Cyars v. Hofbauer

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Cyars v. Hofbauer No. 02-2341 ELECTRONIC CITATION: 2004 FED App. 0295P (6th Cir.) File Name: 04a0295p.06 OF THE PROSECUTING ATTORNEY, Detroit, Michigan, for Appellee. ON BRIEF: N.C. Deday LaRene, LaRENE & KRIGER, Detroit, Michigan, for Appellant. Joseph A. Puleo, UNITED STATES COURT OF APPEALS OFFICE OF THE PROSECUTING ATTORNEY, Detroit, Michigan, for Appellee. FOR THE SIXTH CIRCUIT _________________ BALDOCK, J., delivered the opinion of the court, in which SILER, J., joined. MOORE, J. (pp. 16-19), delivered a AARON LEIGH CYARS , X separate dissenting opinion. Petitioner-Appellant, - - _________________ - No. 02-2341 v. - OPINION > _________________ , GERALD HOFBAUER, - BALDOCK, Circuit Judge. A Michigan jury convicted Respondent-Appellee. - Aaron Leigh Cyars (Petitioner) on two counts of first-degree N premeditated murder, Mich. Comp. Laws Ann. Appeal from the United States District Court § 750.316(1)(a), one count of assault with intent to commit for the Eastern District of Michigan at Detroit. murder, id. § 750.83, and one count of possessing a firearm No. 99-73103—Gerald E. Rosen, District Judge. during the commission of a felony, id. § 750.227b(1). The Michigan court of appeals affirmed. People v. Cyars, No. Argued: June 11, 2004 176536, 1997 WL 33353409 (Mich. App. Feb. 28, 1997) (unpublished). The Michigan Supreme Court and United Decided and Filed: September 7, 2004 States Supreme Court denied review.

Before: SILER, MOORE, and BALDOCK, Circuit Petitioner subsequently filed an application for habeas Judges.* corpus in the district court pursuant to 28 U.S.C. § 2254.1 Petitioner asserted, among other things, he was denied _________________ effective assistance of counsel because his trial counsel failed

COUNSEL 1 The record does not disclose whether Petitioner exhausted his state ARGUED: N.C. Deday LaRene, LaRENE & KRIGER, court post-conviction rem edies. See Mich. Ct. R. 6.500 to 6.509 . The Detroit, Michigan, for Appellant. Joseph A. Puleo, OFFICE district court simply noted Petitioner filed his habeas application after exhausting his direc t appeals. Petitioner’s motion for a certificate of app ealab ility similarly states his habeas application was filed after “exhausting his direct appeal rights.” We need not delve into the mo rass * of procedural ba r, however, b ecause Pe titioner’s claim fails on the merits The Ho norable B obb y R. B aldock, Circuit Judge of the United States even assuming he prope rly exhausted availab le state court remedies. See Court of Appe als for the Tenth Circ uit, sitting by designation. 28 U.S.C. § 22 54(b)(2).

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to proffer a limiting instruction on the jury’s use of Shortly after entering the house, Lewis put Petitioner to impeachment statements. The district court denied the work selling drugs. Lewis told Taylor to “page” Rob and petition. We granted a certificate of appealability, see Lucky. Petitioner was scared of what might happen when 28 U.S.C. § 2253(c), on the limited issue of whether they arrived. Rob and Lucky never showed, but Leatha Petitioner was denied his Sixth Amendment right to effective Christon arrived at the Asbury House sometime after 2:00 assistance of counsel. Applying the Antiterrorism and a.m. Christon had arranged to engage in sexual intercourse Effective Death Penalty Act’s highly deferential standard for with Lewis in exchange for crack. Petitioner let Christon into reviewing state-court decisions, see Woodford v. Visciotti, the house and then, by himself, moved the refrigerator back 537 U.S. 19, 24 (2002) (per curiam), we affirm because the across the front door. Lewis gave Petitioner a bag of crack Michigan court of appeals reasonably applied the correct to sell while he was in the bedroom with Christon.2 After principle governing ineffective assistance of counsel claims Lewis and Christon consummated their transaction, Petitioner to the facts of Petitioner’s case. again moved the refrigerator, by himself, to let Christon out of the house. The record is silent as to whether Petitioner I. moved the refrigerator back across the front door after he let Christon out of the Asbury House. Petitioner used and dealt crack cocaine during the summer of 1993. He sold crack primarily for two individuals, known Nimrod Lumpkin arrived at the Asbury House around 3:00 on the streets as “Rob and Lucky” or “Batman and Robin.” a.m. The refrigerator was not blocking the front door when Petitioner “rolled” (i.e., distributed drugs) out of a house on he arrived. He went straight to Taylor’s bedroom where they Asbury Park street (Asbury House) in west Detroit. Veronica smoked marijuana and crack. Lumpkin was not aware Taylor resided in the Asbury House; however, Rob and Lucky anyone else was in the house. Meanwhile, Petitioner was in “rented” the house from Taylor to use as a “crack house.” the house’s other bedroom selling crack out of a barred Petitioner earned roughly $100 a day, less the cost of any window to customers. Lewis was lying on his stomach on a drugs used on the job, for his services. bed in the same room facing Petitioner. A handgun was on the bed next to Lewis. Petitioner lost $700 and a handgun Rob and Lucky fronted him in July 1993. Rob and Lucky were not pleased. Lucky Petitioner sold the crack for approximately $20 per “rock.” informed Petitioner he would have to work at the Asbury After Petitioner sold a $100 or so worth of crack, he would House for seven days to pay for the lost money and three days give the money to Lewis who in turn would supply him with to pay for the handgun. Petitioner went to the Asbury House more crack. Lewis, however, fell asleep after about an hour around midnight on August 29, 1993 to commence work. of work. Petitioner then got up, grabbed Lewis’s gun, and Petitioner met Thomas Lewis on the porch. Lewis, a known shot Lewis once in the back of the head. Shortly thereafter, “henchman” for Rob and Lucky, supervised the activities at Taylor yelled “what’s that?” Petitioner cracked the door to the Asbury House. Once inside, Lewis moved a refrigerator to block the house’s front door. The refrigerator served as a barricade to slow law enforcement officers in the event of a 2 Petitioner testified he was “scared” from the moment Taylor was to raid. All of the house’s windows had bars save the window page Rob and Lucky. The record does not disclose, however, why in Taylor’s room. The house’s backdoor was also Petitioner simply did not leave the house when Lewis was with Christon. inaccessible. In fact, Christo n testified L ewis was not doing anything to keep Petitioner in the house.

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Taylor’s room and said Lewis was playing with a gun. Petitioner claimed self-defense at trial. The State called, Petitioner then immediately entered the room with the among others, James Morrison, Don Bailey, and Todd Cyars handgun pointed at Taylor who was moving toward her to testify in its case-in-chief. James Morrison was window and saying, repeatedly, “Aaron don’t do it.” Petitioner’s friend. During the homicide investigation, and at Petitioner shot Taylor in the back of the head. Lumpkin, the preliminary hearing, Morrison made the following however, was able to kick the gun as Petitioner turned and statement: fired in his direction. The kick redirected the shot into Lumpkin’s arm and leg. Petitioner fired again, but was out of [Petitioner] said, “Man, I shot Veronica [Taylor], Stormy bullets. Petitioner left the room and exited the house through [Thomas Lewis] and another basehead. Man, I popped its front door. Lumpkin never heard any appliances being Stormy in the head one time. I shot Veronica somewhere moved after Petitioner left Taylor’s room.3 in the chest. I shot the other guy all over the place.

Petitioner never called the police or any paramedics after At trial, Morrison first testified he was honest with the police leaving the Asbury House. Instead, Petitioner visited two during the homicide investigation and when he testified at the groups of friends and explained to them how he killed two preliminary hearing. As the State’s examination of Morrison individuals. He showed one friend, James Morrison, the gun proceeded, however, his memory faded and he ultimately and crack he took from the house. Later, Petitioner discarded testified “[n]one of those [statements] c[a]me out of my the gun in a field and the crack in the sewer. The Detroit mouth.” (Joint App. at 260). The State impeached Morrison Police Department arrested Petitioner. He confessed to with the signed statement he gave police and the preliminary shooting Lewis, Taylor, and Lumpkin after waiving his hearing transcript. Miranda rights. The State also called Don Bailey, an acquaintance of Petitioner. The Detroit police interviewed Bailey during the homicide investigation. Bailey gave the police a signed statement in which Bailey said Petitioner told him that “[a]fter he shot Thomas [Lewis], he shot the other two people 3 Petitioner testified on his own behalf at trial. Petitioner’s version of because they were witnesses.” (Joint App. at 118). At trial, the events d iffered substantially from o ther evidence introduced at trial. the State asked Bailey if he made this statement. Bailey Petitioner testified he shot Le wis because Lewis w as going for another denied making the statement, and then later admitted making gun in his pants’ pocket. Other evidence at trial indicated, however, that Lewis’s hand was near his face when he was shot. Additionally, no other the statement, but attributed it to a person other than weapons were found on Lewis or in the house. Petitioner also testified he Petitioner. could not leave out of the ho use’s front door because the refrigerator was blocking the door. Petitioner explained that he attempted to move the The State also called Petitioner’s brother, Todd Cyars. refrigerator, but it got caught on the carpet. Petitioner thus b elieved his During the homicide investigation, Todd Cyars gave a signed only other option was to le ave through the window in Taylor’s room. statement to the police. Todd Cyars informed the police W hen Petitioner entered Taylor’s room , however, she had a knife and went for a gun. Lump kin, according to Petitioner’s testimony, also had Petitioner stated prior to the murders “he was thinking about a gun. As noted, the police did not recover any such weapons. Petitioner sticking up [the Asbury] house and taking the dope” and, after nevertheless testified he shot T aylor and Lumpkin in self-defense. the murders, stated: “I did it. I did what I said I was going to Petitioner adm itted he thereafter left the Asbury House through its front do[.]” (Joint App. 149, 162-63). At trial, Todd Cyars doo r.

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admitted making the statements to the police, but denied their observation that, if courts are to survive as an institution, they truth and claimed they were the product of a coercive cannot “become Penelopes, forever engaged in unravelling custodial interrogation. the webs they wove.” Jorgensen v. York Ice Mach. Corp., 160 F.2d 432, 435 (2d Cir. 1947). To these ends, § 2254 After Morrison’s testimony on direct examination, provides in relevant part: Petitioner’s counsel asked for a limiting instruction regarding the State’s impeachment of Morrison. Specifically, counsel (d) An application for a writ of habeas corpus on behalf asked for an instruction providing that impeachment of a person in custody pursuant to the judgment of a State testimony did not constitute substantive proof of the matters court shall not be granted with respect to any claim that asserted, but instead went to the believability of the witness. was adjudicated on the merits in State court proceedings The trial judge responded that he had never given such an unless the adjudication of the claim – instruction and was not going to “give it from the hips.” (1) resulted in a decision that was contrary to, or (Joint App. 272). The judge instructed Petitioner’s counsel to involved an unreasonable application of, clearly prepare an instruction and, afterwards, he would be glad to established Federal law, as determined by the look at the proposed instruction and give it at an appropriate Supreme Court of the United States[.] time. Petitioner’s counsel never renewed his request for a limiting instruction, nor provided the judge a proposed 28 U.S.C. § 2254(d)(1). instruction. The court consequently never instructed the jury on the proper use of impeachment statements. After the Petitioner concedes, as he must, § 2254(d)(1)’s court’s final jury charge, Petitioner’s counsel stated “[t]he “unreasonable application” clause governs the disposition of Defendant . . . thinks the jury has been appropriately his case.4 (Aplt’s Br. at 11). A federal habeas court “may instructed.” (Joint App. at 337). grant relief under the ‘unreasonable application’ clause if the state court correctly identifies the governing legal principle II. from [the Supreme Court’s] decisions but unreasonably applies it to the facts of the particular case.” Cone, 535 U.S. “The writ of habeas corpus plays a vital role in protecting at 694. The Court has repeatedly stressed that “[i]n order for constitutional rights.” Slack v. McDaniel, 529 U.S. 473, 483 a federal court to find a state court’s application of [its] (2000). The Antiterrorism and Effective Death Penalty Act’s (AEDPA) highly deferential standard for evaluating state- court rulings, however, severely circumscribes a federal 4 AEDPA governs the habeas application Petitioner filed in 199 9. See court’s ability to grant the writ. Lindh v. Murphy, 521 U.S. Garceau, 538 U.S. at 207 (ho lding “an app lication filed after AE DP A’s 320, 333 n.7 (1997). Congress enacted AEDPA “[i]n the effective date should be reviewed under AEDPA[.]”). AEDPA’s interest of finality[,]” Miller-El v. Cockrell, 537 U.S. 322, 326 “contrary to” clause is inap posite because, as Petitioner admits, the (2003), “to reduce delays in the execution of state and federal Michigan court applied the correct governing law in rejec ting his ineffective assistance of co unsel claim. Cyars, 19 97 W L 33353409, at *4 criminal sentences,” Woodford v. Garceau, 538 U.S. 202, (citing People v. Pickens, 521 N.W . 2d 797, 815 (Mich. 1994 ) (adopting 206 (2003), “to prevent federal habeas ‘retrials[,]’ and to the Supreme Co urt’s two-pronged test enunciated in Strickland v. ensure that state-court convictions are given effect to the Washington, 466 U.S. 668 (1984) for analyzing ineffective assistance of extent possible under law.” Bell v. Cone, 535 U.S. 685, 693 counsel claims)). Furthermore, the Strickland analysis for evaluating (2002). AEDPA is thus premised on Judge Learned Hand’s ineffective assistance claims is “clearly established.” Wick line v. M itchell, 319 F.3d 813, 819 (6th Cir. 2003).

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precedent ‘unreasonable,’ the state court’s decision must have A. been more than incorrect or erroneous.” Wiggins v. Smith, 539 U.S. 510, –, 123 S. Ct. 2527, 2535 (2003). Instead, the The Sixth Amendment provides a criminal defendant with state court’s application of clearly established law must be the right to effective assistance of counsel because of the “objectively unreasonable.” Id. effect the right has on a defendant’s ability to receive a fair trial. Mickens v. Taylor, 535 U.S. 162, 166 (2002). “The A federal habeas court, therefore, may not grant the writ benchmark for judging any claim of ineffectiveness must be simply because, in its independent review of the legal whether counsel’s conduct so undermined the proper question, it is left with a firm conviction that the state court functioning of the adversarial process that the trial cannot be was erroneous. Lockyer v. Andrade, 538 U.S. 63, 75 (2003). relied on as having produced a just result.” Strickland v. Quite the opposite, as the Court recently clarified, “the range Washington, 466 U.S. 668, 686 (1984). Consequently, of reasonable judgment can depend in part on the nature of “defects in assistance that have no probable effect upon the the relevant rule.” Yarborough v. Alvarado, – U.S. –, 124 S. trial’s outcome do not establish a constitutional violation.” Ct. 2140, 2149 (2004). Specifically, “[a]pplying a general Mickens, 535 U.S. at 166. Whether a constitutional violation standard to a specific case can demand a substantial element occurred as a result of counsel’s assistance is determined of judgment. As a result, evaluating whether a rule under the familiar two-pronged Strickland test: “First, the application was unreasonable requires considering the rule’s defendant must show that counsel’s performance was specificity. The more general the rule, the more leeway deficient. . . . Second, the defendant must show that the courts have in reaching outcomes in case by case deficient performance prejudiced the defense.” Strickland, determinations.” Id. The federal habeas scheme thus vests 466 U.S. at 687. We assume without deciding Petitioner state courts with the primary responsibility of determining satisfied the first prong. See id. at 697 (explaining “[i]f it is whether a particular defendant’s constitutional rights were easier to dispose of an ineffectiveness claim on the ground of violated; and, a federal court may only intervene in that lack of sufficient prejudice, . . . that course should be judgment when the state-court’s decision is objectively followed.”). unreasonable. Visciotti, 537 U.S. at 27. The issue, then, is whether the Michigan court’s rejection III. of Petitioner’s ineffective assistance claim was an unreasonable application of Strickland’s prejudice prong. To Petitioner argues on appeal habeas relief is appropriate demonstrate prejudice, “[t]he defendant must show that there because the Michigan court unreasonably applied Supreme is a reasonable probability that, but for counsel’s Court precedent to his ineffective assistance claim. Petitioner unprofessional errors, the result of the proceeding would have specifically argues the Michigan court erred in holding he did been different. A reasonable probability is a probability not suffer any prejudice as a result of his counsel’s failure to sufficient to undermine confidence in the outcome.” proffer a limiting instruction on the statements used to Strickland, 466 U.S. at 694. AEDPA circumscribes our impeach the State’s witnesses at trial. See Cyars, 1997 WL review of the Michigan court’s conclusion that Petitioner did 33353409, at *4. not suffer any prejudice. Cf. Wiggins, 123 S. Ct. 2542. In fact, § 2254(d) “demands that [the] state-court decision[] be given the benefit of the doubt.” Visciotti, 537 U.S. at 24.

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B. sat patiently until Lewis fell asleep and then got up, stole his gun, and shot him in the back of the head. A jury could The Michigan court reasonably applied Strickland’s reasonably infer Petitioner had the opportunity to take a prejudice prong to the facts of Petitioner’s case. The court “second look” before he executed Lewis in his sleep. explained that “[b]ecause the weight and strength of the untainted evidence presented in this case overwhelmingly A reasonable jury, moreover, could have easily rejected supports defendant’s convictions, and because the error is Petitioner’s theory that he was unable to leave the Asbury relatively innocuous (indeed, it was not error for the prior House after killing Lewis because a refrigerator, which he had inconsistent statements to be put before the jury, only that the twice moved himself that evening, was blocking the front jury could not consider those statements as substantive door. In fact, the evidence demonstrated the refrigerator was evidence), we conclude that defendant was not prejudiced in not even blocking the front door after Petitioner shot Lewis. this regard.” Cyars, 1997 WL 33353409, at *3 (emphasis A reasonable jury thus could infer that instead of simply added). We agree. The State had the burden of proving leaving the Asbury House after killing Lewis, Petitioner took Petitioner’s intentional killing of the victims was deliberate a “second look” and elected to enter Taylor’s room. Upon and premeditated. People v. Coddington, 470 N.W. 2d 478, entering Taylor’s room, Petitioner shot her in the back of the 487 (Mich. App. 1991). “Premeditation and deliberation may head as she pleaded with him not to kill her. A reasonable be inferred from the facts and circumstances established on jury could thus infer Petitioner had the opportunity to take a the record.” Id. Circumstantial evidence demonstrating “third look” before shooting Taylor. Petitioner then turned on premeditation includes, but is not limited to (1) the prior Lumpkin who likely would have also been killed but for the relationship of the parties, (2) defendant’s actions before the fact Petitioner ran out of ammunition. Petitioner then left the killing, (3) the circumstances, including the wound’s location, house through its front door; the very door Petitioner claimed of the killing, and (4) defendant’s conduct after the killing. prevented him from exiting the house in the first instance. Id.; see also People v. Anderson, 531 N.W. 2d 780, 786 (Mich. App. 1995). “Premeditation and deliberation require After the murders, Petitioner did not call the police to sufficient time to allow the defendant to take a second look.” inform them he had escaped from a near-death hostage Id. situation. Instead, he told various friends about the killing and showed off the murder weapon and drugs he looted from The record overwhelmingly supports the jury’s first degree the house. Petitioner thereafter discarded the murder weapon murder verdicts, as the Michigan court held, even without and drugs in a manner sufficient to prevent authorities from considering the statements used to impeach Morrison, Bailey, recovering the evidence. A reasonable jury could infer guilt and Todd Cyars. A reasonable jury could infer Petitioner from such evidence. knew, from past experience, nefarious activities would be afoot during his visit to the crack house on August 29, 1993. In sum, circumstantial evidence before, during, and after The jury could also infer Petitioner formulated a plan to kill the murder supported the jury’s verdict that Petitioner Lewis as he distributed drugs from the house’s backroom intentionally killed Lewis and Taylor with deliberation and window. Indeed, Petitioner’s claim that he was scared of Rob premeditation. Indeed, the Michigan court of appeals, a and Lucky’s arrival at the Asbury House was undermined by United States magistrate judge, and the district court have so the fact he could have left the house while Lewis was with found. Furthermore, we denied Petitioner a certificate of Christon, but instead opted to stay and sell drugs. Petitioner appealability on the claim he was denied due process of law

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because insufficient evidence of premeditation existed to App. 2001) (explaining evidence of motive is not necessary support his first degree murder convictions. That certificate to sustain a first-degree murder conviction).5 of appealability denial means reasonable jurists could not find the district court’s assessment of the claim debatable or In short, Petitioner failed to carry his heightened AEDPA wrong. See 28 U.S.C. § 2253(c); Miller-El, 537 U.S. at 338. burden. See Mitchell v. Esparza, – U.S. –, 124 S. Ct. 7, 12 (2003) (per curiam). He had the burden of demonstrating the Petitioner nevertheless argues the Michigan court Michigan court’s decision was objectively unreasonable, not unreasonably applied Strickland’s prejudice prong for four that it may have applied Strickland incorrectly. See Visciotti, reasons. First, Petitioner argues the Michigan court of 537 U.S. at 27. Petitioner cannot carry his burden because the appeals incorrectly applied Strickland. This argument is Michigan court’s conclusion that Petitioner did not suffer any irrelevant under AEDPA. See Wiggins, 123 S. Ct. at 2535. prejudice is reasonable in light of the overwhelming Second, Petitioner argues the Michigan court misapprehended circumstantial evidence of his guilt. No reasonable the scope of the evidence a limiting instruction would have probability exists that but for counsel’s failure to proffer a affected and actually relied on the “tainted evidence” to limiting instruction on the proper use of impeachment affirm his conviction. The overwhelming circumstantial statements the result of the trial would have been different. evidence of Petitioner’s guilt and the jury’s rejection of his See Strickland, 466 U.S. at 696, 700 (explaining trial errors claim of self-defense, however, is the death-knell of this are less likely to affect a verdict with “overwhelming record argument. See also Cyars, 1997 WL 33353409, at *3. support”). As the Court recently explained, state courts have more leeway in reaching a particular outcome when they Third, Petitioner argues the Michigan court erroneously apply general rules of law. Alvarado, 124 S. Ct. at 2149. The held he did not suffer any prejudice because the jury was Strickland test, by its nature, is general and not subject to instructed only to consider the “sworn testimony of mechanical application. Strickland, 466 U.S. at 696; witnesses,” which necessarily excludes statements the State Kimmelman v. Morrison, 477 U.S. 365, 395 (1986) (Powell, used to impeach witnesses. This argument runs afoul of the J., concurring). We therefore must defer to the Michigan well-established presumption jurors follow their instructions. court’s reasonable conclusion that Petitioner did not suffer See Penry v. Johnson, 532 U.S. 782, 799 (2001). Fourth, any prejudice as a result of his counsel’s failure to proffer a Petitioner complains no evidence existed showing he planned limiting instruction on the proper use of impeachment to commit any crime against the victims, or that he had a statements. The adversarial process clearly provided “motive” for the killings, and some evidence corroborated his Petitioner with a fair trial. That is all the Sixth Amendment trial testimony. Petitioner’s final argument is flawed because demands. evidence of “planning” and “motive” are not necessary to sustain a first-degree murder conviction under Michigan law. See Coddington, 470 N.W. 2d at 487 (finding a “brief” passage of time sufficient for the defendant to take a “second look”); People v. Herndon, 633 N.W. 2d 376, 404 (Mich. 5 W e agree with Petitioner that some evidence corroborated his trial testimony. W e also a gree w ith counsel’s contention at oral argument that the impeachment statements were the only “direct evidence” of premeditation. These arguments are also irrelevant, however, because premeditation may be inferred from facts and circumstances established in the record. Coddington, 470 N.W.2d at 487.

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The Michigan court “considered the proper factors and ________________ reached a reasonable conclusion.” Alvarado, 124 S. Ct. at 2152. “That being the case, we may not set aside its decision DISSENT on habeas review.” Esparza, 124 S. Ct. at 12. ________________ AFFIRMED. KAREN NELSON MOORE, Circuit Judge, dissenting. Because I believe Aaron Cyars’s counsel’s failure to secure a limiting instruction on the appropriate use of prior inconsistent statements constitutes ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), and that a contrary view is unreasonable, I respectfully dissent. At trial, the prosecution called three key witnesses, James Morrison (“Morrison”), Don Bailey (“Bailey”), and Todd Cyars (“Todd”), to demonstrate that Cyars acted with premeditation and deliberation when he committed the murders. When each witness did not produce any valuable evidence on direct examination, the prosecution proceeded to use unsworn statements allegedly made to police after the murders. These statements contained highly damaging comments that Cyars purportedly made to the witnesses regarding his plan to steal drugs from Taylor’s house and his admission after the fact that he had completed his plan. When confronted with the police statements, each of the three witnesses denied having made the statements or denied the truth of the statements. Because the police statements were introduced solely to impeach the witnesses, they could not be considered as substantive evidence. Cyars’s trial counsel sought a limiting instruction from the trial judge permitting the use of the police statements of Morrison only for impeachment purposes. Because the judge had never given that kind of instruction before, he asked Cyars’s counsel to draft a proposed instruction that he could consider before issuing such an instruction. However, Cyars’s trial counsel failed to present any limiting instruction and never again renewed his request. As a result, the jury was never instructed on the proper use of the prior inconsistent

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statements, and was therefore permitted to give whatever Defendant has not shown that the prior inconsistent weight it wished to the prior inconsistent police statements. statements of the witnesses, properly limited with an These statements were the most damaging evidence of instruction, could have proved his theory of self-defense premeditation. or disproved the elements of the offenses. Because the weight and strength of the untainted evidence presented The Michigan Court of Appeals relied on the contents of in this case overwhelmingly supports defendant’s these police statements when that court upheld the sufficiency convictions, and because the error is relatively innocuous of the evidence to support Cyars’s conviction for first-degree (indeed, it was not error for the prior inconsistent murder. Specifically, it stated: statements to be put before the jury, only that the jury could not consider those statements as substantive There was evidence that before the shooting, defendant evidence), we conclude that defendant was not told two of the prosecution’s witnesses that he intended prejudiced in this regard. to take drugs from one of the decedents’ homes in order to repay a debt owed to drug dealers for whom defendant J.A. at 15-16. worked. There was also evidence that sometime after the shooting, defendant told those same witnesses that he In this appeal, the question for this court is whether Cyars had completed what he earlier planned to do. has shown ineffective assistance of counsel warranting the grant of habeas relief. We apply the analysis of Strickland, Joint Appendix (“J.A.”) at 13. The Magistrate Judge found 466 U.S. at 694, with its two prongs, deficient performance that the only source for these conclusions of the Michigan and prejudice. First, Cyars must demonstrate that his trial Court of Appeals was the unsworn police statements of counsel’s failure to request the limiting instruction constituted Morrison and Todd. Thus, the Michigan Court of Appeals “deficient performance.” Then, he must prove that he made substantive use of the very evidence that the jury should suffered prejudice as a result of the deficient performance of have been instructed to use only for impeachment purposes. counsel. Under this latter prong, Cyars must show that “there This demonstrates both that there was little evidence of is a reasonable probability that, but for counsel’s premeditation, and that even judges, let alone juries, are likely unprofessional errors, the result of the proceeding would have to be confused without proper instructions. been different.” Caver v. Straub, 349 F.3d 340, 347-48 (6th Cir. 2003) (quoting Strickland, 466 U.S. at 694). The Michigan Court of Appeals, despite its mistake of using the prior inconsistent statements for substantive The majority of this court assumes that Cyars has shown purposes when evaluating the sufficiency of the evidence, did deficient performance of counsel. It is without doubt that that nonetheless recognize as black-letter law the principle that prong has been satisfied. Turning to the second prong, the “Prior inconsistent statements not ‘given under oath subject majority concludes that the Michigan Court of Appeals’ to the penalty of perjury’ are hearsay and would only be opinion is a reasonable application of the prejudice prong of admissible for impeachment purposes, not as substantive Strickland. This conclusion is unreasonable where the evidence.” J.A. at 14-15. Nonetheless, the Michigan Court Michigan Court of Appeals itself has misused the very of Appeals determined that there was no showing of evidence that can only be used for impeachment purposes, prejudice. Specifically, that court wrote: and where there is slim other evidence to support a finding of premeditation. Moreover, the Michigan Court of Appeals

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completely misstated and misapplied the law when it required Cyars, in order to demonstrate prejudice under Strickland, to show that “the prior inconsistent statements of the witnesses, properly limited with an instruction, could have proved his theory of self-defense or disproved the elements of the offenses.” J.A. at 15. For these reasons, and as thoroughly and ably articulated by Magistrate Judge Steven Pepe in his exhaustive Report and Recommendation, a conditional writ of habeas corpus should issue. I respectfully dissent.