Millender v. Adams

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Millender v. Adams No. 02-1403 ELECTRONIC CITATION: 2004 FED App. 0227P (6th Cir.) File Name: 04a0227p.06 THE ATTORNEY GENERAL, HABEAS CORPUS DIVISION, Lansing, Michigan, for Appellee. UNITED STATES COURT OF APPEALS _________________ FOR THE SIXTH CIRCUIT OPINION _________________ _________________

TRENTON MILLENDER , X BOYCE F. MARTIN, JR., Circuit Judge. Mr. Trenton Millender appeals the judgment of the district court denying Petitioner-Appellant, - his 28 U.S.C. § 2254 petition for a writ of habeas corpus. - - No. 02-1403 This Court granted a certificate of appealability on four v. - issues: (1) whether Mr. Millender's trial counsel was > constitutionally ineffective; (2) whether the Michigan trial , court's failure to instruct jurors on mistaken identity and STANLEY ADAMS, - Respondent-Appellee. - impeachment by a prior inconsistent statement denied petitioner a fair trial; (3) whether comments the prosecutor N made in closing argument denied petitioner a fair trial; and (4) Appeal from the United States District Court whether the cumulative effect of these alleged errors denied for the Eastern District of Michigan at Detroit. petitioner a fair trial. For the reasons that follow, we affirm No. 99-70945—Gerald E. Rosen, District Judge. the judgment of the district court.

Argued: April 29, 2004 I.

Decided and Filed: July 15, 2004 Late in the evening in July 1994, petitioner and two other individuals broke into a home to commit a robbery. Once Before: KENNEDY, MARTIN, and ROGERS, Circuit inside the home, the three assailants brutally assaulted its Judges. occupants. Based on these actions, a Michigan state-court jury convicted Mr. Millender of three counts of first-degree _________________ criminal sexual conduct, three counts of armed robbery, one count of assault with intent to do great bodily harm, three COUNSEL counts of felonious assault, and one count of felonious possession of a firearm during the commission of a felony. ARGUED: John F. Royal, Detroit, Michigan, for Appellant. The trial court sentenced petitioner to a lengthy prison term Laura Graves Moody, OFFICE OF THE ATTORNEY following this conviction. GENERAL, HABEAS CORPUS DIVISION, Lansing, Michigan, for Appellee. ON BRIEF: John F. Royal, Detroit, The Michigan Court of Appeals subsequently denied two Michigan, for Appellant. Laura Graves Moody, OFFICE OF motions to remand and a motion for rehearing filed by petitioner. Thereafter, in October 1996, the Michigan Court

No. 02-1403 Millender v. Adams 3 4 Millender v. Adams No. 02-1403

of Appeals affirmed his conviction. In December 1997, the law' or that the state court decided a case differently than Michigan Supreme Court denied petitioner’s motion for leave the Supreme Court has on a set of materially to appeal and, in February 1998, the Michigan Supreme Court indistinguishable facts. Under the second category, denied his motion for reconsideration. Petitioner then moved involving the unreasonable application of federal law by for an evidentiary hearing in the United States District Court. a state court, a federal habeas court must ask whether the The district court denied this motion without prejudice in state court’s application of clearly established federal law March 2000. In February 2002, the district court also denied was objectively reasonable. If the federal court finds petitioner's petition for a writ of habeas corpus and sua that, viewed objectively, the state court has correctly sponte denied him a certificate of appealability. In October identified the governing legal principle from the Supreme 2002, this Court granted Mr. Millender's request for a Court's decisions but unreasonably applied that principle certificate of appealability, and we certified four issues for to the facts of the prisoner’s case, it may grant the writ. review. Washington v. Hofbauer, 228 F.3d 689, 698 (6th Cir. 2000) II. (citation and internal quotations omitted). With respect to all four issues raised by petitioner, we find no error in the We review a grant or denial of a petition for writ of habeas judgment of the district court and affirm. corpus de novo and the factual findings of the district court for clear error. Lott v. Coyle, 261 F.3d 594, 606 (6th Cir. III. 2001). Under 28 U.S.C. § 2254, a writ of habeas corpus may not be granted unless the state-court proceedings: The first issue Mr. Millender raises to support his claim for habeas relief is ineffective assistance of counsel. Petitioner (1) resulted in a decision that was contrary to, or alleges that his attorney violated his right to effective involved an unreasonable application of, clearly representation, which is guaranteed under the Sixth established Federal law, as determined by the Supreme Amendment in criminal cases. “The benchmark for judging Court of the United States; or any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the (2) resulted in a decision that was based on an adversarial process that the trial cannot be relied on as having unreasonable determination of the facts in light of the produced a just result.” Strickland v. Washington, 466 U.S. evidence presented in the State court proceedings. 668, 686 (1984). Millender advances several grounds for relief to support this claim, including his attorney’s failure to 28 U.S.C. § 2254(d). Section 2254(d)(1) defines two object to the introduction of evidence, failure to object to categories of cases in which a state prisoner may gain habeas various in-court identifications and prosecutorial remarks, relief. See Williams v. Taylor, 529 U.S. 362 (2000) failure to call a rebuttal witness, and failure to make an (O'Connor, J., concurring). opening statement or request certain instructions. We review de novo the district court’s judgment on an ineffective- To gain habeas relief under the first category, involving assistance-of-counsel claim. Hudson v. Jones, 351 F.3d 212, state decisions contrary to federal law, a defendant must 215 (6th Cir. 2003). show that the state court arrived at a conclusion opposite to that reached by the Supreme Court on a question of

No. 02-1403 Millender v. Adams 5 6 Millender v. Adams No. 02-1403

In its review of the ineffective-assistance-of-counsel claim, impermissibly suggestive. He alleges the lineup was the district court applied the standard set out in Strickland and suggestive because he was the tallest suspect; he alleges the ruled that Mr. Millender’s counsel was not constitutionally voice identification was suggestive because, according to him, ineffective. The Strickland standard involves a two-step his voice did not sound “in any way” like the other suspect’s inquiry that requires a petitioner to show (1) that his trial voices and it was conducted at the same time as the representation was deficient, or objectively unreasonable, and identification lineup. Petitioner also argues that his attorney (2) that prejudice resulted from this representation. should have objected to in-court identifications of him Strickland, 466 U.S. at 687. “The defendant must show that because eyewitness testimony is “extremely unreliable” yet there is a reasonable probability that, but for counsel’s has a profound impact on juries. Thus, according to unprofessional errors, the result of the proceeding would have petitioner, his attorney’s failure to file a motion to suppress been different.” Id. at 694. Mr. Millender argues that the this identification evidence constitutes ineffective assistance district court erred not only in ruling that his counsel was not of counsel because his primary defense was mistaken identity. ineffective, but also in analyzing his claim under the Strickland standard rather than the less stringent standard set We hold that petitioner's attorney’s failure to file a motion out in United States v. Cronic, 466 U.S. 648 (1984). Under to suppress does not constitute ineffective assistance of Cronic, prejudice is presumed, and therefore need not be counsel. In some circumstances, discrepancies in height may proved, if petitioner’s counsel “entirely fails to subject the be impermissibly suggestive. See Foster v. California, 394 prosecution's case to meaningful adversarial testing[.]” U.S. 440, 442-43 (1969). Although petitioner was taller than Cronic, 466 U.S. at 659. the other suspects used in the lineup, he was only one inch taller than two other suspects, all of whom were roughly the Throughout the trial, petitioner’s attorney was an active same height, and all of the suspects were dressed similarly participant: he cross-examined witnesses, made proper and were approximately the same age. In addition, as the objections, and presented a closing argument. This level of Michigan Court of Appeals pointed out, the fact that only representation does not fall below the low threshold required three of the six victims identified petitioner in the lineup by Cronic. Therefore, the district court did not err in its belies his argument that it was impermissibly suggestive. As application of the Strickland standard, and we rely on the to the voice-identification evidence, a defense attorney same standard in our review of this claim. present at the lineup made no objection to or comments about any discrepancy in the voices. Consequently, because there A. was nothing to suggest that the lineup procedure was in any way improper, petitioner’s counsel was not ineffective for Petitioner alleges that his attorney’s failure to file a motion failing to seek a Wade hearing or failing to suppress evidence to suppress evidence from witness and voice-identification concerning the three victims’ identification of petitioner police lineups and in-court identifications constitutes during that lineup. See United States v. Carter, 355 F.3d 920, ineffective assistance of counsel. Under United States v. 924 (6th Cir. 2004) (holding that counsel was not ineffective Wade, 388 U.S. 218 (1967), a defendant may have the right for failing to file motion where there was no reasonable to a pretrial hearing to contest the validity of an out-of-court probability that motion would be granted). identification. Petitioner argues that his attorney should have requested a Wade hearing to suppress the lineup Further, because the lineup was not impermissibly identifications because he claims these identifications were suggestive, petitioner’s counsel did not err in failing to object

No. 02-1403 Millender v. Adams 7 8 Millender v. Adams No. 02-1403

to the in-court identification of petitioner by victims who had and . . . will not constitute . . . a claim of ineffective assistance failed to identify petitioner during the lineup. As recognized of counsel.” Millender v. Adams, 187 F. Supp. 2d 852, 870 by the district court, the victims’ failure to identify the (E.D. Mich. 2002), quoting United States v. Rodriquez- petitioner during the lineup went to the credibility of the in- Ramirez, 777 F.2d 454, 457 (9th Cir. 1985). We find no error court identifications, not their admissibility. United States v. in the district court’s determination that the attorney’s Causey, 834 F.2d 1277, 1286 (6th Cir. 1987); People v. decision was not objectively unreasonable, and therefore did Barclay, 528 N.W.2d 842 (Mich. App. 1995). Consequently, not amount to ineffective assistance of counsel. See petitioner’s counsel was not ineffective for failing to object to Strickland, 466 U.S. at 687-91. We affirm the judgment of the admission of the in-court identifications. the district court on this issue. B. D. Petitioner also alleges that his attorney's failure to object to Petitioner complains that his attorney was ineffective for the introduction into evidence of a picture of a pair of pliers failing to request jury instructions on mistaken identity, which found at the crime scene, a similar pair of pliers, a handgun, was petitioner’s only defense, and on the impeachment of a shotgun, and photographs of the guns constitutes ineffective witnesses by prior inconsistent statements. Even assuming assistance of counsel. He argues that the introduction of these that petitioner’s counsel erred in failing to request these items, none of which were proven to be weapons used in the instructions, however, petitioner has not demonstrated crime, was inflammatory and prejudiced the jury against him. prejudice because—for the reasons set forth in the district court’s opinion—the instruction given by the court and Though the sight of these items, given the violent nature of counsel’s closing arguments put the issues squarely before the the crime, may have been unpleasant for the jury, the jury. Millender, 187 F. Supp. 2d at 873-74; Weighall v. attorney's failure to object to their admittance does not Middle, 215 F.3d 1058, 1063 (9th Cir. 2000). constitute ineffective assistance of counsel. Applying Strickland, we hold that it was not objectively unreasonable E. for Mr. Millender’s attorney not to object to the admittance of this evidence. See Strickland, 466 U.S. at 687-91. None of Petitioner next argues that his attorney’s failure to object to the items had petitioner’s fingerprints on them and none were alleged prosecutorial misconduct during the prosecutor’s found in his possession. Thus, this evidence reasonably could closing argument constitutes ineffective assistance of counsel. have weighed in petitoner’s favor in the jury’s determination “On habeas review, a court's role is to determine whether of guilt. Therefore, the judgment of the district court on the [alleged prosecutorial misconduct] was so egregious as to physical-evidence-admission issue is affirmed. render the entire trial fundamentally unfair.” Millender, 187 F. Supp. 2d at 875, citing Serra v. Michigan Dep’t of Corr., C. 4 F.3d 1348, 1355-56 (6th Cir. 1993). In conducting such a determination, a reviewing court first decides whether the As another basis for his ineffective-assistance-of-counsel alleged misconduct was improper and, if it was, then decides claim, petitioner argues that his attorney should have made an whether the misconduct was “so flagrant as to constitute a opening statement. An attorney’s decision not to make an denial of due process and warranting granting a writ.” Id. at opening statement “is ordinarily a mere matter of trial tactics

No. 02-1403 Millender v. Adams 9 10 Millender v. Adams No. 02-1403

875, citing Boyle v. Million, 201 F.3d 711, 717 (6th Cir. We find no merit to this argument. The witness testified 2000). that he saw petitioner “the Sunday before” the crime, which occurred on a Monday. This is a vague statement and does We agree with the district court’s conclusion that the not specify whether he meant the Sunday immediately prosecutor’s remarks were not improper. As noted by the preceding the crime or the Sunday from the week before. district court: Furthermore, the movements of petitioner the day before the crime are not exculpatory points. “A defense counsel has no This was not improper argument because recounting obligation to call or even interview a witness whose these factual allegations did not only appeal to the jury’s testimony would not have exculpated the defendant.” sympathies. Summarizing the nature of the crimes Millender, 187 F. Supp. 2d at 877, citing Marra v. Larkins, committed and the circumstances of their commission 111 F. Supp. 2d 575, 585 n.13 (E.D. Pa. 2000). Therefore, on also served to educate the jury as to why some of the these facts, the failure to call a rebuttal witness does not victims were able to identify Petitioner as one of the amount to constitutionally defective assistance of counsel perpetrators and some were not. Further, by sufficient to even reach the Strickland prejudice inquiry. For summarizing the totality of the crimes committed by this reason, we affirm the district court on this issue. Petitioner and in his presence, the prosecutor sought to show that Petitioner was guilty of these crimes as either G. a principal or an aider and abettor. To the extent that the prosecutor’s depiction of the crimes served to educate the The final argument petitioner makes under his ineffective- jury about the difficulties faced by the victims as assistance-of-counsel claim is that the cumulative effect of witnesses and about the culpability of Petitioner as either these alleged attorney errors effectively denied him a defense. a principal or an aider and abettor his argument was not Petitioner relies on the “no meaningful adversarial testing” improper. standard set forth in Cronic, 466 U.S. at 659, and repeats that his attorney failed to subject his case to any meaningful Id. at 875. challenge. Petitioner also cites the dissent in Moss v. Hofbauer, 286 F.3d 851 (6th Cir. 2002), to support this claim. F. As stated previously in this opinion, the Cronic standard is As another basis to support his ineffective-assistance-of- inapplicable to petitioner’s representation because petitioner's counsel claim, petitioner alleges that his attorney’s failure to attorney engaged in an active defense at trial. Even under the call a rebuttal witness amounts to constitutionally defective Strickland standard, petitioner's argument is unpersuasive, as representation. Petitioner argues that his attorney should have we do not find more than one error to consider cumulatively called a witness to establish that he was out of state the day under this argument. For these reasons, we find no basis before the crime occurred to rebut a witness’s testimony that upon which to grant petitioner relief on this claim and hold the latter witness had seen him on that day at a local hospital. that the district court properly denied petitioner an evidentiary The failure to call a witness to rebut this testimony, according hearing. to petitioner, cannot be attributed to trial strategy.

No. 02-1403 Millender v. Adams 11 12 Millender v. Adams No. 02-1403

IV. V. As a second ground upon which to grant habeas relief, As a third ground for habeas relief, Mr. Millender argues Mr. Millender argues that the trial court erred in not sua that his right to due process was violated by the prosecutor’s sponte instructing the jury on mistaken identity and deliberate and repeated misconduct. Specifically, petitioner impeachment by prior inconsistent statement. Petitioner alleges that the prosecutor’s closing argument, which alleges that the court's failure to instruct on these two points consisted of a synopsis of the violent crime and an alleged deprived him of his constitutional right to a fair trial. appeal to the jurors’ sympathies, was improper. Petitioner also argues that the prosecutor violated the rules of evidence Unlike a state appellate court, federal courts reviewing when he “falsely” stated that certain witnesses had seen the habeas petitions do not grant relief on a jury-instruction claim petitioner prior to the day of the crime and when he referred simply because the instruction may have been deficient in to guns that had been admitted into evidence but had not been comparison to state-law models. Estelle v. McGuire, 502 specifically identified by the victims as the guns used during U.S. 62, 72 (1991). Instead, our review is limited to the crime. To determine whether relief on this ground is determining whether an alleged erroneous jury instruction “so warranted, we first consider whether the statements were infected the entire trial that the resulting conviction violates improper and, if they were, whether this impropriety amounts due process.” Ibid., quoting Cupp v. Naughten, 414 U.S. 141, to reversible error. U.S. v. Carroll, 26 F.3d 1380, 1385 (6th 147 (1973). Although our focus is generally limited to Cir. 1994). allegedly erroneous instructions, we find no reason to distinguish this argument from the alleged failure to include Petitioner cites Washington v. Hofbauer to support his an instruction sua sponte in this case. claim that the prosecutor’s misconduct was improper. In Hofbauer, the prosecutor went far beyond the bounds of For the reasons stated previously in regard to petitioner’s permitted conduct by introducing evidence of the defendant's claim that his attorney's failure to request these instructions unseemly character, including statements about his alleged constituted constitutionally deficient representation, we are abusive behavior, excessive alcohol consumption, and drug similarly unpersuaded now. The trial court's failure to include abuse. Hofbauer, 228 F.3d at 699-700. The petitioner’s these instructions did not infect the trial such that petitioner’s attorney in that case also failed to object to the misconduct. conviction violates due process. In addition, petitioner This Court held that the prosecutor’s statements were procedurally defaulted on this issue and failed to establish improper, and we reversed the district court for the failure of cause and prejudice. Similarly, we are unpersuaded that both the prosecutor and defense attorney to perform their failure to consider this claim would amount to a “fundamental respective duties. Id. at 709. miscarriage of justice,” Coleman, 501 U.S. at 750, as the omitted instructions would not have added any elements to Claims of prosecutorial misconduct are reviewed his defense, Barker v. Yukins, 199 F.3d 867, 875-76 (6th Cir. deferentially on habeas review. Bowling .v Parker, 344 F.3d 1999), nor shifted a burden of proof, Sandstrom v. Montana, 487, 512 (6th Cir. 2003). As this court recently recognized: 442 U.S. 510, 524 (1979). Therefore, we find no basis upon which to grant relief and affirm the district court on this issue. To be cognizable, the misconduct must have so infected the trial with unfairness as to make the resulting conviction a denial of due process. Even if the

No. 02-1403 Millender v. Adams 13 14 Millender v. Adams No. 02-1403

prosecutor’s conduct was improper or even universally VI. condemned, we can provide relief only if the statements were so flagrant as to render the entire trial As a final argument to support habeas relief, Mr. Millender fundamentally unfair. argues that the cumulative effect of the alleged errors he presents supports granting relief. In addition to finding no Id. (internal quotations omitted). For the reasons noted above errors to consider cumulatively even if such a task were in Part III.E., the prosecutor’s detailed recitation of the events within this Court’s province, we reiterate that “[t]he Supreme on the night of the robbery were not improper. We further Court has not held that distinct constitutional claims can be conclude that, even assuming that the other remarks cited by cumulated to grant habeas relief.” Lorraine, 291 F.3d at 447. the petitioner were improper, the statements were not so For this reason, we affirm the judgment of the district court flagrant as to warrant reversal. on this issue. Flagrancy is determined by an examination of four In conclusion, based on the foregoing, we hereby affirm the factors: “1) whether the statements tended to mislead the judgment of the district court denying habeas relief. jury or prejudice the defendant; 2) whether the statements were isolated or among a series of improper statements; 3) whether the statements were deliberately or accidentally before the jury; and 4) the total strength of the evidence against the accused.” Boyle, 201 F.3d at 717, quoting Carroll, 26 F.3d at 549, 550. First, although the prosecutor’s remark that “the victims in the house” remembered seeing the petitioner the Sunday before the crime implies that more than one victim saw the petitioner, the isolated slip of the tongue was unlikely to mislead the jury. Second, although the guns in question had not been identified by the victims as the weapons used during the crime, the guns had been seized from petitioner’s co- defendants and had been admitted into evidence. In any event, it is undisputed that the guns used during the robbery were at least similar to the guns at trial and there is no reason to believe that the prosecutor’s remarks confused the jury. In light of the total evidence against the petitioner, we conclude that the isolated remarks concerning witnesses did not amount to a denial of due process.