                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 11a0123n.06

                                           No. 09-1473

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

                                                                                    FILED
DONALD MALONE,                                             )                     Feb 22, 2011
                                                           )               LEONARD GREEN, Clerk
       Petitioner-Appellant,                               )
                                                           )
v.                                                         )    ON APPEAL FROM THE UNITED
                                                           )    STATES DISTRICT COURT FOR
TERRY SHERMAN, Warden, Ojibway Correctional                )    THE EASTERN DISTRICT OF
Facility,                                                  )    MICHIGAN
                                                           )
       Respondent-Appellee.                                )




       Before: KENNEDY, CLAY, and KETHLEDGE, Circuit Judges.

       KETHLEDGE, Circuit Judge. According to a Michigan jury, in 1988 Donald Malone shot

and killed a man outside of a grocery store in Detroit, Michigan. The jury convicted Malone of

first-degree murder and using a gun during the commission of that felony. Malone was given a life

sentence for the murder and a two-year consecutive sentence for the gun charge. For more than

twenty years, Malone has unsuccessfully challenged his convictions through direct and collateral

review in state court, and habeas corpus review in federal court. His case is now before us on appeal

from the district court’s denial of his habeas petition.

       In the district court, Malone claimed that his trial and appellate counsel were ineffective, that

the prosecutor committed misconduct, and that newly discovered evidence entitled him to a new

trial. The district court denied his petition on the merits. The court thereafter granted a certificate
No. 09-1473
Malone v. Sherman

of appealability for Malone’s claims based on prosecutorial misconduct and newly discovered

evidence. Both the district court and this court declined to grant a certificate on Malone’s ineffective

assistance of counsel claims.

       As Malone’s counsel now concedes, new evidence does not constitute a freestanding ground

for habeas relief. See Cress v. Palmer, 484 F.3d 844, 854 (6th Cir. 2007). So we review the new

evidence only as it supports Malone’s prosecutorial-misconduct claims.

       Malone claims that the prosecutor violated his Sixth Amendment rights by impeaching a trial

witness with questions that implied the prosecutor’s personal knowledge about the subject of the

witness’s testimony. Malone also claims that the prosecutor knowingly put on perjured testimony

by allowing several witnesses to testify to facts that, according to Malone, were directly contradicted

by statements contained in a redacted police report. The State responds that both claims are

procedurally barred. We review that issue de novo. Gulertekin v. Tinnelman-Cooper, 340 F.3d 415,

418 (6th Cir. 2003).

       A claim is procedurally barred if the state court enforces a state procedural rule as an

adequate and independent ground to deny relief of a federal constitutional claim. See Carter v.

Mitchell, 443 F.3d 517, 537-38 (6th Cir. 2006). In that event, the court’s “discussion of the merits

of the claim will not disturb the procedural bar.” Id. at 538 (internal quotation marks omitted).

       That rule governs here. Malone first raised his prosecutorial-misconduct claims in a motion

for relief from judgment in the state trial court. The court issued a reasoned order denying relief to

Malone. The Michigan court of appeals and supreme court denied leave to appeal in orders that

merely cited Michigan Court Rule 6.508(D). “[F]orm orders . . . citing 6.508(D) are ambiguous,”

                                                   2
No. 09-1473
Malone v. Sherman

however, so we “look to the last reasoned state court opinion to determine the basis for the state

court’s rejection” of Malone’s claims. Guilmette v. Howes, 624 F.3d 286, 291 (6th Cir. 2010) (en

banc). That means here we look back to the state trial court’s order denying relief from judgment.

        That court explained at length that Malone’s prosecutorial-misconduct claims were

procedurally barred under state law. That holding was an adequate and independent state-law ground

for the court’s decision. That the court parenthetically noted that the claims were without merit does

not change the adequate and independent character of its procedural holding. See Carter, 443 F.3d

at 538. As a result, we may not grant relief on these claims unless Malone can establish “cause for

the default and prejudice resulting from the default, or that a miscarriage of justice will result from

enforcing the procedural default.” Seymour v. Walker, 224 F.3d 542, 550 (6th Cir. 2000).

        Malone argues that his appellate counsel’s ineffectiveness establishes cause for his failure

to raise these claims in his direct appeal. “Attorney error may constitute cause if it rises to the level

of constitutionally ineffective assistance of counsel.” Willis v. Smith, 351 F.3d 741, 745 (6th Cir.

2003). But Malone presented this same argument—appellate-counsel ineffectiveness—as an

independent claim before the district court. We think the district court properly rejected that claim,

and we did not find the issue close enough to warrant even a certificate of appealability. We do not

see its merits any differently now. Malone therefore “cannot rely upon ineffective assistance of

appellate counsel as cause to excuse . . . the procedural default.” Id. at 746.

        Of course, if Malone’s newly discovered evidence supported a credible claim of actual

innocence, it could excuse his procedural default in order to avoid a miscarriage of justice. See

Schulp v. Delo, 513 U.S. 298, 314-17 (1995). To show that his case is the “extraordinary” one

                                                   3
No. 09-1473
Malone v. Sherman

warranting application of this exception, Malone must demonstrate “that it is more likely than not

that no reasonable juror would have convicted him in the light of the new evidence.” Id. at 321, 327.

Although Malone’s new evidence tends to undercut the prosecution’s identification evidence, it is

not the kind of “exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical

evidence” that is typically necessary to obtain this relief. McCray v. Vasbinder, 499 F.3d 568, 571

(6th Cir. 2007) (internal quotation marks omitted); see also id. at 571-77. So we cannot apply this

exception here.

       We also agree with the district court’s denial of each claim on the merits. First, the

prosecutor’s supposed testimony (in questioning a trial witness) was entirely cumulative of testimony

from three other witnesses who impeached the same witness with the same evidence. Compare

Berger v. United States, 295 U.S. 78, 84-88 (1935) (prosecutor testified as to facts not otherwise

admitted at trial).   And second, we agree with the district court’s conclusion—which was

exhaustively reasoned—that Malone has not demonstrated that any testimony introduced by the

prosecution “was false, that the prosecution knew it was false, and that it was material.” Byrd v.

Collins, 209 F.3d 486, 517 (6th Cir. 2000).

       We have no basis, therefore, to afford Malone relief on his claims. The district court’s

judgment is affirmed.




                                                  4
No. 09-1473
Malone v. Sherman

       CLAY, Circuit Judge, dissenting. The prosecutor’s inappropriate questioning of witness

Carey Jackson rendered Petitioner’s trial fundamentally unfair and violative of due process. Because

the majority misapplies the law in denying Petitioner any possibility of relief, I respectfully dissent.

       Petitioner is a state inmate serving a life sentence for murder. He was convicted in 1989 after

a jury trial in which the main issue was the identity of the assailant. After exhausting the state

appellate process, Petitioner filed the present petition for a writ of habeas corpus, seeking relief

based on the following assignments of constitutional error: failure to consider newly discovered

evidence; two instances of prosecutorial misconduct at trial; and ineffective assistance of trial and

appellate counsel.

       Based on a review of the record, at least one of Petitioner’s claims of prosecutorial

misconduct appears to be meritorious. As Petitioner contends, the prosecutor committed serious

misconduct at trial in her questioning of witness Jackson.1        Jackson, a witness to the murder,

testified at trial that on the day of the murder, he observed two men exit a vehicle and approach the

victim. Jackson further testified that although he knew Petitioner, he did not recognize Petitioner

as either of these two men. When asked by the prosecutor whether he had previously identified

Petitioner to the police as the assailant, Jackson responded in the negative. Jackson admitted that

he spoke to the police, but denied signing a police statement or participating in a photographic line-


       1
         Petitioner also claims that the prosecutor knowingly offered false testimony at trial. This
claim rests on a redacted police report that, according to Petitioner, disproves the testimony of the
state’s main witness, Melvin Mann, and two police officers who also testified. Although this claim
of prosecutorial misconduct raises serious questions about the conduct of the prosecution in the
underlying state proceedings, the report was not provided in unredacted form to the Court, frustrating
any attempt to assess Petitioner’s arguments in this regard.

                                                   5
No. 09-1473
Malone v. Sherman

up in which he identified Petitioner. Any evidence to the contrary, Jackson contended, was a

fabrication.

       During the examination, the following exchange took place between the prosecutor and

Jackson:

       Q.      And you told me at that time that you had made parts of this [police] statement,
               didn’t you?
       A.      Yes, I did.
       Q.      And you identified to me parts of the statement that you had made?
               [Objection by Defendant; overruled.]
       Q.      And you told me that at that time, didn’t you, that you had made portions of this
               statement? [Objection by Defendant; overruled.]
       Q.      Did you or did you not tell me at that time, I believe it was the 30th of March, last
               Thursday, that you made some of the things in this statement?
       A.      I did.
       Q.      And did you or did you not with Investigator Marvin Butler from Homicide sitting
               right there tell me that this was, in fact, your signature?
       A.      No, I didn’t.
       Q.      You didn’t?
       A.      [No verbal response.]

(App’x at 41-43 (reprinting 2 Tr. at 249-51).) Petitioner argues that this colloquy was plainly

improper because the prosecutor asserted personal knowledge in order to inappropriately discredit

Jackson’s trial testimony. Petitioner is correct in that the prosecutor took on the role of a critical

witness for purposes of disputing the testimony of a material witness. I would grant him relief on

this ground.

       To prevail on his claims of prosecutorial misconduct, Petitioner must show that: 1) the

conduct was improper; and 2) the conduct was “flagrant.” Lutze v. Sherry, 392 F. App’x 455, 460

(6th Cir. 2010). Because there is no state court decision addressing the merits of Petitioner’s claims



                                                  6
No. 09-1473
Malone v. Sherman

of prosecutorial misconduct, this Court reviews the issue de novo. See Williams v. Anderson, 460

F.3d 789, 797-98 (6th Cir. 2006).

       The prosecutor’s line of questioning was plainly improper. As this Court has stated, “[a]

prosecuting attorney may not offer any ‘improper suggestions, insinuations, and, especially,

assertions of personal knowledge,’ as these ‘are apt to carry much weight against the accused when

they should properly carry none.’” Schauer v. McKee, No. 09-2360, 2010 WL 4781396, at *4 (6th

Cir. Nov. 17, 2010) (quoting Berger v. United States, 295 U.S. 78, 88 (1935)). The prosecutor in

this case inappropriately provided her version of a conversation, which was not in evidence, that

allegedly took place between the prosecutor and Jackson.

       Obviously, the prosecutor’s questions were designed to permit the prosecutor to personally

impugn Jackson’s credibility by suggesting that Jackson’s testimony was untruthful to the extent

Jackson stated that he did not recognize the shooter as Petitioner or sign a prior statement to that

effect. See, e.g., United States v. Francis, 170 F.3d 546, 550 (6th Cir. 1999) (stating that it is

improper for a prosecutor to make “comments that imply that the prosecutor has special knowledge

of facts not in front of the jury or of the credibility and truthfulness of witnesses and their

testimony”).

       In addition to being improper, the prosecutor’s conduct was flagrant and as such “so infected

the trial with unfairness as to make the resulting conviction a denial of due process.’” Darden v.

Wainwright, 477 U.S. 168; see also Bowling v. Parker, 344 F.3d 487, 512 (6th Cir. 2003). In

considering whether prosecutorial misconduct is flagrant, the Court considers whether: 1) “the

conduct and remarks of the prosecutor tended to mislead the jury or prejudice the defendant;” 2) “the

                                                 7
No. 09-1473
Malone v. Sherman

conduct or remarks were isolated or extensive;” 3) “the remarks were deliberate[] or accidental[];”

and 4) “the evidence against the defendant was strong.” Lutze, 392 F. App’x at 460. Application

of these factors compels the conclusion that the prosecutor’s misconduct in this case was flagrant.

        First, the prosecutor’s improper questions were likely to mislead the jury. The prosecutor’s

line of questioning inappropriately attacked Jackson’s credibility based upon the prosecutor’s

purported personal knowledge of the matters to which Jackson testified. These improper questions

likely suggested to the jury that it should discount Jackson’s testimony that he could not identify, and

had not previously identified, Petitioner as the assailant. See Berger, 295 U.S. at 88 (“[I]mproper

suggestions, insinuations, and, especially, assertions of personal knowledge are apt to carry much

weight against the accused when they should properly carry none.”). Moreover, despite counsel’s

objection at trial, the trial judge did not give a cautionary instruction to the jury. Cf. Gillard v.

Mitchell, 445 F.3d 883, 898 (6th Cir. 2006) (noting that a limiting instruction may cure prejudice).

The improper questioning was particularly damaging to Petitioner because the main issue at trial was

the identity of the shooter.

        Second, even though the improper questioning was limited to one witness, and two police

officers testified that Jackson signed a police statement that identified Petitioner, Jackson’s testimony

was significant to the defense’s attempt to cast reasonable doubt on Petitioner’s guilt.

        Third, although there is no direct evidence regarding the prosecutor’s intent to engage in

misconduct, the obvious and repetitive nature of her improper questioning suggests intent. See Bates

v. Bell, 402 F.3d 635, 648 (6th Cir. 2005) (inferring intent to commit misconduct from the “strategic

use” of improper statements).

                                                   8
No. 09-1473
Malone v. Sherman

        Finally, the overall strength of the evidence in this case was not overwhelming. The

identification of Petitioner hinged on the credibility of only a few witnesses, one of whom was a

prior suspect in the murder. Had the jury been able to consider the testimony of Jackson without the

taint of the prosecutor’s misconduct, the result of the trial very well may have been different.

        Despite the serious nature of the prosecutorial misconduct that occurred at trial, the majority

summarily dismisses Petitioner’s claims of prosecutorial misconduct, finding that they are

procedurally defaulted. But, as explained below, to the extent the claims may be defaulted,

Petitioner has shown sufficient “cause” and “prejudice” such that we may excuse the apparent

default and reach the merits of Petitioner’s claims of prosecutorial misconduct.

        The doctrine of procedural default bars a federal court from considering the merits of a

habeas claim if: “(1) the petitioner fails to comply with a state procedural rule; (2) the state courts

enforce the rule; [and] (3) the state procedural rule is an adequate and independent state ground for

denying review of a federal constitutional claim[.]” Tolliver v. Sheets, 594 F.3d 900, 928 n.11 (6th

Cir. 2010). We may, however, consider an otherwise defaulted claim upon a showing of “cause” for

the default, and that “prejudice” resulted therefrom. Id.

        In this case, the state procedural rule with which Petitioner failed to comply is Michigan

Court Rule 6.508(D). The rule provides, in pertinent part, that the “court may not grant relief to the

defendant if the motion . . . alleges grounds for relief, other than jurisdictional defects, which could

have been raised on appeal from the conviction,” unless the defendant demonstrates “good cause”

and “actual prejudice,” or “a significant possibility that the defendant is innocent of the crime.”



                                                   9
No. 09-1473
Malone v. Sherman

       Petitioner does not dispute that his appellate counsel failed to raise his present claims of

prosecutorial misconduct on direct appeal in violation of M.C.R. 6.508(D)(3). Because this is an

adequate and independent ground to deny review, see Boyd v. Yukins, 99 F. App’x 699, 704 (6th Cir.

2004), the Court must then look to the last reasoned state court decision to determine whether the

rule was enforced in this case. See Guilmette v. Howes, 624 F.3d 286 (6th Cir. 2010) (en banc).

       The last reasoned state court decision is the June 15, 2008 order of the Third Judicial Circuit

that rejected Petitioner’s motion for post-judgment relief. The subsequent orders of the Michigan

appellate courts are not reasoned decisions, as each denies leave to appeal by stating only that

Petitioner failed to meet the burden of establishing entitlement to relief under the rule. See id.

(holding that a materially identical state appellate order was not a reasoned decision).

       In its decision, the Third Judicial Circuit denied Petitioner relief under the rule, opining in

relevant part as follows:

       The minimum threshold require[s] that the issues cannot be raised under this rule if
       the grounds could have been raised in an appeal or other motion unless good cause
       and actual prejudice is demonstrated. Defendant’s contentions that the prosecutor
       acted as a witness during the questioning of a witness at trial, that the prosecutor
       knowingly used perjured testimony, and that trial counsel was ineffective (each of
       which this court concludes is without merit) could have been raised in defendant’s
       appeal of right. Defendant presented no . . . grounds that would be an exception to
       the rule and the facts of this case defies [sic] any possibility . . . [of] innocen[ce].

This language, although conclusory, seems to reject Petitioner’s claims of prosecutorial misconduct

on procedural grounds. We may, however, reach the merits of these claims because Petitioner has

shown “cause” and “prejudice” to excuse his default on the basis of ineffective assistance of

appellate counsel. See Williams v. Anderson, 460 F.3d 789, 800 (6th Cir. 2006) (“[I]neffective


                                                 10
No. 09-1473
Malone v. Sherman

assistance of appellate counsel constitutes cause for failing to properly present a claim before a state

court.”).

        To establish ineffective assistance of appellate counsel, Petitioner must show that: 1)

counsel’s performance was objectively deficient; and 2) the deficiency resulted in prejudice, meaning

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)

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

        It is true, as the majority notes, that Petitioner did not receive a certificate of appealability

(“COA”) on his claim of ineffective assistance of appellate counsel that he brought in the district

court. But this fact does not end our inquiry. The Court may2—and should in this case—sua sponte

expand the COA, which was improperly denied in the first instance. In issuing a partial COA, the

district court held that “a reasonable jurist could conclude” that Petitioner’s claims of prosecutorial

misconduct had merit, but that “reasonable jurists could not debate” that his appellate counsel was


        2
         A hearing panel may sua sponte expand a COA even where, as here, a single-member of the
Court has previously declined to do so. See, e.g., Post v. Bradshaw, 621 F.3d 406, 412-13 (6th Cir.
2010) (noting that the Court “impliedly” expanded the COA by permitting the briefing of new issues,
even though a prior order of the Court declined to expand the COA); Humphreys v. United States,
238 F. App’x 134, 138-39 (6th Cir. 2007) (reaching an issue that was fully briefed by the parties
even though a COA had not been previously issued) (citing, inter alia, Mack v. Holt, 62 F. App’x
577, 578 (6th Cir. 2003) (per curiam) (noting that the Court initially certified one issue for appeal,
but subsequently sua sponte certified another)); accord United States v. Shipp, 589 F.3d 1084 (10th
Cir. 2009) (“Circuit courts . . . have recognized that they possess the authority to expand the COA
to cover uncertified, underlying constitutional claims asserted by an appellant.”);United States v.
Morgan, 244 F.3d 674, 675 (8th Cir. 2001) (holding that “an [appellate] hearing panel [may]
exercise its discretion to consider sua sponte issues beyond those specified in a certificate of
appealability, whether the certificate was issued by a district court or by an administrative panel of
[that] court.”); see also Fed. R. App. P. 27(c) (“The court may review the action of a single judge.”).

                                                   11
No. 09-1473
Malone v. Sherman

not ineffective for failing to raise the same claims on direct appeal. This reasoning is flawed. If a

reasonable jurist could find merit in Petitioner’s claims of prosecutorial misconduct, then surely a

reasonable jurist could find merit in Petitioner’s claim of ineffective assistance of counsel for failure

to raise those same claims on direct appeal.

        Upon a properly expanded COA, Petitioner has established cause for his default because his

appellate counsel failed to raise a clearly meritorious issue on direct appeal. Cf. Greer v. Mitchell.

264 F.3d 663, 676 (6th Cir. 2001) (noting that counsel cannot be ineffective for failing to “raise an

issue that lacks merit.”). The record reveals that counsel raised five issues on direct appeal,

including insufficiency of the evidence, but omitted the instant claims of prosecutorial misconduct.

Although counsel need not raise every non-frivolous ground for relief, see Jones v. Barnes, 463 U.S.

745, 754 (1983), appellate counsel must nonetheless exercise reasonable professional judgment by

pursuing the issues with the greatest merit. See DeWitt, 341 F.3d at 441; see also Mapes v. Coyle,

171 F.3d 408, 427-28 (6th Cir. 1999) (listing eleven factors that courts may consider in addressing

claims of ineffective assistance of appellate counsel).

        Appellate counsel in this case failed to exercise reasonable professional judgment by deciding

to forgo a challenge to the prosecutor’s plainly improper questioning of witness Jackson, despite trial

counsel’s objections at trial. See Matire v. Wainwright, 811 F.2d 1430, 1438 (8th Cir. 1987) (“The

improper comment was obvious on the record, and must have leaped out upon even a casual reading

of transcript.”). The five issues raised on direct appeal were found to be without merit, and

Petitioner does not pursue them in federal court. The record reveals “no reasonable justification”

for appellate counsel’s abandonment of the issue on direct appeal. See Mapes, 171 F.3d at 429.

                                                   12
No. 09-1473
Malone v. Sherman

Given the significance of the prosecutorial misconduct, counsel’s performance fell below an

objective standard of reasonableness by failing to raise the issue on direct appeal. See, e.g., DeWitt,

341 F.3d at 441.

       Moreover, counsel’s unreasonable omission of this meritorious claim on direct appeal

prejudiced Petitioner. Petitioner was unable to challenge his conviction on this meritorious ground

before the state courts, thereby precluding Petitioner from attaining relief on this ground in state

court. Had counsel raised the instant of prosecutorial misconduct claim on direct appeal, it seems

probable that the result of the direct appeal “would have been different.” Strickland, 466 U.S. at

694.

       Accordingly, for the reasons explained above, I would grant the petition for a writ of habeas

corpus because the prosecutor violated Petitioner’s right to due process by improperly questioning

witness Jackson. The majority unreasonably declines to grant relief, and I respectfully dissent.




                                                  13
