NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 18a0212n.06
No. 17-2086
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Apr 24, 2018 DEBORAH S. HUNT, Clerk RONALD DAVID MARTIN, ) ) Petitioner-Appellant, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE EASTERN ) DISTRICT OF MICHIGAN RANDALL HAAS, Warden, ) ) OPINION Respondent-Appellee. ) )
Before: MOORE, THAPAR, and BUSH, Circuit Judges.
KAREN NELSON MOORE, Circuit Judge. Petitioner-Appellant Ronald Martin
appeals the district court’s denial of his petition for a writ of habeas corpus. Martin was
convicted by a Michigan jury of nine counts of criminal sexual conduct, all involving his
teenaged daughter. Martin’s petition centers on his trial attorney’s failure to litigate fully, and
the trial court’s failure to grant, his motion to admit evidence of his daughter’s sexual
relationship with an older teenager and his disagreements with her over that relationship as a
motive for a false accusation. For the reasons that follow, we AFFIRM.
I. BACKGROUND
Because the facts surrounding this case have been repeated in detail already, see
generally People v. Martin, No. 293129, 2011 WL 445806, at *1–4 (Mich. Ct. App. Feb. 8,
2011); R. 26 (Dist. Ct. Op. & Order at 1–10) (Page ID #1325–34), we focus on the facts most No. 17-2086, Martin v. Haas
central to the issues on appeal. Martin is the father of the complaining witness, S.W.1 Martin
and S.W.’s mother were themselves teenagers when S.W. was conceived, and they never
married. See R. 6-6 (Trial Tr. Vol. II at 13) (Page ID #337). S.W. lived with her mother, but
regularly spent the night at Martin’s residence. See id. at 14–16 (Page ID #337–38).
Encouraged by her best friend, O.R., S.W. first reported sexual abuse by her father to an
adult in October 2008. Id. at 71–73 (Page ID #352). The trial followed in May 2009, by which
time S.W. had turned sixteen years old. See id. at 3, 36 (Page ID #335, 343). At trial, the jury
heard S.W. testify in detail about six occasions—spanning roughly from the end of January 2008
through August 2008, while S.W. was fourteen and fifteen years old—during which Martin had
sexually abused her, including through groping, digital penetration, and penile-vaginal rape. See
id. at 40–68 (Page ID #344–51). S.W. testified that she had confided in O.R. “[a]t that [sic] end
of February” about an instance of groping, see id. at 45 (Page ID #345), but that she did not tell
anyone anything further until the October allegations, in part because Martin had “asked [her] to
promise not to tell, and [she] didn’t want to talk about it,” id. at 101 (Page ID #359). On cross-
examination, Martin’s lawyer elucidated inconsistencies in S.W.’s account of the alleged abuse:
(1) that she had told her mother that all of the incidents occurred at Martin’s brother Don’s house but no longer maintained that to be true, id. at 82 (Page ID #354); (2) that she had “mixed two [incidents] together” both when describing the beginning of the abuse to Amy Allen (a forensic interviewer at a local child- advocacy nonprofit called Care House, as well as a prosecution witness) and
1 Because the complainant and several of her associates were minors at the time of the events giving rise to this case, we will use initials to protect their identities.
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when testifying at a preliminary examination, id. at 97–101 (Page ID #358– 59); (3) that she had contradicted on cross her direct-examination testimony that another incident had concluded when her younger sister, M.M., entered the room, id. at 109–10 (Page ID #361); (4) that she had alternately described this same incident as having occurred during the “[e]nd of spring” and the summer, id. at 111–12 (Page ID #362); (5) that her testimony on direct examination regarding where she got dressed after the alleged abuse and whether a phone call had preceded or interrupted the alleged abuse differed from her statements at the preliminary examination, id. at 116–18 (Page ID #363); (6) that she had told Allen that two of the rapes had occurred in bunk beds but no longer maintained that to be true, id. at 121–22 (Page ID #364); and (7) that she had told Allen that the abuse had begun after Martin moved into Don’s house2 but now maintained that it had begun slightly earlier, while he was still living in his own home, id. at 123–25 (Page ID #365).
S.W.’s general response to these inconsistences on cross-examination was that she did not
remember everything perfectly and that she had generalized at times in the past. See, e.g., id. at
98, 122, 124–25 (Page ID #358, 364–65). She also explained on redirect that it was
“embarrassing to talk about.” Id. at 144 (Page ID #370).
Martin’s counsel also impeached S.W. in other ways. S.W. admitted on cross-
examination:
(1) that she had stayed at Martin’s house more frequently than before during the time of the alleged abuse, id. at 83 (Page ID #355); (2) that she had continued sleeping in a bed with Martin after the first alleged incident of abuse, id. at 87–88 (Page ID #356); (3) that she had explained going to Martin’s house by saying that it was to spend time with M.M., but that she had also gone when M.M. was not there (which 2 According to the testimony of Don Martin’s domestic partner, Martin moved into their house in February 2008. R. 6-7 (Trial Tr. Vol. III at 112) (Page ID #405).
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she explained by saying that she wanted to be there to support her father while he was unable to see M.M.), id. at 102–05 (Page ID #359–60); (4) that she had preferred to stay at Martin’s house rather than her grandmother’s house whenever M.M. was at her grandmother’s house because M.M. “would get [her] in trouble,” id. at 135 (Page ID #368); (5) that she had testified on behalf of Martin in a protection-order hearing regarding M.M. while the alleged abuse was ongoing, id. at 137–38 (Page ID #368); see also id. at 151 (Page ID #372); (6) that the alleged abuse had ceased in August but that she had not reported it until October 21 or 22, id. at 127–28 (Page ID #366); and (7) that she and Martin had an argument a day or two before she reported the alleged abuse in which he had declined to add her to his cell-phone plan unless her grades improved, id. at 129–30 (Page ID #366).
S.W. also testified, in response to questions from the jury, that she had continued to sleep in the
same bed as her father following the alleged abuse because the couch that was available hurt her
back. Id. at 153 (Page ID #372). She also testified that she had not made any documentation of
the abuse. Id. at 154 (Page ID #372).
Among other prosecution witnesses, the jury also heard from S.W.’s pediatrician, Dr.
Stacy Gorman, who testified that she examined S.W. on October 22 but did not perform a full
pelvic exam because she had already done one in August and “didn’t feel the need to repeat it.”
R. 6-7 (Trial Tr. Vol. III at 9–10) (Page ID #379). S.W.’s best friend, O.R., also confirmed via
direct testimony that S.W. had confided in her about the groping prior to the full revelation in
October, but on direct the prosecution gave the time frame as “early summer,” id. at 16 (Page ID
#381), and on cross-examination O.R. admitted that she could not remember when it was,
indicating that it could have been any time between January and September, id. at 21–23 (Page
ID #382). And Allen, the forensic interviewer, told the jury that it is not unusual for sexual-
4 No. 17-2086, Martin v. Haas
abuse victims, including adolescents abused by family members, to try to pretend that nothing is
going wrong, to delay reporting the abuse, and to mix up or misremember details, especially as
time passes. See id. at 54–59, 64–65, 84–86, 92–101 (Page ID #390–91, 393, 398, 400–02).
Allen also testified that part of the protocol for preparing to interview a child accusing an adult
of sexual abuse is to generate “an alternative hypothesis” so that the interviewer “stay[s] in
neutral with letting the child tell you what, if anything[,] happened” and keeps “an open mind.”
Id. at 103–04 (Page ID #402–03).
The defense’s case was not overwhelming. The defense called Martin’s brother Don’s
domestic partner, Eric Sandmire, who testified that he did not “notice any change in [S.W.’s]
demeanor” between February and September 2008. Id. at 113 (Page ID #405). Sandmire also
testified to being present for one argument over the cell-phone plan between Martin and S.W.
and to hearing one side of another argument. He recalled that Martin seemed “very calm and
[was] trying to reason with [S.W.],” and that Martin was “upset” after the phone call because
S.W. “hung up on him.” Id. at 116–18 (Page ID #406). Sandmire described S.W.’s relationship
with M.M., meanwhile, as “[l]ove/hate,” id. at 118 (Page ID #406), and indicated that S.W. was
jealous of M.M., id. at 121–23 (Page ID #407). He also confirmed that Martin and S.W. shared a
bed “a couple of times a month” after Martin first moved in because the couch “was apparently
uncomfortable,” id. at 124 (Page ID #408). He testified that there “was nothing unusual about
that as far as [he] knew.” Id.
Don Martin also testified on behalf of the defense. He stated that S.W. seemed “very
jealous of [M.M.]” and the fact that M.M. got to live with Martin; Don recalled S.W. regularly
5 No. 17-2086, Martin v. Haas
calling M.M. “a spoiled brat” in his presence. Id. at 141 (Page ID #412). Don also confirmed
that S.W. had slept in Martin’s bed at times, id. at 145–46 (Page ID #413), and that she was a
regular overnight guest at their house during the period of the alleged abuse, staying over “two
and three days a week” at least a couple of times during the summer, id. at 148 (Page ID #414).
At closing argument, Martin’s lawyer offered five reasons that the jury should doubt
S.W.: (1) there were inconsistencies in her story (though counsel admitted that some of these
were “minor”), R. 6-8 (Trial Tr. Vol. IV at 46–52) (Page ID #430–32); (2) her behavior (for
example, continuing to share a bed with Martin) seemed inconsistent with the alleged abuse, id.
at 53–57 (Page ID #432–33); (3) the cell-phone argument might have “provoke[d] something,”
id. at 59 (Page ID #434); (4) there was “jealousy” of M.M. and potentially also of Martin’s new
girlfriend, id. at 59–60 (Page ID #434); and (5) teenagers in general are psychologically and
emotionally unpredictable, id. at 60 (Page ID #434). Not surprisingly, the prosecution
questioned whether any of these final three suppositions was a sufficient motive to make up
allegations of this gravity. See id. at 66 (Page ID #435). The jury ultimately convicted Martin,
and he was sentenced to concurrent sentences of fifteen to thirty years of imprisonment for each
of five counts of first-degree criminal sexual conduct, MICH. COMP. LAWS § 750.520b, and eight
to fifteen years of imprisonment for each of four counts of second-degree criminal sexual
conduct, MICH. COMP. LAWS § 750.520c.
What Martin argues was missing from his trial—and what this appeal hinges on—is a
line of potential impeachment regarding S.W.’s relationship with a nineteen-year-old boyfriend,
Stephen Cartier, that the trial court excluded under the auspices of Michigan’s rape-shield
6 No. 17-2086, Martin v. Haas
statute. That law excludes “[e]vidence of specific instances of the victim’s sexual conduct” from
admission at trial, subject to two narrow exceptions not at issue here. See MICH. COMP. LAWS
§ 750.520j. We will simply call this centrally disputed potential line of impeachment “the
disputed evidence” for short.
According to an affidavit that Martin filed as part of his post-conviction direct appeal,
Martin and S.W.’s mother learned in spring 2008 that S.W. was sexually active with Cartier. R.
2-2 (Martin Aff. at 1) (Page ID #94). In response, they took her to see a doctor and forbade
further contact with Cartier. During summer 2008, however, Martin learned that S.W. was still
seeing Cartier. He told her that if their relationship continued, he would report it to the police
and that Cartier “could ‘end up in jail.’” Id. Even so, Martin encountered further evidence later
that summer that the relationship had continued. At that point, he confronted S.W. in Sandmire’s
presence, stating: “I don’t know how many times I have to tell you. You are not allowed to see
him (Steven) [sic]. If you don’t end it, I will, and he’ll be in jail.” Id. Then, just prior to the
sexual-abuse allegations, S.W. asked to join Martin’s cell-phone plan, and Martin said that he
would consider it if her grades improved and she cut off contact with Cartier. Id. Martin avers
that S.W. responded: “I have no use for you.” Id. at 2 (Page ID #95).
Sandmire filed an affidavit confirming the relevant details in Martin’s affidavit, see R. 2-
2 (Sandmire Aff. at 1) (Page ID #92), and Cartier filed an affidavit admitting to having been in a
relationship with S.W. and confirming that she told him that her parents had taken her to a doctor
after learning of the relationship, R. 2-2 (Cartier Aff.) (Page ID #103). Cartier also asserted that
S.W. was “someone who will often manipulate a situation to get her own way, and that she does
7 No. 17-2086, Martin v. Haas
not have a reputation for being an honest person.” Id. He added that “[d]uring arguments,” S.W.
had “on several occasions[] threatened to get me in trouble for our relationship by having her
father press charges against me.” Id. He attested as well that, “[d]uring the whole time” of the
relationship, S.W. had “never claimed to [him] that her father was having sex with her” and had
never “appear[ed] to [him] to be traumatized in any way.” Id.
Trial counsel knew about this potentially impeaching material and accordingly filed and
argued a motion to admit it despite the rape-shield law, see R. 6-3 (Mot. Hr’g Tr.) (Page ID
#276–88), which prohibition the Michigan Supreme Court has made clear must, pursuant to “the
sound discretion of the trial court,” yield when exclusion would “unconstitutionally abridge the
defendant’s right to confrontation,” see People v. Hackett, 365 N.W.2d 120, 125 (Mich. 1984).
The trial court ultimately denied the motion without explanation. R. 11-1 (Mich. Cir. Ct. Order)
(Page ID #803). Importantly, however, the summary order included, toward the bottom of the
page, the following phrase: “Denied without prejudice. The Court will revisit the issue after
hearing the prosecution’s evidence at trial.” Id. Counsel never renewed the motion.
After his conviction, Martin obtained new counsel, who in turn filed a motion for a new
trial. R. 2-2 (Def.’s Mot. for New Trial at 1) (Page ID #72). Martin’s new counsel asserted,
among other claims, (1) that Martin was “deprived of the effective assistance of counsel where
defense counsel failed to properly and fully litigate a request to introduce evidence excepted
under the rape shield statute,” and (2) that “in light of the prosecution’s introduction of medical
testimony regarding the complainant’s earlier pelvic examination, and in light of the
prosecution’s introduction of expert testimony that the Care House ‘team’ had ruled out
8 No. 17-2086, Martin v. Haas
alternative hypotheses for the complainant’s allegations, the court’s pretrial ruling excluding
complainant’s sexual history and motive to fabricate constituted plain error, and the defendant
was deprived of his right to confront the witnesses and the right to present a defense.” Id. at 1–2
(Page ID #72–73). In an opinion by the same judge who presided over Martin’s trial, the trial
court rejected Martin’s ineffective-assistance claim, writing: “The Court ultimately denied the
motion [to allow the disputed evidence]. The record shows that trial counsel made every effort
to persuade the Court to admit evidence of the victim’s prior sexual conduct.” R. 6-19 (Mich.
Cir. Ct. Op. & Order at 2–3) (Page ID #737–38).
On direct appeal, the Michigan Court of Appeals affirmed on the merits. With regard to
the ineffective-assistance claim, it concluded that trial counsel was not constitutionally deficient
on the ground that counsel had argued for admission initially, and, moreover, the witnesses who
had ostensibly opened the door had not actually provided any reason to believe “that a renewed
motion would have been successful.” Martin, 2011 WL 445806, at *5. “In fact,” the court
reasoned, “the trial court’s opinion implies that it would have denied a renewed motion.
Accordingly, defense counsel was not ineffective, neither for his initial arguments nor for failing
to renew the motion.” Id. The court also rejected Martin’s argument that the trial court had
erred in excluding the disputed evidence, reasoning that neither the testimony of Gorman (the
pediatrician) nor Allen (the forensic interviewer) gave rise to a need to admit the evidence and
concluding that the “evidence [was] precluded by the rape shield law, and Martin has failed to
show sufficient cause to circumvent the statutory prohibition.” Id. at *7. The Michigan Supreme
Court declined to hear the case on appeal. People v. Martin, 798 N.W.2d 788 (Mich. 2011).
9 No. 17-2086, Martin v. Haas
Martin then filed a habeas petition in federal court. R. 1 (Petition for Writ) (Page ID #1).
The district court issued an opinion and order rejecting Martin’s claims, but observing that
Martin had neglected to mention throughout his postconviction appeals the most telling evidence
of ineffective assistance: that trial counsel had failed to renew the motion to admit the disputed
evidence. R. 14 (Dist. Ct. Amended Op. & Order at 1–3, 31–33) (Page ID #840–42, 870–72).
This version of the claim, the district court reasoned, was “much stronger” and “puts the claim in
a significantly different and stronger evidentiary posture than what the state courts were
presented with.” Id. at 32 (Page ID #871). The district court explained, however, that it could
not review that version of an ineffective-assistance claim at the present stage, given that that
particular version of the claim had not yet been presented to the state courts. Id. at 33 (Page ID
#872). The district court indicated that Martin could “file a motion for rehearing seeking to add
his unexhausted claim to the petition and seeking an order holding the case in abeyance while he
pursues relief in the state court.” Id. at 33 n.5 (Page ID #872).
Martin disputed that the claim was unexhausted, but he also moved to amend (or correct)
his habeas petition to include (or clarify) the failure-to-renew claim, and he further moved in the
alternative to hold the case in abeyance while he pursued the unexhausted claim. R. 15 (Mot. for
Reconsideration at 1) (Page ID #876); R. 16 (Mot. for Leave to Amend at 1) (Page ID #922).
The district court granted the motion to amend, vacated its earlier order, and held the case in
abeyance while Martin returned to state court. R. 19 (Dist. Ct. Op. & Order at 2) (Page ID
#945). For their part, the Michigan state courts denied Martin’s motion for relief from judgment
pursuant to Michigan Court Rule 6.508(D)(2), concluding that Martin’s “motion allege[d]
10 No. 17-2086, Martin v. Haas
grounds for relief that were decided against the defendant in a prior appeal.” See R. 24-4 (Mich.
Cir. Ct. Op. & Order at 2) (Page ID #1105); see also R. 24-5 (Mich. Ct. App. Order) (Page ID
#1108); R. 24-6 (Mich. Sup. Ct. Order) (Page ID #1206).
After Martin returned to federal court, the district judge who had previously handled his
petition retired, and a new district judge was assigned to his case. The new district judge issued
an order denying Martin’s petition on all grounds, though granting him a certificate of
appealability as to (1) his claim that the trial court’s initial exclusion of the disputed evidence
violated his right to present a defense and confront witnesses, and (2) his ineffective-assistance
claim arising from trial counsel’s failure to renew the motion to admit the disputed evidence.
See R. 26 (Dist. Ct. Op. & Order at 12, 22, 31) (Page ID #1336, 1346, 1355). This appeal
followed.
II. DISCUSSION
A. Standard of Review
This appeal concerns a federal habeas petition. We review the district court’s
conclusions of law de novo and its factual findings for clear error. McCarley v. Kelly, 801 F.3d
652, 660 (6th Cir. 2015). We are, as the district court was, constrained by the Antiterrorism and
Effective Death Penalty Act (AEDPA), which prohibits federal courts from granting habeas
relief “with respect to any claim that was adjudicated on the merits in State court proceedings
unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
11 No. 17-2086, Martin v. Haas
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”
28 U.S.C. § 2254(d). This case involves only the first of those two prongs.
The phrase “clearly established Federal law” in the first prong “refers to the holdings, as
opposed to the dicta, of [the Supreme] Court’s decisions as of the time of the relevant state-court
decision,” Williams v. Taylor, 529 U.S. 362, 412 (2000), and “[w]e may not employ circuit
precedent ‘to refine or sharpen a general principle of Supreme Court jurisprudence into a specific
legal rule that [the Supreme Court] has not announced,’” McCarley, 801 F.3d at 661 (second
alteration in original) (quoting Marshall v. Rodgers, 569 U.S. 58, 64 (2013)). The phrase
“contrary to,” meanwhile, applies when a “state court arrives at a conclusion opposite to that
reached by [the Supreme] Court on a question of law or if the state court decides a case
differently than [the Supreme] Court has on a set of materially indistinguishable facts.”
Williams, 529 U.S. at 412–13. And the phrase “unreasonable application of” applies when a
“state court identifies the correct governing legal principle from [the Supreme] Court’s decisions
but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413.
These are exacting standards with regard to federal courts—and, correspondingly,
deferential standards with regard to state courts. Thus, “[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)). Consequently, “evaluating
whether a rule application was unreasonable requires considering the rule’s specificity,” such
that “[t]he more general the rule, the more leeway courts have in reaching outcomes in case-by-
12 No. 17-2086, Martin v. Haas
case determinations.” Yarborough, 541 U.S. at 664. In short, our duty is to be on patrol for
“‘extreme malfunctions in the state criminal justice systems,’ not . . . ordinary error[s].” Richter,
562 U.S. at 102 (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979) (Stevens, J.,
concurring in judgment)).
We are also bound to recognize that state courts do not always parcel out their merits
adjudications in perfect detail. Accordingly, “[w]hen a state court rejects a federal claim without
expressly addressing that claim,” we must “presume”—subject to rebuttal—“that the federal
claim was adjudicated on the merits.” Johnson v. Williams, 568 U.S. 289, 301 (2013). “For
example, a court in a state that interprets a parallel state and federal constitutional provision
identically may decide that a discussion of the state claim adequately disposes of the duplicative
federal claim.” Brown v. Romanowski, 845 F.3d 703, 711 (6th Cir.), cert. denied, 138 S. Ct. 93
(2017). Similarly, when a party “treat[s] her state and federal claims as interchangeable, . . . it is
hardly surprising [if] the state courts [do] as well.” Johnson, 568 U.S. at 306. On the other
hand, this otherwise “strong” presumption may be rebutted “when a state court rejects a federal
claim ‘as a result of sheer inadvertence.’” Brown, 845 F.3d at 711 (quoting Johnson, 568 U.S. at
303).3
3 This rule also leaves open the possibility of differential review of the subparts of discrete claims. If, for example, a state court decision adjudicates the deficiency prong of an ineffective-assistance-of-counsel claim on the merits but does not reach the merits as to prejudice, we give AEDPA deference on the deficiency prong but review the prejudice question de novo. See Caudill v. Conover, 881 F.3d 454, 464 (6th Cir. 2018); Hodges v. Colson, 727 F.3d 517, 537 (6th Cir. 2013).
13 No. 17-2086, Martin v. Haas
Finally, when asking whether a state court reached the merits of a claim, we “‘look[]
through’ unexplained orders to the ‘last reasoned’ decision of the state courts,” Brown, 845 F.3d
at 711 (quoting Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991)), presuming that any summary
affirmances from higher state courts “adopted the same reasoning” of the last reasoned state-
court decision in the absence of a showing to rebut that presumption, Wilson v. Sellers, 584
U.S. ——, No. 16-6855, slip op. at 2 (Apr. 17, 2018). This rule “applies separately to each claim
within a case,” but it is otherwise a one-stop train: “we must still defer to the last reasoned state-
court opinion, rather than try to string together a series of state opinions piecemeal for each
claim.” See Barton v. Warden, S. Ohio Corr. Facility, 786 F.3d 450, 463 (6th Cir. 2015).
B. Right to Present a Defense and Confront Witnesses
With those governing rules in mind, we first address Martin’s claim that his right to
present a defense and confront witnesses was impermissibly stifled when the trial court failed to
allow him to introduce the disputed evidence. Although it is not clear that the trial court ever
issued what we can treat as a dispositive ruling on this question, see R. 11-1 (Mich. Cir. Ct.
Order) (Page ID #803), we will assume that the initial denial was definitive enough to burden
cognizably Martin’s rights. In any event, we conclude that there was no cognizable error.
At the outset, we note that while Martin and the Warden discuss these claims
interchangeably, confrontation claims and right-to-present-a-defense claims are not doctrinally
identical. Compare, e.g., Boggs v. Collins, 226 F.3d 728, 736–43 (6th Cir. 2000) (analyzing
right-to-confront challenge), with id. at 743–45 (analyzing right-to-present challenge). But
because the two types of claims are closely related, cf. Crane v. Kentucky, 476 U.S. 683, 690
14 No. 17-2086, Martin v. Haas
(1986) (“Whether rooted directly in the Due Process Clause of the Fourteenth Amendment, or in
the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution
guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.’”
(quoting California v. Trombetta, 467 U.S. 479, 485 (1984)) (citations omitted)), and because
Martin’s two claims largely collapse into one common and overarching question—whether there
was constitutional error, cognizable under AEDPA, in precluding the disputed evidence—we
will not belabor the difference and instead will analyze the claims in close proximity.
We also note that AEDPA deference applies. The last reasoned state-court opinion in
this case is the opinion of the Michigan Court of Appeals. Though it does not discuss the
doctrinal contours of Martin’s confrontation and defense-presentation rights as comprehensively
as one might hope, the opinion’s substantive rejection of the argument that either Gorman’s or
Allen’s testimony required the admission of the disputed evidence is logically significant: if
Martin’s defense rights were not impermissibly hampered even with Gorman’s and Allen’s
testimony having been offered, then it follows with stronger force that his rights were not
impermissibly hampered by the trial judge’s initial refusal to allow the disputed evidence. See
Martin, 2011 WL 445806, at *7. In short, with Martin himself having treated his claim as
indivisibly encompassing (1) his confrontation right and his right to present a defense and (2) the
trial court’s initial denial and its ongoing denial following Gorman’s and Allen’s testimony, and
with Martin’s furthermore (3) having offered no other reason to conclude that AEDPA does not
apply, we presume that there was a valid adjudication on the merits and thus apply AEDPA
15 No. 17-2086, Martin v. Haas
deference. See Johnson, 568 U.S. at 301, 305–06. AEDPA review, in turn, forecloses Martin’s
claims.
To begin with, Supreme Court precedent makes clear that Martin’s rights to confront
witnesses and to present a defense are not absolute. While cross-examination, for example, is an
important trial right, “trial judges retain wide latitude insofar as the Confrontation Clause is
concerned to impose reasonable limits on such cross-examination based on concerns about,
among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or
interrogation that is repetitive or only marginally relevant.” Delaware v. Van Arsdall, 475 U.S.
673, 679 (1986); see also Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (“[T]he Confrontation
Clause guarantees an opportunity for effective cross-examination, not cross-examination that is
effective in whatever way, and to whatever extent, the defense might wish.”). Similarly, “[t]he
right to present relevant testimony is not without limitation,” but rather “may, in appropriate
cases, bow to accommodate other legitimate interests in the criminal trial process.” Rock v.
Arkansas, 483 U.S. 44, 55 (1987) (quoting Chambers v. Mississippi, 410 U.S. 284, 295 (1973)).
Here, the disputed evidence was excluded, as Martin concedes, pursuant to a statutory
directive that the Supreme Court itself has explicitly blessed in certain circumstances. See
Michigan v. Lucas, 500 U.S. 145, 149–50 (1991) (“The Michigan statute represents a valid
legislative determination that rape victims deserve heightened protection against surprise,
harassment, and unnecessary invasions of privacy.”). That does not mean, of course, that Martin
automatically loses. See id. at 151. But it does mean that we are reviewing the Michigan Court
of Appeals’s conclusion regarding a more sensitive, case-by-case analysis applying a fairly
16 No. 17-2086, Martin v. Haas
general rule. See id. (“Restrictions on a criminal defendant’s rights to confront adverse witnesses
and to present evidence ‘may not be arbitrary or disproportionate to the purposes they are
designed to serve.’” (quoting Rock, 483 U.S. at 56)); see also Gagne v. Booker, 680 F.3d 493
(6th Cir. 2012) (en banc) (plurality opinion) (“Lucas stands for the proposition that the trial court
must balance a state’s interest in excluding certain evidence under the rape shield statute against
a defendant’s constitutionally protected interest in admitting that evidence, on a case-by-case
basis—neither interest is superior per se.” (citation omitted)). And especially on habeas review,
more general rules mean “more leeway” for courts “in reaching outcomes in case-by-case
determinations.” Yarborough, 541 U.S. at 664.
The Michigan appellate court’s conclusion that exclusion was permissible was not
“contrary to, or . . . an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.” See 28 U.S.C. § 2254(d)(1). In habeas
cases discussing the Confrontation Clause, we have set out a method for reviewing such
questions. “When,” as here, “a trial court has limited cross-examination from which a jury could
have assessed a witness’s motive to testify, a court must take two additional steps,” Lewis v.
Wilkinson, 307 F.3d 413, 421 (6th Cir. 2002):
First, a reviewing court must assess whether the jury had enough information, despite the limits placed on otherwise permitted cross-examination, to assess the defense theory of . . . improper motive. Second, if this is not the case, and there is indeed a denial or significant diminution of cross-examination that implicates the Confrontation Clause, the Court applies a balancing test, weighing the violation against the competing interests at stake.
Id. (alteration in original) (quoting Boggs, 226 F.3d at 739).
17 No. 17-2086, Martin v. Haas
In this case, we easily conclude that the jury did not have “enough information despite
the limits placed on otherwise permitted cross-examination, to assess the defense theory of . . .
improper motive.” See id. (alteration in original) (citations omitted). Though the defense was
able to offer some suppositions as to why S.W. might make these charges up—the cell phone, the
jealousy of M.M.—the defense’s theories were hardly incontrovertible, as the prosecution well
noted. See R. 6-8 (Trial Tr. Vol. IV at 59–60, 66) (Page ID #434–35). The disputed evidence—
particularly that Martin had threatened to press charges against Cartier—was, comparatively
speaking, a stronger theory, and it was wholly excluded.
The second question, however—whether Martin’s interest in introducing this evidence
outweighs the contrary interests—is where Martin’s challenge stumbles. Our analysis in Lewis,
which went the other way, helps explain why. Lewis involved a defendant, on trial for rape, who
had sought to introduce portions of the complaining witness’s diary in which she had arguably
admitted that she had in fact consented to the sexual intercourse at issue and had instead pressed
charges because she was angry with both the defendant and herself for noncriminal behavior.
Lewis, 307 F.3d at 417–18. Those statements, we noted, had “substantial probative value as to
both consent and the victim’s motive in pressing charges against appellant.” Id. at 422. The
former feature—direct evidence that the complainant had consented—we described as
particularly important. See id. All that outweighed, we reasoned, the danger of putting the
(adult) victim’s “sexual history with other men” on trial. See id.
Martin’s case is different. While the disputed evidence presented a relatively stronger
impeachment theory, that theory went to actual guilt only tangentially, and its probative value
18 No. 17-2086, Martin v. Haas
was still low in absolute terms. The theory would have been that Martin threatened to call the
police against Cartier during the spring and summer, but did not, and then further quarreled with
his teenaged daughter in October about her cell-phone plan, reiterating his opposition to her
relationship. See R. 2-2 (Martin Aff.) (Page ID #94–95); Appellant’s Br. at 25. That itself is a
far cry from clear cause to doubt such serious accusations by a sixteen-year-old against her
father, and the cause for skepticism here is further limited by the corroborative evidence from
O.R. and the uncontroverted testimony from both sides that Martin regularly shared a bed with
his daughter.4 See, e.g., R. 6-7 (Trial Tr. Vol. III at 16, 124, 27) (Page ID #381, 408). And on
the other side of the balance, we find the same considerations supporting the rape-shield law that
the Supreme Court expressed in Lucas, 500 U.S. at 149–50, interests that press even more
strongly here in the case of a minor, see, e.g., Maryland v. Craig, 497 U.S. 836, 852–53 (1990).
None of this means that we, if put to the question, would necessarily rule the same way in a
federal case. But because the probative value of the disputed evidence was low in absolute terms
and the countervailing interests were significant, “fairminded jurists could disagree” about the 4 We note, for completeness, that this case is also different from one in which evidence of a complainant’s prior sexual history might be necessary to rebut physiological proof offered by the prosecution. See, e.g., LaJoie v. Thompson, 217 F.3d 663, 671 (9th Cir. 2000); United States v. Begay, 937 F.2d 515, 523 (10th Cir. 1991). Martin, to be clear, maintains that his case is that type of case, arguing that Gorman’s testimony that she had not felt the need to perform another pelvic exam in October suggested to the jury that Martin was the only possible source of physiological proof. See Appellant’s Br. at 26. But the Michigan Court of Appeals rejected that argument, and we understand why: neither Gorman nor any other witness ever offered physiological proof, and thus Martin’s theory turns on an inference from one sentence of Gorman’s testimony that was neither logically compelled nor encouraged by the prosecution. See Martin, 2011 WL 445806, at *7; R. 6-7 (Trial Tr. Vol. III at 9–10) (Page ID #379). While a more damning suggestion within the government’s case might well alter our calculus, this one does not.
19 No. 17-2086, Martin v. Haas
correct ruling here. See Richter, 562 U.S. at 101. And that means that, when we analyze the
claim as a Confrontation Clause issue, Martin’s claim fails on AEDPA review.
For essentially the same reasons, and via a similar analysis, Martin’s claim also fails on
AEDPA review if analyzed under precedent governing the right to present a defense. As we
have explained: “Rules excluding evidence ‘do not abridge an accused’s right to present a
defense so long as they are not arbitrary or disproportionate to the purpose they are designed to
serve,’” and “exclusion . . . is arbitrary or disproportionate ‘only where it has infringed upon a
weighty interest of the accused.’” Boggs, 226 F.3d at 743–44 (quoting United States v. Scheffer,
523 U.S. 303, 308 (1998)) (citations and quotation marks omitted); see also Gagne, 680 F.3d at
514 (plurality opinion) (“Crane stands for the general proposition that ‘the Constitution
guarantees criminal defendants a meaningful opportunity to present a complete defense’—such
that the court may not ‘exclude competent, reliable evidence . . . central to the defendant’s claim
of innocence[,] . . . [i]n the absence of any valid state justification.’” (alterations in original)
(quoting Crane, 476 U.S. at 690–91)). For example, where excluded evidence is “not so highly
probative” or “weighty,” we generally do not consider it “constitutionally guaranteed” and
instead defer to a state court’s discretion to exclude it. See Boggs, 226 F.3d at 745. On the other
hand, where the excluded evidence seriously challenges an otherwise suspect prosecutorial case,
see Olden v. Kentucky, 488 U.S. 227, 233 (1988), and moreover where the purposes of exclusion
are either categorically slight, see Crane, 476 U.S. at 690–91, or at least seriously attenuated in
the instant case, see Chambers, 410 U.S. at 298, 302–03, clearly established law points in a
20 No. 17-2086, Martin v. Haas
different direction. Here, however, the evidence was not so strong, nor the contravening interest
sufficiently weak, to entitle Martin to the relief he seeks on federal habeas review.
C. Ineffective Assistance of Counsel
That leaves Martin’s claim that his trial counsel provided constitutionally ineffective
assistance by failing to renew the motion to admit the disputed evidence. Again, there is some
brush to clear. First, there is the Warden’s argument that we should dismiss this claim altogether
because “the district court overstepped its role as a neutral arbiter of disputes,” Appellee’s Br. at
18, in its order discussing the problematic framing of Martin’s claim, see R. 14 (Dist. Ct.
Amended Op. & Order at 1–3, 31–33) (Page ID #840–42, 870–72). The Warden’s only
authority for this position is highly generalized dictum from an unpublished decision. See Young
Bok Song v. Gipson, 423 F. App’x 506, 510 (6th Cir. 2011) (“[W]e decline to affirmatively
require courts to ferret out the strongest cause of action on behalf of pro se litigants. Not only
would that duty be overly burdensome, it would transform the courts from neutral arbiters of
disputes into advocates for a particular party. While courts are properly charged with protecting
the rights of all who come before it, that responsibility does not encompass advising litigants as
to what legal theories they should pursue.”). While Martin does appear to have read and used the
district court’s own dictum to refine his legal strategy, the fact that the district court had no
affirmative duty to recognize the relevant shortcomings in Martin’s appellate counsel’s
presentation of Martin’s claim did not prevent the district court from commenting on that claim.
The district court’s action was supererogatory, not prohibited.
21 No. 17-2086, Martin v. Haas
Second, the Warden argues that Martin’s claim falls outside of AEDPA’s statute of
limitations. See 28 U.S.C. § 2244(d)(1); Appellee’s Br. at 19. True enough that Martin amended
his claim outside of AEDPA’s one-year limit. But the one-year limit is not fatal if the amended
petition “relat[es] back” to the original petition, and an amendment relates back “[s]o long as the
original and amended petitions state claims that are tied to a common core of operative facts.”
Mayle v. Felix, 545 U.S. 644, 664 (2005). The Warden’s answer to this problem is to suggest
that the addition of one operative fact—that the initial motion to introduce the disputed evidence
was denied without prejudice—is enough to preclude us from finding a “common core of
operative facts.” Appellee’s Br. at 20. But this answer is odd, to say the least, given that the
Michigan courts all concluded, contrary to the first district judge, that Martin’s original initial
ineffective-assistance claim and his amended ineffective-assistance claim did not simply share a
common core of operative facts, but actually were the exact same claim. See R. 24-4 (Mich. Cir.
Ct. Op. & Order at 2) (Page ID #1105); R. 24-5 (Mich. Ct. App. Order) (Page ID #1108); R. 24-6
(Mich. Sup. Ct. Order) (Page ID #1206). Suffice it to say that this is not a winning argument for
the Warden.
Third, Martin references a claim for ineffective assistance of appellate counsel that both
the district court and the Warden appear to ignore. The Michigan courts, however, were
presented with this claim, see R. 24-2 (Def.’s Mot. for Relief from J.) (Page ID #1022–25), and
they each implicitly rejected it on the merits, see Johnson, 568 U.S. at 301; Richter, 562 U.S. at
99, concluding, as just discussed, that appellate counsel had not failed to present the failure-to-
renew version of the claim, see R. 24-4 (Mich. Cir. Ct. Op. & Order at 2) (Page ID #1105);
22 No. 17-2086, Martin v. Haas
R. 24-5 (Mich. Ct. App. Order) (Page ID #1108); R. 24-6 (Mich. Sup. Ct. Order) (Page ID
#1206). Given the broad language in Martin’s initial state-court petition, R. 2-2 (Def.’s Mot. for
New Trial at 1–2) (Page ID #72–73), our deferential standard on habeas review, and the
deference that we give to appellate attorneys with regard to how to couch their appeals, see Jones
v. Barnes, 463 U.S. 745, 754 (1983), we do not see grounds here to reject the state courts’
judgment.
Fourth, we note that, contrary to the Warden’s argument, see Appellee’s Br. at 20–21, our
resolution of Martin’s claim regarding the exclusion of the disputed evidence does not
automatically dispose of his ineffective-assistance claim. True, the district court noted—
rightly—that if Martin were to win the former claim, then it would be unnecessary to reach the
latter claim. See R. 26 (Dist. Ct. Op. & Order at 12) (Page ID #1336). But the Warden’s brief
commits a logical fallacy in assuming that this street runs in both directions. Rather, just because
federal law does not require the disputed evidence to have been admitted does not mean that
federal law categorically prohibits the disputed evidence.5 In other words, there is still the
cognizable possibility that, had counsel renewed his motion, the trial judge would have, in her
discretion, granted the motion—and that, in turn, the disputed evidence would have changed the
outcome of Martin’s trial.
With all that being said, we proceed to the merits of Martin’s ineffective-assistance
claim. “Judicial scrutiny of counsel’s performance,” the Supreme Court has explained, “must be
5 And, indeed, it does not categorically prohibit such evidence. See, e.g., Lucas, 500 U.S. at 151.
23 No. 17-2086, Martin v. Haas
highly deferential.” Strickland v. Washington, 466 U.S. 668, 689 (1984). More specifically, to
succeed in proving constitutionally ineffective assistance, a petitioner must show not only (1)
that “counsel’s performance was deficient,” but also (2) that this “deficient performance
prejudiced the defense.” Id. at 687. The deficiency prong “requires showing that counsel made
errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by
the Sixth Amendment.” Id. This prong “calls for an inquiry into the objective reasonableness of
counsel’s performance, not counsel’s subjective state of mind.” Richter, 562 U.S. at 110. The
prejudice prong, meanwhile, “requires showing that counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687.
This prong, in other words, requires a 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.” Id. at 694. “A reasonable probability,” in turn, “is a probability sufficient to
undermine confidence in the outcome.” Id.
Here, the last reasoned opinion to address this claim is again the opinion from the
Michigan Court of Appeals, see Martin, 2011 WL 445806, at *5, in light of its own confirmation
that it in fact reviewed this version of the question the first time around, see R. 24-5 (Mich. Ct.
App. Order) (Page ID #1108). Although the state appellate court’s reasoning focused largely on
deficiency, it did appear to reach prejudice when it concluded—perhaps alluding to the fact that
the same trial judge who denied Martin’s initial appeal also presided over his trial—that “[i]n
fact, the trial court’s opinion implies that it would have denied a renewed motion.” Martin, 2011
WL 445806, at *5. “Accordingly,” the court concluded, “defense counsel was not ineffective,
24 No. 17-2086, Martin v. Haas
neither for his initial arguments nor for failing to renew the motion.” Id. Given the
presumptions that we are bound to follow on habeas review and the fact that Martin has not
offered anything to rebut them, Johnson, 568 U.S. at 301; Richter, 562 U.S. at 99, AEDPA
deference applies to both prongs of the Strickland inquiry. Accordingly, “[t]he question is
whether there is any reasonable argument that counsel satisfied Strickland’s deferential
standard.” Richter, 562 U.S. at 105.
With regard to deficiency, we find it hard, even on this deferential standard of review, to
think of a reasonable argument that Martin’s counsel satisfied Strickland’s standard. After all,
while Martin’s trial counsel evidently did an acceptable job of litigating the motion initially,
there was zero downside to renewing it given the terms of the trial judge’s order, see R. 11-1
(Mich. Cir. Ct. Order) (Page ID #803), and there was clearly some potential upside, given
Martin’s paucity of alternative defense theories. True, as the Warden argues, such evidence
might have been only “minimally helpful,” Appellee’s Br. at 23—but that is a point better geared
toward an analysis of prejudice, an inquiry to which we turn in a moment. Meanwhile, the
Warden’s other explanations for the omission—such as a fear of inviting aspersions against
Martin from the jury for his failure actually to call the police, or a fear of inviting belief among
the jury that Martin was just jealous of Cartier, id. at 24—are simply too implausible under the
circumstances. Martin was on trial for the repeated sexual abuse of his teenaged daughter, and
the defense’s entire theory as to why the charges were fabricated boiled down to a cell-phone
plan, a sibling rivalry, and the fickleness of teenagers. See R. 6-8 (Trial Tr. Vol. IV at 59–60)
(Page ID #434). It is hard to see, in light of the circumstances, how it could have been
25 No. 17-2086, Martin v. Haas
objectively reasonable to conclude that the (highly speculative) risks attending the disputed
evidence outweighed the (much needed) benefit of a relatively more compelling theory.
Even so, the theory supported by the disputed evidence was just that: relatively more
compelling. To prevail on the prejudice prong, Martin must show more than a simple
comparative advantage; after all, a pebble is not weighty simply because it is many times larger
than a grain of sand. Rather, the prejudice prong requires Martin to establish “a reasonable
probability that,” had his trial counsel renewed the motion, “the result of the proceeding would
have been different.” Strickland, 466 U.S. at 694 (emphasis added). The stringency of federal
habeas review, meanwhile, requires us to affirm so long as it was reasonable for the state
appellate court not to find prejudice. See Richter, 562 U.S. at 105. There are several reasons
that Martin cannot meet this particularly high bar.
First, as the Michigan Court of Appeals noted, there is significant cause to doubt that the
trial court would have exercised its discretion to grant the motion even if Martin’s trial counsel
had renewed it. See Martin, 2011 WL 445806, at *5; see also R. 6-19 (Mich. Cir. Ct. Op. &
Order at 2–3) (Page ID #737–38). Nothing of relevance had changed since the trial court’s
pretrial denial of the motion: Gorman’s testimony, as already discussed, did not offer
physiological evidence that would have invited rebuttal. See R. 6-7 (Trial Tr. Vol. III at 9–10)
(Page ID #379). And Allen’s simple explanation of why forensic interviewers use alternative
hypotheses did not, contrary to Martin’s argument, see Appellant’s Br. at 11, invite the
conclusion that her team had ruled any alternative hypotheses out. See R. 6-7 (Trial Tr. Vol. III
at 103–04) (Page ID #402–03). In short, while counsel had nothing to lose, that does not mean
26 No. 17-2086, Martin v. Haas
that he was likely to win. And the fact that he was unlikely to win makes prejudice a tougher
burden. Cf. Downs v. United States, 879 F.3d 688, 691 (6th Cir. 2018) (finding no
ineffectiveness where counsel “failed to seek reconsideration” of a defendant’s sentence where
“such a motion would have been futile”).
Of course, if the disputed evidence were sufficiently exculpatory, even a lower chance of
gaining its admission might suffice for prejudice purposes. But here, the disputed evidence,
while better than any other card in Martin’s hand, was not especially powerful in absolute terms.
Even if it had been admitted, that theory still would have been up against powerful and graphic
testimony from S.W. R. 6-6 (Trial Tr. Vol. II at 40–68) (Page ID #344–51). True, Martin’s trial
counsel had succeeded in pointing out inconsistencies in the different accounts that S.W. had
provided over the course of the investigation, id. at 82, 97–101, 109–12, 116–18, 121–25 (Page
ID #354, 358–59, 361–65), and had called into question other aspects of her behavior during the
time of the alleged abuse, id. at 83, 87–88, 102–05, 127–30, 135 (Page ID #355–56, 359–60,
366, 368). But even counsel admitted that some of these inconsistencies were “minor,” R. 6-8
(Trial Tr. Vol. IV at 52) (Page ID #432), and the jury had heard expert testimony that sexual-
abuse victims do not always remember events in perfect detail and that it is not unusual for
adolescent victims of sexual abuse by family members to delay reporting the abuse and to try to
act as if nothing bad is happening, see R. 6-7 (Trial Tr. Vol. III at 54–59, 64–65, 84–86, 92–101
(Page ID #390–91, 393, 398, 400–02).
Meanwhile, the jury had also heard testimony from S.W. that she had confided in O.R.
during February 2008. R. 6-6 (Trial Tr. Vol. II at 45) (Page ID #345). If accurate, the timing of
27 No. 17-2086, Martin v. Haas
that conversation eviscerates Martin’s argument, given that he asserts having first learned of
S.W.’s sexual relationship with Cartier during spring 2008 and having first mentioned criminal
liability for Cartier during summer 2008. R. 2-2 (Martin Aff. at 1) (Page ID #94). To be fair,
and as Martin points out, Reply Br. at 4–5, O.R. was unable to confirm the February date. R. 6-7
(Trial Tr. Vol. III at 16, 21–23) (Page ID #381–82). Nevertheless, O.R. was able to confirm that
the conversation happened, id., and thus the combination of her testimony and S.W.’s further
reduces the chances that the disputed evidence, even if admitted, would have yielded a different
result in Martin’s trial.
In short, prejudice is at best debatable, and we are therefore not empowered on federal
habeas review to disturb the Michigan Court of Appeals’s rejection of Martin’s ineffective-
assistance claim. See Richter, 562 U.S. at 105. This claim also fails.
III. CONCLUSION
The clash between a defendant’s trial rights and the state’s legitimate interest in
protecting complainants’ sexual histories is never simple. Because the Michigan Court of
Appeals did not contravene or unreasonably apply clearly established law in denying Martin’s
claims, we AFFIRM.