Maurino v. Johnson

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2000 FED App. 0144P (6th Cir.)

File Name: 00a0144p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

;



MICHAEL MAURINO,



Petitioner-Appellant,





No. 98-1332

v.



>

RICHARD JOHNSON, Warden, 

Respondent-Appellee. 

1

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 97-71622—Lawrence P. Zatkoff, Chief District Judge.

Argued: September 20, 1999

Decided and Filed: April 24, 2000

Before: KENNEDY and* NORRIS, Circuit Judges;

HOLSCHUH , District Judge.

_________________

COUNSEL

ARGUED: James Sterling Lawrence, Detroit, Michigan, for

Appellant. Vincent J. Leone, OFFICE OF THE ATTORNEY

GENERAL, HABEAS CORPUS DIVISION, Lansing,

*

The Honorable John D. Holschuh, United States District Judge for

the Southern District of Ohio, sitting by designation.

1

2 Maurino v. Johnson No. 98-1332

Michigan, for Appellee. ON BRIEF: James Sterling

Lawrence, Detroit, Michigan, for Appellant. Vincent J.

Leone, OFFICE OF THE ATTORNEY GENERAL,

HABEAS CORPUS DIVISION, Lansing, Michigan, for

Appellee.

KENNEDY, J., delivered the opinion of the court, in which

NORRIS, J., joined. HOLSCHUH, D. J. (pp. 19-26),

delivered a separate opinion concurring in part and dissenting

in part.

_________________

OPINION

_________________

KENNEDY, Circuit Judge. Petitioner, Michael J. Maurino,

appeals the District Court’s denial of his request for a writ of

habeas corpus. Following a jury trial in the Detroit

Recorder’s Court, petitioner was found guilty of second-

degree murder, M.C.L. § 750.317, M.S.A. § 28.549, and

possession of a firearm during the commission of a felony,

M.C.L. § 750.227b, M.S.A. § 28.424(2). He was sentenced

to twenty-five to seventy-five years imprisonment for the

murder conviction plus two years consecutive imprisonment

for the felony-firearm conviction. Petitioner filed a motion

for a New Trial and a Motion to Set Aside the Sentence and

for Resentencing, which were denied. Petitioner, then

appealed to the Michigan Court of Appeals, which affirmed

his conviction. The Supreme Court of Michigan denied

petitioner’s request for leave to appeal. He then filed a habeas

petition in state court, which was denied, as were his

subsequent state appeals. After exhausting his state remedies,

petitioner filed a petition for a writ of habeas corpus in federal

court. The district court denied this petition and the petitioner

appealed. On appeal petitioner raises three issues: (1)

whether petitioner was denied a fair trial due to the bias of the

trial judge against defense counsel; (2) whether petitioner was

denied the effective assistance of counsel where a critical

defense witness was not called; and (3) whether the trial

prosecutor improperly acted as a witness depriving petitioner

26 Maurino v. Johnson No. 98-1332 No. 98-1332 Maurino v. Johnson 3

said the petitioner had given her a bullet with the of his constitutional right to confrontation, by asserting

statement that “this one’s for Vicki,” thereby resulting in without evidence that petitioner told a waitress he intended to

a substantial and injurious influence on the verdict. kill the victim. Because we find that reasonable jurists could

Since there is grave doubt as to whether the prosecutorial find the state court’s decision to be a reasonable application

misconduct created a substantial and injurious influence of Supreme Court law, we shall affirm.

on the verdict, the error was not harmless. Accordingly,

then, the Michigan Supreme Court engaged in an I. Facts

unreasonable application of Chapman’s harmless error

test, and under § 2254(d), a writ of habeas corpus should On August 6, 1984, petitioner went to the Silver Cricket

issue. Lounge to see the victim, Vicki Lynn Lee. Prior to arriving

at the lounge, petitioner consumed both cocaine and alcohol

Also, even more recently, this Court held that an and while at the lounge, petitioner continued to consume

inflammatory cross-examination of the defendant and an alcohol. Petitioner and the victim left the lounge together

improper closing argument (less egregious in my view than around 2:00 a.m. Approximately a half hour after leaving the

the prosecutorial misconduct in the present case), required the lounge, petitioner brought the victim to Westland Medical

granting of a conditional writ of habeas corpus. In Boyle v. Center because she had been shot. On September 2, 1984, the

Million, 201 F.3d 711 (6th Cir. 2000), this Court said: victim died from the gunshot wound. Petitioner conceded

that he was with the victim when she was shot and that the

It is true that the case against Boyle was relatively gun in his possession was the weapon which discharged the

straightforward and strong. Given the egregious and bullet. Petitioner, however, contended that the incident was

inflammatory nature of the behavior and arguments of an accident and that he was not aware that the gun was

the prosecutor throughout trial, however, we are left with loaded.

“grave doubt” as to whether the prosecutorial errors “had

a substantial and injurious effect or influence in Petitioner made two verbal and one written statements to

determining the jury’s verdict.” Brecht v. Abrahamson, police about the incident. The first statement occurred at the

507 U.S. 619, 637, 113 S. Ct. 1710, 123 L. Ed.2d 353 hospital immediately following the shooting. Upon bringing

(1993)(quoting Kotteakos v. United States, 328 U.S. 750, the victim into the hospital, the petitioner told the security

776, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946)); see also guard on duty that he had shot the victim and that it was an

O’Neal v. McAninch, 513 U.S. 432, 436, 115 S. Ct. 992, accident. The police were called and petitioner was given

130 L. Ed.2d 947 (1995). Miranda warnings. Petitioner admitted to shooting the victim

and stated that the gun discharged after he had racked the gun.

Id. at 717-18. He said that he and the victim had been arguing and that he

had exited the car. The victim followed him in the car as he

For the reasons stated above, I would reverse the judgment walked and convinced him to get back inside the vehicle.

of the District Court and order that a conditional writ of They began arguing again and the petitioner hit the

habeas corpus be granted unless the State of Michigan windshield three or four times. He then withdrew a handgun

commences trial proceedings against Maurino within 180 from his jacket and racked the gun, removed the clip and

days of this opinion. pointed the gun at her. He said to the victim, “You see how

mad you make me? You see what you make me do? See

4 Maurino v. Johnson No. 98-1332 No. 98-1332 Maurino v. Johnson 25

what you can make me do?” At that point, the gun determining the jury’s verdict,” that error is not harmless.

discharged. And, the petitioner must win.

He was arrested for investigation of a homicide and Id. at 436.

transported to the police station. At the police station, the

petitioner was interrogated. In response to questioning by the Citing O’Neal, this Court in the Barker case said:

police, he gave a more detailed description of the events of

the evening. Prior to giving this statement he again was Only if a federal habeas court can say with certainty

advised of his Miranda rights. He also responded in the that a trial error had little to no impact on the judgment,

affirmative to an inquiry as to whether he was intoxicated. In should the judgment stand. See id. at 435-38, 115 S.Ct.

this second statement, he explained that he had been at a at 994-995. In this matter, the only thing of which this

friend’s home drinking when he received a call from his court is certain is that the erroneous jury instruction left

stepson indicating that his stepson knew where the the door wide open. A reasonable juror could have very

petitioner’s niece was located. The petitioner stated that he well walked through the door and rejected Barker’s claim

had been looking for his niece for a couple of days and that he for self defense because that juror believed that Madsen’s

intended to bring her home once he found her. Knowing that assault would not have led to death or serious bodily

the individual who was with his niece was a dangerous man, injury, thereby resulting in a substantial and injurious

the petitioner brought along a gun for protection. Before influence on the verdict. Since there is grave doubt as to

going to find his niece, he stopped by the victim’s place of whether the erroneous jury instruction created a

employment to inform her of where he would be. The victim substantial and injurious influence on the verdict, the

requested that he stay until her shift ended and take her with error was not harmless. Accordingly, then, the Michigan

him. He complied and had a few drinks while he waited. The Supreme Court engaged in an unreasonable application

victim and the petitioner left the lounge around 2:00 a.m. in of Chapman’s harmless error test, and under § 2254(d),

a Pontiac Firebird. He stated that he and the victim got into a writ of habeas corpus should issue.

an argument about the manner in which the victim danced at

her place of employment. He said that in response to his 199 F.3d at 874.

comments, the victim lied to him and that this lying made him

stop the car in a bowling alley parking lot. Petitioner got out With only slight paraphrasing, this same language applies

of the car and proceeded to walk away from the victim. equally to this case:

While in the parking lot, petitioner fired a shot in the air. The Only if a federal habeas court can say with certainty

victim requested that the petitioner return to the car and the that a trial error had little to no impact on the judgment,

petitioner agreed. Once back in the car the petitioner should the judgment stand. See O’Neal v. McAninch,

attempted to unload the gun by removing the clip and racking 513 U.S. 432 at 435-38, 115 S.Ct. at 994-995. In this

the gun, which expelled a bullet. The victim and the matter, the only thing of which this court is certain is that

petitioner continued to argue and the petitioner hit the the prosecutorial misconduct left the door wide open. A

windshield a number of times. He also continued to play with reasonable juror could have very well walked through the

the gun by racking it. Sometime during the argument, the door and rejected Maurino’s claim that he did not intend

petitioner pointed the gun at the victim and stated, “See how to create a high risk of death or great bodily harm to his

mad you make me?” The petitioner then racked the gun and girlfriend because that juror believed the prosecutor’s

the gun discharged. At the end of the interrogation, petitioner representation that there was an impartial person who

24 Maurino v. Johnson No. 98-1332 No. 98-1332 Maurino v. Johnson 5

1999), in its interpretation of what must be shown to be an provided the police with a written statement which conformed

“unreasonable application of federal law,” if a habeas with the verbal statements he had made during the

petitioner can demonstrate that the trial error meets the Brecht interrogation.

standard, “he will surely have demonstrated that the state

court’s finding that the error was harmless beyond a At the preliminary exam, the prosecutor proffered an expert

reasonable doubt – the Chapman standard – was outside the witness to testify about the firearm used in this incident. The

realm of plausible credible outcomes, and therefore resulted witness testified that he racked the gun fifty times and that

from an unreasonable application of Chapman.” Nevers at this racking of the gun did not result in the discharge of the

371-372. In my view, this is such a case. The petitioner has gun. He also testified that when the base of the gun was

shown that: (1) there is no indication whatsoever that the struck with a metal hammer four times the gun did discharge.

Michigan court applied the harmless error Chapman standard; Petitioner was present at the preliminary examination when

(2) the prosecutorial misconduct meets the test of Brecht, if this testimony was given.

Brecht is to be applied, and was not harmless error; and (3)

the Michigan court’s decision therefore involved an At trial, the petitioner testified on his own behalf. His

unreasonable application of clearly established federal law as version of the events differed from his previous statements in

determined by the Supreme Court of the United States. some important ways. He stated that the first shot, in the

bowling alley parking lot, was an unexpected gun discharge.

It is my belief that two very recent decisions by this Court He said that he was taking the gun out of his jacket when the

support the conclusion I have reached in this case. In Barker gun discharged. In a previous statement, he stated that he had

v. Yukins, 199 F.3d 867 (6th Cir. 1999), the petitioner for a intentionally fired the gun in the air. He also clarified that he

writ of habeas corpus had been convicted of first degree racked the gun while the clip was still in the gun; thus,

murder in Michigan. The defense was that petitioner killed explaining how the gun could eject one bullet from the

the decedent while resisting a rape. The error of the trial chamber while placing another in the chamber. In addition,

court was in refusing to instruct the jury that petitioner was he stated that he could not remember how the gun discharged.

entitled to use deadly force to resist an imminent rape. The He did not know whether he was hitting the windshield with

Michigan Supreme Court denied the petition on the ground the gun, but he did remember that he was playing with the

that the error was harmless because, under the evidence gun prior to the gun discharging. Petitioner’s testimony was

presented at trial, no reasonable juror could have believed the only evidence presented by the defense.

deadly force was necessary to prevent a rape.

The prosecution offered not only the petitioner’s prior

This Court reversed the district court’s denial of habeas statements as evidence, but also presented the testimony of

relief and ordered that a conditional writ of habeas corpus be numerous witnesses. The firearms expert testified to the same

granted unless Michigan commenced a new trial within 180 information that he presented at the preliminary hearing. The

days of the opinion. This Court recognized the Supreme victim’s father testified that he witnessed bruises on the

Court’s decision in O’Neal v. McAninch, 513 U.S. 432 victim’s wrist when he visited her in the hospital. The

(1995), in which the Supreme Court emphatically stated: prosecution, however, offered no medical testimony as to how

or when these bruises occurred. Finally, the prosecutor

When a federal judge in a habeas proceeding is in grave presented the testimony of individuals who worked with the

doubt about whether a trial error of federal law had victim. None of these individuals were questioned about or

“substantial and injurious effect or influence in testified to hearing the petitioner threaten the victim.

6 Maurino v. Johnson No. 98-1332 No. 98-1332 Maurino v. Johnson 23

Nevertheless, on cross-examination of the petitioner, and after error. As the Supreme Court said in Kotteakos v. United

the prosecution had rested its case, the following exchange States:

between the prosecutor and the petitioner took place:

The inquiry cannot be merely whether there was enough

Q: And, when she [the victim] became a dancer, you to support the result, apart from the phase affected by the

knew the kind of place it was, is that right? error. It is rather, even so, whether the error itself had

A: Yes, I did. substantial influence. If so, or if one is left in grave

Q: In fact, you had been in the bar at an earlier – earlier doubt, the conviction cannot stand.

times, when she was a waitress, isn’t that right?

A: Yes, I did. 328 U.S. 750, 765 (1946).

Q: Did you ever deliver a bullet to her?

A: A what? The majority states that if petitioner had been convicted of

Q: A bullet? first degree murder they would agree that the prosecutorial

A: No. misconduct had a substantial and injurious effect on the

Q: Didn’t you in fact deliver a bullet to one of the outcome of the trial, but since petitioner was convicted of

waitresses, and say to her that, “This one’s for second degree murder, the prosecutorial misconduct did not

Vicki,” several – just a few months before this? have a substantial and injurious effect on the outcome of the

A: No. trial. I cannot, however, see that the distinction between first

Q: And, if someone came in, and testified to that effect, degree murder and second degree murder is a sufficient basis

that – for denial of relief in this case. A defendant’s intent is a

critical element of both crimes under Michigan law, and the

Mr. Strauss [defense counsel]: (Interposing) I’d prosecutorial misconduct involved proving that intent in an

object, this is egregious manner and, at the same time, impugning the

improper cross- credibility of petitioner’s own testimony concerning his

examination. intent. In my view, basic fairness, as well as the

constitutional right to due process, prohibits such conduct

The Witness: They’d be lying, because I’ve never and, regardless of the degree of the offense in question, such

done anything like that. conduct cannot avoid having a substantial and injurious effect

on the outcome of the trial.

Mr. Strauss: I’ll withdraw the objection.

The Michigan Court of Appeals, in finding harmless error,

Ms. Petito [prosecutor]: Okay. was required to apply the test set forth in Chapman v.

California, 386 U.S. 18 (1967), i.e., whether the prosecutorial

Q: Now, let’s – you in fact – misconduct was “harmless beyond a reasonable doubt.”

A: (Interposing) Can I ask you something? How come There is absolutely no indication in its opinion that it

you insinuate something like this, that is an out-and- followed this clearly established federal law as determined by

out lie? the Supreme Court of the United States. To the contrary, it

merely found that “it is unlikely that he (the defendant)

Ms. Petito: Well, your Honor – suffered any prejudice as a result” (of the prosecutorial

misconduct). J.A., Part 1, p. 51. Even under the high

Mr. Strauss: (Interposing) Your Honor – requirement of Nevers v. Killinger, 169 F.3d 352 (6th Cir.

22 Maurino v. Johnson No. 98-1332 No. 98-1332 Maurino v. Johnson 7

the grant of habeas relief even if it did not substantially The Court: (Interposing) Now, just a moment.

influence the jury’s verdict.”2

Ms. Petito: I can make a showing.

Third, even if the Brecht standard of harmless error is to be

applied and this case does not fall within the exception noted The Court: Just a moment.

in Brecht, I still would find that the defendant should be given

habeas relief. Contrary to the majority view, I do not believe Ms. Petito: If we want to get into it.

that simply because the state did not have to prove an intent

to kill, the prosecutorial misconduct did not have a The Court: The lawyers ask the questions, not the

“substantial and injurious effect or influence in determining witnesses. I have told the jury, at least

the jury’s verdict.” The defense was based entirely on six times, anything the lawyers say,

defendant’s contention that the fatal shot was fired either lawyer, is not evidence, it’s the

accidentally without any intent to kill or injure his girlfriend answers of the witnesses that provide

or to create a high risk of death or injury to her. The it. The mere fact that a lawyer, either

defendant’s intent was a critical element of the charged lawyer, says something, doesn’t make

offense, and the defendant’s own testimony regarding his it true.

intent was the foundation of his defense. The prosecutor’s

effort to destroy the defendant’s credibility before the jury and The Witness: I apologize, your Honor.

to put before the jury a matter that was not in evidence – the The Court: All right.

alleged testimony of a disinterested person that would prove

an intent by the defendant to kill his girlfriend – in violation Mr. Strauss: Your Honor, I have a motion. I ask

of defendant’s constitutional right to cross-examine such a that you hold the prosecuting attorney in contempt of

witness, could not, in my opinion, fail to have an influence on court for this comment. She just rested her case, this

the jury. As the majority opinion implicitly finds, the standard afternoon. And, if she had some competent

cautionary instruction was inadequate to “unring the bell,” evidence that my client had sent a bullet, by a

and defendant’s reaction to the prosecutor’s statements, if waitress, just a couple of months before this death,

anything, only served to pit his credibility against the here, to this Vicki, while she was working, then she

credibility of a disinterested person who was not produced as should have presented it in her case-in-chief.

a witness and subjected to cross-examination.

The Court: Now –

The majority finds that, apart from the attempt by the

prosecutor to influence the jury in a totally improper way, Mr. Strauss: (Interposing) And, I object, and move

there was sufficient admissible evidence in the record, in the it to be stricken, and move for a mistrial. And, you

form of petitioner’s statements to the police, to support the can deny them all, if you want, but they are on the

jury’s verdict. This, I believe, is an improper approach to record.

determine whether the prosecutorial misconduct was harmless

The Court: Anything the lawyers say is not

evidence, either what Mr. Strauss said, or Ms. Petito.

2

In Section II(D) of the majority opinion, Judges Kennedy and Norris Let’s proceed with the case. Motions are denied.

agree that “the prosecutor’s statements were egregious prosecutorial

misconduct.”

8 Maurino v. Johnson No. 98-1332 No. 98-1332 Maurino v. Johnson 21

At the close of evidence, the court instructed the jury that not have a substantial injurious effect on the outcome of the

in order to find the defendant guilty of second-degree murder, trial. I have several problems with this.

the jury had to find that the defendant had either (1) the intent

to kill; (2) the intent to inflict great bodily harm; or (3) the First, the issue before us, under the Antiterrorism and

intent to create a high risk of death or great bodily harm with Effective Death Penalty Act (“AEDPA”), is whether the

knowledge that such is the probable result. The defense decision of the Michigan Court of Appeals involved an

counsel requested that the court instruct the jury not only on unreasonable application of clearly established federal law, as

second-degree murder, but also on manslaughter. The court determined by the Supreme Court of the United States. I

complied with this request and the jury was released for think it is clear from the state court’s opinion that it did not

deliberation. The jury returned a verdict finding the petitioner apply the criteria set forth in Darden v. Wainwright, 447 U.S.

guilty of second-degree murder and guilty of possession of a 168, 181 (1985) or, for that matter, the Angel criteria adopted

firearm in the commission or in the attempt to commit a in this Circuit, to determine whether the admitted

felony. prosecutorial misconduct violated defendant’s constitutional

right to a fair trial. Furthermore, as discussed later, I think it

II. Discussion is also clear that the state court did not apply the Chapman

standard in its finding of harmless error. In my view,

A. Standard of Review applying the Supreme Court’s Darden criteria or the Angel

criteria of this Circuit, the result is that defendant’s

Because petitioner filed his petition for a writ of habeas constitutional right to a fair trial was violated.

corpus after April 24, 1996 this court applies the standard of

review as set forth in 28 U.S.C. § 2254(d), as amended by the Second, even if the violation of defendant’s constitutional

Antiterrorism and Effective Death Penalty Act (“AEDPA”). right to a fair trial is subject to the Brecht standard of

This provision states as follows: harmless error, I believe that the prosecutorial misconduct in

this case was so outrageous that it falls within the exception

(d) An application for a writ of habeas corpus on noted in the following footnote in Brecht:

behalf of a person in custody pursuant to the judgment of

a State court shall not be granted with respect to any Our holding does not foreclose the possibility that in an

claim that was adjudicated on the merits in State court unusual case, a deliberate and especially egregious error

proceedings unless the adjudication of the claim – of the trial type, or one that is combined with a pattern of

(1) resulted in a decision that was contrary to, or prosecutorial misconduct, might so infect the integrity of

involved an unreasonable application of, clearly the proceeding as to warrant the grant of habeas relief,

established Federal law, as determined by the Supreme even if it did not substantially influence the jury’s

Court of the United States; or verdict. Cf. Greer v. Miller, 483 U.S.756, 769, 107 S.Ct.

(2) resulted in a decision that was based on an 3102, 3110, 97 L.Ed.2d 618 (1987) (STEVENS, J.,

unreasonable determination of the facts in light of the concurring in judgment). We, of course, are not

evidence presented in the State court proceeding. presented with such a situation here.

28 U.S.C. § 2254(d) (1994 & Supp. 1999). 507 U.S. at 638 n.9. In my opinion, the deliberate and

especially egregious prosecutorial misconduct in the present

Before applying this new standard to the case before the court, case so infected “the integrity of the proceeding as to warrant

this court must determine how this new standard differs from

20 Maurino v. Johnson No. 98-1332 No. 98-1332 Maurino v. Johnson 9

deem the error as not being harmless and should reverse the the standard that this court previously applied on habeas

conviction. O’Neal v. McAninch, 513 U.S. 432, 436 (1995). review.

In Kincade v. Sparkman, 175 F.3d 444 (6th Cir. 1999), the In Nevers v. Killinger, 169 F.3d 352 (6th Cir. 1999), this

Sixth Circuit set forth the criteria for determining whether Circuit considered the appropriate interpretation of the

habeas relief should be granted for prosecutorial misconduct: standard set forth in § 2254(d). The Nevers court reviewed

the interpretations of this provision as set forth by other

To grant relief in such cases as this, we must find that the circuits. The court noted that other circuits viewed the

prosecutor’s comments constituted more than simply trial “contrary to” clause as encompassing a different challenge to

error under state law. The misconduct must be “so the state court decision than those challenges pursued under

fundamentally unfair as to deny him due process,” the “unreasonable application” clause. For example, the Fifth

Donnelly v. DeChristoforo, 416 U.S. 637, 645, 94 S.Ct. and Seventh Circuits contend that “[t]he ‘contrary to’ clause

1868, 40 L.Ed.2d 431 (1974), based on “the totality of in § 2254(d)(1) addresses questions of pure law; the

the circumstances” of the case, taking into account ‘unreasonable application’ clause in § 2254(d)(1) addresses

the degree to which the remarks complained of have mixed questions of law and fact; and § 2254(d)(2) addresses

a tendency to mislead the jury and to prejudice the questions of pure fact. Nevers, 169 F.3d at 358. The

accused; whether they are isolated or extensive; Eleventh Circuit has adopted a two-prong test in which the

whether they were deliberately or accidentally court first must “determine the ‘clearly established’ law at the

placed before the jury, and the strength of the relevant time.” Neelley v. Nagle, 138 F.3d 917, 922 (11th

competent proof to establish the guilt of the accused. Cir. 1998). Then the court must apply either the “contrary to”

Angel v. Overberg, 682 F.2d 605, 608 (6th Cir. 1982) (en clause if it is a question of law and the “unreasonable

banc) (quoting from United States v. Leon, 534 F.2d 667, application” clause if it is a mixed question of law and fact.

677 (6th Cir. 1976)). Id. at 923-34. The First Circuit, however, has rejected the

classifications of the other circuits and instead has approached

175 F.3d at 445-46. the issue in the following manner:

The majority opinion appears to apply the test for First, the habeas court asks whether the Supreme Court

determining whether the prosecutorial misconduct in this case has prescribed a rule that governs the petitioner’s claim.

violated the defendant’s right to due process, as set forth in If so, the habeas court gauges whether the state court

Kincade and the earlier case of Angel v. Overberg, 682 F.2d decision is “contrary to” the governing rule. In the

605, 608 (6th Cir. 1982) and, with the exception of the absence of a governing rule, the “contrary to” clause

prosecutorial misconduct being isolated, “every other prong drops from the equation and the habeas court takes the

of the [Angel] test” has been satisfied. Opinion, Section second step. At this stage, the habeas court determines

II(D). The majority nevertheless then applies the Brecht whether the state court’s use of (or failure to use) existing

standard for harmless error and, because a second degree law in deciding the petitioner’s claim involved an

murder conviction in Michigan does not require an intent to “unreasonable application” of Supreme Court precedent.

kill, and there was sufficient evidence to support a finding of

intent to create a high risk of death or bodily harm, the O’Brien v. Dubois, 145 F.3d 16, 24 (1st Cir. 1998).

conclusion is reached that the prosecutorial misconduct did

Although acknowledging that other circuits had taken a

variety of approaches in interpreting this provision, the

10 Maurino v. Johnson No. 98-1332 No. 98-1332 Maurino v. Johnson 19

Nevers court found that it did not have to chose which ______________________________________________

specific approach it found most persuasive because the issue

in the case clearly fell under the unreasonable application CONCURRING IN PART, DISSENTING IN PART

prong of the statute. The case before this court also falls ______________________________________________

under the unreasonable application prong1, so this court finds

it unnecessary to choose which approach is most appropriate HOLSCHUH, District Judge, concurring in part and

to adopt.2 dissenting in part. I concur with the majority opinion

regarding the issues of alleged judicial bias and ineffective

The Nevers court announced the standard of deference to assistance of counsel. It is only the issue of prosecutorial

afford state court decisions under the “unreasonable misconduct that causes me to dissent from the opinion of my

application” prong of § 2254(d). This standard requires this colleagues.

court to uphold a state court’s determination unless the

“unreasonableness of a state court’s application of clearly Initially, and as a matter of law, I must agree with the

established Supreme Court precedent will not be ‘debatable majority that the prosecutorial misconduct in this case is

among reasonable jurists,’ Drinkard, 97 F.3d at 769, if it is ‘so subject to the doctrine of harmless constitutional error as set

offensive to existing precedent, so devoid of record support, forth in Brecht v. Abrahamson, 507 U.S. 619 (1993).1 If,

or so arbitrary, as to indicate that it is outside the universe of however, a reviewing court is in “grave doubt” as to the

plausible, credible outcomes.’” 169 F.3d at 362. We believe constitutional error’s impact on the verdict, the court should

that it is appropriate to apply this standard to this case.

Applying the Nevers standard to the facts of this case, this

court must ask whether there is a clearly established law 1

Prosecutorial misconduct has not been considered a “structural

defect” in the trial proceedings that would require an automatic reversal.

See Arizona v. Fulminante, 499 U.S. 279 (1991). I, nevertheless, have

1 felt that if, in applying the criteria for determining whether prosecutorial

Although the petitioner argues that this case falls under the misconduct rises to the level of a violation of defendant’s constitutional

“contrary to” clause because the lower court analyzed his claim under a right to due process, see Darden v. Wainwright, 477 U.S. 168, 181

Seventh Circuit case that was overturned by the Supreme Court, he is (1985); Swofford v. Detella, 101 F.3d 1218 (7th Cir. 1996), it is found

incorrect. The standard of review set forth in § 2254 (d) applies to this that this fundamental right to a fair trial has been violated, there should be

court’s review of the state court decision, not our review of the district no place for a harmless error analysis. If, in applying that criteria, the

court decision. This court reviews the district court’s legal conclusions prosecutorial misconduct does not rise to the level of a constitutional

de novo and its factual findings for clear error. See Nevers, 169 F.3d at violation, there is no basis for habeas relief. Darden, 477 U.S. at 181

357. Because the petitioner does not assert either (1) “that the facts n.15. The misconduct in such a case can be deemed to be harmless error,

before the state trial court . . . were ‘essentially the same as those the but this is not the result of a Brecht harmless error analysis. By applying

Supreme Court has faced earlier’ and that the state court reached a result a harmless error analysis when there has been a constitutional violation,

different than that reached by the Supreme Court” or (2) “that the state egregious prosecutorial misconduct is permitted if the state’s case is

courts failed to apply the correct legal standards” this court’s analysis deemed to be sufficiently strong, a result that not only reflects adversely

focuses on the “unreasonable application” prong. Tucker v. Prelesnik, on the judicial process in criminal cases, but also does not serve as a

181 F.3d 747, 752 (6th. Cir. 1999). deterrent to prosecutorial abuse. The Sixth Circuit, however, has

2 specifically held that, in cases involving prosecutorial misconduct, the

This Court avoids this issue because the Supreme Court has granted reviewing court must apply a harmless error analysis. Eberhardt v.

certiorari and heard arguments in a case in which the issue before the Bordenkircher, 605 F.2d 275 (6th Cir. 1979); Pritchett v. Pitcher, 117

Court is the appropriate interpretation of the meaning of § 2254(d). See F.3d 959 (6th Cir. 1997). I respect and, of course, am bound by those

Williams v. Taylor, 119 S. Ct. 1355, 143 L. Ed.2d 516 (1999). decisions.

18 Maurino v. Johnson No. 98-1332 No. 98-1332 Maurino v. Johnson 11

that these statements did not have a substantial and injurious which has been violated. The petitioner raises three issues on

effect on the outcome of the trial. Determining that habeas. The first issue -- judicial bias -- is a structural error

reasonable jurists could find the state court’s decision to be a and if found, requires automatic reversal. The other two

reasonable application of Supreme Court law, we deny issues -- the prosecutorial misconduct and the ineffective

petitioner’s third claim for relief. assistance of counsel claims -- are to be reviewed for harmless

error. Prior to the AEDPA amendments, the Supreme Court

III. Conclusion held in Brecht v. Abrahamson, 507 U.S. 619, 113 S. Ct. 1710,

123 L. Ed.2d 353 (1993), that federal courts should apply a

For the foregoing reasons, this court denies petitioner’s higher harmless error standard when reviewing habeas claims

request for a writ of habeas corpus and affirms the judgment than is appropriate on direct review. The Court held that

of the District Court. habeas relief should be granted when the error “ha[s a]

substantial and injurious effect or influence in determining the

jury’s verdict.” Brecht, 507 U.S. at 623, 113 S. Ct. at 1714.

Because the AEDPA amendments were intended to restrict

further federal courts’ review of state courts’ determinations

this appeal raises the question of whether the changes to

§ 2254(d) require this court to adopt a new method for

reviewing harmless error determinations. The Nevers court,

however, has held that the Brecht standard continues to be the

appropriate standard to apply on habeas review. 169 F.3d at

371. Because there has been no intervening Supreme Court

decision invalidating that panel’s decision, this panel

conforms to the holding in Nevers and applies the Brecht

standard in its review of the state court’s determination of

harmless error.

Accepting that the analysis set forth by the Nevers court is

the appropriate method for reviewing petitioner’s claims, the

court must first determine whether there is a “clearly

established federal law” applicable to the petitioner’s claim.

If there is, then the court must assess whether the state court’s

application of this law was reasonable in light of the great

deference afforded state courts. This court can overturn a state

court determination only if it finds that the unreasonableness

of the state court’s application of the “clearly established law”

is not debatable among reasonable jurists because it is “so

offensive to existing precedent, so devoid of record support,

or so arbitrary, as to indicate that it is outside the universe of

plausible, credible outcomes.” Nevers, 169 F.3d at 362.

12 Maurino v. Johnson No. 98-1332 No. 98-1332 Maurino v. Johnson 17

B. Judicial Bias The prosecutorial misconduct in this case can be analogized

to the trial error in the Nevers case. The Nevers court stated

Petitioner claims that the state trial court judge was biased that “[t]he issue at the heart of Nevers’s prosecution was not

against his counsel; thus, infringing on his Sixth Amendment what Nevers did, but why he did it.” 169 F.3d at 372.

right to counsel. Petitioner asserts that there were numerous Because it was the province of the jury to determine Nevers’s

times during trial where the trial judge spoke harshly to his credibility the court determined that the exposure of

counsel, but he offers one specific exchange intended to extraneous information to the jury was not harmless under the

demonstrate the trial court’s bias. In this exchange, the trial Brecht standard. This case does differ from Nevers in that the

court, outside the presence of the jury, inquired of the trial court in Nevers accepted as true the affidavits of jurors

defendant whether he would like to change his counsel. He that the extraneous information influenced the jury’s decision-

suggested to the defendant that his counsel could not count making process. In this case, we have no finding that the

and insinuated that he thought defense counsel was a jerk. He prosecutorial misconduct influenced the jury, so this court

then proceeded to hold defense counsel in contempt of court, must determine whether the prosecutorial misconduct had a

though he did allow counsel to expunge himself of contempt substantial and injurious effect on the outcome of the trial.

before the jury returned to the courtroom. Petitioner contends We find that it did not.

that the animosity between the judge and his counsel so

infected his trial as to make it substantially unfair. Petitioner argues that the prosecutor’s improper statements

were the only evidence offered as to his intent. Had petitioner

Because judicial bias infects the entire trial process it is not been convicted of first-degree murder we would agree that

subject to harmless error review. See Chapman v. California, these statements could have had a substantial and injurious

386 U.S. 18, 23 & n.8, 87 S. Ct. 824, 827-28 & n.8, 17 L. effect on the outcome of the trial. Petitioner, however, was

Ed.2d 705 (1966) (stating that the right against coerced convicted of second-degree murder. Although second-degree

confession, the right to counsel and the right to an impartial murder requires the prosecutor to prove intent, it does not

judge were examples of constitutional rights “so basic to a require the prosecutor to prove intent to kill. Rather, a

fair trial that their infraction can never be treated as harmless defendant can be convicted of second-degree murder if the

error.”). Instead, the court is required to assess whether the defendant has the intent to create high risk of death or great

actions of the judge rose to the level of judicial bias. If the bodily harm with knowledge that such is the probable result.

court determines that the actions resulted in a constitutional See People v. Porter, 425 N.W.2d 514 (Mich. App. 1988). At

violation, then the court is required to overturn the state court trial, the prosecution’s theory of this case was that petitioner

decision. In reviewing claims of judicial bias, this court is was guilty of second-degree murder because he had the intent

guided by the decision in Liteky v. United States, 510 U.S. to cause the risk of harm that resulted in the victim’s death.

540, 114 S. Ct. 1147, 127 L. Ed.2d 474 (1994). The Liteky The prosecution’s closing arguments focused on the fact that

court held that “[a] judge’s ordinary efforts at courtroom the petitioner was waving around a dangerous weapon in an

administration – even a stern and short-tempered judge’s agitated state. In particular, the prosecution noted that the

ordinary efforts at courtroom administration – remain petitioner stated that he had pointed the gun directly at the

immune.” 510 U.S. at 556, 114 S. Ct. at 1157. The court victim immediately prior to discharge. Petitioner’s statements

stated that “expressions of impatience, dissatisfaction, to the police above provided sufficient evidence of intent to

annoyance, and even anger, that are within the bounds of what satisfy the requirement for a second-degree murder conviction

imperfect men and women, even after having been confirmed on this theory. Although we believe that the prosecutor’s

statement were egregious prosecutorial misconduct we find

16 Maurino v. Johnson No. 98-1332 No. 98-1332 Maurino v. Johnson 13

In every case, we consider the degree to which the as federal judges, sometimes display” do not establish “bias

remarks complained of have a tendency to mislead the or partiality.” Id. at 555-56, 114 S. Ct. at 1157.

jury and to prejudice the accused; whether they are

isolated or extensive; whether they were deliberately or Although the trial judge did display some animosity toward

accidentally placed before the jury, and the strength of defense counsel, this did not permeate the trial. Most, if not

the competent proof to establish the guilt of the accused. all, of the disagreements between defense counsel and the

court occurred outside the presence of the jury. The state

Angel v. Overberg, 682 F.2d 605, 608 (6th Cir. 1982) (en court found that the trial court’s behavior did “not rise to the

banc). level of error cited in the controlling case law.” Because the

state court’s decision was not “so clearly incorrect that it

Looking at the facts of this case in light of these factors, we would not be debatable among reasonable jurists” we deny

agree with the state court’s determination that the petitioner’s request for relief and affirm the district court’s

prosecutor’s improper questions constitute prosecutorial decision that the trial court’s action did not constitute judicial

misconduct. Although the prosecutorial misconduct in this bias.

case does not satisfy the continual and extensive prong of the

Angel test, it satisfies every other prong of the test and the C. Ineffective Assistance of Counsel

state court found it was egregious prosecutorial misconduct.

The prosecution had rested its case before raising the issue of Petitioner’s second claim of error is that his trial counsel

this threat, so a strong argument can be made that the was ineffective because he failed to proffer a defense witness

information was deliberately placed before the jurors in an who would testify as to a likely cause of the bruises suffered

attempt to mislead them. Because there were no witnesses to by the decedent. In support of his argument, the petitioner

the shooting other than the decedent and the petitioner, the offers the affidavit of Michael Dale Williams. This affidavit

jury’s decision turned on whether it found the petitioner’s states that on the day of the shooting, Michael, another

testimony to be credible. By insinuating that the petitioner individual, and decedent were wrestling and that the decedent

had threatened the decedent on a prior occasion, the stated that this wrestling was the cause of her bruises.

prosecutor called into question the defendant’s testimony Petitioner contends that this hearsay would be admissible

about his relationship with the decedent. While defendant’s under both M.R.E. 803(1), present sense impression, and

counsel withdrew his objection to the question after his M.R.E. 803(3), then existing mental, emotional or physical

client’s answer in which he denied any threat, the prosecutor condition. Whether this testimony is admissible is not the

then suggested to the court that she could “make a showing,” focus of this court’s review. Rather, the court must assess

despite the fact that she had already rested her case. At no whether the state court’s determination that counsel’s actions

time during the presentation of her case had the prosecutor were harmless was appropriate under the Brecht standard.

even broached this subject with any of the witnesses she

presented. While the judge gave a general instruction that the The standard for reviewing ineffective assistance of counsel

lawyers’ questions were not to be considered as evidence, the claims is set forth in Strickland v. Washington, 466 U.S. 668,

judge never admonished the prosecutor nor did he specifically 104 S. Ct. 2052, 80 L. Ed.2d 674 (1984). This test requires a

instruct the jury to disregard the prosecutor’s statement. The reviewing court to assess whether counsel’s performance was

judge denied defense counsel’s motion to hold the prosecutor deficient. The court must determine whether counsel’s

in contempt of court, his motion for a mistrial, and his request performance was so deficient “that counsel was not

that the exchange be stricken from the record. functioning as the ‘counsel’ guaranteed the defendant by the

Sixth Amendment.” Id. at 687, 104 S. Ct. at 2064. If the

14 Maurino v. Johnson No. 98-1332 No. 98-1332 Maurino v. Johnson 15

petitioner demonstrates that his counsel was deficient, he then substantial prejudice at petitioner’s trial was erroneous.

must establish that this deficiency prejudiced the defense in Petitioner argues that this misconduct had an injurious effect

order to obtain relief. Id. This test requires the court to on the outcome of his trial because this misconduct provided

utilize an objective standard of reasonableness. Id. at 688, the jury with inappropriate evidence of intent. At the

104 S. Ct. at 2064. conclusion of petitioner’s trial, the court instructed the jury as

to the elements of second-degree murder and the three types

On direct appeal, the Michigan Court of Appeals applied of manslaughter. To convict the petitioner of either second-

the Strickland test in evaluating petitioner’s claim. Although degree murder or involuntary manslaughter, the prosecution

the court did not specifically address the issue raised on had to produce evidence of intent. The petitioner contends

petitioner’s habeas claim – unwillingness to call a crucial that the prosecution offered no other evidence of intent at

defense witness to testify – in its decision, its use of the trial; thus, for the jury to have convicted the petitioner of

Strickland test demonstrates that it understood and applied the second-degree murder, the jury must have believed the

appropriate standard in reviewing the petitioner’s claim of inappropriate statements made by the prosecutor.

ineffective assistance of counsel. We review this decision for

harmless error. During the prosecution’s cross-examination of the

petitioner, the prosecutor insinuated by her question that the

Applying Brecht to the facts of this case, this court finds petitioner had threatened the decedent on a prior occasion.

that any error that occurred was harmless error. On his direct Despite the fact that the prosecution had rested its case, she

appeal, petitioner raised the issue of ineffective assistance of stated in response to the defense counsel’s objection that she

counsel, but he did not request that the court hold an could offer proof to support the question. Although the court

evidentiary hearing; thus, this court can consider only the immediately instructed the jury that nothing the attorneys say

evidence in the record. A review of that evidence is evidence and that only the answers to the attorneys’

demonstrates that any error that occurred was harmless. The question are to be considered as evidence, the trial court did

petitioner “bears the burden of overcoming the presumption not strike the question from the record, nor did he specifically

that the challenged action might be considered sound trial instruct the jury to disregard the prosecutor’s statements.

strategy.” Tucker, 181 F.3d at 754. The record shows that

defense counsel believed that the prosecution did not have On direct appeal the Michigan Court of Appeals determined

sufficient evidence to prove second-degree murder; thus, he that the prosecution’s question and remarks were

chose to limit the defense to the testimony of the defendant. prosecutorial misconduct. Yet, the court stated that it did not

A review of the evidence presented at trial, of which defense “believe that [the] error was so prejudicial that reversal [wa]s

counsel was aware prior to trial, supports defense counsel’s required for the reason that the court cured the taint with an

belief and leads this court to conclude that petitioner has not immediate cautionary instruction.” The court also reasoned

overcome the presumption that defense counsel was that any prejudice was alleviated by the defendant’s response

exercising sound trial strategy. Finding that the state court to the question. Because prosecutorial misconduct falls into

decision should be upheld under the Brecht standard, this the category of trial, rather than structural, errors this court

court denies petitioner’s request for relief on this claim. should review the state court’s decision for harmless error.

See Pritchett v. Pitcher, 117 F.3d 959, 964 (6th Cir. 1997).

D. Prosecutorial Misconduct

The Sixth Circuit has identified several factors that should

The petitioner’s third claim is that the state court’s be considered when weighing prosecutorial misconduct.

determination that prosecutorial misconduct did not result in