Hicks v. Straub

• Court: Court of Appeals for the Sixth Circuit
• Decided: July 29, 2004
• Docket: 03-1124
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Hicks v. Straub No. 03-1124 ELECTRONIC CITATION: 2004 FED App. 0248P (6th Cir.) File Name: 04a0248p.06 KENNEDY, J., delivered the opinion of the court, in which COOK, J., joined. ROGERS, J. (p. 35), delivered a separate concurring opinion. UNITED STATES COURT OF APPEALS _________________ FOR THE SIXTH CIRCUIT _________________ OPINION _________________ MICHAEL HICKS, X KENNEDY, Circuit Judge. The district court conditionally Petitioner-Appellee, - granted the petition for a writ of habeas corpus under 28 - - No. 03-1124 U.S.C. § 2254 of Petitioner Michael Hicks, a Michigan v. - prisoner, on his claim that his Sixth Amendment right to > confrontation was violated at his first-degree murder trial , when the prosecutor, during his opening statement, advised DENNIS M. STRAUB, Warden, - Respondent-Appellant. - the jury that petitioner had confessed to the murder to a fellow jail inmate and, yet, subsequently failed, despite a good faith N effort, to produce that inmate as a witness.1 The district court Appeal from the United States District Court found that the procedural default doctrine did not bar the for the Eastern District of Michigan at Detroit. review of petitioner’s Confrontation Clause claim. No. 01-70951—Arthur J. Tarnow, District Judge. Specifically, the court held that (1) petitioner had “fairly presented” his Confrontation Clause claim to the state courts Argued: March 18, 2004 on direct review; (2) to the extent that the state courts on direct review would have found that petitioner procedurally Decided and Filed: July 29, 2004 defaulted his Confrontation Clause claim as a result of trial counsel’s failure to object to the underlying violation at trial, Before: KENNEDY, ROGERS, and COOK, Circuit the ineffective assistance of trial counsel would have excused Judges. any such default; and, (3) petitioner had not procedurally defaulted his Confrontation Clause claim before the state _________________ courts on collateral review because the state procedural ground upon which the state courts denied petitioner leave to COUNSEL appeal was inadequate to bar federal habeas review. ARGUED: Brad H. Beaver, OFFICE OF THE ATTORNEY In reaching the merits of petitioner’s Confrontation Clause GENERAL, Lansing, Michigan, for Appellant. Carole M. Claim, the district court found that the prosecutor’s opening Stanyar, Detroit, Michigan, for Appellee. ON BRIEF: Brad H. Beaver, OFFICE OF THE ATTORNEY GENERAL, Lansing, Michigan, for Appellant. Carole M. Stanyar, 1 Detroit, Michigan, for Appellee. The court granted the petition unless the State of Michigan scheduled a new trial for petitioner within ninety days.

1 No. 03-1124 Hicks v. Straub 3 4 Hicks v. Straub No. 03-1124

statement comment concerning petitioner’s alleged confession A. Pre-Trial and Trial violated petitioner’s right to confrontation, and that this violation was not harmless error. The district court further On July 25, 1993, petitioner was arrested and charged with found, pursuant to § 2254(d), that the prior state-court denial the first-degree murder of Shawn Stalworth, who had been of petitioner’s Confrontation Clause claim on the merits was shot to death earlier that day as he was leaving his house in an unreasonable application of the pertinent, clearly- Battle Creek, Michigan. Following his arrest, petitioner was established Supreme Court precedent. confined in a local jail, where he allegedly confessed to another inmate, Lorenzo Brand (“Brand”), that he had Respondent Dennis Straub appeals this grant of the writ of committed the murder. Brand testified to this confession at habeas corpus on the following grounds: (1) the district court petitioner’s preliminary hearing. At petitioner’s jury trial, the erred in reaching the merits of petitioner’s claim because prosecutor, during his opening statement, stated, in pertinent petitioner procedurally defaulted his claim by failing to raise part: it on direct review and because trial counsel’s failure to object did not constitute ineffective assistance of counsel that would Defendant was arrested. He was charged. He was excuse this default; (2) the district court violated 28 U.S.C. arraigned. He was taken to the City of Battle Creek § 2254(e)(2) when it held an evidentiary hearing on lockup, not the county jail, but the lockup pending petitioner’s claim of ineffective assistance of trial counsel transfer, moving him over here. While he was there[,] because petitioner had failed to develop the factual basis there was another person in the lockup. He goes, hey, underlying that claim in the state courts; and (3) assuming my mom just saw you on a videotape . . . . He said my that the district court had the authority to reach the merits of mom told me she just saw a person and they accused him petitioner’s Confrontation Clause claim, it erred in granting of homicide. You kill that man? What did he say? Yep, relief because the prosecutor’s remark did not violate yep. petitioner’s right to confrontation under the relevant, clearly- established Supreme Court precedent. At the close of the state’s case, the prosecutor informed the court that the state would not call Brand as a witness because For the reasons explained below, we REVERSE the district it had been unable to locate him. The prosecutor admitted court’s grant of a writ of habeas corpus to petitioner under 28 that he did not believe that the state’s efforts to locate Brand U.S.C. § 2254. met with the due diligence required under Michigan case law for the admission of preliminary examination testimony. The I. Procedural History trial court agreed and declined to admit the testimony. Despite the prosecutor’s failure to produce Brand, defense Adjudication of respondent’s present appeal requires an counsel neither objected to nor requested a mistrial based understanding of the complex procedural history that bears upon the prosecutor’s opening statement relaying that upon that appeal in the state courts. confession. Further, defense counsel never mentioned the prosecutor’s statement regarding petitioner’s alleged confession in his opening statement, which he had reserved until the close of the prosecution’s case. Neither defense counsel nor the prosecutor mentioned the alleged confession in closing arguments. No. 03-1124 Hicks v. Straub 5 6 Hicks v. Straub No. 03-1124

The trial court gave the jury the customary instruction that including arguing matters not in evidence, such as “[t]he lawyers’ statements and arguments are not evidence,” defendant’s supposed admission to committing the and further instructed: murder, and by repetitively cross-examining defendant on the irrelevant matter of his being a Lorenzo Brand is a missing witness whose appearance marijuana dealer. was the responsibility of the [p]rosecution. You may infer that the witness’ testimony would have not been II. Because of defense counsel’s failures[,] . . . favorable to the [p]rosecution’s case. [defendant] was denied his rights to the effective assistance of counsel, to present an effective defense, However, because the prosecutor’s opening statement never and to a fair trial. named the jail inmate to whom petitioner allegedly confessed, and because no mention was ever made before the jury that Petitioner only asserted that these instances of prosecutorial Brand was that inmate, the jury had no knowledge with which misconduct violated defendant’s rights to due process and a to tie the trial court’s “Brand” instruction to the prosecutor’s fair trial; he never argued that this misconduct also violated opening statement regarding the alleged confession.2 his Sixth Amendment right to confrontation. During his Moreover, immediately after this instruction, the district court appeals in the state courts, petitioner argued that no curative gave an instruction as to when the jury could properly instruction could have remedied the prejudice to defendant. consider an unrelated out-of-court statement made by During the direct appeal, no one mentioned that the curative petitioner that had been admitted into evidence. instruction that identified Brand was referring to the jail inmate in the prosecutor’s opening statement to whom The jury convicted petitioner of first-degree murder and petitioner allegedly confessed. Since trial counsel never possession of a firearm during the commission of a felony. objected to this alleged prosecutorial misconduct, petitioner The trial court sentenced petitioner to life imprisonment argued that this failure to object resulted in the requisite without parole on the murder conviction and to two years’ manifest injustice which rendered any such objection imprisonment on the felony-firearm conviction. unnecessary, and, alternatively, that the failure amounted to an ineffective assistance of counsel. Thus, petitioner’s B. Direct Review independent claim of ineffective assistance of counsel rested, in part, upon this failure by trial counsel.3 Petitioner filed an appeal as of right in the Michigan Court of Appeals. Petitioner presented, among others, the following Petitioner filed a motion to remand the case to the trial two claims: court for an evidentiary hearing on his claim of ineffective I. Defendant . . . was denied a fair trial by the prosecutor’s numerous instances of misconduct, 3 Petitioner also argued that trial counsel rendered ineffective assistance when he failed to impeach a witness with testimony from his 2 preliminary examination; to make app ropriate motions, both before and The only plausible way for the jury to make the necessary during trial; to cross-examine a witness concerning her in-court connection would have been to compare the list of witnesses mentioned identification of defendant with her prior stateme nt that she could not during the voir dire with the actual witnesses called. W hether the jury identify the perpetrator; and to pre pare petitioner’s alibi defense made that connection is unknown. adequately. No. 03-1124 Hicks v. Straub 7 8 Hicks v. Straub No. 03-1124

assistance of trial counsel. The Michigan Court of Appeals claims that he had presented to the Michigan Court of affirmed petitioner’s conviction and sentence. People v. Appeals. Petitioner also filed a motion to remand the case to Hicks, No. 171833 (Mich. Ct. App. Nov. 8, 1996). As to the the trial court for an evidentiary hearing on his ineffective- first claim, the court found that trial counsel, by failing to assistance-of-trial-counsel claim. On November 7, 1997, the object to the alleged instances of prosecutorial misconduct at Michigan Supreme Court denied petitioner leave to appeal trial, had failed to preserve this claim for review absent a and denied the motion for remand on the ground that it was miscarriage of justice. Id. Noting that only a miscarriage of “not persuaded that [it should review] the questions justice would excuse this failure, the court further found that presented.” People v. Hicks, 456 Mich. 884 (Mich. 1997). there was “no manifest injustice in the prosecutor’s comment during his opening statement that defendant allegedly C. State Collateral Review confessed to the crime to a fellow inmate, even though the prosecution later failed to produce that witness.” Id. The On January 29, 1999, petitioner filed a motion for relief court reasoned that the trial judge’s instruction to the jury that from judgment in the trial court, pursuant to M.C.R. 6.500.4 it “could assume that the witness the prosecution was unable The record indicates that petitioner made the following two to produce would have testified unfavorably to the claims, among others, in that motion: prosecution, and that . . . [it was] not to consider defendant’s alleged out-of-court admission as evidence of his guilt” I. [Petitioner was] denied his constitutional right to remedied any potential prejudice that may have resulted from confront witnesses against him when the prosecutor this comment. advised the jury during opening statement that defendant had confessed to the murder, where the After noting that the defendant failed to properly preserve prosecutor without even the pretense of due the issue, the court of appeals nonetheless decided to address diligence failed thereafter to produce the witness to the merits of his ineffective assistance of trial counsel claim, the alleged confession, where defense counsel never and found that he “failed to overcome the presumption that he responded to the issue of the “confession” in any was afforded effective assistance of counsel.” Id. way, and where the trial court’s instructions failed Specifically, the court held that “in each instance, the action [that] defendant suggests that counsel should have taken[] would have either been futile, or a matter of strategy that th[e] 4 Petitioner had previously filed–on January 26, 1999–a writ of [c]ourt is unwilling to second-guess on appeal.” The habeas corpus under 28 U.S.C. § 2254. Conceding that his petition Michigan Court of Appeals denied petitioner’s motion to contained unexhausted claims, petitioner explained that he had filed the remand on the ground that petitioner “failed to identify an petition to avoid a perceived violation of the applicable statute of limitations. Petitioner stated that he wanted to pursue state collateral issue sought to be reviewed on appeal and demonstrate by review so as to exhaust these claims as well as to raise claims based upon affidavit or an offer of proof regarding the facts to be a denial of his right to confrontation and upon a denial of his right to the established at a hearing,” as M.C.R. 7.211(c)(1)(a)(ii) effective assistance of counsel. The district court dismissed the petition requires. People v. Hicks, No. 171833 (Mich. Ct. App. Dec. without prejudice on Sep tember 2 9, 199 9, pursuant to the p arties’ 6, 1995). stipulation that 28 U.S.C. § 2 244 (d)(1 )’s one-year statute of limitations would be tolled during the pendency of state collateral review, and that any re-filed § 2254 petition would not constitute a “successive Petitioner then filed a delayed application for leave to petition” under 28 U.S.C. § 2244(b)(2). Hicks v. Straub, No. 99- appeal to the Michigan Supreme Court, presenting the same 70299 (E.D. Mich. September 29, 1999). No. 03-1124 Hicks v. Straub 9 10 Hicks v. Straub No. 03-1124

utterly to remedy the enormous prejudice to the petitioner argued that, although his Confrontation Clause and defendant. Due Process Clause claims are grounded on the same factual predicate, they are legally distinct. Therefore, he argued the II. [Petitioner was] deprived of the effective assistance Michigan Court of Appeals decided only the latter, but not the of counsel when trial counsel failed to object or former claim.6 Petitioner further argued that the ineffective move for mistrial based upon an obvious deprivation assistance of appellate counsel had prevented him from of the right to confront witnesses following the presenting his Confrontation Clause claim to the court of prosecutor’s unsupported statement to the jury that appeals. He asserted that both trial counsel and appellate the defendant had confessed, and where appellate counsel were ineffective for failing to identify and to raise the counsel failed to frame the issue properly as the Confrontation Clause claim at trial and on direct review, deprivation of the right to confront witnesses in respectively. violation of the Sixth Amendment. The trial court noted that the Michigan Court of Appeals In support of his claims, petitioner argued, for the first time, had held that trial counsel was not ineffective. Nevertheless, that the trial court’s jury instruction on Brand was incapable it stated that, “[b]ecause this is a first degree murder of curing the prosecutor’s statement to the jury that petitioner conviction and a felony firearm conviction, . . . [it was] had confessed to a jail inmate because that statement never willing to address the underlying substance of the motion.” disclosed the name of that jail inmate while the court’s The court stated that, because defendant testified that he had instruction only referenced Brand by name, not by his role as an alibi defense and completely denied having anything to do the jail inmate to whom petitioner allegedly confessed. with the murder, the defense “clearly contradicted the Petitioner further argued that, had Brand testified, defense [p]rosecutor’s opening statement [that defendant had counsel would have had substantial evidence with which to confessed].” The trial court then noted that it had instructed impeach his testimony. the jury that the lawyers’ arguments and statements are not evidence and that the jury’s decision must be based upon only In an order dated March 16, 2000, the state trial court evidence. The court concluded that, “technically,” there is no denied petitioner’s motion for relief from judgment. People “confrontation issue” because, absent the prosecutor’s v. Hicks, No. 93-2188FC (Calhoun County Circuit Court statement, “there was no evidence brought into play against March 16, 2000). The court outlined its reasons for that the defendant.” While reading onto the record the Michigan denial at a hearing on March 6, 2000.5 During that hearing, Court of Appeals’ opinion denying petitioner’s ineffective-

5 During an earlier hearing, at which only the prosecutor appeared, the prosecutor argued that the Michigan Court of Appeals had decided all of add ressed , so that motion is denied. the claims in petitioner’s motion for relief from judgment. The trial judge then stated: Petitioner’s counsel failed to attend this hearing due to a scheduling error. The state co urt re-scheduled the hearing on p etitioner’s motion for That’s what I tho ught. I read the Court of Appeals opinion March 6 , 200 0, at which hea ring bo th counsel were pre sent. again, the ineffective assistance, the alleged prosecutorial 6 misco nduc t, the comments made in the opening statement that Presumably in response to this contention, the prosecutor argued were never followed up about the jail compatriot claiming the that petitioner should not be permitted to prese nt an arg ument that is [d]efendant made statements. In any event all of these have been simply worded differently. No. 03-1124 Hicks v. Straub 11 12 Hicks v. Straub No. 03-1124

assistance-of-counsel claim, the trial court underscored the I. The trial court was clearly erroneous in rejecting following excerpt as the most important in its view: defendant[]’s claim that he was denied his constitutional right to confront witnesses against him [T]he record provides no support for [d]efense’s when the prosecutor advised the jury during opening proposition that counsel’s failure to object to the statement that defendant had confessed to the admission of evidence, his failure to request a pretrial murder, where the prosecutor without even the lineup, his failure to extensively cross-examine an pretense of due diligence failed thereafter to produce eyewitness, or his presentation of the [d]efendant’s the witness to the alleged confession, where defense defense fell below the objective standard of counsel never responded to the issue of the reasonableness. We find that defendant has failed to “confession” in any way, and where the trial court’s overcome the presumption that he was afforded effective instructions failed utterly to remedy the enormous assistance of counsel. prejudice to the defendant. Based upon this excerpt, the trial court concluded that II. The trial court was clearly erroneous in rejecting petitioner had not presented a “specific discrete allegation of defendant[]’s claim that he was deprived of the ineffective assistance.” Rather, according to the trial court, effective assistance of counsel when trial counsel petitioner’s allegation “was wide-ranging” and involved a failed to object or move for mistrial based upon an “number of different areas . . . to demonstrate ineffective obvious deprivation of the right to confront assistance.” As a result, the trial court also agreed with the witnesses following the prosecutor’s unsupported court of appeals that trial counsel’s assistance was not statement to the jury that the defendant had ineffective, reasoning that defendant had posited an alibi confessed, and where appellate counsel failed to defense before the jury, and that the court had instructed the frame the issue properly as the deprivation of the jury that lawyers’ statements are not evidence. The court then right to confront witnesses in violation of the Sixth denied petitioner’s motion.7 Amendment. Petitioner filed a delayed application for leave to appeal the The Michigan Court of Appeals denied petitioner leave to trial court’s denial of his motion for relief from judgment in appeal on the ground that petitioner had failed “to meet the the Michigan Court of Appeals, presenting these claims: burden of establishing entitlement to relief under M.C.R. 6.508.” People v. Hicks, No. 226074 (Mich. Ct. App. Aug. 11, 2000). Petitioner then filed a delayed application for leave to 7 appeal in the Michigan Supreme Court, presenting the same W e note that the Michigan Court of Appeals’ decision, on direct claims that he had presented to the Michigan Court of review, necessarily addressed only petitioner’s claim of ineffective assistance of trial counsel. We further note that, while the trial court, in Appeals. The Michigan Supreme Court denied petitioner denying petitioner’s post-conviction motion, did no t expre ssly articulate leave to appeal, ruling that petitioner had failed “to meet the its reasoning for the denial of petitioner’s claim tha t appellate counsel was burden of establishing entitlement to relief under M.C.R. ineffective for failing to raise a Confrontation Clause challenge on direct 6.508(D).” People v. Hicks, 463 Mich. 978 (Mich. Feb. 26, review, such a holding implicitly follows from its express finding that trial 2001). counsel was not ineffective for failing to raise such a challenge at trial. No. 03-1124 Hicks v. Straub 13 14 Hicks v. Straub No. 03-1124

D. Federal Collateral Review Before the District Court 1. Procedural Default Consideration on State Collateral Review On March 9, 2001, petitioner filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner presented On state collateral review, the Michigan Supreme Court the following claims as grounds for relief: denied petitioner leave to appeal the trial court’s denial of his motion for relief from judgment on the ground that petitioner I. Petitioner was denied his constitutional right to failed “to meet the burden of establishing entitlement to relief confront witnesses against him when the prosecutor under M.C.R. 6.508(D).” People v. Hicks, 463 Mich. 978 advised the jury during opening statement that (Mich. Feb. 26, 2001). In so holding, the state court did not petitioner had confessed to the murder, where the specify whether it was relying upon a particular subsection of prosecutor without even the pretense of due M.C.R. 6.508(D). Before the district court, petitioner and diligence failed thereafter to produce the witness to respondent argued about whether the Michigan Supreme the alleged confession, where defense counsel never Court’s denial rested upon an adequate and independent state responded to the issue of the ‘confession’ in any procedural law and, in particular, about whether it relied upon way, and where the court’s instruction failed utterly subsection (3) of M.C.R. 6.508(D). M.C.R. 6.508(D)(3) to remedy the enormous prejudice to the petitioner. provides: II. Petitioner was deprived of the effective assistance of The court may not grant relief to the defendant if the counsel when trial counsel failed to object or move motion . . . alleges grounds for relief, other than for mistrial based upon an obvious deprivation of the jurisdictional defects, which could have been raised on right to confront witnesses following the appeal from the conviction and sentence or in a prior prosecutor’s unsupported statement to the jury that motion under this subchapter [of post-appeal relief], the petitioner had confessed, and where appellate unless the defendant demonstrates (a) good cause for counsel failed to frame this issue properly as the failure to raise such grounds on appeal or in the prior deprivation of the right to confront witnesses in [post-appeal] motion, and (b) actual prejudice from the violation of the Sixth Amendment. alleged irregularities that support the claim for relief. On October 15, 2002, the district court conducted an Respondent argued that, in denying petitioner relief under evidentiary hearing in which it found trial counsel was M.C.R. § 6.508(D), the Michigan Supreme Court implicitly ineffective, and conditionally granted petitioner a writ of relied upon subsection (3). Respondent argued that habeas corpus on petitioner’s Confrontation Clause claim.8 subsection (3) applied because, although petitioner had presented the factual predicate for his Confrontation Clause claim to the Michigan courts on direct review by virtue of his prosecutorial misconduct claim, he had not presented the legal argument for that claim until state collateral review. Petitioner concedes that he did not expressly present his 8 Confrontation Clause claim on direct review. However, The district court determined that habeas corpus relief was not petitioner does argue that he “fairly presented” his warranted for his claims based on a witness’ in-court identification of Confrontation Clause claim to the Michigan Court of Appeals him. No. 03-1124 Hicks v. Straub 15 16 Hicks v. Straub No. 03-1124

on direct review based solely on his presentation of the against the defendant in a prior appeal or proceeding factual predicate. Accordingly, petitioner argues that there under this subchapter [of post-appeal relief], unless the was no basis for procedural default under M.C.R. defendant establishes that a retroactive change in the law 6.508(D)(3). Alternatively, petitioner argued that appellate has undermined the prior decision; counsel’s failure to raise the Confrontation Clause claim on direct review constituted ineffective assistance so as to excuse In so holding, the district court reasoned that, although such default. In support, petitioner claimed that appellate “[p]etitioner could have presented his Confrontation Clause counsel buried the Confrontation Clause issue, the “most claim in a clearer manner,” he “fairly presented [it] to the significant constitutional deprivation in th[e] case,” in a Michigan state courts on direct review.” Id. at 706. The “garden-variety prosecutorial misconduct claim,” and that, to district court underscored that petitioner, in his brief to the the extent that his Confrontation Clause claim is meritorious, Michigan Court of Appeals, argued that the prosecutor such ineffective assistance sufficiently prejudiced him. engaged in misconduct by relaying in his opening statement Respondent countered that petitioner’s appellate counsel did petitioner’s alleged confession to the murder and then not render ineffective assistance by framing the underlying subsequently failing, because of a lack of due diligence, to factual predicate as a prosecutorial misconduct claim – the produce that inmate as a witness at trial. Id. Relying upon “normal” and “accepted” legal theory – rather than as a McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000), the Confrontation Clause claim – an “unusual” and “creative” district court concluded that the facts underlying the legal theory. Petitioner also asserted that the Michigan “prosecutorial misconduct claim . . . [that petitioner Supreme Court’s “arbitrary and ambiguous” form order presented] in his state court briefs were ‘well within the denying him leave to appeal his post-conviction motion for mainstream of constitutional law’ [on the Confrontation relief from judgment did not constitute an adequate state Clause] such that the Michigan state courts should have procedural ground. recognized and addressed the Confrontation Clause issue.” Id. In further support, the district court posited that petitioner The district court held that the Michigan Supreme Court, in had expressly presented his Confrontation Clause claim, as denying petitioner leave to appeal his motion for relief from such, on state collateral review, and that the Michigan trial judgment under M.C.R. 6.508(D), relied upon subsection (2), court, on such review, had agreed with the prosecutor that not (3).9 Hicks v. Straub, 239 F. Supp. 2d 697, 706-07 (E.D. petitioner’s motion for relief from judgment only presented Mich. 2003). M.C.R. 6.508(D)(2) provides: claims that he had previously presented to the state courts on direct review.10 Id. According to the district court, because The court may not grant relief to the defendant if the motion . . . alleges grounds for relief which were decided 10 Resp ondent’s brief states that “[t]he trial court, perceiving no difference in the claim from what had been presented during [p]etitioner’s 9 Petitioner asserted that because the Michigan courts had not decided appeal of right, denied the m otion on the ground that [p]etitioner co uld his Confrontation Clause claim on direct review, the Michigan Supreme not collaterally attack his conviction on grounds already presented in a Court, on co llateral review, could not have relied upon M.C.R. prior appeal.” Thus, both the district court and respo ndent seem to 6.508(D)(2) in denying petitioner lea ve to appe al his mo tion for relief contend that the trial court’s denial of petitioner’s motion for relief from from judgment. Th us, petitioner conceded – albeit implicitly – that the judgment rested on this ground . W hile the prosecutor made this argument Michigan Supreme Court denied him such leave pursuant to M.C.R. before the trial court in the initial ex parte hearing, and while portions of 6.508(D )(3). the subse quent hearing, on March 6, 2000 , reveal that the trial court No. 03-1124 Hicks v. Straub 17 18 Hicks v. Straub No. 03-1124

petitioner fairly presented his Confrontation Clause claim to petitioner had procedurally defaulted his prosecutorial the Michigan courts on direct review, the courts, not misconduct claim by failing to object at trial to its underlying petitioner, bear the blame for their failure to recognize and to factual predicate – the prosecutor’s opening statement rule upon that claim. Id. The district court found that the relaying petitioner’s purported confession. Respondent state courts’ failure to recognize and to address petitioner’s further argued that trial counsel’s failure to object to this fairly-presented Confrontation Clause claim in denying alleged Confrontation Clause violation did not constitute petitioner relief on direct review constituted a constructive ineffective assistance of counsel so as to excuse any such denial of that claim for purposes of M.C.R. 6.508(D)(2). Id. default. Respondent asserted that petitioner’s trial counsel at 707. After finding that the Michigan Supreme Court chose not to object or move for a mistrial when the state denied petitioner leave to appeal under M.C.R. 6.508(D)(2), failed to produce Brand as a matter of trial strategy. the court held that this state procedural law is inadequate to Specifically, respondent maintained that the failure of Brand bar federal habeas review because it is “simply a rule of res to appear was a fortunate turn of events because Brand’s judicata barring a defendant from re[-]litigating claims in a testimony would only have strengthened the prosecution’s motion for relief from judgment which were decided case. Moreover, according to respondent, had trial counsel adversely to him in a prior state court decision.”11 Id. Thus, objected and received a mistrial, there would have been the the district court found that petitioner had not procedurally risk that the government, at the re-trial, would have been able defaulted his Confrontation Clause claim on state collateral to produce Brand as a witness. review. Id. The district court held that, in case the Michigan Court of 2. Procedural Default Consideration on Direct Review Appeals, on direct review, found petitioner’s Confrontation Clause claim procedurally defaulted due to his trial counsel’s Before the district court, respondent argued that, to the failure to object to that underlying violation at trial,12 that extent petitioner fairly presented his Confrontation Clause failure constituted ineffective assistance and, thus, excused claim to the state courts on direct review by virtue of any such procedural default. After conducting an evidentiary presenting the factual basis underlying his prosecutorial hearing on the matter, the district court agreed with petitioner misconduct claim, petitioner, nevertheless, procedurally that trial counsel’s assistance was objectively unreasonable defaulted that claim. As respondent pointed out, the for the following reasons: 1) it should have been obvious to Michigan Court of Appeals, on direct review, found that

12 examined the Michigan Court of Appeals’ decision, the trial court, On direct review, the M ichigan Court of Ap pea ls held that at that subsequent hearing, expressly considered the merits of petitioner had failed to p reserve his prosecutorial misconduct claim based petitioner’s claims. In its order denying petitioner’s motion for upon the prosecutor’s opening statement on the ground that petitioner had failed to object to this statement at trial, and that, because the jury relief from judgment, the trial court adopted its reasoning at the instructions remedied any prejudice resulting from this statement, no subsequent hearing as the basis for that denial. manifest injustice existed to excuse this failure. T hus, as respondent aptly 11 argued, to the exte nt that petitioner had raised his Confrontation C lause In so holding, the district court relied upon Ceja v. Stewart, 97 F.3d claim on direct review by virtue of presenting the sam e facts underlying 1246, 1253 (9th Cir. 1996), which held that a state court’s application of his prosecutorial misconduct claim, the Michigan Court of App eals’ the rule of res judiciata is not an adequate proce dural bar to foreclose procedural-de fault ruling would apply with equal force to that claim as federal habeas relief. well. No. 03-1124 Hicks v. Straub 19 20 Hicks v. Straub No. 03-1124

him that the prosecutor’s failure to produce Brand at trial to address it, a federal court must conduct an independent violated petitioner’s right to confrontation; 2) he had no review of that state court’s decision under 28 U.S.C. strategic reason not to object to this Confrontation Clause § 2254(d). Id. at 707. The court reasoned that such a denial violation; 3) his purported reason for failing to object–that he constituted an adjudication on the merits – albeit without any did not want the prosecution to produce Brand as a witness at reasoning – for purposes of triggering § 2254(d). Id. any re-trial–was “unreasonable” and “wholly unsupported by the record” due to the availability of substantial impeachment In reviewing petitioner’s Confrontation Clause Claim, the material against Brand;13 and 4) he did not even obtain an district court found that the prosecutor’s opening statement adequate curative instruction because the instruction that the relaying petitioner’s purported confession violated trial court gave did not reference Brand as the jail inmate to petitioner’s right to confrontation, and that this violation was whom petitioner allegedly confessed. Id. at 712-13. The not harmless error. Id. at 711. The district court further district court found that, because the prosecutor’s unsupported found, pursuant to § 2254(d), that the prior state-court denial opening statement violated petitioner’s right to confront the of petitioner’s Confrontation Clause claim on the merits was witnesses against him, trial counsel’s deficient representation an unreasonable application of the pertinent, clearly- sufficiently prejudiced petitioner. Id. Pursuant to 28 U.S.C. established Supreme Court precedent. Id. at 712; see § 2254(d), the district court further found that the prior-state generally Pointer v. Texas, 380 U.S. 400, 403 (1965), Bruton court adjudication denying petitioner’s ineffective-assistance- v. United States, 391 U.S. 123 (1968), and Frazier v. Cupp, of-trial-counsel claim on the merits constituted an 394 U.S. 731 (1969). Consequently, the district court unreasonable application of Strickland v. Washington, 466 conditionally granted petitioner’s application for a writ of U.S. 668 (1984), the pertinent, clearly-established Supreme habeas corpus under 28 U.S.C. § 2254 on his Confrontation Court precedent. Id. Thus, the district court found the Clause claim. Id. at 714. procedural default doctrine did not bar its review of petitioner’s Confrontation Clause claim on the merits. Id. II. Analysis

3. Adjudication on the Merits The provisions of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 Relying upon Harris v. Stoval, 212 F.3d 940 (6th Cir. (“ADEPA”), apply to petitioner’s habeas petition, which 2000), the district court held that, where, as here, the petitioner filed after the effective date of the act. “In a habeas petitioner fairly presented his federal constitutional claim of corpus proceeding, we review de novo a district court’s legal a violation of the confrontation clause to the state courts on conclusions and its factual findings for clear error.” Lott v. direct review, and those courts, in denying that claim, failed Coyle, 261 F.3d 594, 606 (6th Cir. 2001). We review de novo a district court’s determinations regarding a habeas petitioner’s procedural default of any of his claims. Id. We 13 review de novo a district court’s determinations concerning a According to petitioner, such impeachment evidence includes Bra nd’s admissions that he anticipated that the prosecutor “m ight” help habeas petitioner’s ineffective-assistance-of-counsel claim, a him out with charges that he was facing at the time, that the alleged mixed question of law and fact. Id. confession occurred within feet of a large sign warning that everything was being recorded , and the implausible nature of petitioner having confessed to a complete stranger at the very beginning of their conversation. No. 03-1124 Hicks v. Straub 21 22 Hicks v. Straub No. 03-1124

A. Procedural Default Cir. 2000). If, pursuant to these standards, a petitioner procedurally defaulted his federal claim in state court, the Subject to two exceptions, 28 U.S.C. § 2254(b)(1)(A) petitioner must demonstrate either: 1) cause for his failure to prohibits a federal court from granting “[a]n application for a comply with the state procedural rule and actual prejudice writ of habeas corpus on behalf of a person in custody flowing from the violation of federal law alleged in his claim, pursuant to the judgment of a [s]tate court ... unless . . . the or 2) that a lack of federal habeas review of the claim’s merits applicant has exhausted the remedies available in the courts “will result in a fundamental miscarriage of justice.” of the [s]tate.” 28 U.S.C. § 2254(c) provides that an applicant Coleman, 501 U.S. at 750; see Murray v. Carrier, 477 U.S. has exhausted the remedies available in state courts only if he 478, 496 (1986) (specifying that a ‘fundamental miscarriage no longer has the right to raise the question presented by any of justice’ will result “where a constitutional violation has available procedure under state law. The procedural default probably resulted in the conviction of one who is actually doctrine applies to bar a federal court’s review of a state innocent”). prisoner’s federal claim where that prisoner failed to give the state courts a “full and fair” opportunity to resolve that 1. Direct Review claim–as the exhaustion doctrine requires–and the prisoner cannot cure that failure because state-court remedies are no We find that, contrary to the district court’s conclusion, longer available. See O’Sullivan v. Boerckel, 526 U.S. 838, petitioner procedurally defaulted his Confrontation Clause 848 (1999) (holding that the procedural default doctrine claim by failing to fairly present it to the Michigan courts on preserves the integrity of the exhaustion doctrine, which “a direct review.14 A petitioner must fairly present to the state prisoner could evade . . . by ‘letting the time run’ on state remedies”); Coleman v. Thompson, 501 U.S. 722, 732 (1991) (holding that a “habeas petitioner who has defaulted his 14 The district court and petitioner make much of the fact that federal claims in state court meets the technical requirements respo ndent, in an ex parte hearing before the Michigan trial court on for exhaustion . . . [because] there are no state remedies any petitioner’s motion for relief from judgment, argued that petitioner had longer ‘available’ to him,” and, thus, that the procedural presented his Confrontation Clause claim to the state courts on direct default doctrine prevents a habeas petitioner from review, and that the state courts had decided that issue. In his brief here, circumventing the policy underlying the exhaustion doctrine). petitioner contends that the doctrine of judicial estopp el should op erate to bar respondent from now asserting that petitioner had not fairly presented his Co nfrontation Clause claim to the state co urts on direct review. In deciding whether a petitioner procedurally defaulted a Howeve r, as discussed below, the supreme court denied petitioner federal claim in state court, we must determine whether: leave to appeal under M .C.R. 6.508(D)(3) on the ground that petitioner 1) the petitioner failed to comply with an applicable state had improperly failed to raise his Confrontation Clause claim on direct procedural rule; 2) the last state court rendering judgment on review. Alterna tively, to the extent that p etitioner suggests that the claim at issue, in fact, enforced the applicable state respo ndent’s prior inconsistent po sition was “successful” because the state trial court had relied upon it in denying petitioner’s motion, the actual procedural rule so as to bar that claim; and 3) the state order denying that motion does not support such a claim. Attached to that procedural default is an adequate and independent state order is not the transcript from the ex parte hearing, but the transcript ground properly foreclosing federal habeas review of the from the subsequent hearing, in which the trial court expressly stated that petitioner’s federal claim at issue. Seymour v. Walker, 224 it would address the claim’s merits. Moreo ver, petitioner’s brief concedes F.3d 542, 554-55 (citing Maupin v. Smith, 785 F.2d 135, 138 that the trial court did not find a procedural default, but rather addressed the merits of his Confrontation Clause claim. (6th Cir. 1986)); Simpson v. Jones, 238 F.3d 399, 406 (6th In any even t, we note that, in his habeas petition–and on state No. 03-1124 Hicks v. Straub 23 24 Hicks v. Straub No. 03-1124

courts either the substance of or the substantial equivalent of pertinent] constitutional law.” McMeans, 228 F.3d at 681 the federal claim that he is presenting to a federal habeas (holding that “[g]eneral allegations of the denial of rights to court. A petitioner fairly presents a federal habeas claim to a ‘fair trial’ and ‘due process’ do not ‘fairly present’ claims the state courts only if he “asserted both the factual and legal that specific constitutional rights were violated.”) However, basis for his claim.” McMeans, 228 F.3d at 681. See also a petitioner need not cite “book and verse on the federal Picard v. Connor, 404 U.S. 270, 276, 277-78 (1971) (holding constitution.” Picard, 404 U.S. at 278 (quotation marks and that petitioner’s challenge to the legality of the indictment citations omitted). was neither the “substantial equivalent” of nor entailed the same “ultimate question for disposition” as his equal Because his prosecutorial misconduct and Confrontation protection claim even though it relied upon the same factual Clause claims rest upon the same factual predicate, petitioner, basis, and, thus, that the state courts had no sua sponte duty by presenting his prosecutorial misconduct claim on direct to consider whether that factual basis resulted in a equal review, also presented the factual basis underlying his protection violation). As this Court has previously explained, Confrontation Clause claim. Thus, the issue is whether the exhaustion doctrine requires the petitioner to present “the petitioner, on direct review, presented either the substance of same claim under the same theory” to the state courts before or the substantial equivalent of the legal basis for his raising it on federal habeas review. Pillette v. Foltz, 824 F.2d Confrontation Clause claim. We find that he did not. 494, 497 (6th Cir. 1987). In determining whether a petitioner “fairly presented” a federal constitutional claim to the state Petitioner referenced the underlying factual predicate courts, we consider whether: 1) the petitioner phrased the neither in terms relating to legal precedent on the federal claim in terms of the pertinent constitutional law or in Confrontation Clause nor in terms of a specific violation of terms sufficiently particular to allege a denial of the specific his right to confrontation. See Newton v. Million, 349 F.3d constitutional right in question; 2) the petitioner relied upon 873, 877 (6th Cir. 2003) (holding that petitioner fairly federal cases employing the constitutional analysis in presented his federal claim to the state courts where he question; 3) the petitioner relied upon state cases employing phrased his claim in terms of the specific denial of a the federal constitutional analysis in question; or 4) the constitutional right–his right to due process of law under the petitioner alleged “facts well within the mainstream of [the Fifth and Fourteenth Amendments–and alleged the underlying facts upon which that claim was based even though he cited no cases employing federal constitutional analysis). Notably, collateral review–petitioner conceded that he ha d not raised his petitioner never mentioned the terms confrontation or cross- Confrontation Clause claim on direct review–that it was “distinct from the examination. Rather, petitioner argued only that the general prosecutorial misco nduc t claim that” petitioner brought on direct prosecutor’s opening statement amounted to the “argu[ing] review. In fact, petitioner made this contention so as to persuade the trial facts not in evidence,” and that this instance of prosecutorial court that the state courts had not previously decid ed this claim and to misconduct violated his constitutional right to a fair trial. prompt the trial court to address its merits. Moreo ver, petitioner also conceded to the district court, regarding his prior § 2254 p etition, that the Confrontation Clause claim that it presented had not been exhausted on In addressing the underlying factual foundation in his state direct review. Indeed, this representation prompted the parties to enter court briefs, petitioner did not rely upon any federal legal into a stipulation to dismiss that petition so that petitioner could exhaust precedent analyzing a claim under the Confrontation Clause, that claim. T hus, petitioner’s co ntention that the eq uities compe l us to and only one case upon which he relied discussed the app ly the doctrine of judicial estopp el against respo ndent is not we ll- taken. No. 03-1124 Hicks v. Straub 25 26 Hicks v. Straub No. 03-1124

Confrontation Clause.15 Petitioner’s single reference to one considered a habeas petitioner’s claim that the prosecutor’s case discussing the Confrontation Clause–where that case, conduct violated his right to confrontation. Id. at 734. In that unlike here, involved the admission into evidence of case, the prosecutor, during his opening statement, transcripts of the former witnesses’ incriminating summarized the anticipated testimony of Rawls, a witness testimony–is insufficient to fairly present a Confrontation who had pleaded guilty to the same offense for which the Clause claim based upon the prosecutor’s opening statement, petitioner was being tried. Id. at 733. The summary “took which is not evidence. See McMeans, 228 F.3d at 682 only a few minutes to recite and was sandwiched between a (holding that, even though isolated state cases upon which summary of [the] petitioner’s own confession and a petitioner relied contained “a few brief references to the description of the circumstantial evidence [that] the [s]tate Confrontation Clause,” petitioner had not “fairly presented” would introduce.” Id. Thus, the prosecutor did not his Confrontation Clause claim to the state courts on direct emphasize that summary in any particular way. Id. review because, during that review process, petitioner focused Although, “[a]t one point[,] the prosecutor referred to a paper entirely on the state’s rape shield law, failed to cite any that he was holding in his hands to refresh his memory about federal precedent, and simply argued that the trial judge’s something Rawls had said, . . . he did not explicitly tell the restriction of his cross-examination denied him a “fair trial” jury that this paper was Rawls’ confession, nor did he purport and “due process”). to read directly from it.” Id. at 734. Yet, the state conceded that “the jury might fairly have believed that the prosecutor While the district court found that the factual predicate that was referring to Rawls’ statement.” Id. Later, the prosecutor petitioner presented on direct review fell “well within the called Rawls to the stand. Id. However, the trial court soon mainstream of” Confrontation Clause precedent, we disagree. dismissed Rawls from the stand after Rawls informed the Frazier v. Cupp, 394 U.S. 731 (1969), best illustrates why we court that he would invoke his privilege against self- arrive at this conclusion. In Frazier, the Supreme Court incrimination as to every question concerning the events at issue. Id. 15 Petitioner cited Peo ple v. Dye, 427 N.W .2d 5 01 (Mich. 19 88), in Relying upon Bruton v. United States, 391 U.S. 123 (1968), arguing that the prosec utor’s “belated attempt to produce . . . Brand was and Douglas v. Alabama, 380 U.S. 415 (1965), in which the hardly a sign of good faith” and, thus, that the prosecutor was “unable to Supreme Court found Confrontation Clause violations, the show due diligence in order to use . . . [Brand’s preliminary] examination petitioner in Frazier argued before the Supreme Court that testimony.” In Dye, the Michigan Supreme C ourt addressed the substance of and purpose behind the Confrontation Clause; the court held, however, “this series of events placed the substance of Rawls’ that a “transcript of prior testimony may[,] nevertheless[,] b e offered in statement before the jury in a way that ‘may well have been evidence upon a showing that the witness is unavailable and that the the equivalent in the jury’s mind of testimony,’ and the testimony bears satisfactory indicia of reliability.” 427 N.W.2d at 504-05 statement ‘added substantial, perhaps even critical, weight to (relying upon M .C.L. § 768.26, which permits the prosecution to use a the [g]overnment’s case in a form not subject to cross- prior witness’ testimony from a preliminary examination, a deposition, or a former trial where the prosecution cannot produce that witness at trial). examination.’” Id. (internal citations omitted). However, the As part of his duty to e stablish the witness’ unavailability, the M ichigan Supreme Court distinguished petitioner’s case from Bruton as Supreme Court held that the prosecutor, at the defendant’s re-trial, had not follows: “[U]nlike the situation in Bruton, the jury was not used due diligence in attempting to produce three witnesses who had being asked to perform the mental gymnastics of considering testified against the defendant at his first trial and, thus, that transcripts of an incriminating statement against only one of two defendants those witnesses’ statements in the first trial were inadm issible. Id. at 506- 511 . in a joint trial.” Id. Here, unlike Bruton, but like Frazier, the No. 03-1124 Hicks v. Straub 27 28 Hicks v. Straub No. 03-1124

jury was not required, via the admission into evidence of a co- none was requested.”) The Court reasoned that it is not defendant’s confession inculpating petitioner, to consider that remarkable “to assume that the jury will ordinarily be able to incrimination against only that co-defendant. limit its consideration to the evidence introduced during trial.” Id. at 736. The Court also emphasized, however, that, The Frazier Court also distinguished Douglas as follows: “[a]t least where the anticipated, and unproduced, evidence is not touted to the jury as a crucial part of the prosecution’s In Douglas, the prosecutor called the defendant’s case, ‘it is hard . . . to imagine that the . . . minds of the jurors coconspirator to the stand and read his alleged confession would be so influenced by such incidental statements during to him; the coconspirator was required to assert his this long trial that they would not appraise the evidence privilege against self-incrimination repeatedly as the objectively and dispassionately.’” Id. (citations omitted). The prosecutor asked him to confirm or deny each statement. court held that nothing that occurred during the prosecution’s The Court found that this procedure placed powerfully opening statement would warrant relief under the incriminating evidence before the jury in a manner which Confrontation Clause. Id. at 736-37 (also finding that the effectively denied the right of cross-examination. Here, prosecutor’s good faith in expecting the witness to testify, Rawls was on the stand for a very short time and only a while not controlling as to a deprivation of the petitioner’s paraphrase of the statement was placed before the jury. right of confrontation, precludes any finding of prosecutorial This was done not during the trial, while the person misconduct). making the statement was on the stand, but in an opening statement. In addition, the jury was told that the opening Here, as in Frazier, the prosecutor neither emphasized his statement should not be considered as evidence. reference to petitioner’s alleged confession in any way nor Certainly the impact of the procedure used here was “touted” that confession as a crucial part of its case to the much less damaging than was the case in Douglas. jury. The opening statement’s reference to petitioner’s purported confession lasted less than a minute. The reference Id. at 735 (italics added). Here, unlike in both Douglas and was “sandwiched” between summaries of the evidence that Frazier, the relevant witness, Brand, was not a co-conspirator the government intended to produce, such as witnesses’ who had inculpated petitioner while confessing to the crime. testimony identifying petitioner and showing that he knew the In addition, unlike in both Douglas and Frazier, the victim. Moreover, unlike in Frazier, the prosecutor did not prosecutor did not call Brand to the stand, and, thus, did not, appear to summarize Brand’s preliminary examination by his questions, read either Brand’s entire preliminary testimony in his statement, but, rather, referred to the examination testimony nor portions of it into the record. purported confession generally. While the Supreme Court Clearly then, unlike in Douglas, Brand did not give credence cautioned in Frazier that “[i]t may be that some remarks to those questions by consistently asserting his Fifth included in an opening or closing statement could be so Amendment privilege. prejudicial that a finding of error, or even constitutional error, would be unavoidable,” id. at 736, a comparison of the facts The Frazier Court concluded that the limiting instruction in this case to those in Frazier reveal that this is not such a that the jury was not to regard counsels’ statements as case. The facts of petitioner’s case here are even less evidence was sufficient to protect the petitioner’s damaging than those in Frazier where the Supreme Court constitutional rights. Id. 734-36 (noting that, while “[a] more found no Confrontation Clause violation. Thus, as Frazier specific limiting instruction might have been desirable, . . . illustrates, the principle that petitioner claims his factual No. 03-1124 Hicks v. Straub 29 30 Hicks v. Straub No. 03-1124

predicate invokes – “that a jury may not be told of a review, respectively. As discussed above, the state trial court defendant’s confession [during the prosecutor’s opening denied petitioner’s motion for relief from judgment. People statement] unless the witness to that alleged confession is v. Hicks, No. 93-2188FC (Calhoun County Circuit Court subject to cross-examination”– does not fall “well within the March 16, 2000). Both the Michigan Court of Appeals and mainstream of” Confrontation Clause precedent. the Michigan Supreme Court denied petitioner leave to appeal the trial court’s denial of his motion for relief from judgment Petitioner contends that his prosecutorial misconduct claim on the ground that petitioner failed “to meet the burden of necessarily encompassed the “more serious” Confrontation establishing entitlement to relief under M.C.R. 6.508(D).” Clause violation. However, petitioner’s prosecutorial People v. Hicks, 463 Mich. 978 (Mich. Feb. 26, 2001). misconduct and Confrontation Clause claim involve distinct legal analyses. See Frazier, 394 U.S. at 736-737 (holding that The district court held that petitioner failed to comply with a prosecutor’s good or bad faith in expecting a witness to only M.C.R. 6.508(D)(2) based upon its previous finding that testify is not controlling in determining whether a defendant’s petitioner had fairly presented his Confrontation Clause claim right of confrontation, was violated, but finding that, because to the state courts on direct review and, thus, that the state of the prosecutor’s good faith there, no prosecutorial courts had decided that claim against petitioner. Since we misconduct claim could lie). Were we to hold that petitioner have concluded, as discussed above, that petitioner did not fairly presented his Confrontation Clause claim to the state fairly present his Confrontation Clause claim to the state courts on direct review, state courts would be compelled to courts on direct review, we conclude that petitioner failed to consider sua sponte all possible federal legal claims that a comply with M.C.R. 6.508(D)(3) when he did not raise his petitioner’s factual allegations might arguably support. The Confrontation Clause claim on direct review.16 principle of comity underlying the exhaustion doctrine does not permit us to force state courts to do so. In denying petitioner leave to appeal his motion for relief from judgment under M.C.R. 6.508(D), the Michigan Because petitioner did not fairly present his Confrontation Supreme Court, the last state court rendering judgment on Clause claim to the Michigan courts on direct review, the petitioner’s Confrontation Clause claim, actually enforced state courts, on such review, could not have actually enforced M.C.R. 6.508(D)(3) against petitioner so as to bar its review any applicable state procedural rule against that claim. See of that claim. As Simpson v. Jones, 238 F.3d 399, 407-08 Seymour, 224 F.3d at 554-55. We now turn to whether the (6th Cir. 2000), makes clear, the Michigan Supreme Court’s state courts enforced such a rule against his Confrontation general invocation of M.C.R. 6.508(D) in denying such leave Clause claim on state collateral review. constitutes an adequate, implicit invocation of the specific procedural bar of whichever subsection of M.C.R. 6.508(D) 2. State Collateral Review applies. See Burroughs v. Makowski, 282 F.3d 410, 413-14 In a motion for relief from judgment under M.C.R. 6.500, petitioner submitted to the state trial court on collateral 16 Because the state trial court, on collateral review, denied review his Confrontation Clause claim along with his claims petitioner’s Confrontation Clause claim on the merits, petitio ner also of ineffective assistance of trial and appellate counsel failed to comply with M.C.R. 6.508(D )(2). Yet, by finding that petitioner surrounding their failure to identify and to raise the procedurally defaulted his Confrontation Clause claim under M.C.R. Confrontation Clause issue, as such, at trial and on direct 6.508(D )(3), we need not and do not decide whether petitioner also d id so unde r subse ction (2 ). No. 03-1124 Hicks v. Straub 31 32 Hicks v. Straub No. 03-1124

(6th Cir. 2002) (applying Simpson). Because M.C.R. reasonable probability that, but for counsel’s deficient 6.508(D)(3) was both firmly established and regularly performance, the proceeding’s result would have been followed at the time of petitioner’s right to direct appeal, it different. Strickland, 466 U.S. at 687-88, 694. constitutes an adequate and independent state procedural ground properly foreclosing federal habeas review of his Here, petitioner has failed to establish that his appellate Confrontation Clause claim. See Friedman v. Smith, No. 02- counsel’s failure to raise a Confrontation Clause claim on 1255, 2003 WL 22976586, at * 7 (6th Cir. Dec. 5, 2003) direct review constituted ineffective assistance under (finding that M.C.R. 6.508(D)(3), which the Michigan Strickland so as to serve as cause to excuse his procedural legislature promulgated in 1989, has been regularly followed default of that claim. Even assuming arguendo that appellate since 1990). We find, therefore, that petitioner procedurally counsel’s failure to raise a Confrontation Clause claim on defaulted his Confrontation Clause claim on state collateral direct review was objectively unreasonable so as to constitute review. deficient performance,17 petitioner has failed to demonstrate that this failure actually prejudiced him. Appellate counsel’s Even though petitioner procedurally defaulted his failure to raise the Confrontation Clause claim on direct Confrontation Clause claim in state court, he may, review could only have prejudiced petitioner if there were a nevertheless, obtain federal habeas review of the claim if he reasonable probability that counsel’s pursuit of that claim demonstrates either: 1) cause for his failure to comply with would have resulted in a successful appeal. McFarland v. the state procedural rule and actual prejudice flowing from the violation of federal law alleged in his claim, or 2) that a lack of federal habeas review of the claim’s merits “will result in 17 a fundamental miscarriage of justice.” Coleman, 501 U.S. at Petitioner did not procedurally default his claim of ineffective 750. Petitioner, pursuing the former route only, contends that assistance of appellate counsel. State collateral review was the first opp ortunity that petitioner had to raise this claim. In denying petitioner’s his appellate counsel’s failure to raise his Confrontation motio n for relief from judgm ent, the state trial court decided petitioner’s Clause claim on direct review constituted ineffective ineffective-assistance-of-appellate-counsel claim against p etitioner–albeit assistance of counsel in violation of the Sixth Amendment without any reasoning. Thus, when the Michigan Supreme Court denied and, thus, serves as the requisite cause to excuse his petitioner leave to appeal this denial under M.C.R. 6.508(D), it was procedural default under M.C.R. 6.508(D)(3). As to the implicitly invoking only subsection (2) with respe ct to pe titioner’s prejudice component, petitioner contends that the ineffective-assistance-of-appellate-counsel claim. However, as the district court correctly found, M.C.R. 6.508(D)(2) Confrontation Clause violation alleged in his claim was does not co nstitute a state procedural gro und that is adequate to bar meritorious and would have constituted reversible error. federal habe as review. 28 U.S.C. § 2254(b)(1) prohibits a federal court from granting habea s relief to a state prisoner on a federal claim unless Attorney error that rises to the level of ineffective that prisoner has exhausted all availab le remedies in state cour t with assistance of counsel in violation of the Sixth Amendment respect to that claim. Thus, a fed eral co urt may not justly find that a prisoner procedurally defaulted his federal claim simply b y virtue of may constitute cause for a procedural default. Murray, 477 receiving an adverse judgment on that claim while attempting to exhaust U.S. at 488-89. To establish that counsel’s assistance was it in state court. Such a d octrinal Catch-22 would effectively foreclose ineffective, the petitioner must demonstrate that: 1) counsel’s federal habe as relief. Ind eed, state priso ners cannot p ursue p ost- performance was deficient in that it “fell below an objective conviction relief in federal court for fed eral claims for w hich the state standard of reasonableness”; and 2) this deficient court alread y granted such relief. In addition, as § 2254(d) illustrates, AEDPA contemplates federal habeas review following an adverse state- performance actually prejudiced him in that there is a court adjudication on the merits of a state prisoner’s federal claim. No. 03-1124 Hicks v. Straub 33 34 Hicks v. Straub No. 03-1124

Yukins, 356 F.3d 688, 699 (6th Cir. 2004); see Williams v. claim on direct review cannot serve as cause for petitioner’s Taylor, 529 U.S. 362, 392-93 (2000) (holding that, where procedural default of that claim.19 counsel’s ineffective assistance did not deprive the petitioner “of any substantive or procedural right to which the law For the preceding reasons, we REVERSE the district entitled him,” the petitioner cannot satisfy Strickland’s court’s grant of a writ of habeas corpus to petitioner and “prejudice” component). remand to the district court with instruction to dismiss the petition for the writ. Petitioner contends that there is a reasonable probability that, but for appellate counsel’s failure to raise a Confrontation Clause claim on direct review, that claim would have prevailed and resulted in a reversal of his conviction. In support, he relies upon Frazier v. Cupp, 394 U.S. 731 (1969), Bruton v. United States, 391 U.S. 123 (1968), Douglas v. Alabama, 380 U.S. 415 (1965), and Pointer v. Texas, 380 U.S. 400, 407-08 (1965) (holding that the admission into evidence at the petitioner’s trial of a witness’ preliminary examination testimony inculpating the petitioner violated his right of confrontation where that witness did not testify at trial and where the petitioner did not have a “complete and adequate opportunity to cross-examine” that witness through counsel at the preliminary examination).18 However, as discussed above, this case materially differs from Bruton, Douglas, and Pointer. Petitioner’s reliance on Frazier is misplaced because the prosecutorial conduct in the present case is even less objectionable than in Frazier. Thus, petitioner has failed to demonstrate that there is a reasonable probability that, but for appellate counsel’s failure to raise a Confrontation Clause claim on direct review, that claim would have prevailed and resulted in a reversal of his conviction. Consequently, appellate counsel’s failure to raise a Confrontation Clause

19 18 Petitioner has also failed to show the req uisite prejudice to ex cuse W e examine the merits of petitioner’s Co nfrontation Clause claim his procedural de fault of his Confro ntation C lause claim. Because he has only to determine if appellate counsel was unconstitutionally ineffective not established a C onfro ntation C lause vio lation in the first instance, for failing to raise it on direct review. See McFarland, 356 F.3d at 701 petitioner, thus, cannot establish that he suffered actual prejudice flowing n.3. from such a violation. No. 03-1124 Hicks v. Straub 35

_________________ CONCURRENCE _________________ ROGERS, J., concurring. I concur in the result and in much of the majority’s opinion. It is not sufficiently clear to me, however, that on collateral review the Michigan Supreme Court relied upon MCR 6.508(D)(3), where such an inference relies entirely upon our after-the-fact determination that (D)(3) rather than (D)(2) was the appropriate provision to rely upon. In Burroughs, in contrast, it was “undisputed that Burroughs failed to properly present his arguments for state appellate review.” 282 F.3d. at 413. However, for the reasons given in the majority’s discussion of Douglas, Burton, and Frazier, petitioner has not adequately shown a violation of the Confrontation Clause under applicable Supreme Court precedents.