                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a1266n.06

                                            No. 11-1232                                   FILED
                                                                                      Dec 10, 2012
                           UNITED STATES COURT OF APPEALS                       DEBORAH S. HUNT, Clerk
                                FOR THE SIXTH CIRCUIT


JEFFREY D. TURNER,                                        )
                                                          )
       Petitioner-Appellant,                              )        ON APPEAL FROM THE
                                                          )        UNITED STATES DISTRICT
 v.                                                       )        COURT FOR THE EASTERN
                                                          )        DISTRICT OF MICHIGAN
CINDI CURTIN,                                             )
                                                          )
       Respondent-Appellee.                               )        OPINION
                                                          )

Before: ROGERS and STRANCH, Circuit Judges; PEARSON, District Judge.*

       ROGERS, Circuit Judge. Criminal defendant Jeffrey Turner appeals the denial of

his request for federal habeas relief under 28 U.S.C. § 2254. Following a jury trial, Turner

was convicted of first-degree premeditated murder, felony murder, assault with intent to

commit murder, first-degree home invasion, and felony firearm for the shooting death of his

ex-girlfriend as well as the shooting of her current boyfriend. The district court dismissed

all of Turner’s habeas claims, and certified one matter for appeal—whether the prosecutor’s

comments allegedly alluding to Turner’s failure to testify violated Turner’s constitutional

rights to a fair trial and due process. The district court determined that because Turner did

not object at trial he procedurally defaulted his claim. Moreover, without proof of prejudice,

Turner could not establish cause—namely, ineffective assistance of counsel—to overcome



       *
        The Honorable Benita Y. Pearson, United States District Judge for the Northern District of
Ohio, sitting by designation.
Turner v. Curtin, #11-1232

procedural default. On this basis, the district court properly denied Turner’s request for

habeas relief.

        The events giving rise to this case occurred during the early morning hours of August

21, 2000. At that time, Felicia Watson was dating Aradondo Collins. Turner had known

Watson for several years, and the two had previously dated. Watson’s children, who were

in the house at the time of the murder, testified at Turner’s trial. Ten-year-old Charlotte

Watson testified that on the morning that her mother was murdered, both Charlotte and her

mother were asleep in their bedrooms, separated only by a hanging sheet. Charlotte testified

that she saw Turner peek into the bedroom, that she heard four gunshots, and that she then

saw Turner chase Collins out of the house. Chonte Watson, who was eight years old at time

of trial, testified similarly that on the morning of the shooting she saw Turner climbing the

stairs to the bedrooms and that she heard three gunshots.

        Aradondo Collins testified that he came over around 11:00 or 11:30 p.m. on the night

of the shootings. While asleep in Watson’s bed, he heard noise from the stairs leading to the

bedrooms. A moment later, Turner confronted Collins and Watson in Watson’s bedroom.

After Watson pushed Turner in an attempt to keep him away from Collins, Turner went

downstairs. A few moments later, Turner returned with a gun and began shooting. Collins

was struck by three bullets as he attempted to leave the house, with Turner following him.

Collins also testified that he saw Turner shoot Watson. Watson was killed by two shots fired

at close range.




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Turner v. Curtin, #11-1232

        A jury convicted Turner of first-degree premeditated murder, felony murder, assault

with intent to commit murder, first-degree home invasion, and felony firearm. He was

sentenced to life in prison for the first-degree murder conviction, 30 to 50 years for the

assault conviction, 10 to 20 years for the home invasion conviction, and 5 years for the

felony-firearm conviction.

        Turner filed a direct appeal with the Michigan Court of Appeals, raising a number of

claims, including that: (1) “the prosecutor ma[de] improper comment[s] to the jury in [his]

opening statement and closing argument by making comment[s] unsupported by evidence,

commenting on [Turner]’s trial silence, and shifting the burden of proof,” and (2) “[Turner]

was deprived of effective assistance of counsel by trial counsel’s . . . failure to object to

various improper arguments.” R.10-14, Michigan Court of Appeals decision, Page ID #910.

The Michigan Court of Appeals affirmed Turner’s convictions, People v. Turner, No.

237038, 2003 WL 1387056, at *1 (Mich. Ct. App. Mar. 18, 2003), reviewing Turner’s

relevant prosecutorial misconduct claim on appeal for plain error because Turner did not

object during trial. Without much discussion, the Court of Appeals determined that it was

“unlikely that any of the prosecutor’s statements affected the outcome of the trial.” Id. at *2.

The Court of Appeals also held that, with regard to Turner’s ineffective assistance of counsel

claim as it related to counsel’s failure to object to instances of alleged prosecutorial

misconduct, Turner “failed to show prejudice and his claim of ineffective assistance must

fail” because “the prosecutor’s conduct was either proper or had no impact on the outcome




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Turner v. Curtin, #11-1232

of trial.” Id. at *3. The Michigan Supreme Court denied leave to appeal. R. 10-15, Michigan

Supreme Court Decision, Page ID #946.

        Turner filed a petition for writ of habeas corpus alleging, among other things, that the

prosecutor committed misconduct during his closing argument by noting Turner’s failure to

testify. In his habeas petition, Turner points to the following three statements as evidence

of the prosecutor’s improper comments about Turner’s failure to testify:

        (1) [T]his case is uncontested in terms of the facts of the case and what
        happened. R. 10-11, Trial Tr., Page ID #756.

        (2) I mean, he’s got to say something. He’s got to come of [sic] with some
        excuse. R.10-12, Trial Tr., Page ID #802.

        (3) You know, he can make any argument if he [Mr. Feinberg, defense
        counsel] wants on behalf of Mr. Turner, but at the end of the day, provides
        no evidence in terms of his comments to you. Id., Page ID #803.

        The district court held that, because Turner did not object to the prosecutor’s

allegedly improper comments at trial, his claim was procedurally defaulted. R. 22, District

Court Opinion, Page ID #1205-1206. The district court further determined that Turner could

not establish sufficient cause—namely, ineffective assistance of counsel—to excuse the

default. Although the comments were “inappropriate,” and did “not fall within a gray area

between proper and improper,” the district court held that “because the evidence against

[Turner] was overwhelming . . . the Court finds that the state court’s finding that no prejudice

resulted is not an unreasonable application of Strickland.” Id., Page ID #1212. As Turner

also could not demonstrate that the failure to consider his claim would “result in a

fundamental miscarriage of justice,” id. (quoting Coleman v. Thompson, 501 U.S. 722, 750


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Turner v. Curtin, #11-1232

(1991)), federal habeas review was denied. R. 22, District Court Opinion, Page ID #1212.

However, the district court granted a certificate of appealability on this claim.

        We need not decide the extent to which AEDPA deference applies in this case to the

prejudice analysis, because an independent review of the record shows Turner was not

prejudiced by defense counsel’s failure to object to the prosecutor’s comment. Turner’s

prosecutorial misconduct claim was therefore procedurally defaulted. Turner’s trial counsel

failed to object to the prosecutor’s comments at trial as required by Michigan’s

contemporaneous-objection rule, and because Turner did not preserve his objection, the

Michigan Court of Appeals reviewed his claim for plain error. Turner, 2003 WL 1387056,

at *1. Because Michigan courts follow the contemporaneous-objection rule, an “adequate

and independent” ground upon which Michigan state courts may rely to foreclose review,

Turner defaulted his claim by failing to follow this applicable procedural rule. See Lancaster

v. Adams, 324 F.3d 423, 436-37 (6th Cir. 2003) (citing Greer v. Mitchell, 264 F.3d 663, 672-

73 (6th Cir. 2001)).

        Turner cannot overcome the procedural default of his prosecutorial misconduct claim

because he is unable to establish cause and prejudice or that a fundamental miscarriage of

justice would occur if this court did not hear his claim on habeas review. Even if Turner

established cause “through a showing of counsel’s ineffectiveness in failing to properly

preserve a claim for review in state court,” Hall v. Vasbinder, 563 F.3d 222, 236 (6th Cir.

2009) (citing Ege v. Yukins, 485 F.3d 364, 378 (6th Cir. 2007)), he has not shown that he

suffered prejudice or that the outcome of his trial would have been different. “The prejudice


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Turner v. Curtin, #11-1232

analysis for . . . procedural default and the prejudice analysis for the ineffective assistance

of counsel argument are sufficiently similar to treat as the same in this context,” Vasbinder,

563 F.3d at 237; thus, “establishing Strickland prejudice likewise establishes prejudice for

purposes of cause and prejudice.” Joseph v. Coyle, 469 F.3d 441, 462-63 (6th Cir. 2006).

Because Turner has not shown ineffective assistance of counsel because he has not shown

prejudice, he also has not established sufficient prejudice to overcome procedural default.

        Defense counsel was not ineffective because, even assuming without deciding that

the failure to object to the prosecutor’s comments constituted deficient performance, this

failure did not prejudice Turner’s trial. “[A] court need not determine whether counsel’s

performance was deficient before examining the prejudice suffered by the defendant as a

result of the alleged deficiencies.” Strickland v. Washington, 466 U.S. 668, 697 (1984). To

establish prejudice under Strickland, Turner “must show that there is a reasonable probability

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

different. A reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id. at 694. In this case, the district court correctly found that “because the

evidence against [Turner] was overwhelming,” Turner was unable to prove ineffective

assistance of counsel sufficient to overcome his procedural default.

        In light of the overwhelming evidence against Turner, the prosecutor’s comments did

not undermine the jury’s guilty verdict. The victim’s two daughters, who were in their

bedrooms at the time of their mother’s murder and whose rooms were separated from hers

only by a sheet, knew Turner and testified against him. One daughter stated that she saw


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Turner v. Curtin, #11-1232

Turner chase Collins down the stairs immediately following the shooting. Collins, who was

shot by the intruder, also testified against Turner, as did several others. While there may

have been some inconsistencies in the testimony, these were minor and all of the witnesses

agreed that Turner was the shooter. R. 22, District Court Opinion, Page ID #1211. This

overwhelming evidence undermines Turner’s claim that, without the prosecutor’s comments,

there was a reasonable probability that the jury could have found him not guilty. Turner’s

case stands in contrast to two cases where the prosecutor’s comments constituted

misconduct, Girts v. Yanai, 501 F.3d 743 (6th Cir. 2007), and Eberhardt v. Bordenkircher,

605 F.2d 275 (6th Cir. 1979), as the prosecutors’ comments in Girts and Eberhardt could

have made a difference. In Girts, the evidence was “weak and limited,” 501 F.3d at 757,

including inconsistent physical evidence as well as an alibi that the defendant was out of state

at the time of the victim’s death. Similarly, in Eberhardt, the evidence was “far from

‘overwhelming,’” as it relied heavily on eyewitness testimony in a “brief robbery in which

none of the parties knew each other.” 605 F.2d at 279.

        Turner is also unable to “demonstrate that failure to consider [his] claim[ ] will result

in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. Turner argues that the

prosecutor’s comments on his silence violated his constitutional rights to a fair trial and due

process. Appellant Br. at 6-7. “When a petitioner makes a claim of prosecutorial

misconduct, the touchstone of due process analysis . . . is the fairness of the trial, not the

culpability of the prosecutor. On habeas review, [this court’s] role is to determine whether

the conduct was so egregious as to render the entire trial fundamentally unfair.” Serra v.


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Turner v. Curtin, #11-1232

Mich. Dep’t of Corr., 4 F.3d 1348, 1355 (6th Cir. 1993) (citation and internal quotation

marks omitted). That is not the case here. Even if the comments were improper, an issue

we do not decide, the comments were not so egregious as to render the “entire trial

fundamentally unfair,” especially in light of the overwhelming—and consistent—evidence

against Turner.

        Because Turner has not shown that defense counsel’s failure to object to the

prosecutor’s comments prejudiced the outcome of his trial, his ineffective assistance of

counsel claim fails. Turner thus cannot establish cause to overcome his procedural default.

        For the foregoing reasons, the district court’s denial of Turner’s habeas petition is

affirmed.




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