NOT RECOMMENDED FOR PUBLICATION File Name: 18a0037n.06
Nos. 16-2429/2474
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED MARK DAVID BAILEY, ) Jan 19, 2018 ) DEBORAH S. HUNT, Clerk Plaintiff-Appellee/Cross-Appellant, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE WESTERN BLAINE LAFLER, Warden, ) DISTRICT OF MICHIGAN ) Respondent-Appellant/Cross-Appellee. ) OPINION ) )
BEFORE: ROGERS, COOK, and STRANCH, Circuit Judges.
JANE B. STRANCH, Circuit Judge. Mark Bailey brought a habeas corpus petition
seeking to overturn his 2005 conviction for the 1989 murder of Mary Pine, arguing primarily that
the State of Michigan withheld evidence that prevented him from presenting a complete defense.
The district court granted the petition on that claim, while dismissing two other habeas claims
regarding ineffective assistance of counsel and admission of evidence of other bad acts. Bailey
and the State each appeal the dismissal and grant of these habeas claims, respectively. We agree
with the district court that the State violated Brady v. Maryland when it withheld evidence that
could have altered the Michigan courts’ and jury’s views of the case. But as a federal court
considering a state prisoner’s habeas petition, our decision is constrained by the review standard
of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Under that standard, Nos. 16-2429/2474, Bailey v. Lafler
we are compelled to REVERSE the district court’s partial grant of Bailey’s habeas petition. We
also AFFIRM the district court’s partial denial of Bailey’s habeas petition.
I. BACKGROUND
On the evening of February 15, 1989, police found seventy-nine-year-old Mary Pine dead
in the bathroom of her home in Big Rapids, Michigan. Pine had been stabbed and beaten over
the head, and she was found with an electrical cord wrapped around her neck. Bailey, then a
nineteen-year-old resident of Big Rapids, sometimes did yard work for Pine. In an interview the
day after the murder, Bailey told the police that he had shoveled snow from Pine’s driveway on
the day of the murder.
On the night of the murder and in the days afterward, multiple detectives tried to follow
snow tracks leading away from Pine’s house and to identify shoes that matched those tracks.
Detective Richard Miller followed the snow tracks from Pine’s house for nearly a mile and
became familiar with the tread pattern and gait displayed by these tracks. Detective George Pratt
also observed the snow tracks outside Pine’s home on the evening of February 15. The next
morning, he went to Bailey’s home and saw a partial footprint in the ice that he believed
contained the same pattern as a print he saw in Pine’s yard. He also saw similar prints near a
gravel pit where Pine’s car, which was missing from her garage after the murder, had been
found.
Both Detectives Miller and Pratt attempted to identify shoes with the tread pattern they
had observed in the snow tracks. Pratt interviewed Bailey twice after the murder and recovered a
pair of shoes Bailey initially said he had worn on the day of the murder, though Bailey later
claimed to have worn a different pair of shoes that day.
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During the investigation, police noticed similarities between the Pine murder and the
1980 murder of 89-year-old Stella Lintemuth1 in Big Rapids, at which time Bailey would have
been ten years old. Police sought to determine if the same killer was responsible. In March
1989, the Mecosta County prosecutor sent Bailey’s fingerprints to the Department of State Police
to determine if they matched fingerprints discovered at the scene of the Lintemuth murder. The
resulting laboratory report concluded that Bailey’s fingerprints did not match those from the
Lintemuth murder. In April 1989, at the State’s request, the Department of State Police prepared
a profile of the potential killer of both Lintemuth and Pine, noting that there were “several
similarities” between the two murders. In May 1990, also at the State’s request, the FBI
Academy at Quantico issued a profile report further detailing the similarities between the two
crimes and concluding that “one offender is most likely responsible for both crimes.”
The FBI report included several paragraphs describing similarities between the 1980 and
1989 murders. Both victims were elderly white females who lived alone in single-family homes
in the same area of Big Rapids, Michigan. Both victims had left their doors unlocked, neither
had any known enemies, and both had the same causes of death: stab wounds and blunt trauma
in excess of what was required to cause death. In both cases, an electrical cord was wrapped
around the neck or face of the victim, but served no apparent purpose in the cause of death. Both
murders probably occurred in the daytime by right-handed offenders who entered the homes
without breaking in and committed the murders using objects found in the home, which they then
left near the bodies. The FBI Report concluded that neither murder showed evidence of theft or
sexual assault, but the State has disputed that conclusion on appeal. Specifically, the Stated
noted that unlike in the Lintemuth murder, Pine’s car and some jewelry were missing, and her
1 Some parts of the record spell the 1980 victim’s name as Lintenmuth. This opinion will follow the convention of the district court and magistrate judge in spelling the 1980 victim’s name as Lintemuth.
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pants and underwear had been pulled down and she was stabbed in the vaginal and buttocks
areas.
After receiving the fingerprint report, the state police report, and the FBI report, the State
chose not to prosecute Bailey. The Pine murder investigation went cold for nearly fifteen years.
In 2003, while incarcerated on unrelated charges, Bailey was a cellmate of Robert Gene
Thompson for about six months. Thompson testified that, while they were cellmates, Bailey
confessed to having murdered Pine. According to Thompson, Bailey described his actions on the
day of the murder extensively, matching various details from the police investigation in 1989.
After learning of Thompson’s claim that Bailey had confessed in detail, the State reinitiated its
investigation of Bailey and, in 2005, Bailey went to trial for the Pine murder. Thompson, who
was serving a life sentence for first-degree felony murder, testified at Bailey’s trial in exchange
for the State’s agreement to aid Thompson in his efforts to obtain a new trial for himself.
The defense sought to present evidence from the 1980 Lintemuth murder to argue that the
similarity of the crimes suggests that one killer was likely responsible for both, as the FBI had
concluded, and that because Bailey was ten years old at the time of the 1980 murder, he was
probably not responsible for either murder. The defense was not aware that the State possessed
the lab report finding that Bailey’s fingerprints did not match those recovered from the 1980
murder (and neither was the court). During pre-trial hearings, the trial court granted the
prosecution’s motion to exclude all evidence related to the 1980 murder, ruling (without
providing any reasoning on the record) that evidence “regarding another murder of an elderly
person when the defendant would have been about 10 years old . . . is not to be brought before
the jury.” People v. Bailey, No. 265803, 2007 WL 2141362, at *7 (Mich. Ct. App. July 26,
2007) (quoting the trial court).
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Certain issues arising at trial are relevant on appeal. Detective Miller testified about his
opinions concerning the snow tracks and the shoes that might have left them. Bailey’s counsel
objected that Miller could not provide such expert opinions. The trial court gave the prosecutor
an opportunity to lay the foundation for Miller’s opinions, and Miller testified that his testimony
was based on familiarity with the tracks gained from following them for a mile, and the picture
he had taken of one of the tracks, which he had with him at trial. The court instructed the jury
that “those things” that Miller “just said” were “used to make his observations,” and although
Miller was not qualified as an expert, his testimony “would be an observation as opposed to an
expert opinion.” Miller testified that he had tracked footprints on many occasions during his
thirty-four years as a police officer.
The prosecution also called an expert in footwear identification, Officer Gary
Truszkowski, to testify. Truszkowski reviewed footwear impressions from the snow outside
Pine’s home and determined that they were consistent with Bailey’s shoes. The prosecutor asked
Truszkowski about a report prepared by defense expert Dr. Frederick, who reviewed photographs
of Bailey’s shoes and the snow tracks and noted that a lateral mark on one of Bailey’s shoes was
not evident in one of the photographs of tracks. Truszkowski testified that the mark was too fine
to make much of an impression in the snow. Defense counsel objected, stating that he had
agreed to admit Dr. Frederick’s report without calling him to testify on the understanding that the
prosecutor’s expert (Truszkowski) would discuss only his own report, without criticizing that of
Dr. Frederick. After discussion between counsel and the court, the attorneys agreed to offer both
Dr. Frederick’s report and the report of an FBI expert; both reports concluded that there was
insufficient clarity or detail in the snow tracks to make a positive identification or elimination.
Bailey agreed in court to this arrangement. On cross-examination, Truszkowski clarified that he
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agreed with Dr. Frederick and the FBI that it was not possible to draw a positive identification
from the tracks.
The trial court also admitted evidence of prior burglaries committed by Bailey over
defense counsel’s objection. Three Big Rapids residents testified that in 1986 they had hired
Bailey to mow their lawns and he had entered their homes during the daytime and taken small
amounts of cash. Each resident had confronted Bailey about the incidents and each time he
admitted his actions. Each resident testified that Bailey had never acted antagonistic, belligerent,
rude, or hostile to them, and in fact he had been polite and had backed away when confronted. A
friend of Bailey’s also testified that he had participated in several of the burglaries with Bailey,
and that although he had spent a lot of time with Bailey in 1986, he had never seen any violent
tendencies in him.
The prosecution told the court that it intended to offer this evidence to show Bailey’s
“pattern or scheme (‘MO’)” of being hired to do lawn jobs and then committing daytime
burglaries, which it argued was consistent with the events leading to the Pine murder. The court
instructed the jury that it could consider the burglaries only to the extent they showed a plan,
system, characteristic scheme, or modus operandi or to the extent they showed who committed
the Pine murder; the court instructed the jury not to consider this evidence for any other purpose,
including whether Bailey was a bad person or was likely to commit crimes.
The jury convicted Bailey of first-degree premeditated murder and first-degree felony
murder. Bailey was sentenced to life imprisonment without parole for one count of first-degree
murder. The Michigan Court of Appeals rejected all of Bailey’s arguments on direct appeal.
Most importantly, the appeals court rejected Bailey’s argument that the trial court’s exclusion of
evidence relating to the 1980 murder denied Bailey’s right to present a complete defense in
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violation of Holmes v. South Carolina, 547 U.S. 319 (2006). People v. Bailey, No. 265803, 2007
WL 2141362, at *7–*8 (Mich. Ct. App. July 26, 2007) (per curiam) (discussing Holmes’s
holding that evidence indicative of third-party guilt should be excluded “when it is too remote,
when it lacks a connection with the charged crime, when it can have no other effect than to cast a
bare suspicion upon another, or when it raises merely a conjectural inference that another person
committed the crime”). On direct appeal, the State argued that the state police report linking the
two murders arguably supported Bailey’s identity as the killer in both cases, despite the fact that
he was ten years old in 1980, and despite the fact that the State knew but did not disclose that
Bailey’s fingerprints did not match those recovered from the 1980 murder scene. The Michigan
Supreme Court summarily denied Bailey’s application for leave to appeal.
In 2007, two years after Bailey’s conviction but one month before the state appellate
court issued its opinion, the Mecosta County prosecutor initiated charges against Scott Graham
for the 1980 Lintemuth murder. In 2009, after the Michigan Supreme Court had denied Bailey
leave to appeal but before Bailey filed his habeas petition, Graham was convicted of the
Lintemuth murder, largely based on the evidence that his fingerprints matched those found at the
scene (presumably the same fingerprints that did not match Bailey’s).
In 2009, Bailey filed a petition for habeas relief in federal court and the magistrate judge
granted Bailey’s motion for discovery seeking production of the criminal file in the Graham
prosecution. From this discovery, Bailey’s counsel learned for the first time in 2010 that
fingerprints had been recovered from the 1980 murder scene, that police had tested Bailey’s
fingerprints against those, and that they did not match. The prosecution had not informed either
Bailey or the state trial or appellate courts about these facts or the existence of the fingerprint lab
report, although it was in the State’s possession. The magistrate judge then granted Bailey’s
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motion to amend his habeas petition to add a claim concerning the fingerprint report under Brady
v. Maryland, 373 U.S. 83 (1963), and stayed the case to allow Bailey to properly exhaust his
Brady claim in the state court.
The state court, with Bailey’s original trial judge presiding, denied Bailey’s motion for
relief from judgment, concluding that the fingerprint evidence had no impact on the Michigan
Court of Appeals’s conclusion that there was merely a speculative connection between the 1980
and 1989 murders. The Michigan Court of Appeals and Supreme Court each denied leave to
appeal.
Back in federal court, the magistrate judge granted Bailey’s motion to reopen the case,
and issued a Report and Recommendation concluding that all of Bailey’s habeas claims failed
and no certificate of appealability should issue. Bailey filed objections. The district court
disagreed and granted habeas relief for violations of Brady and Holmes. The district court
denied Bailey’s claims on ineffective assistance of counsel and the admission of the testimony on
Bailey’s burglaries, but issued a certificate of appealability on all four claims. The State timely
appealed, and Bailey cross-appealed.
II. ANALYSIS
In appeals of decisions on habeas corpus petitions, we review the district court’s legal
conclusions de novo and its factual findings for clear error. Foster v. Wolfenbarger, 687 F.3d
702, 706 (6th Cir. 2012). Federal courts reviewing habeas petitions regarding claims adjudicated
on the merits by state courts are governed by the Antiterrorism and Effective Death Penalty Act
(AEDPA), 28 U.S.C. § 2254(d).
Under AEDPA, a federal court may grant habeas relief if the state court’s decision “was
contrary to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States,” or “was based on an unreasonable -8- Nos. 16-2429/2474, Bailey v. Lafler
determination of the facts in light of the evidence presented in the State court proceeding.”
Harrington v. Richter, 562 U.S. 86, 102 (2011). “The question under AEDPA is not whether a
federal court believes the state court’s determination was incorrect but whether that
determination was unreasonable—a substantially higher threshold.” Schiro v. Landrigan,
550 U.S. 465, 473 (2007). A state court’s decision is not unreasonable “so long as fairminded
jurists could disagree on [its] correctness.” Harrington, 562 U.S. at 101 (internal quotation
marks omitted).
A. Brady and Holmes
Bailey argues that the trial court’s rejection of his Brady claim was an unreasonable
application of Brady v. Maryland and its progeny. A Brady claim has three elements:
(1) evidence favorable to the accused (2) was suppressed by the State, whether willfully or
inadvertently, (3) and prejudice ensued. Strickler v. Greene, 527 U.S. 263, 281–82 (1999).
Because the State does not dispute that the evidence here was favorable and suppressed, only
prejudice is at issue in this case.
To establish prejudice the defendant must show that “there is a reasonable probability
that the result of the trial would have been different if the suppressed documents had been
disclosed to the defense.” Id. at 289 (internal quotation marks omitted). A “reasonable
probability” does not mean “more likely than not” in the Brady context, however. Id.; see also
id. at 298 (Souter, J., concurring, joined by Kennedy, J.) (explaining that “the term ‘probability’
raises an unjustifiable risk of misleading courts into treating it as akin to the more demanding
standard, ‘more likely than not’”). Rather, Brady prejudice requires a showing that, without the
suppressed evidence, the defendant did not receive “a fair trial, understood as a trial resulting in a
verdict worthy of confidence.” Id. at 290 (majority opinion). “[T]he question is whether the
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favorable evidence could reasonably be taken to put the whole case in such a different light as to
undermine confidence in the verdict.” Id. (citation and internal quotation marks omitted).
As both the trial court and the district court recognized, the Brady claim in this case
involves an embedded Holmes claim. Bailey’s Brady claim can succeed only if he shows
prejudice, which requires showing that the suppressed fingerprint report would have undermined
confidence in the jury’s verdict. This necessarily entails a showing that the fingerprint report
would have been entered into evidence and discussed before the jury. But because the trial court
barred all discussion of the 1980 murder, the question at issue is whether knowledge of the
fingerprint report would have altered the trial or appellate courts’ rulings on the exclusion of the
1980 murder evidence. In other words, showing Brady prejudice requires showing a reasonable
probability that the Michigan Court of Appeals would have ruled differently on Bailey’s Holmes
claim if it had known about the fingerprint report. If so—if there is a reasonable probability that
disclosure of the suppressed fingerprint evidence would have led the state appellate court to
vacate Bailey’s conviction—then the suppressed evidence necessarily would have undermined
confidence in the original verdict, satisfying Brady’s prejudice prong. If not, then the exclusion
of the fingerprint evidence was irrelevant, and the Brady claim fails.
The state trial court correctly understood that Bailey’s post-conviction Brady claim
depended on whether the fingerprint report would have impacted the appeals court’s Holmes
ruling (on direct appeal). Because AEDPA applies to Brady claims, the question we must decide
is whether fairminded jurists would disagree on the correctness of the state trial court’s rejection
of Bailey’s post-conviction Brady claim. See Bell v. Howes, 703 F.3d 848, 854 (6th Cir. 2012)
(applying AEDPA to a Brady claim). The trial court rejected Bailey’s Brady claim by
concluding that the fingerprint report would have had no impact on the appeals court’s Holmes
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analysis. The appeals court, without knowledge of the fingerprint report, had concluded that the
connection between the 1980 and 1989 murders was so remote that exclusion of the evidence
related to the 1980 murder purportedly showing third-party guilt did not violate Holmes.
Therefore, to show that the trial court’s Brady ruling was unreasonable under AEDPA, Bailey
must show that fairminded jurists would not disagree that the fingerprint report would have
altered the appeals court ruling on his Holmes claim on direct appeal.2
We start by examining both the appellate court’s decision on the Holmes claim and the
trial court’s post-conviction decision on the Brady claim. Bailey argued on direct appeal that the
trial court’s exclusion of any discussion of the 1980 murder prevented him from presenting a
complete defense, in violation of Holmes. The “Constitution guarantees criminal defendants a
meaningful opportunity to present a complete defense.” Holmes, 547 U.S. at 324 (internal
quotation marks omitted). “This right is abridged by evidence rules that infringe upon a weighty
interest of the accused and are arbitrary or disproportionate to the purposes they are designed to
serve.” Id. (internal quotation marks and brackets omitted). Holmes listed several examples of
Supreme Court cases discussing evidentiary rulings that were arbitrary or disproportionate to
their purposes. Id. at 325–26. By contrast, Holmes referred approvingly to the widespread
acceptance of rules excluding evidence offered by criminal defendants to show third-party guilt
“where it does not sufficiently connect the other person to the crime, as, for example, where the
evidence is speculative or remote.” Id. at 327 (quoting 40A Am. Jur. 2d, Homicide § 286, pp.
136–38 (1999)).
2 The State argues that Brady described a trial right, and thus we should consider only the suppression’s impact on Bailey’s trial, not its impact on his appeal. Whatever the nature of Brady right generally, Brady prejudice depends on whether suppressed evidence would have undermined confidence in the jury’s verdict. In this case, if the suppressed evidence’s disclosure would have led the appeals court to vacate Bailey’s conviction, then the suppressed evidence necessarily would have undermined confidence in his trial verdict, satisfying Brady’s prejudice prong.
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The Michigan Court of Appeals rejected Bailey’s Holmes argument on direct appeal,
concluding that the trial court did not err in applying Michigan’s rule that “evidence tending to
incriminate another is admissible if it is competent and confined to substantive facts which create
more than a mere suspicion that another was the perpetrator.” Bailey, 2007 WL 2141362 at *8
(emphasis added) (quoting People v. Kent, 404 N.W.2d 668, 674 (Mich. Ct. App. 1987)). After
reciting the Holmes standard, the appellate court determined that “[u]nder the circumstances
presented, and considering the similarities between the crimes as well as the differences, a
reasonable and principled decision would include one that finds nothing more than the creation
of mere suspicion, a conjectural inference, excessive remoteness, or an inadequate connection.”
Id.
When Bailey learned of the suppressed fingerprint evidence and brought a post-
conviction Brady claim, the trial court rejected it based on the following reasoning:
The addition of evidence showing that Defendant’s prints did not match those left at the Lintemuth crime scene does not in any way strengthen Defendant’s claim regarding third party guilt. . . . The fact that Defendant’s fingerprints did not match a particular set of prints left at the Lintemuth scene is not material to Defendant’s guilt or innocence because this does not show that a third party committed the murder in this case. . . . This additional evidence does nothing to affect the [Michigan] Court of Appeals holding that the police [and FBI] profiles or perceived similarities between the Lintemuth and Pine murders was not enough to bring evidence of third party guilt before the jury. It was not and is not because it continues to be the case that the set of fingerprints added to the other evidence creates no more than a “mere suspicion, a conjectural inference, excessive remoteness, or an inadequate connection” to support a claim that a third party was responsible for the murder of Mary Pine.
Under AEDPA, the question before us now is whether all fairminded jurists would instead
conclude that the fingerprint evidence would have changed the appeals court’s Holmes holding.
There is arguably a significant flaw in the trial court’s analysis. The trial court reasoned that
even if the fingerprint evidence suggested that Bailey did not commit the 1980 murder, it did not
strengthen the relationship between the 1980 and 1989 murders, and therefore would not in any -12- Nos. 16-2429/2474, Bailey v. Lafler
way affect the Michigan Court of Appeals’s Holmes ruling. As the district court reasoned,
however, the trial court considered the fingerprint evidence in isolation, rather than in the context
of the “whole case.”
The fingerprint lab report was not the only evidence withheld—the State also did not
disclose the very fact that it had requested that lab report. The State’s investigatory choices
surrounding and following the fingerprint report complete the story of the State’s 1989–1990
investigation and demonstrate the State’s belief, at least originally, in a link between the 1980
and 1989 murders. Police suspected Bailey immediately after the murder and investigated him
thoroughly at that time. Investigators also recognized that there were similarities between the
1980 Lintemuth murder and the Pine murder. They asked for the FBI’s opinion and the FBI
concluded that the same person most likely committed both murders. To try to determine if
Bailey was that single person, investigators had his fingerprints tested against those recovered
from the 1980 murder scene. After learning that the fingerprints did not match, the State chose
not to prosecute Bailey, and did not reinitiate its case for fifteen years. By withholding the
fingerprint report, the State not only suppressed evidence that Bailey was not responsible for the
1980 murder, but also obscured the full arc of its investigation into the Pine murder. The State’s
request to test Bailey’s fingerprints against those from the 1980 murder demonstrates the State’s
belief that the results of that test (i.e., the suppressed fingerprint report), and the 1980 murder in
general, were “sufficiently connect[ed]” to the Pine murder, not “speculative or remote.”
Holmes, 547 U.S. at 327 (internal quotation marks omitted). Full knowledge of the investigatory
timeline would have allowed the Michigan courts (and the jury) to see that it was the fingerprint
report that likely convinced the State that Bailey was not responsible for the Pine murder—
demonstrating that the State itself believed in 1990 that a third party was likely responsible for
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killing Pine. The trial court considering Bailey’s post-conviction Brady claim overlooked this
consequence of the State’s nondisclosure.
The Michigan trial court’s original decision to exclude the 1980 murder evidence, and the
appeals court’s decision that such evidence created no more than a mere suspicion of third-party
guilt, thus lacked the full picture of why the State chose not to prosecute Bailey in 1990. But the
fact remains that, even with knowledge of the fingerprint report and the corresponding
understanding of the State’s investigation, the Michigan Court of Appeals could have still found
the connection between the two murders too attenuated to reverse the verdict. The murders were
nine years apart and, in addition to some similarities, included meaningful differences.
Fairminded jurists could conclude that, even with knowledge of the fingerprint report, the two
murders were sufficiently attenuated to permit exclusion of evidence of the 1980 murder under
Holmes. AEDPA therefore requires that we reverse the district court’s grant of Bailey’s habeas
petition.
Separate from his Brady claim, Bailey also challenges the Michigan Court of Appeals’s
Holmes claim directly. In other words, Bailey argues that even ignoring the suppressed
evidence, all fairminded jurists would find the rejection of his Holmes claim on direct appeal to
be incorrect. Because we concluded in our Brady analysis above that fairminded jurists could
disagree on the Holmes analysis with knowledge of the suppressed evidence, we must also
conclude that fairminded jurists could disagree without it. Bailey’s independent Holmes claim
thus also fails under AEDPA.
B. Ineffective Assistance of Counsel
Bailey cross-appeals the district court’s denial of habeas relief for ineffective assistance
of counsel, which requires a showing that counsel’s performance fell below an objective standard
of reasonableness and prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687– -14- Nos. 16-2429/2474, Bailey v. Lafler
88 (1984). Courts defer to a counsel’s discretionary choices if they might be considered sound
trial strategy, and must “indulge a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.” Id. at 689. AEDPA review of ineffective
assistance of counsel claims is “doubly” deferential, asking “whether there is any reasonable
argument that counsel satisfied Strickland’s deferential standard.” Harrington, 562 U.S. at 105.
Bailey first argues that his trial counsel was ineffective for failing to timely object to the
testimony of Detectives Miller and Pratt regarding the snow tracks they followed and their
opinions regarding which shoes might have left those tracks. Bailey argues that this testimony
was improperly admitted as expert testimony. On direct appeal, the Michigan Court of Appeals
rejected this argument, concluding that any objection would have been futile because the
opinions were based on the Detectives’ own perceptions and thus admissible under Michigan
Rule of Evidence 701. Bailey, 2007 WL 2141362 at *6. On habeas review a federal court may
not “reexamine state-court determinations on state-law questions.” Estelle v. McGuire, 502 U.S.
62, 67–68 (1991). Moreover, we agree with the district court that the Michigan Court of Appeals
correctly applied Michigan law, because the Detectives’ testimony was based on their direct
observations and personal conclusions based on those observations. Therefore, we affirm the
district court’s denial of habeas relief for Bailey’s first claim of ineffective assistance of counsel.
Second, Bailey argues that his trial counsel was ineffective for agreeing to admit Dr.
Frederick’s expert report and an FBI report about whether the snow tracks were made by
Bailey’s shoes in lieu of calling Dr. Frederick and the author of the FBI report to testify in
person. The Michigan Court of Appeals rejected this argument by concluding that Bailey
himself had arguably waived this claim when he affirmatively agreed to this arrangement during
trial, and, even if not, the decision was within the range of reasonable trial strategy. Bailey,
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2007 WL 2141362 at *7. We agree. Calling the experts to testify could have hurt Bailey by
drawing attention to the experts’ conclusions that the tracks corresponded to Bailey’s shoe size
and type. It is also unlikely that the decision not to call the experts prejudiced Bailey. The jury
saw these experts’ reports, and the most Dr. Frederick and the FBI could conclude was that the
evidence was insufficient to make any definite conclusions regarding which shoes made the
snow tracks; neither expert could necessarily exclude Bailey’s shoes.
Besides Strickland, Bailey argues that the Michigan court opinions were contrary to
United States v. Chronic, which held that a presumption of prejudice applies if counsel “entirely
fails to subject the prosecution’s case to meaningful adversarial testing.” 446 U.S. 648, 659
(1984). In this case, however, Bailey’s trial counsel effectively cross-examined the
prosecution’s expert, Truszkowski, eliciting the concession that (like Dr. Frederick and the FBI
author) he could not confirm that Bailey’s shoes made the snow impressions. See Bailey,
2007 WL 2141362 at *7 n.5.
For these reasons, we affirm the district court’s denial of habeas relief for Bailey’s
second claim of ineffective assistance of counsel, especially given the double deference due
under Strickland and AEDPA.
C. Admission of Other Bad Acts Evidence
Finally, Bailey also cross-appeals the district court’s denial of habeas relief for the trial
court’s admission of other bad acts, specifically the evidence of Bailey’s burglaries. Bailey
argues that although the district court admitted evidence of the burglaries to show a common
scheme or plan, the prosecution argued on opening and closing that the evidence showed a
modus operandi and established Bailey’s identity as the person who murdered Pine. The
Michigan Court of Appeals rejected this argument, concluding that the trial court did not abuse
its discretion in admitting the evidence to show a plan or scheme under Michigan Rule of -16- Nos. 16-2429/2474, Bailey v. Lafler
Evidence 404(b)(1). Bailey, 2007 WL 2141362, at *3. As noted above, the state court’s
decision on state law is usually unreviewable on federal habeas review, and that is especially so
regarding rulings on the admission or exclusion of evidence. Bugh v. Mitchell, 329 F.3d 496,
512 (6th Cir. 2003).
Habeas relief may be warranted, however, when “an evidentiary ruling is so egregious
that it results in a denial of fundamental fairness” and thus violates due process. Id. Bugh held
that as of 2003 there was no clearly established Supreme Court precedent holding that the
admission of other bad acts as propensity evidence violated due process. Id. at 512–13. Bailey
cites no Supreme Court authority establishing such a principle since 2003 (or at all). Therefore,
the Michigan Court of Appeals decision on this issue was not contrary to any decision of the
U.S. Supreme Court, as required for habeas relief under AEDPA. We affirm the district court’s
denial of habeas relief for the trial court’s admission of the evidence of the prior burglaries.
III. CONCLUSION
For the foregoing reasons, we are constrained to REVERSE the district court’s grant of
Bailey’s habeas petition for violations of Brady and Holmes. We AFFIRM the district court’s
denial of Bailey’s habeas petition for ineffective assistance of counsel and the admission of other
bad acts evidence.
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