                                     File Name: 05a0889n.06
                                    Filed: November 10, 2005

                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                           No. 04-1865

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT

DWIGHT HENLEY,

          Petitioner-Appellant,

v.                                                         ON APPEAL FROM THE
                                                           UNITED STATES DISTRICT
JOHN CASON,                                                COURT FOR THE EASTERN
                                                           DISTRICT OF MICHIGAN
          Respondent-Appellee.


                                                      /

Before:          MARTIN, GIBBONS, and GRIFFIN, Circuit Judges.

          BOYCE F. MARTIN, JR., Circuit Judge. Dwight Henley appeals the district court’s denial

of his petition for a writ of habeas corpus based on prosecutorial misconduct stemming from a trial,

and later conviction, of first-degree felony murder. This Court affirms the district court in finding

that the prosecutor’s conduct in this case, while not ideal, does not rise to the level of misconduct

to justify habeas relief.

          On March 3, 1993, Gary Gould was shot and stabbed to death in a parking lot in Lincoln

Park, Michigan. Henley was tried and convicted of first-degree felony murder for the killing of

Gould during the course of a robbery and was sentenced to prison for life in November of 1995.

During Henley’s trial, the prosecutor made a number of comments regarding scientific “testing” of

witnesses’ statements for truthfulness. Additionally, the prosecutor insinuated that Henley was a
No. 04-1865
Henley v. Cason
Page 2

part of a deceptive “underworld,” commented that the defense attorney’s arguments were “almost

pathetic”, and referred to the grand jury proceedings as substantive evidence during the trial. Henley

appealed his conviction through the Michigan courts and was ultimately denied by the Michigan

Supreme Court. His petition for habeas corpus relief was denied by the district court on June 10,

2004.

        This Court reviews a denial of a petition for writ of habeas corpus de novo. Millender v.

Adams, 376 F.3d 520, 523 (6th Cir. 2004). Claims of prosecutorial misconduct are reviewed

deferentially on habeas review. Bowling v. Parker, 344 F.3d 487, 512 (6th Cir. 2003). In order to

violate due process, a prosecutor’s statements must have been “so flagrant as to render the entire

trial fundamentally unfair.” Id. Flagrancy is determined by an evaluation of four factors: 1) whether

the statements tended to mislead the jury or prejudice the defendant; 2) whether the statements were

isolated or among a series of improper statements; 3) whether the statements were deliberately or

accidentally before the jury; and 4) the total strength of the evidence against the accused. Boyle v.

Million, 201 F.3d 711, 717 (6th Cir. 2000).1

        Henley has raised four separate instances of prosecutorial misconduct as the grounds for his

appeal. We will address each separately.

        First, Henley claims that the prosecutor’s repeated references to “testing” and “investigative

procedures” are thinly veiled references to a polygraph test. The existence of a polygraph test or the



        1
         We find Henley’s reliance on this Court’s decision in Hodge v. Hurley, — F.3d —, 2005
WL 2508713 (6th Cir. 2005) to be misplaced. That decision is distinguishable from this case in two
ways: 1) the actions by the prosecutor in that case were much more egregious and 2) in that case,
the ineffective assistance of counsel was the reason for reversal.
No. 04-1865
Henley v. Cason
Page 3

results from such a test are inadmissible in the state of Michigan. People v. Barbara, 255 N.W.2d

171 (Mich. 1977). However, the district court found that the inference from the comments the

prosecutor made to the conclusion that the jury understood that a polygraph was administered was

too attenuated. Because the prosecutor never used the term “polygraph test,” we are inclined to

agree with the district court. Additionally, the instances in question were only a handful of times

during a two-week trial, including a number of other persuasive sources of evidence against Henley.

        The prosecutor’s characterization of Henley as being a part of the drug trafficking

“underworld”is also not enough to justify habeas relief. A prosecutor is allowed to argue reasonable

inferences from the evidence. Byrd v. Collins, 209 F.3d 486, 535 (6th Cir. 2000). The prosecutor

in this case merely put a number of inferences into narrative form and did not reach the level of

violating Henley’s due process rights.

        Henley also challenges the prosecution’s denigration of the defense counsel in this case. The

prosecutor’s statements with respect to the strength of the defense may have been improper, but do

not rise to the level of flagrancy required to justify habeas relief in this case.

        The final instance of misconduct cited to by Henley is the prosecution’s reference to the

grand jury proceedings throughout the trial. While a grand jury investigation or indictment may not

be used as substantive evidence of guilt, see Taylor v. Kentucky, 436 U.S. 478, 485 (1978), the jury

in this case was instructed twice by the trial judge to not consider the grand jury investigation as

evidence. There exists an expectation that jurors follow instructions from the bench because they

have taken an oath to do so. United States v. Powell, 469 U.S. 57, 66 (1984). We find that the jury
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Henley v. Cason
Page 4

instruction was enough to insulate Henley from any potential error caused by the prosecution’s

references to the grand jury.

       Finally, we do not find that the cumulative effect of all four of these instances of misconduct

rise to the level of flagrancy, violating Henley’s due process rights. Therefore, for the reasons

above, we AFFIRM the decision of the district court.
