                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0575n.06

                                            09-1552

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                   FILED
WAYNE YOUNG,                                    )                             Aug 16, 2011
                                                )                       LEONARD GREEN, Clerk
         Petitioner-Appellant,                  )
                                                )
v.                                              )    ON APPEAL FROM THE UNITED
                                                )    STATES DISTRICT COURT FOR THE
JAN TROMBLEY,                                   )    EASTERN DISTRICT OF MICHIGAN
                                                )
         Respondent-Appellee.                   )


         Before: DAUGHTREY, MOORE, and STRANCH, Circuit Judges.


         MARTHA CRAIG DAUGHTREY, Circuit Judge.                  Petitioner Wayne Young, a

Michigan state prisoner, appeals the district court’s denial of his petition for a writ of habeas

corpus. Limited by a certificate of appealability, Young can raise only two issues before

us: whether he was deprived of his right to a fair trial by the state trial judge’s failure (1) to

give a special cautionary instruction on accomplice testimony and ( 2) to declare a mistrial

after dismissing one of the jurors prior to deliberations. Given our scope of review in

habeas cases, we conclude that the district court did not err in denying relief. The state

trial court’s extensive instructions on witness credibility, although not specifically aimed at

accomplice testimony, were constitutionally adequate to protect Young’s right to a fair trial,

and the court’s denial of a mistrial did not result in error, constitutional or otherwise, in view

of the instructions given the remaining members of the panel concerning the dismissed

juror.
09-1552
Young v. Trombley

                    FACTUAL AND PROCEDURAL BACKGROUND


      Young was charged with two counts of second-degree murder, one count of assault

with intent to commit armed robbery, one count of possession of a firearm during the

commission of a felony, and one count of possession of a firearm by a person convicted

of a felony. Over the course of two days of trial, the prosecution introduced evidence

against Young that the Michigan Supreme Court summarized as follows:


      [Young] shot and killed two people in an execution-style slaying while robbing
      a drug house in Detroit. Among other evidence of guilt, the prosecution
      presented testimony from two witnesses whom [Young] now claims were his
      accomplices, Michael Martin and Eugene Lawrence.
      Martin testified that [Young] came to his house and asked him for a gun to
      rob someone. Martin had no gun. [Young] then spoke on the telephone to
      Martin’s brother-in-law, Lawrence. Martin did not hear their conversation.
      Martin then drove [Young] to Lawrence’s house. After they arrived, [Young]
      and Lawrence spoke in a back room away from Martin, who again could not
      hear their conversation.
      Lawrence testified that during this conversation, [Young] asked him for a gun
      because some man had threatened him. [Young] did not mention to
      Lawrence any plan to rob a drug house. Lawrence did furnish a gun to
      [Young]. Martin and [Young] then drove back to Martin’s home. Martin went
      inside his home while [Young] walked off in the direction of a nearby drug
      house.
      [Young] later telephoned Martin, stating that he was planning to rob a drug
      house. Martin hung up. Later that day, [Young] visited Martin’s home and
      admitted that he had shot the two victims in the head. After [Young] left,
      Martin contacted Lawrence. Martin and Lawrence then went to [Young]’s
      home. [Young] told them that he was angry because he had killed the
      victims for only six rocks of crack cocaine. [Young] called an unknown
      person and directed him to tell Martin where to find the gun. [Young]




                                          -2-
09-1552
Young v. Trombley

       eventually directed Martin and Lawrence to a field near Martin’s home where
       Martin found the gun.[1]
       The police questioned Martin twice. During the second interview, he
       disclosed what had happened. The police then retrieved the murder
       weapon. Martin and Lawrence were never charged with a crime in
       connection with the murders.
       In addition to the testimony of Martin and Lawrence, the prosecution
       presented other evidence of [Young]’s guilt. One witness testified that
       [Young] had also asked him for a gun. Another witness, Ronald Mathis, had
       seen [Young] in the drug house just before the murders occurred. At that
       time, [Young] offered to sell Mathis a gun. Mathis then left the premises.
       Upon his return approximately fifteen minutes later, Mathis discovered the
       victims’ bodies and noted that [Young] was gone. Finally, a cigarette butt
       recovered at the murder scene contained deoxyribonucleic acid (DNA)
       material that matched [Young]’s DNA.


People v. Young, 693 N.W.2d 801, 803-04 (Mich. 2005).


       The jury found the petitioner guilty of the charged offenses, and the trial court

sentenced Young to concurrent prison terms of 45 to 70 years for the second-degree

murders, 40 to 60 years for the assault, and two to five years for the felon-in-possession

conviction. The court also sentenced Young to a mandatory consecutive two-year prison

term for the felony-firearm conviction.


       Young’s attempts to overturn his convictions through the direct-appeal process were

unsuccessful, as was his effort to challenge the jury verdicts through a collateral attack

launched in accordance with state procedures. He then filed a petition for a writ of habeas


       1
        The Michigan Supreme Court’s summary of the trial testimony suggests that Young told
Martin where to find the gun. In actuality, Martin’s testimony indicates that the unnamed person on
the phone directed Martin and Lawrence to the field where the gun was found.

                                               -3-
09-1552
Young v. Trombley

corpus with the federal district court, raising the same nine constitutional claims he put

before the Michigan Court of Appeals and the Michigan Supreme Court. The district court

found each allegation of error to be without merit and denied the petition. See Young v.

Trombley, No. 06-CV-10977, 2009 WL 909563 (E.D. Mich. Mar. 31, 2009). The court did,

however, grant Young a certificate of appealability on two of the nine issues as making “a

substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), and we

agreed to review both issues.


                                        DISCUSSION


       When “reviewing a district court’s denial of a petition for a writ of habeas corpus, this

Court reviews findings of facts for clear error and questions of law de novo.” Stone v.

Moore, 644 F.3d 342, 345 (6th Cir. 2011) (citing (Haliym v. Mitchell, 492 F.3d 680, 689 (6th

Cir. 2007)). Because Young’s request for habeas relief is governed by the provisions of the

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

Stat. 1214 (1996), see Lindh v. Murphy, 521 U.S. 320, 336 (1997), a federal court 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 on an unreasonable determination
       of the facts in light of the evidence presented in the State court proceeding.


28 U.S.C. § 2254(d).

                                             -4-
09-1552
Young v. Trombley

       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, we do not judge 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. See id. at 409-11.


Lack of Jury Instruction on Evaluation of Accomplice Testimony


       Young contends that he was denied due process of law by the trial court’s failure to

give a cautionary instruction to the jury regarding the unreliability of accomplice testimony.

He concedes that his trial counsel failed both to request such an instruction and to object

to the instructions that were given by the trial judge. In the face of the state’s claim that

such failures constitute a procedural default of the issue, the petitioner nevertheless argues

that not insisting upon the instruction amounted to ineffective assistance of counsel and that

such deficient representation by his lawyer excused his failure to comply with any state

contemporaneous-objection rule.


                                             -5-
09-1552
Young v. Trombley

       Ordinarily, we would address the procedural-default issue at the outset of our

analysis. In Arias v. Hudson, 589 F.3d 315, 316 (6th Cir. 2009), however, we skipped the

procedural-default discussion and reviewed the petitioner’s claim on the merits because it

“present[ed] a more straightforward ground for decision.” In this case, consideration of

Young’s ineffective-assistance-of-counsel justification for his procedural default requires us

to determine whether trial counsel’s performance could be termed deficient because an

objection to the lack of an accomplice-testimony instruction would have been sustained had

it been raised in a timely manner. See Strickland v. Washington, 466 U.S. 668, 687 (1984)

(to establish ineffective assistance of counsel, petitioner must show both deficient

representation and prejudice therefrom). Because that inquiry necessitates delving into the

actual merits of the claim, it makes sense here, as it did in Arias, to consider those merits

in the first instance.


       In support of his allegation that the trial court erred in failing to give, sua sponte, a

cautionary instruction on accomplice testimony, Young cites the case of People v. McCoy,

220 N.W.2d 456 (Mich. 1974), overruled in People v. Young, 693 N.W.2d 801 (Mich. 2005).

In McCoy, the Michigan Supreme Court was presented with a situation in which the

defendant offered an alibi defense that was countered by the prosecution’s presentation of

testimony by McCoy’s accomplice in crime. Recognizing the credibility dilemma facing the

finders-of-fact, the trial court in that case offered an instruction directing the jury to treat alibi

testimony with skepticism. As noted by the state supreme court, however, “[t]estimony of

the comparable witness on the prosecution’s side was not limited by any such cautionary

                                                -6-
09-1552
Young v. Trombley

instructions.” Id. at 459. Thus, although the state court recognized that “a general

instruction may[ ] conceivably substitute for a special cautionary instruction, it is error to give

only selective cautionary instructions.       Defendant has the right to have a balanced

presentation made to the jury.” Id. (emphasis added). The court then announced that, after

the release of the McCoy decision, “it will be deemed reversible error . . . to fail upon

request to give a cautionary instruction concerning accomplice testimony and, if the issue

is closely drawn, it may be reversible error to fail to give such a cautionary instruction even

in the absence of a request to charge.” Id. at 460.


       There are myriad reasons why the holding in McCoy is not applicable to Young’s

situation so as to justify the grant of a writ of habeas corpus.             Perhaps the most

straightforward of them is simply that, even if Lawrence and Martin were to be considered

accomplices of Young – a characterization that we find extremely doubtful – neither the

United States Supreme Court nor this court has “requir[ed] accomplice instructions as a

general matter.” Scott v. Mitchell, 209 F.3d 854, 883 (6th Cir. 2000). Instead, the Supreme

Court has consistently held that the only question to be answered in a habeas challenge to

a jury instruction is “whether the ailing instruction [or the omission of a requested instruction]

by itself so infected the entire trial that the resulting conviction violates due process.” Cupp

v. Naughten, 414 U.S. 141, 147 (1973). Furthermore, that instruction, or the absence of an

instruction, “must be considered in the context of the instructions as a whole and the trial

record.” Estelle v. McGuire, 502 U.S. 62, 72 (1991) (citing Cupp, 414 U.S. at 147).



                                              -7-
09-1552
Young v. Trombley

       As a result, when presented in United States v. Carr, 5 F.3d 986, 992 (6th Cir. 1993),

with a challenge to a district court’s failure to instruct the jury specifically “regarding the

inherently questionable credibility of those witnesses who had earlier pled guilty to related

charges,” we noted:


       The court’s instruction adequately informed the jury regarding the credibility
       of witness testimony, and so we are not troubled simply because the court
       chose not to explicitly highlight the credibility problems inhering in accomplice
       testimony. The instructions alerted the jury to the various considerations that
       it should take into account in weighing testimony, and it had an ample basis
       for rejecting the testimony of the accomplice witnesses if it had chosen to do
       so.


       Similarly, in Goff v. Bagley, 601 F.3d 445 (6th Cir. 2010), another habeas petitioner

argued, as does Young, “that the trial court erred in failing to give a specific instruction to

the jury regarding the credibility of testimony by accomplices and informants and that . . .

counsel was ineffective for failing to raise this issue . . . .” Id. at 469. Relying upon Carr and

Scott, the Goff majority found that the instructions given in that case “adequately informed

the jury regarding the credibility of witness testimony” and “alerted the jury to the various

considerations that it should take into account in weighing testimony.” Id. at 470 (internal

quotation marks omitted). Those instructions, in pertinent part, provided:


       You are the sole judges of the facts and the credibility of the witnesses and
       the weight of the evidence. To weigh the evidence you must consider the
       credibility of the witnesses. You will apply the tests of truthfulness which you
       apply in your daily lives. These tests include the appearance of each witness
       upon the stand, their manner of testifying, the reasonableness of their
       testimony, the opportunity they had to see, hear, and know the things
       concerning which they testified about, their accuracy of memory, their

                                              -8-
09-1552
Young v. Trombley

       frankness or lack of it, their intelligence, their interest and bias, if any, together
       with all the facts and circumstances surrounding their testimony. Applying
       these tests you will assign to the testimony of each witness such weight as
       you deem proper.
       You are not required to believe the testimony of any witness simply because
       he or she was under oath. You may believe or disbelieve all or any part of the
       testimony of any witness. It is your province to determine what testimony is
       worthy of belief and what testimony is not worthy of belief.


Id. at 470 (emphasis in original). Because those instructions thus satisfied the criteria set

out in Scott, we concluded that “the failure to give a specific accomplice instruction did not

violate Goff’s constitutional rights.” Id.


       The jury instructions given at Young’s trial contained the same directives as did the

charge approved in Goff. Specifically, the trial judge informed Young’s jury, in part:


       As I said before, it is your job to decide what the facts of this case are, and
       you must decide which witnesses you believe, and how important you think
       their testimony is. You don’t have to accept or reject everything a witness
       said. You are free to believe all, none or a part of a person’s testimony.
       In deciding which testimony you believe, you should rely on your own
       common sense and everyday experience. However, in deciding whether you
       believe a witness’ testimony, you must set aside any bias or prejudice you
       may have based on race, gender or national origin of a witness.
       There is no fixed set of rules for judging whether you believe a witness, but
       it may help you to think about these questions:


              Was the witness able to see or hear clearly?
              How long was the witness watching or listening?
              Was anything else going on that may have distracted the
              witness?
              Did the witness seem to have a good memory?

                                               -9-
09-1552
Young v. Trombley

              How did the witness look and act while testifying?
              Did the witness seem to be making an honest effort to tell you
              the truth, or did the witness seem to evade the questions or
              argue with the lawyers?
              Does the witness’[s] age and maturity affect how you judge his
              or her testimony?
              Does the witness have any bias, prejudice or any personal
              interest in how the case is decided?
              Have there been any promises, threats, suggestions or other
              influences that affect how the witness testified?
              In general, does the witness have any special reason to tell the
              truth, or any special reason to lie?
              All in all, how reasonable does the witness’[s] testimony seem
              when you think about all the other evidence in the case?
       Sometimes the testimony of different witnesses will not agree, and you must
       decide which testimony you accept.
       You should think about whether the disagreement involves something
       important or not, and whether you think someone is lying or simply mistaken.
       People see and hear things differently, and witnesses may testify honestly but
       simply be wrong about what they thought they saw or remembered.
       It is also a good idea to think about what testimony agrees best with the other
       evidence in the case.
       However, you may conclude that a witness deliberately lied about something
       that is important to how you decide the case. If so, you may choose not to
       accept anything that witness said.
       On the other hand, if you think the witness lied about some things but told the
       truth about others, you may simply accept the part you think is true and ignore
       the rest.


       Because the totality of this “instruction both informs the jury regarding credibility and

alerts the jury to what is properly considered when determining credibility,” “the failure to

give a specific accomplice instruction [also] did not violate [Young’s] constitutional rights.”


                                            - 10 -
09-1552
Young v. Trombley

Goff, 601 F.3d at 470. Consequently, the Michigan state courts’ determinations consistent

with such a conclusion cannot be considered unreasonable.


Effect Upon Jury of Dismissal of Venire Member


       Young also contends that his conviction resulted from a verdict rendered by a tainted

jury. Without dispute, the Sixth Amendment to the United States Constitution guarantees

a criminal defendant an impartial jury to rule upon the question of guilt or innocence. See

Duncan v. Louisiana, 391 U.S. 145, 147-49 (1968). “The question of whether a trial court

has seated a fair and impartial jury is a factual one, involving an assessment of credibility.”

Gall v. Parker, 231 F.3d 265, 308 (6th Cir. 2000) (citing Patton v. Yount, 467 U.S. 1025,

1038 (1984)), overruled on other grounds in Bowling v. Parker, 344 F.3d 487 (6th Cir.

2003). “On habeas review, this court inquires ‘whether there is fair support in the record for

the state courts’ conclusion that the jurors [ ] would be impartial.’” Id. (citations omitted).

In this case, the record contains such support for the conclusion that improper influences

did not taint Young’s jury and, therefore, that the state court determinations on this issue

were not unreasonable.


       Following a day of voir dire, the trial judge swore in a jury that included Juror Number

1, “a social worker for Detroit public schools.” Like the others who were accepted by the

defense and the prosecution to serve on the jury, Juror Number 1 did not indicate to the

court that he had any connection with the defendant or with any of the witnesses scheduled



                                            - 11 -
09-1552
Young v. Trombley

to appear at trial. On the second day of actual testimony, however, witness Ronald Mathis

told the jury that one of the murder victims was his friend, Marquees Conley, known to him

as “Crip” “[b]ecause [Conley] was handicapped, crippled.” During the first recess that

followed Mathis’s testimony, the trial judge announced, “[W]e have received a note from one

of the jurors, juror in seat no. 1, who states that he believes he knows one of the victims,

Conley.” The juror was then brought into open court and questioned by the trial judge and

by the attorneys. According to the juror, when the list of possible witnesses was originally

read during voir dire, Conley’s name “just was a name at that point. It was a name.”

However, when Mathis further identified Conley as being “handicapped, crippled,” the juror

realized that Conley could well be a former student he had counseled seven years earlier.

Even though Juror Number 1 had seen Conley during those counseling sessions for 30

minutes a day at least once a week, he was adamant that his prior interactions with Conley

would not interfere with his “ability to be fair and unbiased in judging [the] case.” Juror

Number 1 also related that other jurors had seen him writing a note to the court and had

asked him about it. He “told them [he] thought [he] knew one of the victims,” but discussed

nothing further about the matter with any juror.


       At the conclusion of the questioning, the trial judge sent Juror Number 1 back into

the jury room with the directive not to discuss with the other jurors “any personal things

about that, anything that you learned outside of this courtroom.” However, believing “that

the process ha[d] been tainted” by the juror’s relationship with the victim, defense counsel

nevertheless moved for a mistrial. The trial judge denied that motion, but acceded to the

                                          - 12 -
09-1552
Young v. Trombley

prosecution’s suggestion that Juror Number 1 be dismissed and that the rest of the jury be

questioned “to find out what taint the jury has had.”


          Over defense counsel’s renewed motion for a mistrial due to a belief that the jury was

irreparably tainted, the trial judge engaged in the following questioning of the remaining 13

jurors:


          All right. Members of the jury, at this point as you can see an additional juror
          has been excused, and I am going to ask you a couple questions about that.
          Is there anyone on this panel who feels that this has changed their ability to
          be fair and impartial in any way? All right.
          There are certain things that the court has previously instructed you on, and
          one of them is that you must not let sympathy or bias affect your judgment of
          the case in any way.
          Is there anyone who feels that they have heard any more information than
          was given to you during this trial about this case? All right.
                                                ***
          Members of the jury, information has been given to you that you may have
          heard that juror in seat no. 1 may know one of the people involved in the
          case. Is there anyone on this panel who heard anything more than that?
          Anything else, whatsoever? Please raise your hand if there is anything else
          you heard.
          Is there anyone who heard anything more specific than that?
          Thinking about it yourselves, individually, is there anyone on the panel that
          may be affected by that in any way?
          Is there anyone who doesn’t have total confidence in their ability to be fair and
          impartial in judging the facts of this case? Thank you.


          At the conclusion of the questioning, the trial court noted that Juror Number 1 had

been dismissed and that, “by all indications[,] there has been no prejudice of the rest of the


                                               - 13 -
09-1552
Young v. Trombley

panel.” “A trial judge’s finding on the impartiality of a juror or jury is a factual finding,

presumed correct under § 2254 review unless [the petitioner] proves otherwise by

convincing evidence.” Gall, 231 F.3d at 334 (citations omitted). Because the record

contains no evidence or other indication that any member of the jury was influenced by the

fact that a dismissed juror might have previously known one of the victims, the district court

appropriately denied habeas relief on this ground as well.


                                       CONCLUSION


       The Michigan state courts determined that Young was not prejudiced either by the

failure of the trial court to offer a cautionary instruction regarding accomplice testimony or

by the dismissal of a juror who claimed that he might have known one of the murder victims

seven years prior to trial. Those conclusions were neither unreasonable applications of law

nor unreasonable determinations of facts. As a result, we AFFIRM the judgment of the

district court denying habeas relief to the petitioner.




                                            - 14 -
