NOT RECOMMENDED FOR PUBLICATION File Name: 21a0382n.06
No. 20-1381
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
PIERRE LAMAR TAYLOR, ) FILED ) Aug 11, 2021 Petitioner-Appellant, ) DEBORAH S. HUNT, Clerk ) v. ) ON APPEAL FROM THE UNITED ) STATES DISTRICT COURT FOR THE SONAL PATEL, Warden, ) EASTERN DISTRICT OF MICHIGAN ) Respondent-.Appellee. ) )
BEFORE: SUTTON, Chief Judge; DAUGHTREY and GRIFFIN, Circuit Judges.
MARTHA CRAIG DAUGHTREY, Circuit Judge. Pierre Lamar Taylor was charged with
manslaughter in Michigan state court after several eyewitnesses identified him as the shooter in an
incident at a “street race” (an illegal event akin to drag racing) in Detroit in the early hours of June
12, 2011. That night, 17-year-old Arman Najy went for a ride with Saleh Sayah and two other
friends to pick up someone at the races. When leaving the area Sayah made a U-turn to avoid a
closed-off street, and his car came close to a man in the street. The man—later identified as
Taylor—pulled out a gun and shot into the trunk of the car. The bullet went through the trunk and
into the backseat, hitting and fatally wounding Najy. After his arrest, Taylor insisted that although
he was in fact at the street race that night and was carrying his licensed handgun, he was with his
family the entire time and was not involved in the shooting. Taylor’s counsel had him testify in
this vein at his preliminary examination, in response to several eyewitness accounts identifying
Taylor as the shooter, apparently in an unsuccessful effort to avoid a bind-over. Taylor secured No. 20-1381, Taylor v. Patel
new counsel for trial and, shortly before trial began, Taylor told his new attorney that he was
mistaken about the dates and, in fact, was not at the street race on the night in question. Instead,
he said, he was riding his motorcycle with one of two people. Taylor’s counsel claimed to have
spoken with both potential alibi witnesses. But because neither of them corroborated Taylor’s
alibi, he ultimately did not call them at trial. After Taylor was convicted, he claimed that both of
his attorneys provided ineffective assistance of counsel. The state court trial judge held a hearing
and determined that Taylor’s ineffective assistance claims were without merit.
The Michigan Court of Appeals affirmed, and the Michigan Supreme Court denied review.
Taylor then petitioned the federal district court for habeas relief, which was denied. However, the
district court issued a certificate of appealability on two issues, and we granted an expansion of
the COA to one additional issue. Now before us is whether the Michigan Court of Appeals
unreasonably decided that Taylor’s counsel did not render ineffective assistance by (1) having him
testify at his preliminary examination, (2) failing to move to have the preliminary examination
testimony suppressed at trial, and (3) failing to contact, interview, and present Taylor’s alibi
witness. Because of the “doubly-deferential” standard imposed by AEDPA and Strickland v.
Washington, 466 U.S. 668 (1984), we conclude that the district court correctly denied habeas relief.
FACTUAL AND PROCEDURAL BACKGROUND
At approximately 1:00 a.m. on June 12, 2011, Arman Najy and three friends left work in
Bloomfield Hills, Michigan, in Saleh Sayah’s white Impala, with Sayah driving. They received a
call from another friend asking them to pick him up from a street race in Detroit, which they agreed
to do. When they arrived at the race, they did not stay but picked up their friend and began to
leave. With three people in the back seat, including Najy, Sayah soon realized that the street was
blocked off, forcing him to make a U-turn. As he backed up to turn around, the car got close to a
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man standing there, who then pulled out a gun and pointed it at the car. Sayah gestured to the man,
as if to apologize for getting too close to him, then started to drive away. The man, later identified
as Taylor, then shot into the car. The bullet went through the trunk and into the backseat, hitting
Najy.
When Sayah realized Najy had been struck with the bullet, he tried to rush him to the
hospital, but he lost control of the car, which rolled over and crashed, totaling it and injuring its
passengers. Najy later died as a result of the gunshot wound.
After the accident, the occupants of the car and several additional witnesses gave police
accounts of what happened. Sayah described the shooter as tall and skinny, with high cheek bones,
half-braided hair, and wearing dark clothes. Hassem Salem told the police that the shooter was
5’8’’ to 5’9’’ with braids and dressed in a black shirt. Joseph Salvidar, who was present at the
race and witnessed the U-turn and shooting, returned to the area some weekends later and saw a
man whom he recognized as the shooter. He notified police of the shooter’s license plate, which
was on a red Dodge Magnum. Salvidar later met with the detectives to review a photo line-up and
identified a picture of Taylor as the shooter. Ivan Tarrant regularly attended the street races and
recorded a video of the defendant after the shooting occurred. Several days after the shooting,
Tarrant heard that someone had died as a result of the shooting and gave police a recording—albeit
an unclear one—that he took on June 12. Tarrant also identified Taylor from a photo line-up.
Robert Hanson, another witness who was at the street race on the night in question, testified at trial
that he was standing about 20 feet from the shooter during the incident and described him to police
as having high cheek bones. Two weeks later, he saw the shooter arrive at the race in a red Dodge
Magnum and texted the detective the license plate number.
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Police issued a warrant for Taylor’s arrest because the license-plate number was connected
to his household and because of the photo identifications of Taylor by multiple witnesses. The
state charged Taylor with murder in the second degree, involuntary manslaughter, and felony
possession of a firearm. Taylor secured counsel, Ronald McDuffie, who represented him at his
preliminary hearing. Prior to the hearing, McDuffie visited Taylor in jail three times. On the
second visit, McDuffie gave Taylor a packet of discovery materials and asked Taylor to review it
closely and write up any comments he had. He picked up Taylor’s notes on the third visit. Taylor
was adamant that he did not commit the crime, stating that he had been at the races that night but
claiming that it was a case of mistaken identification. So, McDuffie decided that there was a
possibility of getting the case thrown out if Taylor testified at his hearing and then passed a
polygraph test with the same testimony.
Taylor agreed to testify at the preliminary hearing. Salem and Tarrant first testified as
eyewitnesses, identifying Taylor as the shooter. When Taylor took the stand, McDuffie asked him
if he was in Detroit at approximately 1:00-2:00 a.m. on June 12, 2011. Taylor responded that he
was in fact in Detroit that night with his family to watch the street races and had a handgun with
him, for which he had a permit. The court found that there was contradictory testimony and bound
over Taylor for trial.
Prior to trial, Taylor hired new counsel, Antonio Tuddles. Tuddles did not necessarily
understand why McDuffie had chosen to have Taylor testify at the preliminary hearing, but he
nonetheless considered it a matter of trial strategy. After a pre-trial evidentiary hearing, Taylor
pulled Tuddles aside and said that, after further thought, he had realized that he was not actually
at the street races on the night of the shooting. Tuddles was then faced with developing an alibi
defense in addition to presenting the misidentification defense.
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Taylor told Tuddles that on the evening of June 11, 2011, he was riding motorcycles with
either Anthony Simpson or Jeff Mathes, a Wayne County Sheriff’s Deputy. Tuddles and Taylor
contacted Simpson, at which point Taylor realized that it must have been Mathes with whom he
had been riding at the time. But, Taylor did not get Mathes’s contact information to Tuddles until
trial. Tuddles later testified that he contacted Mathes, but Mathes said that he did not know
whether he was riding with Taylor on the night in question. Tuddles said that he conveyed this
information to Taylor and explained why he could not call Mathes as a witness to support Taylor’s
alibi defense. At a post-conviction hearing, however, Mathes testified that he did not recall
Tuddles ever contacting him. He said that despite not remembering the date, he did ride
motorcycles with Taylor once, during the “evening hours.”
At trial, Hanson, Salvidar, Salem, and Sayah testified, all identifying Taylor as the shooter.
Tarrant could not be procured as a witness, so, under Michigan Rules of Evidence 804, the
testimony that he gave at the preliminary hearing was read to the jury.1 Several of Taylor’s family
members testified in support of his claim that he was not at the races on the night in question.
Taylor also testified on his own behalf, saying that he was with either Simpson or Mathes on June
11, but was home by 2:30 a.m. on June 12. The jury ultimately found Taylor guilty of involuntary
manslaughter, and the trial court sentenced him to six-to-fifteen years for manslaughter and two
years for his felony-firearm conviction.
In the course of preparing for a post-conviction evidentiary hearing on a claim of
ineffective assistance of counsel, Taylor learned that Hanson, a prosecution witness, had
1 Taylor also challenged Tuddles’s decision to allow Tarrant’s preliminary hearing testimony to be read at trial as grounds for ineffective assistance of counsel. There was a hearing to demonstrate that the prosecution exercised due diligence in trying to procure the witness. And, Tuddles explained at the post-conviction hearing that allowing the testimony to be read was preferrable to having another live eyewitness positively identify Taylor as the shooter in front of a jury. The district court held that the state court’s decision on this issue was reasonable and declined to include it in the COA. For our part, we declined to expand the COA to include this issue.
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committed perjury at trial. The trial court found that because Hanson testified falsely and because
the prosecution was aware of it, a new trial was warranted. The State appealed the ruling, and the
Michigan Court of Appeals reversed and ordered reinstatement of Taylor’s convictions and
sentences. The appeals court concluded that the trial judge erred in finding that the prosecutor
knowingly presented the perjured testimony, that Hanson’s testimony was not “material” in the
case because there were several other eyewitnesses that provided similar testimony, and that there
was no “reasonable likelihood that the false testimony could have affected the judgment of the
jury.” The Michigan Supreme Court denied leave to appeal.
The trial court then held another hearing on Taylor’s claims of ineffective assistance of
counsel and found that Taylor was not entitled to a new trial on those claims. Taylor appealed, the
Michigan Court of Appeals affirmed the decision, People v. Taylor, No. 310771, 2016 WL
5886316, at *9 (Mich. Ct. App. Oct. 6, 2016), and the Michigan Supreme Court once again denied
review.
Taylor then filed his petition for habeas relief in federal court, raising three grounds: that
his trial counsel rendered ineffective assistance of counsel, that the state court’s factual findings
were unreasonable, and that the prosecution’s presentation of Hanson’s perjured testimony denied
Taylor a fair trial. The district court denied the petition, finding that the state court’s decisions on
Taylor’s claims were objectively reasonable. The district court issued a certificate of appealability
on “Taylor’s ineffective assistance of counsel claims arising from McDuffie’s decision to call
Taylor to testify at the preliminary examination and Tuddles’s failure to move to exclude the
admission of that testimony at trial.” In response to Taylor’s application for the expansion of his
COA, we granted his request with respect to his claim that Tuddles was ineffective for not
investigating and calling Jeffrey Mathes as an alibi witness at trial. Taylor v. Patel, No. 20-1381
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(6th Cir. Sep. 30, 2020) (order). It is these three claims of ineffective assistance of counsel that
are now under review.
DISCUSSION
Standard of Review
When a habeas claim has been properly presented and adjudicated on the merits in a state
court, a heightened standard of review is required by the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), 28 U.S.C. § 2254. Kelly v. Lazaroff, 846 F.3d 819, 831 (6th Cir. 2017).
Under this standard, a federal court
may not grant a writ of habeas to a petitioner in state custody with respect to any claim adjudicated on the merits in state court unless (1) the state court’s decision was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court . . . or (2) the state court’s decision was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings. Taylor v. Withrow, 288 F.3d 846, 850 (6th Cir. 2002) (quoting 28 U.S.C. § 2254(d)) (internal
quotation marks omitted). An unreasonable application of federal law occurs when a state court
“‘unreasonably extends a legal principle from our precedent to a new context where it should not
apply . . .’” or “when it ‘unreasonably refuses to extend that principle to a new context where it
should apply.’” Id. at 851 (quoting Williams v. Taylor, 529 U.S. 362, 407 (2000)). “A state court’s
determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists
could disagree’ on the correctness of the state court’s decision.” Harrington v. Richter, 562 U.S.
86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The analysis cannot
“overlook[] arguments that would otherwise justify the state court’s result.” Id. at 102 (explaining
that the standard was meant to be difficult to meet). Under AEDPA, “a state prisoner must show
that the state court’s ruling on the claim being presented in federal court was so lacking in
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justification that there was an error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Id. at 103.
Evaluating Ineffective Assistance of Counsel: Strickland v. Washington
We evaluate claims of ineffective assistance of appellate counsel under the Strickland v.
Washington standard. 466 U.S. 668 (1984). That standard “requires that the [defendant]
affirmatively establish (1) that counsel’s performance was objectively deficient; and (2) prejudice,
which means that there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Goff v. Bagley, 601 F.3d 445, 462 (6th Cir.
2010) (quoting Mahdi v. Bagley, 522 F.3d 631, 636 (6th Cir. 2008)). “A court considering a claim
of ineffective assistance must apply a ‘strong presumption’ that counsel’s representation was
within the ‘wide range’ of reasonable professional assistance.” Harrington, 562 U.S. at 104
(quoting Strickland, 466 U.S. at 689).
Even under de novo review, “[s]urmounting Strickland’s high bar is never an . . . easy
task,” but it is “all the more difficult” to establish it under AEDPA. Id. at 105 (quoting Padilla v.
Kentucky, 559 U.S. 356, 371 (2010)). Both the AEDPA and Strickland standards are “highly
deferential,” and “when the two apply in tandem, review is ‘doubly’ so.” Id. (citations omitted).
“When § 2254(d) applies, the question is not whether counsel’s actions were reasonable. The
question is whether there is any reasonable argument that counsel satisfied Strickland’s deferential
standard.” Id.; see also Cullen v. Pinholster, 563 U.S. 170, 188 (2011) (explaining that the
“unreasonable application prong” can be satisfied only if a petitioner shows “there was no
reasonable basis” for the state court’s decision).
To find ineffective assistance of counsel under Strickland, the reviewing court must find
that counsel’s performance was deficient. “To establish that counsel was deficient, ‘the defendant
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must show that counsel’s representation fell below an objective standard of reasonableness.’”
Smith v. Mitchell, 567 F.3d 246, 257 (6th Cir. 2009) (quoting Strickland, 466 U.S. at 688). Under
the first prong of Strickland, “[c]ounsel’s performance is objectively unreasonable only where ‘the
identified acts or omissions were outside the wide range of professionally competent assistance,’
as determined by ‘prevailing professional norms.’” United States v. Munoz, 605 F.3d 359, 376
(6th Cir. 2010) (quoting Strickland, 466 U.S. at 690). The court should presume that counsel
provided “adequate assistance” and “made all significant decisions” with “reasonable professional
judgment.” Cullen, 563 U.S. at 189 (quoting Strickland, 466 U.S. at 690).
The other question under the Strickland analysis is whether the deficient performance
caused prejudice, which requires the defendant to “show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694. This finding requires that the likelihood be “substantial,” not just
“conceivable.” Cullen, 563 U.S. at 189 (citing Harrington, 562 U.S. at 112).
McDuffie’s decision to have Taylor testify at the preliminary hearing
Taylor first contends that his initial counsel, McDuffie, was ineffective by advising Taylor
to testify at his preliminary hearing. He argues that there was no reasonable strategy in having
him testify because doing so “could only create an issue of fact that precludes dismissal under
Michigan law.”
In Michigan, a preliminary hearing functions “to determine [whether] a crime has been
committed and, if so, [whether] there is probable cause to believe that the defendant committed
it.” People v. Redden, 799 N.W.2d 184, 195 (Mich. Ct. App. 2010) (quoting People v. Glass,
627 N.W.2d 261, 267 (Mich. 2001)). Such a hearing is a creature of statute and is “not
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constitutionally required.” People v. Yost, 659 N.W.2d 604, 606 (Mich. 2003). Probable cause
requires evidence “‘sufficient to cause a person of ordinary prudence and caution to
conscientiously entertain a reasonable belief’ of the accused’s guilt.” Id. at 607 (quoting People
v. Justice, 562 N.W.2d 652, 657 (Mich. 1997)). Conflicting evidence will require the court to bind
over the defendant for trial so that “the trier of fact can resolve the questions.” Redden, 799
N.W.2d at 195 (citing Yost, 659 N.W.2d at 604).
McDuffie testified that he had strategic reasons to put Taylor on the stand at his preliminary
hearing. He explained that Taylor was adamant that he was not involved in the shooting and
needed to get out of jail immediately. Because Taylor agreed to take a polygraph test, McDuffie
believed that having him testify at the hearing would create a transcript that—if aligned with his
statements in a successful polygraph test—would warrant dismissal of the case. Taylor points out
that there was no evidence to show that McDuffie made an agreement with the State regarding a
polygraph and that any conversations with the trial prosecutor about a polygraph may have taken
place only after the hearing. However, McDuffie claimed that the prosecutor suggested to him
that if Taylor was being honest and could pass a polygraph and if there was weak testimony at the
hearing by other witnesses, the evidence from Taylor’s testimony and the polygraph could get the
case dismissed. The trial prosecutor recalled discussing a polygraph test with McDuffie but was
uncertain about when it occurred. He also said that his case file indicated that a colleague spoke
to McDuffie prior to the hearing and left him a note indicating that “defense counsel believes this
is a case of mistaken identity and that he wants to polygraph the defendant, or he’s going to
polygraph the defendant.”
The Michigan Court of Appeals gave deference to the trial court’s finding that McDuffie
was credible and that “[p]resenting defendant’s testimony at the preliminary examination [might]
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have led the trial court to conclude that the prosecutor’s witnesses were not credible.” Taylor,
2016 WL 5886316, at *3. The court further noted that McDuffie could not have expected Taylor
to change his recollection so drastically, from claiming misidentification to claiming that he was
not present at the scene of the crime.
Although having a defendant testify at a preliminary hearing may be rare, the cases to
which Taylor cites stand only for the proposition that when issues of fact are created or credibility
is at issue at a preliminary hearing, the court must bind over the defendant for trial. See Redden,
799 N.W.2d at 195; Yost, 659 N.W.2d at 607-08. They do not preclude the strategy of putting the
defendant on the stand at the hearing in an attempt to avoid a bindover or achieve the dismissal of
charges. In the face of several eyewitnesses identifying Taylor as the perpetrator, putting Taylor
on the stand may have appeared to be the only possible way to get the case dismissed. With a
misidentification defense, there will often be an issue of fact. And if the state court recognized
“any reasonable argument” that defense counsel satisfied Strickland’s standard, under AEDPA,
we must affirm. Harrington, 562 U.S. at 105.
The Michigan Court of Appeals’s conclusion that putting Taylor on the stand at his
preliminary hearing was a valid strategy is not “so lacking in justification” that overturning its
decision is warranted under AEDPA’s heightened standard of review. Id. Because Taylor cannot
show that McDuffie’s decision rendered his performance deficient, it is unnecessary to evaluate
whether the decision caused him prejudice.
Tuddles’s failure to move to exclude Taylor’s preliminary examination testimony at trial
Taylor next argues that Tuddles should have moved to exclude Taylor’s preliminary-
hearing testimony because it was the product of McDuffie’s ineffective assistance. For the reasons
set out above, it is unlikely that the state trial court would have considered McDuffie’s pretrial
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strategy to constitute ineffective assistance; indeed, the same court held that it did not in the post-
conviction hearing on the issue. As the Michigan Court of Appeals put it: “Because [the]
defendant fails to demonstrate that McDuffie’s strategy was unsound, any [motion Tuddles could
have made to suppress that testimony] would have failed. ‘Counsel is not ineffective for failing to
make a futile objection.’” Taylor, 2016 WL 5886316, at *4 (quoting People v. Thomas, 678
N.W.2d 631, 637 (2004)). This conclusion by the Michigan Court of Appeals is not an
unreasonable application of federal law, nor is it an unreasonable determination of fact. As a
result, it must be upheld under the deferential AEDPA standard.
Tuddles’s failure to contact, interview, and present alibi witness Jeffrey Mathes,
Taylor next contends that his trial counsel, Tuddles, provided ineffective assistance of
counsel by failing to contact, interview, and present alibi witness Mathes. But when Taylor first
told Tuddles that he was not in fact at the races the night of the shooting—after initially declaring
that he had been—Taylor could not recall who was riding motorcycles with him on the night in
question. Taylor first said it was Simpson, but when Taylor and Tuddles called Simpson to
confirm, Taylor said it was actually Mathes.
Tuddles had put Mathes on the witness list but claimed that he did not get the full
information and phone number for Mathes until some point during trial. Tuddles testified that he
ultimately declined to call Mathes as a witness because when he finally spoke with him, Mathes
said that he had not been riding with Taylor on the night in question. At the post-conviction
hearing, Mathes could not recall receiving a call from Tuddles. He also said that he did ride with
Taylor one time in “the evening hours,” but he did not remember the date.
Although failure to contact and present an alibi witness can constitute deficient
performance, Workman v. Tate, 957 F.2d 1339, 1345–46 (6th Cir. 1992), if the deficiency could
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not have affected the outcome of the trial, it does not warrant habeas relief. See Towns v. Smith,
395 F.3d 251, 259 (6th Cir. 2005). In Workman, we held that counsel was ineffective for
completely failing to contact or interview two persons that the petitioner and others identified as
connected to the event in question. 957 F.2d at 1345. Counsel had the contact information for the
two potential witnesses and knew that they were the only witnesses, other than the defendant and
police officers, who saw what happened in the moments leading up to the event at issue. Id. at
1345–46.
Here, whether Mathes would have aided Taylor’s defense is much less clear. The Michigan
Court of Appeals concluded that because Mathes could not recall the night they rode together or
even that he was with the petitioner at the time when the shooting occurred, Tuddles’s failure to
call him as a witness at trial was of no consequence. “[T]he failure to call witnesses only
constitutes ineffective assistance of counsel if it deprives the defendant of a substantial defense.”
Taylor, 2016 WL 5886316 at *7 (quoting People v. Russell, 825 N.W.2d 623, 716 (2012)) (internal
quotation marks omitted) (additional citation omitted in original)).
Under AEDPA, when faced with a question of fact, we must presume that the state court’s
factual findings are correct. Bigelow v. Williams, 367 F.3d 562, 571 (6th Cir. 2004). Although
the Michigan Court of Appeals never affirmatively determined that Tuddles spoke with Mathes, it
did conclude that even if Mathes had testified, that testimony would have been of no consequence
to the outcome of the trial. Although Mathes’s testimony might have corroborated Taylor’s
testimony regarding his motorcycle ride, that testimony would not have placed Taylor in another
location at the time of the shooting. Thus, because of the highly deferential AEDPA standard we
must apply, this claim is insufficient to warrant habeas relief. The question is not whether there
are arguments the state court did not consider; the question is whether there are any reasonable
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arguments that justify the state court’s results. Harrington, 562 U.S. at 105. Here, it cannot be
said that the Michigan Court of Appeals’s decision was baseless and, under AEDPA, we cannot
overlook its justification. Id. at 102.
Under the deferential AEDPA standard, to establish entitlement to relief on a claim of
ineffective assistance of counsel, a petitioner must show not only that counsel’s deficient
performance prejudiced him, but also that the state court was unreasonable in concluding that no
such constitutional error occurred. Taylor cannot make that heightened showing in this case. Thus,
the district court did not err in denying the petitioner the relief he seeks.
CONCLUSION
For the reasons set out above, we AFFIRM the district court’s decision to deny Taylor’s
petition for habeas relief and the resulting judgment.
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