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                            File Name: 12a1121n.06

                                                10-1539

                            UNITED STATES COURT OF APPEALS                                    FILED
                                 FOR THE SIXTH CIRCUIT                                    Oct 31, 2012
                                                                                   DEBORAH S. HUNT, Clerk
PATRICK JAMES McLEMORE,                              )
                                                     )
        Petitioner-Appellant,                        )
                                                     )    ON APPEAL FROM THE UNITED
v.                                                   )    STATES DISTRICT COURT FOR THE
                                                     )    EASTERN DISTRICT OF MICHIGAN
THOMAS K. BELL,                                      )
                                                     )
        Respondent-Appellee.                         )
                                                     )



        Before: DAUGHTREY and ROGERS, Circuit Judges; ZOUHARY, District Judge.*


        MARTHA CRAIG DAUGHTREY, Circuit Judge. Petitioner Patrick McLemore, a

Michigan state prisoner, appeals the district court’s judgment denying him habeas relief

from the effective life sentence he is currently serving following his convictions for first-

degree felony-murder and carjacking. Before this court, McLemore alleges: (1) that the

Michigan state trial court committed constitutional error in instructing the jury on the

concept of aiding and abetting felony-murder and on the need for unanimity in its verdict;

(2) that the prosecutor’s misconduct deprived him of due process of law; (3) that the trial

court denied him the opportunity to mount an effective defense by excluding witness

testimony; (4) that his trial counsel provided constitutionally ineffective legal assistance;



        *
        The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio, sitting
by designation.
No. 10-1539
McLemore v. Bell

and (5) that his appellate counsel also failed to provide adequate representation. For the

reasons set out below, we disagree and affirm the judgment of the district court.


                   FACTUAL AND PROCEDURAL BACKGROUND


       Many of the facts underlying the petitioner’s prosecution are not in serious dispute.

McLemore himself concedes that sometime during the late-night or early-morning hours

of June 14-16, 1999, he, then 16 years old, and his 19-year-old friend, Nathan Reid, found

a wrench in the yard behind Reid’s former residence. As the two continued walking

through the neighborhood, they approached the residence of Oscar Manning and broke

into the house through an unlocked garage door. McLemore was acquainted with Manning

because he had mowed Manning’s lawn on a number of occasions.


       The petitioner also admits that by the time he and Reid left Manning’s property,

Manning had been bludgeoned to death in his bedroomwhile he and Reid took off with a

video cassette recorder, a ring, and one of Manning’s cars. Exactly how the brutal murder

occurred is subject to differing accounts. In his own trial testimony, McLemore claimed that

Reid first entered Manning’s home alone, despite McLemore’s pleas that he not do so.

According to McLemore, he decided to stay in the garage rather than risk being seen by

a man he knew, but he eventually entered the house, where he saw Manning lying

motionless in his blood-splattered bedroom. He then claimed to have stood horrified in the

room as Reid rifled through dresser drawers in search of valuables. Rather than continue



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to remain in the room, McLemore said, he ran out of the house and began fleeing the

scene until Reid, driving an automobile stolen from Manning’s garage, caught up with him.


       The petitioner offered additional testimony that in the hours and days following the

murder, he, Reid, and various other friends stole cases of liquor, patronized a prostitute,

and eventually hid the stolen vehicle in a wooded area near Reid’s residence. McLemore

also spoke with some of his friends about the murder, but denied telling those friends that

he had actually struck the victim. In fact, at trial, the petitioner went so far as to admit that

he entered Manning’s home with the intent to steal but insisted that he was not aware of,

or involved in, plans to injure or murder anyone. The defense also emphasized the fact

that, although one of McLemore’s shoes was stained with blood matching the victim’s,

other physical evidence pointed to Reid as the mastermind of the criminal spree. Indeed,

the stolen car was found only yards from Reid’s home, and Manning’s car keys, ring, and

VCR were all found in Reid’s possession, in his home, or in a vehicle owned by his mother.


       Neither the prosecution nor the defense called Reid as a witness to establish the

petitioner’s complicity or lack of complicity in the slaying of Oscar Manning, despite the fact

that Reid had already pleaded no-contest to second-degree murder, armed robbery,

carjacking, and first-degree home invasion in connection with Manning’s death. Instead,

to hold the petitioner accountable for the crimes, the prosecution introduced not only

physical evidence, such as McLemore’s blood-splattered shoes, but also the testimony of

the friends to whom he had spoken after the criminal escapade. For example, Phillip


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Donnelly testified that he spoke with McLemore shortly after Manning’s death, recalling

that:


        [McLemore] started crying a little bit and he – he said that he was – he was
        gonna go to hell for the rest of his life and that God will never forgive him for
        what he did. I asked him what he did, he said that the man, the old man in
        the yellow house, I murdered him. . . . He told me he – it’s like I didn’t – I –
        I didn’t know what I was doing.
                                           * * * * *
        He told me that he was just going over there to get something out of the
        house because he didn’t think that the old man was there, and the incident
        happened and – he told me that he hit the guy with a wrench and then
        dropped the TV on him.
                                           * * * * *
        [H]e told me that he struck him repeatedly because he – he was still standing
        there and I – I guess he wasn’t – he just wouldn’t fall down, so he hit him
        more than once.
                                           * * * * *
        [H]e said that Oscar, that he had grabbed him, that Oscar had grabbed him,
        and that he – that he was just trying to get away fromhim.


                                           * * * * *
        He said that he had blood on his upper body and he tried – he tried to wash
        it off but it wouldn’t all come off.


        Following trial, the jury acquitted McLemore of premeditated murder but found him

guilty of felony-murder, armed robbery, carjacking, and first-degree home invasion.

However, the state trial judge vacated the convictions for armed robbery and home

invasion on double jeopardy grounds and sentenced McLemore to concurrent sentences

of life in prison for felony-murder and 225-600 months for carjacking.

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       After the Michigan Court of Appeals affirmed his convictions and the Michigan

Supreme Court denied leave to appeal, the petitioner filed a motion for relief from judgment

pursuant to Michigan Court Rule 6.502, raising issues not presented on direct appeal. The

trial court denied that motion, and the state appellate courts again denied leave to appeal.

Having unsuccessfully navigated his way through state-court review, McLemore then filed

this petition for a writ of habeas corpus in district court, alleging six violations of the federal

constitution.   The state responded by contending that three of those claims were

procedurally defaulted and the remaining claims did not merit relief.


       The matter was referred to a magistrate judge who recommended denial of the

petition under 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be

denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies

available in the courts of the State.”), after determining that McLemore’s claims lacked

merit. The district judge adopted the report and recommendation and also concurred in

the suggestion that a certificate of appealability issue on only three of the issues identified

by McLemore. We later expanded that certificate to include two additional issues, and the

petitioner now pursues all five of those claims on appeal.


                                         DISCUSSION


       Because McLemore filed his habeas petition well after the effective date of the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L.No. 104-132, 110

Stat. 1214 (1996), the provisions of that Act govern the resolution of this dispute. See

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McLemore v. Bell

Lindh v. Murphy, 521 U.S. 320, 336 (1997); Greer v. Mitchell, 264 F.3d 663, 671 (6th Cir.

2001). Thus, we may not grant the writ unless the state-court adjudication on the merits

either:


          (1) resulted in a decision that was contrary to, or involved an unreasonable
          application of, clearly established Federal law, as determined by the
          Supreme Court of the United States; or


          (2) resulted in a decision that was based upon an unreasonable
          determination of the facts in light of the evidence presented in the State court
          proceeding.


28 U.S.C. § 2254(d).


          As explained by the United States Supreme Court in Williams v. Taylor, 529 U.S.

362, 412-13 (2000):


          Under the “contrary to” clause, a federal habeas court may grant the writ if
          the state court arrives at a conclusion opposite to that reached by this Court
          on a question of law or if the state court decides a case differently than this
          Court has on a set of materially indistinguishable facts. Under the
          “unreasonable application” clause, a federal habeas court may grant the writ
          if the state court identifies the correct governing legal principle from this
          Court’s decisions but unreasonably applies that principle to the facts of the
          prisoner’s case.


In deciding whether a state-court ruling involved an “unreasonable application” of federal

law, a habeas court does not focus merely upon whether the state-court decision was

erroneous or incorrect; rather, a federal court may issue a writ of habeas corpus only if the

state court’s application of clearly-established federal law was objectively unreasonable.

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Id. at 409-11. Furthermore, “[t]his court reviews a district court’s legal conclusions in a

habeas proceeding de novo and its factual findings for clear error.” Greer, 264 F.3d at 671

(citing Lucas v. O’Dea, 179 F.3d 412, 416 (6th Cir. 1999)).


1. Inadequate Jury Instructions


       McLemore first asserts that the trial court’s jury instructions on aiding and abetting

and on the necessity of a unanimous verdict were so inadequate and ambiguous as to

deprive him of due process. As the petitioner recognizes, a habeas challenge to a jury

instruction requires more than showing that the particular instruction is erroneous. See

Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). In fact, he must establish that the

jury charge, considered in the context of the instructions as a whole, “so infected the entire

trial that the resulting conviction violates due process.” Cupp v. Naughten, 414 U.S. 141,

147 (1973). This he cannot do.


       McLemore’s trial counsel failed to offer a contemporaneous objection to either of the

jury instructions that the petitioner now challenges. Furthermore, the petitioner also failed

to raise an issue regarding the propriety of the instruction on aiding and abetting on direct

appeal. Consequently, the State of Michigan, through Warden Thomas Bell, now asserts

that these jury-instruction issues have been procedurally defaulted and need not be

addressed by this court.




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       As we noted in a recent en banc decision, a claim by a habeas petitioner is

defaulted if:


       (1) the petitioner fails to comply with a state procedural rule; (2) the state
       courts enforce the rule; (3) the state procedural rule is an adequate and
       independent state ground for denying review of a federal constitutional claim;
       and (4) the petitioner cannot show cause and prejudice excusing the default.


Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir. 2010) (quoting Tolliver v. Sheets, 594 F.3d

900, 928 n.11 (6th Cir. 2010) (citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986))).

“The ‘cause’ standard in procedural-default cases requires the petitioner to show that

‘some objective factor external to the defense impeded counsel’s efforts’ to raise a claim

in the state courts. McCleskey v. Zant, 499 U.S. 467, 493 . . . (1991).” Wogenstahl v.

Mitchell, 668 F.3d 307, 321 (6th Cir. 2012), petition for cert. filed (U.S. Jul. 10, 2012) (No.

12-5231).


       The petitioner argues in this case that the ineffective assistance of his trial counsel

was the cause for his failure to object to the challenged jury instructions. Such ineffective

assistance of counsel may indeed serve as “cause” sufficient to excuse noncompliance

with a state procedural rule. See, e.g., McCleskey, 499 U.S. at 493-94. However, when,

as here, counsel on direct appeal also failed to allege the ineffective assistance of trial

counsel, “a procedurally defaulted ineffective-assistance-of-counsel claim can serve as

cause to excuse the procedural default of another habeas claim only if the habeas




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petitioner can satisfy the ‘cause and prejudice’ standard with respect to the ineffective-

assistance claim itself.” Edwards v. Carpenter, 529 U.S. 446, 450-51 (2000).


       McLemore attempts to do so in this habeas action by alleging not only the ineffective

assistance of trial counsel, but also the ineffective assistance of appellate counsel, who

failed to raise the challenge to the representation offered by the petitioner’s attorney at trial.

For such a challenge to succeed, the record must establish “(1) that counsel’s performance

was objectively deficient; and (2) prejudice, which means that ‘there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different.’” Haliym v. Mitchell, 492 F.3d 680, 694 (6th Cir. 2007) (quoting

Strickland v. Washington, 466 U.S. 668, 687, 694 (1984)).


       The situation before us highlights the analytical morass in which procedural-default

rules ensnare us when attempting to resolve federal constitutional claims. Paradoxically,

in order to determine whether procedural rules prevent us from examining the merits of the

petitioner’s substantive claims, we must first examine the merits of those underlying

substantive claims. This is so because it is only by determining whether the substantive

claims have merit that we can evaluate whether the petitioner actually suffered the

prejudice necessary to establish his ineffective-assistance-of-counsel “cause” to excuse

any procedural default resulting from the application of state procedural rules. Thus,

because we must reach the underlying merits of the petitioner’s claims in order to dispose

of the ineffective-assistance-of-counsel claims, we need not decide whether the petitioner’s


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substantive claims have been procedurally defaulted. See Mahdi v. Bagley, 522 F.3d 631,

635 (6th Cir. 2008). An analysis of the merits of the petitioner’s substantive claims

“present[s] a more straightforward ground for decision, prompting us to consider [these]

issue[s] at the outset.” Arias v. Hudson, 589 F.3d 315, 316 (6th Cir. 2009) (citing Lambrix

v. Singletary, 520 U.S. 518, 525 (1997) (allowing courts to reject habeas claims on the

merits and skip procedural-default issues)).


a. Jury Instruction on Aiding and Abetting


       At the conclusion of the testimony in the petitioner’s trial, the judge instructed the

jury on what they, as finders of fact, should consider in determining whether to find

McLemore guilty as a principal offender. In addition, the court offered the following

instructions on aiding and abetting the charged crimes:


       All right, members of the jury, in the state of Michigan we have a statute that
       provides that all person[s] who aid, abet or assist others in the commission
       of felony crimes are equally guilty.
       In this case the defendant may be considered guilty as directly committing
       these offense[s] as charged or by intentionally assisting someone else in
       committing them. Anyone who intentionally assists someone else in
       committing a crime is as guilty as the person who directly commits the crime
       and can be convicted of the crime as an aider and abetter. To prove the
       charge under this theory the prosecutor must prove each of the following
       elements beyond a reasonable doubt.
       First, that the alleged crime or crimes were actually committed either by the
       defendant or someone else. It does not matter whether anyone else has
       been convicted of the crimes.
       Second, that before or during the crime or crimes the defendant did
       something to assist in the commission of the crimes.

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No. 10-1539
McLemore v. Bell

       Third, the defendant must have intended the commission of the crime
       alleged or must have known the other person intended its commission at the
       time he gave the assistance. In determining whether the defendant intended
       to help someone else commit the charge offenses, members of the jury, of
       either Murder, Robbery, Carjacking or Home Invasion, you may consider
       whether those offenses were fairly within the common unlawful activity of
       those defendants at that time on that night or early morning, that is, whether
       the defendant might have expected the charged offense to happen as part
       of that activity. There can be no criminal liability for any crime not fairly within
       the common unlawful activity. It is not sufficient for the prosecutor just to
       prove the defendant intended to help another in the common unlawful
       activity[;] it is necessary the prosecutor – for the prosecutor to prove beyond
       a reasonable doubt that the defendant intended to help someone else
       commit the charged crimes. It does not matter, members of the jury,
       however, how much help, advice or encouragement the defendant gave the
       other person[;] however, you must decide whether the defendant intended
       to help the other person commit the crime and whether his help, advice or
       encouragement actually did help, advise or encouraged the commission of
       those crimes as I have previously described them for you.
       And further, members of the jury, even if the defendant knew the alleged
       crime or crimes were planned or were being committed, the mere fact he
       was present when they were committed is not enough to prove that he
       assisted the other person in committing them.


       Although he offered no objection at trial, McLemore now insists that this instruction

was flawed and deprived him of due process. Specifically, he argues that, hearing and

heeding those instructions, “[a] reasonable juror could easily find that because McLemore

admitted to aiding and abetting some of the charged crimes[,] that he was by admission

guilty of aiding and abetting a felony murder solely on the basis of that admission.”


       Were we to consider only the jury instructions offered to explain the concept of

aiding and abetting, it is possible that we might agree with the petitioner that a juror could

misconstrue the findings that must be made to support a guilty verdict on felony-murder.

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As stated earlier, however, “[j]ury instructions are reviewed as a whole to determine

whether they fairly and adequately submitted the issues and applicable law to the jury.”

United States v. Poulsen, 655 F.3d 492, 501 (6th Cir. 2011), cert. denied, 132 S.Ct.1772

(2012) (citation omitted). In addition to the quoted instructions regarding aiding and

abetting “Murder, Robbery, Carjacking or Home Invasion,” the trial judge offered

instructions regarding the offense of felony-murder. In those instructions, the judge

explained that a guilty verdict on the felony-murder charge required the jurors to conclude,

as one element of the offense, that McLemore “[e]ither . . . intended to kill, or he intended

to do great bodily harm to Oscar Manning, or he knowingly created a very high risk of death

or great bodily harm knowing that death or such harm would be the likely result of his

actions.”


       Thus, even if the jurors applied the aiding-and-abetting instruction to the felony-

murder charge, rather than only to the charges of the predicate offenses of robbery,

carjacking, or home invasion, an earlier portion of the instructions still required the jurors

to conclude that McLemore possessed the requisite intent explained in the felony-murder

instructions. Therefore, contrary to McLemore’s contention, viewing the jury charge as a

whole and presuming that the jurors followed the instructions given to them, see, e.g.,

United States v. Harvey, 653 F.3d 388, 396 (6th Cir. 2011) (“[j]urors are presumed to follow

instructions”), we conclude that the jury could not have convicted the petitioner of felony-

murder solely on the basis that he aided and abetted Nathan Reid in the commission of a

predicate offense.

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b. Jury Instruction on the Necessity of a Unanimous Verdict


       Also included in the jury instructions given at the petitioner’s trial was the following

directive:


       A verdict in a criminal case must be unanimous[;] to be unanimous each of
       you must agree upon which type or types of First Degree Murder have been
       proved. If you return a verdict of guilty of First Degree Murder your
       unanimous verdict must specify whether all of you have found the defendant
       guilty of Premeditated First Degree Murder or Felony Murder or both, and
       that will be set forth on the verdict form for your use in the jury room.




McLemore contends that the required unanimity was not achieved by the jury verdict

because the jury did not indicate which of the possible predicate offenses it was

considering to elevate the second-degree murder to first-degree felony-murder. However,

the jury unanimously found the petitioner guilty of each of the charged predicate offenses

for felony-murder – robbery, larceny, and breaking and entering (home invasion). There

is, therefore, no dispute that the required unanimity was achieved and that McLemore

suffered no prejudice from a defect in the jury instructions.


2. Prosecutorial Misconduct


       McLemore next submits that two purportedly improper comments by the prosecutor

infected his trial and deprived him of due process. Again, as with the allegations of error

regarding the jury instructions, the petitioner failed to object to the challenged statements


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at the time they were made. In response to the state’s argument that these claims of

prosecutorial misconduct have thus been procedurally defaulted, McLemore again relies

on the ineffective assistance of his trial and appellate counsel as “cause” that excuses his

failure to comply with established Michigan procedural requirements. And, again, because

analysis of the ineffective-assistance-of-counsel claims would require us to examine the

merits of the petitioner’s allegations in order to determine whether he suffered prejudice,

we opt to examine these issues on the merits.


a. Comment Regarding Liability for Aiding and Abetting


       In a corollary to his argument concerning the alleged ambiguity of the trial court’s

jury instructions on aiding and abetting, McLemore insists that during closing argument, the

prosecutor made misleading statements that “effectively told the jury that if Reid killed the

victim, McLemore was still guilty because he admitted to entering the home to commit a

felony crime as an aider and abettor.” Specifically, the petitioner points to the following

section of the prosecutor’s closing argument:


       If you remember the testimony, if you remember the physical evidence, the
       circumstantial evidence, it all points to one thing. He went in there and he
       beat Mr. Manning to death whether alone or with his running buddy it
       doesn’t make a difference. The Judge is going to tell you that under the
       aiding and abetting law in Michigan, that even if you help somebody commit
       a crime, and that’s assuming you believe him, I have spent a great deal of
       time explaining to you why you shouldn’t believe him, but even if you believe
       every word he said, he is still is [sic] guilty because he is assisting somebody
       else commit this terrible crimes [sic], and the law says it doesn’t matter how
       much help, it doesn’t matter that you even assisted just a little bit, if you


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       helped someone commit a crime you’re just as guilty, and that is if you
       believe everything he told you.


       When reviewing an allegation of prosecutorial misconduct in a habeas case, “the

relevant question is whether the prosecutor’s comments so infected the trial with unfairness

as to make the conviction a denial of due process.” Lundgren v. Mitchell, 440 F.3d 754,

778 (6th Cir. 2006) (quoting Darden v. Wainwright, 477 U.S. 168, 181 (1986) (citation and

internal quotation marks omitted). “In order to satisfy the standard for prosecutorial

misconduct, the conduct must be both improper and flagrant.” Broom v. Mitchell, 441 F.3d

392, 412 (6th Cir. 2006) (citation omitted). Thus, if, and only if, the prosecutor’s actions

or comments are deemed improper, a reviewing court then considers four factors to

determine whether the improper conduct was also flagrant: “(1) the likelihood that the

remarks of the prosecutor tended to mislead the jury or prejudice the defendant; (2)

whether the remarks were isolated or extensive; (3) whether the remarks were deliberately

or accidentally made; and (4) the total strength of the evidence against the [petitioner].”

Id. (citation omitted).


       Viewed in isolation, there is nothing particularly improper or troubling about the

prosecutor’s argument concerning the applicable law on aiding and abetting.

Nevertheless, McLemore contends that a broader view of the situation evidences the

prosecutor’s intent to “outwit and entrap” the petitioner by enticing him to admit entering

Manning’s home with an intent to steal and then piggybacking that admission on top of

Reid’s guilty plea to aiding and abetting Manning’s murder. As discussed previously,

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however, the jury instructions were sufficient to ensure that the jurors did not convict

McLemore simply on the grounds that he aided and abetted the commission of a predicate

offense to the crime of felony-murder. Instead, the court clearly charged the jury that,

before finding the petitioner guilty of felony-murder, the jurors must unanimously agree that

McLemore possessed the requisite intent to kill, to do great bodily harm, or to knowingly

create “a very high risk of death or great bodily harm knowing that death or such harm

would be the likely result of his actions.” Thus, the prosecutor’s argument in no way

lessened the requisite burden of proof that the law placed upon the state.


       McLemore also makes much of the fact that the prosecutor secured Reid’s guilty

plea to aiding and abetting second-degree murder shortly before the start of his trial.

According to the petitioner, such flip-flopping of theories as to which of the two defendants

actually killed Manning was a violation of his constitutional right to a fair trial as guaranteed

by the Fifth, Sixth, and Fourteenth Amendments. That argument fails, however, for two

reasons.


       First, the prosecution’s main theory throughout McLemore’s trial was that he was

the actual murderer of the victim, not that he merely aided and abetted the crime. The

aiding-and-abetting argument advanced during closing statements was, therefore, merely

an alternative theory of guilt that the jury could accept if it believed McLemore’s testimony

and not the state. Second, as in the case of Bradshaw v. Stumpf, 545 U.S. 175 (2005),

even if the prosecution had advanced only an aiding-and-abetting theory, the fact that the


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state crime of aiding and abetting treats the principal and the aider and abettor equally

insulates the petitioner’s conviction from constitutional infirmity.


       The first identified statement by the prosecutor during closing argument was not

improper and, therefore, we need not engage in further analysis to determine whether the

statement was also flagrant.


b. Shifting of the Burden of Proof


       Prior to the start of the petitioner’s trial, the state court granted a defense motion to

suppress a statement that McLemore had given to the police after his arrest.

Nevertheless, during the trial, the prosecutor, while examining Detective Brian Moffit,

engaged in the following exchange:


       Q. Okay. Did you at some point in time come to interview some other
       witnesses?
       A. Yes.
       Q. And who all did you interview in regards to this particular investigation?
       A. Can I refer to my notes, there are quite a few?
       Q. Sure, if you will.
       A. I interviewed, took part in the interview with both defendants on the day
       of their arrest.


According to the petitioner, the prosecutor’s elicitation of the fact that McLemore spoke

with the police placed upon the petitioner the burden of explaining what was said in that




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encounter, thus unconstitutionally forcing him to attempt to disprove the existence of

possibly incriminating evidence.


       In response, the warden submits not only that the burden of proof was not shifted

by the prosecutor’s question, but that “[t]he prosecutor did not ask whether the Petitioner

had been interviewed,” implying that the question that was propounded was not improper.

Although it is true that the prosecutor did not specifically ask whether McLemore had been

interviewed, he did ask, “[W]ho all did you interview?” knowing full well that Moffit had

spoken with McLemore. But even if the question were improper, any error was harmless.


       First, the question posed was not likely to prejudice the petitioner. The trial court

had previously suppressed the petitioner’s statement to the police, and the question asked

by the prosecutor did not elicit any information about the statement itself other than the fact

that an interview was conducted. Moreover, it is hardly news to any juror in a criminal trial

that the police will attempt to question an individual arrested for an offense. Any prejudice

suffered by McLemore as a result of the prosecutor’s question was thus negligible at most.

Furthermore, the prosecutor’s question was brief and isolated and, after a short bench

conference following the detective’s response, the prosecutor immediately moved to

another line of inquiry. Thus, there is no indication in the record that the prosecutor

intentionally sought to delve into restricted subjects. Finally, the evidence against the

petitioner was very strong. In fact, upon taking the stand, McLemore admitted his

involvement in the criminal spree. Again, the fact that law enforcement officials spoke with


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the petitioner after his arrest is hardly surprising; therefore, a question posed by the state

that elicited an answer to that effect did not “so infect[ ] the trial with unfairness as to make

the conviction a denial of due process.” Lundgren, 440 F.3d at 778.


3. Exclusion of Witness Testimony


      At trial, McLemore hoped to introduce testimony from Blake Copeland, a friend of his,

regarding a conversation that Copeland had with Nathan Reid on the day before Reid and

McLemore were arrested. During a jury-out offer of proof, Copeland stated:


      [Reid] – he was all hyper, and he said, man, Blake, I just got in this
      motherfucker’s house and killed him, and he said I beat him, I beat him, I
      fucked him up pretty bad, he might even be dead, and then –
                                            *****
      Yeah, I said, what, and he said, he said, yeah, man, he might – he – he might
      be dead. We just – I had left him, he said I left him there . . . .


      The defense’s obvious purpose in seeking to introduce Copeland’s testimony at trial

was to establish that Reid, not McLemore, was the principal actor in the beating and the

murder of Manning. The trial court, however, denied the request to introduce the hearsay

statements, in part because the defense failed to establish that Reid, the out-of-court

declarant, was unavailable, and in part because corroborating circumstances did not clearly

indicate the trustworthiness of the statements. The court also denied the request because

the substance of Copeland’s testimony was not made available until approximately five

months after the statements were made.


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       McLemore now alleges that the exclusion of Copeland as a witness infringed on his

constitutional right to present a defense. Because the Michigan Court of Appeals deemed

the issue abandoned due to the petitioner’s failure to “address the foundational requirement

that the declarant be unavailable,” People v. McLemore, No. 225562, 2002 WL 31956947,

at *2 (Mich. Ct. App. Dec. 20, 2002), the warden now asserts that this issue has also been

procedurally defaulted. The petitioner again identifies the ineffective assistance offered by

his trial and appellate counsel as causes for the default. Given the reality that evaluation

of those justifications requires an examination by this court of the merits of the claim, we

once again choose to address those merits in the first instance.


       The principle of law is now well established that an accused’s right to present a

defense “is a fundamental element of due process of law.” Washington v. Texas, 388 U.S.

14, 19 (1967). Nevertheless, “[t]he accused does not have an unfettered right to offer

testimony that is incompetent, privileged, or otherwise inadmissible under standard rules

of evidence.” Taylor v. Illinois, 484 U.S. 400, 410 (1988).


       Copeland’s proffered testimony consisted of statements allegedly made to him by

Reid, who did not testify at trial. Moreover, those statements were offered by the defense

solely to prove the truth of the matter asserted – namely, that Reid entered the home and

assaulted Manning. Consequently, Copeland’s statements were classic hearsay, which

Michigan Rule of Evidence 801(c) defines as “a statement, other than one made by the




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declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the

matter asserted.”


       Because hearsay evidence is inadmissible in Michigan courts, except as provided

by the Michigan Rules of Evidence, the petitioner seeks to classify Reid’s statements to

Copeland as “statements against interest” that “are not excluded by the hearsay rule if the

declarant is unavailable as a witness.” Mich. R. Evid. 804(b)(3). Rule 804(b)(3) generally

allows admission of:


       [a] statement which was at the time of its making so far contrary to the
       declarant’s pecuniary or proprietary interest, or so far tended to subject the
       declarant to civil or criminal liability, or to render invalid a claim by the
       declarant against another, that a reasonable person in the declarant’s position
       would not have made the statement unless believing it to be true.


However, “[a] statement tending to expose the declarant to criminal liability and offered to

exculpate the accused is not admissible unless corroborating circumstances clearly indicate

the trustworthiness of the statement.” Id. See also People v. Barrera, 547 N.W.2d 280, 286

(Mich. 1996).


       As recognized by the Michigan Court of Appeals in addressing this issue on

McLemore’s direct appeal, there are numerous grounds for rejecting the petitioner’s

evidentiary challenge, some based on the failure of defense counsel to pursue certain

courses of action and some based on more classic inabilities to establish prejudicial harm.

First, both parties recognize that “[t]he party offering the statement bears the formidable


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McLemore v. Bell

burden of meeting the requirements of Rule 804(b)(3).” United States v. Lowe, 65 F.3d

1137, 1145 (4th Cir. 1995) (citations and internal quotation marks omitted). One of those

requirements is that the declarant be unavailable. Mich. R. Evid. 804(b). Unfortunately for

McLemore, he cannot satisfy that burden. Shortly before the beginning of the petitioner’s

trial, Nathan Reid entered a no-contest plea to the charges against him stemming from the

same criminal episode. As a result, Reid faced no risk of self-incrimination by testifying at

McLemore’s trial, and defense counsel could have subpoenaed Reid as a witness had he

so desired.


       Second, regardless of Reid’s availability as a witness, the state trial court did not

abuse its discretion in concluding that the “corroborating circumstances” did not clearly

indicate the trustworthiness of the statement to which Copeland was prepared to testify.

Indeed, even during Copeland’s offer of proof, the witness interchanged the word “I” with

the word “we” in recounting Reid’s alleged statement about who initially entered Manning’s

home and literally beat him to death.


       Third, as pointed out by the Michigan Court of Appeals on direct review, if Copeland

had been permitted to relate his version of Reid’s statement to the jury, the result of the trial

would not have been different. The state appellate court explained that “considering the

prosecution’s aiding and abetting theory of guilt, Copeland’s proposed testimony would not

have exonerated defendant from criminal responsibility, regardless of whether Reid’s




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statements contained the references to ‘we’ or ‘I.’” McLemore, 2002 WL 31956947, at *2

n.3.


4. Ineffective Assistance of Trial Counsel and Appellate Counsel


       McLemore lastly contends that his trial counsel was ineffective for failing properly to

preserve or present the allegations of error that we previously identified and discussed in

this opinion. He also submits that his appellate counsel was ineffective for failing to raise

on direct appeal that claim of ineffectiveness on the part of his trial counsel.


       In addressing any claim of ineffective assistance of counsel, we are guided by the

now-familiar two-part test of Strickland, 466 U.S. at 687:


       First, the defendant must show that counsel’s performance was deficient.
       This requires showing that counsel made errors so serious that counsel was
       not functioning as the “counsel” guaranteed the defendant by the Sixth
       Amendment.         Second, the defendant must show that the deficient
       performance prejudiced the defense. This requires showing that counsel’s
       errors were so serious as to deprive the defendant of a fair trial, a trial whose
       result is reliable.


We need not, however, apply Strickland’s principles in a mechanical fashion. As the

Supreme Court has explained:


       [A] court need not determine whether counsel’s performance was deficient
       before examining the prejudice suffered by the defendant as a result of the
       alleged deficiencies. The object of an ineffectiveness claim is not to grade
       counsel’s performance. If it is easier to dispose of an ineffectiveness claim



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       on the ground of lack of sufficient prejudice, which we expect will often be so,
       that course should be followed.


Id. at 697.


       In this case, we opt to do exactly that. As is evident from our discussion of the jury

instructions given at McLemore’s trial, our examination of the prosecutor’s conduct during

closing argument, and our analysis of the admissibility of certain defense testimony, the

petitioner has failed to prove, on the merits, any constitutional violations during the course

of the state-court trial. Hence, because any alleged deficiencies in the representation

offered by McLemore’s trial or appellate counsel could not have prejudiced the petitioner,

we also find no constitutional error related to the performance of McLemore’s lawyers.


                                      CONCLUSION


       For the reasons set out above, we AFFIRM the district court’s judgment denying

McLemore’s petition for a writ of habeas corpus.




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