petitioner argues that the prosecutor improperly asked him to comment on the credibility
of a prosecution witness, Sergeant Yott. Defense counsel’s objection to the question was sustained,
but not before the petitioner called Sergeant Yott a liar. The Michigan Court of Appeals held that
the question and answer did not prejudice the petitioner because the objection was sustained, the
jurors were advised that stricken testimony and excluded evidence were not to be considered, and
jurors are presumed to follow the court’s instructions.

The state prosecutor’s question

unquestionably was improper. However, the question was an isolated one and the court sustained

-15-

the objection. The Court cannot find that the state court’s conclusion was contrary to or an
unreasonable application of Supreme Court precedent.
The petitioner also argues that the prosecutor engaged in misconduct by pointing out that the
petitioner did not have records to support some of his testimony and by arguing with the petitioner
about the volume of discovery material and when it was produced. Defense counsel’s objections
to this line of questioning also were sustained. The trial judge instructed the jury that the
prosecutor’s statements about discovery should be stricken. The Michigan Court of Appeals held
that the petitioner was not deprived of a fair trial by the prosecutor’s questions and that the
prosecutor is permitted to comment on a defendant’s failure to produce evidence supporting his
testimony. An argument that the defense’s failure to produce evidence to contradict or call into
question the prosecution evidence does not amount to an attempt by the prosecutor to shift the
burden of proof. Moreover, the trial court’s instructions to the jury unambiguously established that
the prosecutor bore the burden of proof with respect to each element of the crimes. Therefore, the
petitioner has not established prosecutorial misconduct despite the prosecutor’s improper questions.
Next, the petitioner argues that the prosecutor acted improperly during the following
exchange:
Patrick Muscat [Prosecutor]: Listen to my questions. I’m sorry, but you got to listen
to my questions. You can’t just ramble.
Defendant:

I’m sorry. I’m just trying to help.

Prosecutor:

I doubt that, but just listen.

Trial Tr., June 8, 2004, at 147.
The Michigan Court of Appeals held that because the prosecutor promptly resumed a regular
line of questioning after this comment, he committed no misconduct that denied the petitioner his
-16-

right to a fair trial. This Court is constrained to agree. The prosecutor’s conduct throughout the trial
displayed a regrettable lack of professionalism. His questions were inappropriate and needlessly
argumentative, and his comments were disrespectful. But the conduct was not flagrant and it did
not deflect the jury from considering the actual issues in the case. The comment would have been
better left unsaid, but it certainly should not been a surprise to the jury that the prosecutor did not
believe that the petitioner was “just trying to help.” The comment did not deprive the petitioner of
a fair trial.
Finally, the petitioner argues that the prosecutor engaged in misconduct by calling him a liar
during closing argument and labeling defense counsel cowardly. The Michigan Court of Appeals
denied relief on this claim, finding that the prosecutor’s remarks did not rise to the level of
prosecutorial misconduct. The court explained:
The prosecutor stated that defendant’s testimony showed that he was a liar. The
prosecutor also stated that there was no credible evidence to support defense
counsel’s argument that Officer Khary Mason was lying and that defense counsel
making such an argument was cowardly. A prosecutor has “great latitude” in
making his arguments and statements at trial. People v. Bahoda, 448 Mich. 261,
282; 531 N.W.2d 659 (1995). A prosecutor may draw inferences from the evidence,
but may not argue facts not in evidence or mischaracterize the evidence. . . .
Although the prosecutor has a duty to ensure that the defendant receives a fair trial,
he also has a duty to advocate the conviction of the guilty. “Prosecutors may use
‘hard language’ when it is supported by evidence and are not required to phrase
arguments in the blandest of all possible terms.” People v. Ullah, 216 Mich. App.
669, 678; 550 N.W.2d 568 (1996). A prosecutor’s remarks must be read in
context. . . . In this case, the statement regarding defendant and defense counsel
referenced the evidence and drew inferences from the testimony presented. The
prosecutor specifically mentioned the evidence that led him to draw such
conclusions, and thus made proper arguments.
Austin, 2005 WL 3440479 at *4 (citations omitted).
It is clearly inappropriate for a prosecutor to make personal attacks on a defendant or defense
counsel. See, e.g., United States v. Collins, 78 F.3d 1021, 1040 (6th Cir. 1996). Prosecutors may
-17-

not “make unfounded and inflammatory attacks on the opposing advocate,” Young, 470 U.S. at 9,
“or argue that counsel is attempting to mislead the jury,” West v. Bell, 550 F.3d 542, 565 (6th Cir.
2008). Prosecutors may, however, highlight inconsistencies or inadequacies in the defense, Bates
v. Bell, 402 F.3d 635, 646 (6th Cir. 2005), and point out the lack of evidence supporting the defense
theory, United States v. Forrest, 402 F.3d 678, 686 (6th Cir. 2005).
A prosecutor’s description of defense counsel’s argument as a red herring, a smoke screen,
or a distraction is not per se improper. See United States v. Bernard, 299 F.3d 467, 487-88 (5th Cir.
2002); United States v. Rivera, 971 F.2d 876, 883 (2d Cir. 1992). Such arguments can be reversible
error when the prosecutor makes “personal, unsubstantiated attacks on the character and ethics of
opposing counsel” and accuses defense counsel of conspiring with the defendant to fabricate
testimony. See United States v. Holmes, 413 F.3d 770, 775 (8th Cir. 2005). Here, it is unclear
whether the prosecutor was referring to defense counsel or the defense strategy as “cowardly.” Read
in context, the comment cannot be found unequivocally to be a personal attack on defense counsel.
The comment can be construed to attack the defense’s theory and to urge the jury to consider that
the defense questioned the credibility of Officer Mason but failed to take the opportunity to crossexamine Officer Mason about the truthfulness of his testimony.
Similarly, although “[a] prosecutor should not give his own opinion as to the credibility of
witness[,] . . . this does not mean that the prosecution cannot attack the defendant’s credibility or
even assert that the defendant is lying.” West, 550 F.3d at 565 (internal citations omitted). A
prosecutor may argue from the facts that a witness is (or is not) worthy of belief. See Portuondo v.
Agard, 529 U.S. 61, 69 (2000). “Where there is conflicting testimony, it may be reasonable to infer,
and accordingly to argue, that one of the two sides is lying.” Collins, 78 F.3d at 1040. The

-18-

prosecutor’s references in this case to the petitioner as a liar were permissible attacks on the
petitioner’s credibility.
The Court cannot conclude that the state court of appeals unreasonably viewed the tenor or
effect of the state prosecutor’s comments and questions. Therefore, the Michigan Court of
Appeals’s determination that the prosecutor’s conduct did not deprive the petitioner of a fair trial
is not contrary to, nor an unreasonable application of, federal law or the facts.
D.
Finally, the petitioner asserts that he received ineffective assistance of counsel because his
trial lawyer failed to object to the admission of the victim’s dying declarations and the prosecutor’s
bad misconduct.
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 him. 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 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.
An ineffective assistance of counsel claim based on counsel’s failure to object to
prosecutorial misconduct “hinges on whether the prosecutor’s misconduct was plain enough for a

-19-

minimally competent counsel to have objected.” Washington v. Hofbauer, 228 F.3d 689, 698 (6th
Cir. 2000).
The Michigan Court of Appeals, found that the claim was not preserved for review and
therefore conducted a plain error review. The state court held that counsel was not ineffective by
failing to object to the admission of the dying declarations, which the court held were properly
admitted. Further, the court held that the prosecutor’s conduct did not deny the petitioner a fair trial
and counsel’s failure to object, consequently, also was not ineffective.
This Court determined above that the prosecutor’s conduct was not so severe or flagrant as
to deprive the petitioner of a fair trial, that is, a trial whose outcome is subject ot question. Because
the prosecutor’s antics did not undermine confidence in the outcome of the proceedings, the
petitioner cannot establish the prejudice component of the Strickland test. Even if defense counsel’s
performance was deficient, his failure to object did not deprive the petitioner of his right to counsel
under the Sixth Amendment. See Post v. Bradshaw, 621 F.3d 406, 414 (6th Cir. 2010) (stating that
“if the defendant cannot establish prejudice, we need not consider whether counsel’s performance
was deficient” (citing Berghuis v. Thompkins, --- U.S. ---, ---, 130 S. Ct. 2250, 2264 (2010))).
III.
The state court decisions in this case were not contrary to federal law, did not unreasonably
apply federal law, or amount to an unreasonable determination of the facts. The petitioner has not
established that he is presently in custody in violation of the Constitution or laws of the United
States.

-20-

Accordingly, it is ORDERED that the petition for a writ of habeas corpus is DENIED.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: September 2, 2011

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on September 2, 2011.
s/Deborah R. Tofil
DEBORAH R. TOFIL

-21-