                       RECOMMENDED FOR FULL-TEXT PUBLICATION
                            Pursuant to Sixth Circuit Rule 206
                                   File Name: 09a0155p.06

               UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                 _________________


                                                X
                                                 -
 CHRISTOPHER HALL,
                                                 -
                             Petitioner-Appellee,
                                                 -
                                                 -
                                                     No. 08-1475
         v.
                                                 ,
                                                  >
                                                 -
                      Respondent-Appellant. -
 DOUG VASBINDER, Warden,
                                                 -
                                                N
                  Appeal from the United States District Court
                 for the Eastern District of Michigan at Detroit.
              No. 04-73548—Denise Page Hood, District Judge.
                                  Argued: March 5, 2009
                            Decided and Filed: April 22, 2009
                Before: SILER, COOK, and McKEAGUE, Circuit Judges.

                                   _________________

                                        COUNSEL
ARGUED: Debra M. Gagliardi, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,
Lansing, Michigan, for Appellant. F. Randall Karfonta, Leland, Michigan, for Appellee.
ON BRIEF: Debra M. Gagliardi, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,
Lansing, Michigan, for Appellant. F. Randall Karfonta, Leland, Michigan, for Appellee.
                                   _________________

                                         OPINION
                                   _________________

        McKEAGUE, Circuit Judge. Christopher Hall filed a petition for a writ of habeas
corpus in connection with his state convictions. A Michigan jury convicted Hall of criminal
sexual conduct against his daughter as well as obstruction of justice and conspiracy to
obstruct justice. During the trial, both the prosecutor and defense counsel elicited testimony
about Hall’s silence during an earlier probate court proceeding and commented on Hall’s
silence during their respective closings. On habeas review, the district court concluded that
the testimony and remarks of the prosecutor violated Hall’s federal constitutional rights to

                                              1
No. 08-1475          Hall v. Vasbinder                                                   Page 2


due process and against self-incrimination. Moreover, defense counsel’s failure to object
to the testimony and remarks constituted ineffective assistance of trial counsel. The district
court conditionally granted habeas relief to Hall. The Warden, Doug Vasbinder, now
appeals.

          For the reasons set forth below, we reverse.

                                               I

A.        Hall’s Trial

          The charges against Hall arose out of an incident that occurred in August 1998.
Hall’s daughter, who was then 12-years old, testified that at the time, she lived with her
father and step-mother (Dondrea Hall) in Charlotte, Michigan. She said that around August
15th of that year, she took a weekend trip to her grandparents’ house in Kalkaska, Michigan,
with her father, step-mother, sister, and best friend. On Saturday of that weekend, she
suffered a slight accident on an all-terrain vehicle, and that night, while Hall and the children
were watching television, her father gave her a back rub. She testified that Hall, her sister,
and her friend were in the room with her watching television, while her step-grandmother,
Janet Hall (Hall’s step-mother), and Dondrea were in the dining room, a short distance away.

          Hall’s daughter testified that at some point during the back rub, Hall started
massaging her breast, and continued to squeeze and rub her breast for four or five minutes.
She testified that her step-grandmother told Hall to leave her alone and go to bed. She said
that her father appeared to be drunk at the time. She testified that the next morning, she told
Dondrea what had happened, and that Dondrea in turn talked to Hall. They drove back to
Charlotte that day, and Hall told his daughter that he was sorry, that he would make sure it
never happened again, and that he would never again drink all day. She took this to mean
that he was apologizing for drinking, not for fondling her. Janet, Dondrea, Art Hall (Chris’s
father), and his daughter’s friend all testified at trial that they did not see Hall massage his
daughter’s breast. Hall also testified that he did not intentionally massage his daughter’s
breast.

          In December 1998, the family again went to Kalkaska, and when they returned,
Hall’s daughter told her birth mother, who lived in Kansas, what had happened back in
No. 08-1475            Hall v. Vasbinder                                                            Page 3


August. Her mother instructed her to tell a school counselor, which she did. Subsequently,
the daughter spoke to Det. Kellogg of the Michigan State Police and Marie Iott of the Family
Independence Agency. The following day at school, while the daughter was waiting in a
school office to talk with Iott again, Dondrea came in, said that the daughter had to leave for
a doctor’s appointment, and drove her home. Dondrea yelled at her and telephoned her
father, who came home from work.

         Hall’s daughter, Dondrea, and Hall then drove to the office of Victoria Easterday,
an attorney. The two adults waited in a conference room while the girl talked to Easterday
privately about what had happened. When they returned to the conference room, Easterday
informed Hall of the legal consequences if he were found guilty of criminal sexual conduct.
Hall’s daughter testified that Easterday told her that it would be a good idea for her to write
a letter to Det. Kellogg to the effect that she made the whole thing up. She testified that she
did not want her father to get into trouble and felt intimidated. She also said that later that
evening at home, she wrote the letter as Dondrea watched her. Dondrea then took the letter
and read it over the phone to Easterday. Afterward, Dondrea showed the letter to Hall.
However, the daughter hid the letter under her mattress because she did not want it to be
sent. Three drafts of the letter were admitted as an exhibit.

         A hearing was held the next day in Eaton County Probate Court. Hall, Dondrea, and
Hall’s daughter all attended. Easterday represented Hall and a court-appointed attorney
represented the girl. Det. Kellogg was the only witness who testified at the hearing.
Following the hearing, Hall’s daughter was temporarily placed in foster care and then
                                                                             1
permanently placed with her birth mother who lived in Kansas. Hall was subsequently
arrested on February 18, 1999.




         1
           Hall’s daughter had testified on cross examination that prior to the August 15th incident, she had
told her dad on numerous occasions that she wanted to live in Kansas with her birth mother.
No. 08-1475           Hall v. Vasbinder                                                        Page 4


B.      Matters Concerning the Probate Hearing

        During the trial, the subject of who had the opportunity to testify and who did,
in fact, testify at the probate hearing came up on multiple occasions. Given the
centrality of this topic to Hall’s habeas claims, following is a detailed account of the
arguments and testimony about who testified at the probate hearing.

        The prosecutor noted during his opening statement that Hall’s daughter was
removed from Hall’s home as a result of the probate hearing. The prosecutor did not
refer to who did or did not testify at the hearing. Immediately after the prosecutor
finished, defense counsel2 gave an opening statement. Counsel made it clear that one
of the main defense themes was going to be governmental overreach. Specifically,
defense counsel stated near the end of his opening statement:

        [Hall] will testify that he was abruptly summoned to a [probate] court
        hearing. He went to a court hearing, and he was told, “The Court takes
        jurisdiction of not only your two children . . .” - - [the daughter], and her
        younger sister, . . . . Children of the mother in Kansas. - - “. . . but also
        takes jurisdiction of the child that you and Dondria have . . .” . . . “. . .
        and place them under the jurisdiction of the court, and they’re going into
        foster care.”, and that’s exactly what happened. They went into foster
        care. Dondria Hall left Chris. Subsequently, she filed for divorce.
        What happens after that? He ends up filing a bankruptcy proceeding
        because he loses his house. Loses just about everything. And he would
        lose everything if it wasn’t for this jury. And what caused that? Was
        that the child? Was it something that Chris did? Or, was it government?
        We contend it was government.
Trial Transcript (“TT”) I 285-86.

        Hall’s daughter was the prosecution’s first witness. On direct, the prosecutor
asked her if there was a court hearing about putting the children into foster care, and she
testified that there was such a hearing. The prosecutor did not ask her who testified
during the hearing. On cross-examination, the following colloquy occurred between
defense counsel and Hall’s daughter:


        2
           Hall had new counsel at the trial. Easterday was herself charged with conspiring to obstruct
justice as a result of the letter writing episode.
No. 08-1475          Hall v. Vasbinder                                             Page 5


       Q       When you were there, did Dondrea s - - say anything to this
               person that put you in Foster care?
       A       What do you mean?
       Q       Did - - did she say anything from the witness stand, like this? A
               chair, with - -
       A       No.
       Q       - - a tape reco - - no?
       A       No.
       Q       Did your father?
       A       Not that I - - not that I remember.
       Q       So, you, and your younger sister, and your even younger sister
               were taken into foster care with no testimony. No - - nothing
               spoken by you, or Dondrea, or your father.
       A       I didn’t say anything. I don’t remember if my dad did, or not.
TT II 56-57. On redirect, the prosecutor asked her whether she had an attorney at the
hearing (she did) and whether her father was present and represented by Easterday
(“yes” to both).

       Iott confirmed on direct that Easterday represented Hall at the probate hearing.
She also testified that Hall’s attorney had an opportunity to question any witness and to
contest the proceedings.

       Det. Kellogg testified for the prosecution after Iott. During his direct testimony,
the following colloquy took place:

       Q       Did you, yourself, testify at this hearing?
       A       I did. I believe I was the only one who did testify after the
               petition was read into the record.
       Q       Didn’t Christopher Hall testify in that hearing about the custody
               of his daughter?
       A       No. He didn’t.
       Q       Did the parties have an opportunity for anybody else to testify
               that wanted to?
No. 08-1475         Hall v. Vasbinder                                                 Page 6


        A       Yes. It wasn’t done.
TT III 142. Defense counsel did not cross-examine Det. Kellogg.

        Hall testified on his own behalf. On direct, his counsel asked him about the
hearing. Hall testified that “It happened - - . . . - - fast. It was just shooo.” TT III 258.
Then, on cross-examination, the following exchange occurred between the prosecutor
and Hall:

        Q       . . . and I think we’ve heard [defense counsel] tell the jury that,
                basically, with almost no ifs, ands, or buts, the kids were just
                taken away from you. Why didn’t you testify at that hearing, Mr.
                Hall?
        A       It went quick. Everything was just - - there was a room full of
                attorneys, and a room not much bigger than that . . . jury box, and
                we were all crammed in there. And it was just bang, bang, bang.
                And I asked Vic [attorney Easterday] if I could say anything, and
                she said, “I’d recommend you didn’t say nothin’.”
        Q       Oh. I see. So, it wasn’t that you didn’t have a chance. It wasn’t
                that you couldn’t talk. It wasn’t that all this process went on
                without any opportunity for you. It’s that you didn’t and your
                lawyer told you not to. That’s what happened, right?
        A       She said, “I suggest you didn’t.”
        Q       Okay. So you just . . . (Pause) . . . you just passed on your
                opportunity to have some input into that process. You could
                have.
        A       I guess. Yeah.
        Q       Well, I mean, come on, Mr. Hall. Your kids were bein’ removed.
        A       We didn’t know that at that time. That was determined at the end
                of the hearing.
        Q       Oh. So you just sat there like a bump on a log, and didn’t even
                think about what the proceeding was involving?
No. 08-1475        Hall v. Vasbinder                                                   Page 7


       A       We didn’t know exactly what the proceeding was involving. . . .
TT III 289-90. Hall’s counsel did not object to any of this questioning.

       In his closing argument to the jury, the prosecutor made the following statements
regarding the probate hearing:

       See, this government action, this wasn’t - - this didn’t make anything
       permanent; all this did was a hearing to determine that there was some
       good reason to think that there [was] enough of a problem and these kids
       were at risk, to take them out, call timeout and look into it. So again, as
       you start to think about this government intrusion in the untroubled
       family think about that, and probably most striking of all was the
       discovery for all of us that at that process that was portrayed as being so
       sinister and unfair the Defendant was there with his attorney, who sat
       there silent and made no objection and made no statement and offered no
       testimony at all, who stood there and what did he do? Hid from the
       proceedings, he hid from the proceedings, he did not say a word while
       this was going on. He cowered in fear of discovery for what he had done
       and what he did that week to try to thwart this investigation. That’s what
       happened that Friday; it was the guilty man in Court being whispered to
       by his lawyer saying don’t get involved in this, they might find
       something out. That’s what you can conclude from that process where
       Detective Kellogg just explained what [Hall’s daughter] told him and a
       decision was made, this is - - these kids are at risk right now, we’ve got
       to make some adjustments here until we can find out more.
TT IV 13-14 (emphasis added). The prosecutor again alluded to Hall’s silence later in
his closing: “Detective Kellogg explains how he testified at the placement hearing. The
Defendant made no statement at the hearing, even though he could.” TT IV 26.

       Hall’s counsel then addressed the subject of the probate hearing during his own
closing argument. He argued that Hall did not, in fact, have an opportunity to testify at
the hearing:

       . . . Okay, all this stuff is going on, so what does one of the governmental
       representatives do, and that includes the referee over [at] the Eaton
       County Probate Court, they get up a quick hearing, give court-appointed
       lawyers to these people; Dondrea didn’t even want the court-appointed
       lawyer, she called him “John something”, put them in a small room, there
       is no opportunity to testify they let Detective Kellogg testify, Marie [Iott]
       testified. The referee didn’t say I want to hear the kid, I want to hear
       what’s going on before issuing an order taking children away from their
No. 08-1475        Hall v. Vasbinder                                                 Page 8


       parents. Then what happens? [Hall’s daughter]’s gone, [her siblings are]
       gone; whoosh, out they go, and they’ve never come back to Chris at all.
       That very thing, the very thing that Dondrea said she was concerned
       about happened, the family was broken up. . . . The family’s split,
       children gone, he lost his house, lost his family, he’s in bankruptcy.
       What more could the state do? Maybe they were acting under good
       intentions; the prosecutor would have you believe for all the best of
       intentions. Look what happened to this man.
TT IV 79-80 (emphasis added).

       During his rebuttal closing argument, the prosecutor returned to the issue of the
probate hearing:

       Counsel said, then, back to the government. His words, I think, were
       “cobbled up a quick hearing, very little opportunity to testify”. I’d ask
       you this, how long does it take to prepare if all you’re gonna do is go in
       there and tell the truth? How big of a deal is it to go somewhere and
       answer a few questions if it’s the truth? It’s not a big deal. What’s a big
       deal is if it’s a lie and you’ve gotta cover all the bases and get to
       everybody and put something together. That’s why the Defendant didn’t
       testify at that hearing that Friday because they hadn’t been able to get
       Victoria [Easterday] up to get the grandparents handled and get all - - get
       everything nailed down yet. He had to stay out of it because everybody
       didn’t have their stories straight. That was guilt working there and guilty
       knowledge. The truth is always the truth, it’s the truth the minute you’re
       asked; you don’t have to get it straight, it is straight.
TT IV 114-15 (emphasis added). Defense counsel did not object to any of the
prosecutor’s comments during closing.

       After the prosecutor finished with his rebuttal, the trial court instructed the jury.
As to what constitutes evidence, the court explained:

       When you discuss the case and decide on your verdict you may only
       consider the evidence that has been properly admitted in the case. . . .
       Evidence includes only the sworn testimony of Witnesses and the Exhibit
       admitted into evidence. Many things are not evidence and you must be
       careful not to consider them as such. . . . The lawyers’ statements and
       arguments are not evidence, they are only meant to help you understand
       the evidence and each side’s legal theories. . . . You should only accept
       things the lawyers say that are supported by the evidence or by your own
       common sense and general knowledge.
No. 08-1475         Hall v. Vasbinder                                                Page 9


TT IV 126.

C.      The Verdict and Direct Appeal

        The jury found Hall guilty on all charges: one count of second degree criminal
sexual conduct (“CSC”), MCL § 750.520b; one count of obstruction of justice, MCL
§ 750.505; and one count of conspiracy to obstruct justice, MCL §§ 750.505, 750.157(a).
The trial court sentenced him to 96 to 180 months on the CSC count and 40 to 60 months
on the obstruction and conspiracy counts, to run concurrently.

        On direct review, the Michigan Court of Appeals, in an unpublished per curiam
opinion, acknowledged that “[t]his case presented a credibility contest.” People v. Hall,
No. 228733, slip op. at 1 (Mich. Ct. App. Apr. 15, 2003). Hall raised several claims,
including a claim that the prosecutor breached Hall’s right to remain silent under the
Fifth Amendment and engaged in other improper conduct, depriving him of a fair trial.
As to the Fifth Amendment issue, the state court found that the prosecutor’s remarks
were improper:

        Viewed in context, we conclude that the testimony elicited by the
        prosecutor and the prosecutor’s remarks at closing argument were
        improper. The United States Constitution and Michigan’s 1963
        Constitution both provide individuals the right to remain silent to avoid
        being compelled to serve as a witness against themselves. US Const, Am
        V; Const 1963, art 1, §17.
Id. at 5. However, because trial counsel had not objected, the state court reviewed the
issue for plain error and found no such error “in light of the overwhelming evidence that
was properly admitted from which the jury could find defendant guilty beyond a
reasonable doubt.” Id.

        Hall also argued that his trial counsel provided ineffective assistance by, among
other things, failing to object to the prosecutor’s remarks about his silence at the earlier
hearing. The state court rejected the claim, explaining, “For the reasons previously
discussed in this opinion, we conclude that defendant has not demonstrated that he was
prejudiced by his trial counsel’s performance and has not overcome the presumption that
his trial counsel rendered effective assistance.” Id. at 8.
No. 08-1475        Hall v. Vasbinder                                             Page 10


       The Michigan Supreme Court denied leave to appeal.

D.     Petition for Habeas Relief

       Hall then sought relief in federal district court. He filed a petition for writ of
habeas corpus, raising the following issues:

       I. THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF-
       INCRIMINATION WAS VIOLATED WHERE THE PROSECUTOR
       ELICITED EVIDENCE OF DEFENDANT’S SILENCE IN PRIOR
       PROBATE COURT PROCEEDINGS AND THEN ARGUED TO THE
       JURY THAT IN PROBATE COURT IT WAS “THE GUILTY MAN
       BEING WHISPERED TO BY HIS LAWYER” WHO DID NOT
       TESTIFY THERE. U.S. CONST. AMEND. V AND XIV.
       II. IRRELEVANT AND HIGHLY PREJUDICIAL EVIDENCE
       BECAME THEMES AND WERE THE REPEATED FOCUS OF THIS
       TRIAL WHERE THE IMPROPER EVIDENCE ENHANCED THE
       PROSECUTION AND DESTROYED DEFENDANT’S RIGHT TO A
       FAIR TRIAL. U.S. CONST. AMEND. V, VI AND XIV, MICH.
       CONST. 1963 ART. 1, §17, 20.
       III. WHERE THE PROSECUTOR EXTENSIVELY BERATED
       DEFENDANT’S CHARACTER BEFORE THE JURY WITH
       IMPERMISSIBLE EVIDENCE AND ARGUMENT TO THE JURY, A
       NEW TRIAL IS REQUIRED.
       IV. WHERE THE SENTENCING JUDGE FAILS TO RESOLVE
       OBJECTIONS TO THE SENTENCE INFORMATION REPORT (SIR)
       AND WHEN THE SENTENCE FOR CSC II AND OBSTRUCTION OF
       JUSTICE IS DISPROPORTIONATE TO THESE OFFENSES AND TO
       THE OFFENDER, THERE IS AN ABUSE OF SENTENCING
       DISCRETION REQUIRING RESENTENCING.
       V. DEFENSE COUNSEL’S FAILURE TO OBJECT TO IMPROPER
       EVIDENCE AND PROSECUTORIAL MISCONDUCT WAS
       CONSTITUTIONALLY INEFFECTIVE ASSISTANCE OF COUNSEL.
       U.S. CONST. AMEND. V, VI AND XIV.
The district court referred Hall’s petition to a magistrate judge for report and
recommendation. The magistrate judge concluded that the prosecutor had violated
Hall’s Fifth Amendment right against self-incrimination and his due process right to a
fair trial. Hall v. Vasbinder, 551 F. Supp. 2d 652, 672-76 (E.D. Mich. 2008). The
magistrate judge also concluded that Hall’s trial counsel had provided ineffective
No. 08-1475            Hall v. Vasbinder                                          Page 11


assistance for failing to object to the prosecutor’s questions about Hall’s earlier silence
and comments made during closing. Id. at 668-72. The ineffective assistance served as
cause for Hall’s procedural default of his Fifth Amendment and due process claims, and
the magistrate judge concluded that Hall was sufficiently prejudiced by the errors to
excuse the default. The district court adopted the magistrate judge’s report and
recommendation over the Warden’s objections and conditionally granted habeas relief
to Hall. Id. at 660.

        The Warden timely appealed.

                                               II

A.      Standard of Review

        We review de novo the district court’s decision. Murphy v. Ohio, 551 F.3d 485,
493 (6th Cir. 2009). Under the Antiterrorism and Effective Death Penalty Act of 1996,
Pub. L. No. 104-132, 110 Stat. 1214 (“AEDPA”), a federal court can order habeas relief
only if the state’s adjudication of a claim:

        (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). In applying these standards, we examine the holdings of the
Supreme Court as they existed at “the time of the relevant state-court decision.” Williams
v. Taylor, 529 U.S. 362, 412 (2000). We can, however, look to decisions of other courts
to determine whether a legal principle had been clearly established by the Supreme
Court. Smith v. Stegall, 385 F.3d 993, 998 (6th Cir. 2004).
No. 08-1475        Hall v. Vasbinder                                             Page 12


B.     The Right Against Self Incrimination under the Fifth Amendment

       1.      References to Hall’s Pre-Miranda Silence

       The Supreme Court has drawn a distinction between a defendant’s silence prior
to any Miranda warnings and silence after such warnings. Hall was arrested months
after the probate hearing. Thus, Hall’s silence at the probate hearing amounted to pre-
Miranda silence.

       The Fifth Amendment guarantees “No person . . . shall be compelled in any
criminal case to be a witness against himself . . . .” The Fifth Amendment’s right to
silence applies to a defendant in a state court proceeding under the Fourteenth
Amendment. Griffin v. California, 380 U.S. 609, 615 (1965). In general, a defendant’s
decision to remain silent cannot be used as substantive evidence of guilt. Id. This rule
clearly applies to a defendant’s silence after the defendant actually invokes the right to
remain silent. See id.; cf. Doyle v. Ohio, 426 U.S. 610, 619 (1976) (precluding the use
for impeachment purposes of a defendant’s post-Miranda silence). However, as a panel
of this court recently observed, “The constitutionality of using a defendant’s pre-
Miranda silence as substantive evidence of guilt [has] not been addressed by the
Supreme Court.” Jones v. Trombley, No. 07-1419, 2009 WL 152312, at *2 (6th Cir. Jan.
22, 2009) (unpublished). The circuit courts have split on this issue. See Combs v. Coyle,
205 F.3d 269, 282-83 (6th Cir. 2000) (collecting cases). While this court has held that
pre-Miranda silence cannot be used as substantive evidence of guilt, it did so under a
pre-AEDPA, de novo standard of review. See id. at 283. It is, therefore, not controlling
in this case, Hereford v. Warren, 536 F.3d 523, 532 (6th Cir. 2008); Jones, 2009 WL
152312, at *3 n.1, notwithstanding the district court’s conclusion to the contrary, Hall,
551 F. Supp. 2d at 668-69.

       Apart from substantive evidence, a defendant’s pre-Miranda silence can be used
to impeach his credibility as a witness. Portuondo v. Agard, 529 U.S. 61, 69 (2000)
(“The prosecutor’s comments in this case, by contrast, concerned respondent’s
credibility as a witness, and were therefore in accord with our longstanding rule that
No. 08-1475         Hall v. Vasbinder                                             Page 13


when a defendant takes the stand, his credibility may be impeached and his testimony
assailed like that of any other witness.” (internal quotation marks omitted; emphasis in
original)); Jenkins v. Anderson, 447 U.S. 231, 238 (1980) (“We conclude that the Fifth
Amendment is not violated by the use of prearrest silence to impeach a criminal
defendant’s credibility.”). When a defendant chooses to testify at trial, he has opened
his credibility to attack like any other witness. As the Supreme Court explained in Raffel
v. United States, “We can discern nothing in the policy of the law against self-
incrimination which would require the extension of immunity to any trial, or to any
tribunal, other than that in which the defendant preserves it by refusing to testify.” 271
U.S. 494, 499 (1926).

        Moreover, a prosecutor can refer to a defendant’s silence if doing so would be
a fair reply to a defense theory or argument, for example, when defense counsel asserts
that the government did not give his client an opportunity to tell his side of the story.
United States v. Robinson, 485 U.S. 25, 34 (1988) (holding that the prosecutor can refer
to the defendant’s silence at trial when defense counsel argued that his client was
precluded from telling his side of the story); Lockett v. Ohio, 438 U.S. 586, 595 (1978)
(rejecting the Fifth Amendment claim of the defendant because her “own counsel had
clearly focused the jury’s attention on her silence, first, by outlining her contemplated
defense in his opening statement and, second, by stating to the court and jury near the
close of the case, that Lockett would be the ‘next witness’”). “When the prosecutor goes
no further than to take defense counsel up on an invitation, that conduct will not be
regarded as impermissibly calculated to incite the passions of the jury.” 2 Crim. Prac.
Manual § 57:18 (2009) (citation omitted). This “invited reply” rule is limited, though,
to the scope of the invitation. Id.

        The Michigan Court of Appeals did not provide any analysis in support of its
finding that the testimony elicited by the prosecutor and the prosecutor’s remarks were
improper, other than to note that both the Federal Constitution and the State of
Michigan’s Constitution provide an individual with the right to remain silent. Hall, slip
op. at 5. To the extent that any of the testimony elicited by the prosecutor or the
No. 08-1475         Hall v. Vasbinder                                            Page 14


prosecutor’s remarks during closing arguments constituted impeachment or invited
reply, the Michigan Court of Appeals’ decision would be contrary to Supreme Court
precedent on the scope of permissible uses of pretrial silence under the Federal
Constitution. Robinson, 485 U.S. at 34; Jenkins, 447 U.S. at 238. If, however, the
testimony or arguments went beyond these permissible uses and were used instead in a
substantive way to prove Hall’s guilt, then the state court’s finding would not conflict
with any then-existing Supreme Court precedent and would be in line with this court’s
holding in Combs.

       It is difficult to see how Hall’s silence could have been used to impeach his
credibility as a witness. There are generally five types of impeachment evidence: self-
contradiction; bias; character; capacity to observe, remember, or recount events; and
specific contradiction. 1 McCormick on Evid. § 33 (6th ed. 2006 update). It seems clear
that Hall’s silence could not be used to show bias, impugn his character, or undercut his
capacity. That leaves only self-contradiction and specific contradiction. The Warden
argues that the prosecutor used Hall’s silence only on cross-examination and not in the
government’s case-in-chief. Warden’s Br. at 21. That is inaccurate. While Hall’s
defense counsel did argue during his opening statement that his client was a victim of
governmental persecution and did first elicit testimony from Hall’s daughter about
whether her father or step-mother testified at the hearing, the prosecutor asked Det.
Kellogg on direct examination whether Hall had testified at the probate hearing.
“[A]nticipatory impeachment” of a witness is generally disfavored and, given the
importance of the right against compelled self-testimony, it should be strictly
circumscribed in the criminal context. See United States v. Banks, 29 F. App’x 276, 283
(6th Cir. 2002) (unpublished) (“Mr. Banks had not yet taken the stand when Agent
Cannon testified, however, and the government’s anticipatory impeachment theory
seems to have no support in the caselaw.”). This form of impeachment presents the
defendant with the same dilemma as when an officer’s testimony about the defendant’s
silence is used as substantive evidence of guilt.
No. 08-1475        Hall v. Vasbinder                                             Page 15


       Rather than impeachment of Hall as a witness, the testimony and arguments are
better viewed as a reply to the defense theory of governmental persecution. When
considering whether the prosecutor acted properly in replying to a defense theory, it is
critical that we examine the prosecutor’s questions and remarks in their context.
Robinson, 485 U.S. at 33. As the Supreme Court explained in United States v. Young,
“[A] criminal conviction is not to be lightly overturned on the basis of a prosecutor’s
comments standing alone, for the statements or conduct must be viewed in context . . . .”
470 U.S. 1, 11 (1985).

       With regard to the probate hearing, defense counsel argued from the outset that
the hearing was abruptly arranged and lacked certain features of due process (e.g., the
victim did not testify or swear out a complaint). Defense counsel then went one step
further and actually raised the issue of Hall’s silence during the daughter’s cross-
examination. Importantly, it was defense counsel, not the prosecutor, who first broached
the topic of whether Hall testified during the probate hearing. Defense counsel did so
presumably to show that the probate court failed to hear any evidence from family
members, but instead made its decision based solely on evidence from Det. Kellogg and
the written petition, i.e., evidence from government sources. By doing so, however, he
invited the prosecutor to explore whether Hall had received a fair hearing, including
whether he had been given the opportunity to testify and whether he took advantage of
that opportunity. In short, defense counsel opened the door on Hall’s silence when he
asked the daughter whether her father had testified at the hearing. The testimony about
Hall’s silence was not elicited by the prosecutor for an improper purpose, but rather in
reply to the defense theory that Hall was the subject of governmental persecution
throughout the investigation.

       Beyond the witnesses’ testimony about his silence, Hall also complains that the
prosecutor treated his silence as substantive evidence of guilt during the prosecutor’s
closing statements. Viewed in isolation, the prosecutor’s closing remarks are troubling.
He described Hall as “cower[ing] in fear” during the probate hearing, as the “guilty man
in [c]ourt,” and as having “guilt working there and guilty knowledge.” Again, though,
No. 08-1475         Hall v. Vasbinder                                              Page 16


the question is not whether the prosecutor referred to Hall’s motives for not
testifying—the prosecutor clearly did. The question, instead, is whether the defense
strategy somehow fairly invited the prosecutor to characterize Hall’s motives in this
manner.

        Recall that during cross-examination of Hall’s daughter, defense counsel first
advanced the notion that custody of the children was stripped from Hall and his wife
“with no testimony” from the daughter or any family member. Hall later testified that
he did not understand exactly what was going on during the hearing, i.e., that he could
be stripped of custody of his children. This theme of governmental overreach was
extended during closing. Defense counsel argued to the jury that the probate hearing
was hastily arranged, contended that there was no opportunity for family members to
testify, and, most strikingly, strongly implied that the referee did not want to hear from
Hall’s daughter or any other family member about “what’s going on” before taking the
children from their parents. This defense theme fairly invited the prosecutor’s comments
during closing that Hall had not been denied the opportunity to testify, but instead had
refused to testify because doing so would have undermined his plan to cover up the
sexual conduct. By delving into the purported motives of the government actors, defense
counsel left the door open for the prosecutor to respond by delving into Hall’s own
motives at the hearing.

        With that said, the prosecutor arguably went beyond even that fairly wide
opening by explicitly characterizing Hall’s refusal to testify as evidence of “guilt.” In
general, “it is improper for a prosecuting attorney in a criminal case to state his personal
opinion concerning the credibility of witnesses or the guilt of a defendant.” Byrd v.
Collins, 209 F.3d 486, 537 (6th Cir. 2000) (internal quotation marks omitted). In Young,
the Supreme Court identified two dangers from a prosecutor’s personal opinion about
a defendant’s guilt:

        [S]uch comments can convey the impression that evidence not presented
        to the jury, but known to the prosecutor, supports the charges against the
        defendant and can thus jeopardize the defendant’s right to be tried solely
        on the basis of the evidence presented to the jury; and the prosecutor’s
No. 08-1475         Hall v. Vasbinder                                              Page 17


        opinion carries with it the imprimatur of the Government and may induce
        the jury to trust the Government’s judgment rather than its own view of
        the evidence.
470 U.S. at 18-19 (citing Berger v. United States, 295 U.S. 78, 88-89 (1935)). In the
present case, there is little danger that the jury believed that the prosecutor knew of
evidence not presented to the jury because his remarks about “guilt” were not made in
some general, free-standing statement, but rather in direct reference to the probate
proceedings and why Hall did not testify at those proceedings.

        As to the imprimatur of the government, this court has found less inflammatory
remarks of prosecutors to have violated a defendant’s right against self-incrimination or
due process, although those remarks took place during trials where the defendant did not
testify or did not otherwise initiate some discussion about his pretrial silence. See, e.g.,
Combs, 205 F.3d at 279, 286 (holding that the prosecutor violated the defendant’s right
to remain silent by eliciting testimony that the defendant told police to “talk to my
lawyer” and the prosecutor argued during closing that the statement was “evidence that
he realizes the gravity of the situation and at this time gave that particular comment or
response” to police; however, the defendant did not testify at trial); Gravley v. Mills, 87
F.3d 779, 787-88 (6th Cir. 1996) (in post-Miranda silence context, holding that repeated
references by prosecutor to the defendant’s pretrial silence were improper; however,
prosecutor was the first to introduce testimony that the defendant had chosen to remain
silent during a police interrogation). Because the matter of harmless error/prejudice
permits clearer resolution of this case, we presume without deciding that the prosecutor’s
specific remarks regarding guilt went beyond the scope invited by the defense strategy.

        2.      Harmless Error Under Brecht

        Improper remarks by a prosecutor about a defendant’s right to remain silent do
not constitute a structural error requiring automatic reversal. Brecht v. Abrahamson, 507
U.S. 619, 629, 638 (1993) (characterizing a violation of the right to silence as a trial
error, rather than a structural one). The Michigan Court of Appeals concluded that Hall
was not prejudiced by the improper actions of the prosecutor “in light of the
overwhelming evidence that was properly admitted from which the jury could find [Hall]
No. 08-1475         Hall v. Vasbinder                                              Page 18


guilty beyond a reasonable doubt.” Hall, slip op. at 5 (citing People v. Graves, 581
N.W.2d 229, 232 (Mich. 1998)). This is the familiar harmless-error standard of
Chapman v. California, 386 U.S. 18 (1967) (Graves cites People v. Anderson, 521
N.W.2d 538, 545 (Mich. 1994), which explicitly relies upon Chapman for the harmless-
error test). This was a legal determination of the state court, not a factual one as
suggested by the Warden, and thus it does not enjoy AEDPA’s strong presumption in
favor of a state court’s finding of historical fact. 28 U.S.C. § 2254(e)(1); cf. Brecht, 507
U.S. at 642.

        In the normal course, the next step would be to consider whether, pursuant to
Brecht, the prosecutor’s actions “had a substantial and injurious effect or influence” on
the jury’s verdict. Fry v. Pliler, 127 S. Ct. 2321, 2328 (2007) (holding that the Brecht
harmless-error standard, rather than the Chapman formulation, is applicable on federal
habeas review). This would entail “a de novo examination of the trial record.” Brecht,
507 U.S. at 642. However, as explained below, Hall has procedurally defaulted his Fifth
Amendment claim. In order to excuse the default, Hall relies solely on the ineffective
assistance of his trial counsel. The prejudice prong of the ineffective assistance analysis
subsumes the Brecht harmless-error review. Kyles v. Whitley, 514 U.S. 419, 436 (1995)
(explaining that Agurs’s “materiality” standard, later adopted as the prejudice standard
for ineffective assistance of counsel, is stricter vis-à-vis a habeas petitioner than is the
Brecht harmless-error standard).        If Hall can show that he was prejudiced by his
attorney’s failure to object during closing, then he necessarily satisfies Brecht; if,
alternatively, Hall fails to establish that he was prejudiced, then we cannot excuse his
default and it is immaterial whether he can otherwise satisfy Brecht.

        3.      Procedural Default

        Hall’s trial counsel did not object during the prosecutor’s closing or rebuttal.
Michigan had a contemporaneous-objection rule at the time of Hall’s trial. In keeping
with that rule, the Michigan Court of Appeals treated the claim on direct appeal as
waived and reviewed it only for plain error. Accordingly, his trial counsel’s failure to
object resulted in the procedural default of the Fifth Amendment claim. Ege v. Yukins,
No. 08-1475         Hall v. Vasbinder                                              Page 19


485 F.3d 364, 378 (6th Cir. 2007); Joseph v. Coyle, 469 F.3d 441, 458-59 (6th Cir.
2006).

         A defendant can overcome a procedural default by showing (a) cause for the
default and (b) actual prejudice from it. Murray v. Carrier, 477 U.S. 478, 485 (1986).
To show cause for the default, a petitioner must show more than mere error, he must
establish a substantial reason to excuse the default.          “The Supreme Court has
acknowledged that ‘cause’ may be established through a showing of counsel’s
ineffectiveness in failing properly to preserve a claim for review in state court.” Ege, 485
F.3d at 378 (citation omitted). An argument that ineffective assistance of counsel should
excuse a procedural default is treated differently than a free-standing claim of ineffective
assistance of counsel. Id. at 379-80 n.7; Joseph, 469 F.3d at 459. The latter must meet
the higher AEDPA standard of review, while the former need not. Joseph, 469 F.3d at
459 (“Although Joseph must satisfy the AEDPA standard with respect to his independent
IAC claim, he need not do so to claim ineffective assistance for the purpose of
establishing cause.”).

         To establish ineffective assistance of counsel, it must be shown that counsel’s
performance was deficient and that the deficient performance prejudiced the defense so
as to render the trial unfair and the result unreliable. Strickland v. Washington, 466 U.S.
668, 687 (1984). “Not just any deficiency in counsel’s performance will do, however;
the assistance must have been so ineffective as to violate the Federal Constitution.” Ege,
485 F.3d at 378 (internal quotation marks omitted). The prejudice analysis for the
procedural default and the prejudice analysis for the ineffective assistance of counsel
argument are sufficiently similar to treat as the same in this context. “[E]stablishing
Strickland prejudice likewise establishes prejudice for purposes of cause and prejudice.”
Joseph, 469 F.3d at 462-63 (citing Mincey v. Head, 206 F.3d 1106, 1147 n.86 (11th Cir.
2000); Prou v. United States, 199 F.3d 37, 49 (1st Cir. 1999)). To establish prejudice
under Strickland, Hall “must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.
No. 08-1475        Hall v. Vasbinder                                             Page 20


A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” 466 U.S. at 694.

       As explained above, much of what undergirds Hall’s Fifth Amendment claim was
not unconstitutional—all of the testimony about his silence during the probate hearing
was proper as invited reply to the defense strategy. Defense counsel’s strategy employed
three complementary themes: Hall did not touch his daughter in a sexual manner; his
daughter came up with the story so that she could live with her birth mother in Kansas;
and the government rushed to judgment within a matter of days. These themes provided
both an actual innocence component and a reason other than guilt for why the charges
were brought against him. It is clear from his opening and closing statements that
defense counsel wanted to generate sympathy for his client by showing that the
government took his children away from him with just a couple of hours’ notice. Hall
was, it was alleged, essentially shell-shocked at the hearing. Although ultimately
unsuccessful, defense counsel’s strategy, including raising the matter of Hall’s silence,
was not constitutionally deficient.

       No doubt, though, this defense strategy did carry risks. One risk was that the
prosecutor would rebut the persecution theme with evidence that Hall had received a fair
hearing before the probate court and had chosen not to testify for some reason other than
lack of time to prepare, e.g., on the advice of counsel. Because Hall’s silence was first
raised by defense counsel, and because his silence fit within the defense’s sound trial
strategy, defense counsel was not ineffective for failing to object to the prosecutor’s
questions about Hall’s silence.

       With respect to the prosecutor’s remarks at closing, defense counsel opened the
door for the prosecutor to explore Hall’s motives for not testifying. If the jury rejected
the defense’s theory that Hall did not testify because the hearing was rushed and the
referee did not want to hear from family members, then it would have been logical for
the jury to conclude that he did not testify for some other, less favorable reason. The
prosecutor gave voice to that alternate interpretation. While the prosecutor may have
No. 08-1475            Hall v. Vasbinder                                                          Page 21


gone too far in doing so,3 the strategy of the defense created the risk in the first place.
In short, Hall employed a high risk/high reward trial strategy—any prejudice attributable
to defense counsel’s failure to object to the prosecutor’s closing remarks has to be
measured in comparison with this strategy.

         Had defense counsel objected during the prosecutor’s closing and rebuttal,
counsel would have presumably requested that the trial court admonish the prosecutor
and instruct the jury that arguments of counsel were not evidence. Shortly after the
prosecutor finished his rebuttal closing, the trial court instructed the jury about what was
and what was not evidence, thereby at least partially alleviating the lack of a
contemporaneous instruction. Although a general instruction at the end of closing
statements may not be sufficient to cure the full impact of a prosecutor’s improper
remarks in every case, see, e.g., United States v. Carter, 236 F.3d 777, 787 (6th Cir,
2001) (“We believe that measures more substantial than a general instruction that
‘objections or arguments made by lawyers are not evidence in the case’ were needed to
cure the prejudicial effect of the prosecutor’s comments during closing arguments.”
(footnote omitted)), the instruction does lessen the impact of such remarks, as the jury
is presumed to follow all of the court’s instructions, see United States v. Sivils, 960 F.2d
587, 594 (6th Cir. 1992), not just the contemporaneous ones.

         As to whether the evidence of guilt was overwhelming, the district court and state
court came to differing conclusions. The district court correctly noted that the direct
evidence of sexual misconduct came down largely to a matter of credibility—Hall’s


         3
          In applying the lower standard of Brecht, this court found that prosecutorial misconduct had a
substantial influence on the jury. Gravley, 87 F.3d at 790. In doing so, it reasoned,
         Our courts have long recognized that a prosecutor has a strong influence over a jury. See
         Berger, 295 U.S. at 88, 55 S. Ct. at 633 (noting that “improper suggestions, insinuations,
         and, especially assertions of personal knowledge [by a prosecutor] are apt to carry much
         weight against the accused when they should properly carry none”). We have noted that
         this influence is even greater in cases involving sexual abuse because such cases “exert
         an almost irresistible pressure on the emotions of the bench and bar alike” due to the
         cases usually turning on the credibilities of the defendant and the prosecuting witness.
         Martin [v. Parker], 11 F.3d [613,] 616-17 [(6th Cir. 1993)]. As a result, in such
         instances a “strict adherence to the rules of evidence and appropriate prosecutorial
         conduct is required to ensure a fair trial.” Id.
Id.
No. 08-1475        Hall v. Vasbinder                                              Page 22


versus his daughter’s. Hall, 551 F. Supp. 2d at 672. No other witness testified seeing
Hall massage his daughter’s breast. Yet, well before the prosecutor’s closing remarks,
Hall had explained that he did not testify at the probate hearing because his lawyer told
him to remain silent. As explained above, this testimony was brought out on cross-
examination and was well within the scope of the invited reply. This testimony was in
some tension with the defense theory of a hasty hearing held by a referee who did not
want to hear from family members. Thus, while Hall’s credibility may have been
damaged illegitimately by the prosecutor’s closing remarks, it was also damaged
legitimately by his own testimony that he remained silent on the advice of counsel.

       Given all of this, we find that Hall was not prejudiced by defense counsel’s
failure to object to the prosecutor’s closing remarks. This case is relatively rare in that
a central component of the defense’s theory was the defendant’s silence at an earlier
hearing. Unlike most cases, the testimony—the actual evidence that the jury was
instructed to consider—about Hall’s silence was entirely proper, either as directly
prompted by the defense or fairly invited by it.         Any prejudice to Hall by the
prosecutor’s remarks during closing was lessened by the trial court’s subsequent
instruction. Finally, if Hall’s credibility suffered from the prosecutor’s characterization
of his motive for not testifying, it also suffered from his own explanation. While the
prosecutor’s remarks might have negatively impacted Hall’s case, the magnitude of that
impact, when evaluated against the properly admitted testimony about his earlier silence,
was not enough to undermine confidence in the jury’s verdict of guilt.

       Accordingly, Hall cannot show that he was prejudiced by his counsel’s failure
to object to the prosecutor’s closing statements. He defaulted his Fifth Amendment
claim and that default is not excused by any ineffective assistance of counsel. Likewise,
because his nested ineffective assistance of counsel claim fails, his independent claim
necessarily fails under the stricter AEDPA standard of review. See Joseph, 469 F.3d at
459. We reverse the district court’s conditional grant of habeas relief on Hall’s Fifth
Amendment claim and independent ineffective assistance of counsel claim.
No. 08-1475        Hall v. Vasbinder                                              Page 23


C.     Hall’s Remaining Claims

       The district court also granted habeas relief to Hall on his prosecutorial
misconduct claim. In support of his claim, Hall asserts several instances of prosecutorial
misconduct, including the testimony and the remarks of the prosecutor underlying his
Fifth Amendment claim and several purported violations of state evidentiary rules.

       In general, to merit habeas relief, the prosecutor’s “conduct must be both
improper and flagrant.” Broom v. Mitchell, 441 F.3d 392, 412 (6th Cir. 2006) (citation
omitted). Hall’s claim suffers from two fatal defects. To the extent that any testimony
and comments violated Michigan’s rules of evidence, such errors are not cognizable on
federal habeas review. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Williams v.
Anderson, 460 F.3d 789, 816 (6th Cir. 2006) (noting that cumulative trial error claims
are noncognizable on habeas review). The heart of his prosecutorial misconduct claim
is identical to that of his Fifth Amendment claim. As explained above, the testimony
elicited by the prosecutor about Hall’s silence was proper. To the extent that the
prosecutor made inappropriate comments at closing, these comments were not objected
to and therefore suffer from the same procedural default deficiencies as does the Fifth
Amendment claim. Accordingly, for the same reasons that we find the Fifth Amendment
claim defaulted, we find the prosecutorial misconduct claim defaulted.

       Finally, Hall claims that he was denied his right to due process by the admission
and exploitation of irrelevant and highly prejudicial evidence, and that certain
irregularities occurred during sentencing. For the reasons explained by the district court,
the grounds for those claims are either non-cognizable on habeas review or without
merit. Hall, 551 F. Supp. 2d at 676.

                                           III

       For the reasons set forth above, we REVERSE the district court’s grant of
conditional habeas relief.
