                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 12a1206n.06

                                            Nos. 10-2477; 10-2532                                        FILED
                                                                                                    Nov 21, 2012
                               UNITED STATES COURT OF APPEALS                                DEBORAH S. HUNT, Clerk
                                    FOR THE SIXTH CIRCUIT

NANCY SEAMAN,

         Petitioner-Appellee / Cross-Appellant,

v.

HEIDI WASHINGTON,
                                                                ON APPEAL FROM THE UNITED
         Respondent-Appellant / Cross-Appellee.                 STATES DISTRICT COURT FOR THE
                                                                EASTERN DISTRICT OF MICHIGAN
                                                        /



BEFORE:           CLAY and SUTTON, Circuit Judges; RICE, District Judge.*

         CLAY, Circuit Judge. Following a jury trial in Michigan’s Oakland County Circuit Court,

Petitioner Nancy Seaman was convicted of the first-degree premeditated murder of her husband and

sentenced to life imprisonment. In this case involving a petition for a writ of habeas corpus brought

pursuant to 28 U.S.C. § 2254, the parties cross-appeal a decision by the district court that

conditionally granted Petitioner the writ. The district court concluded that Petitioner was entitled

to relief because she suffered ineffective assistance of counsel when her defense attorney failed to

fully develop her claim of battered spouse syndrome (“BSS”). Respondent appeals the conditional

grant of relief, and Petitioner cross-appeals the district court’s denial of relief on her ineffective

assistance of counsel claim related to an allegedly deficient jury instruction. For the reasons that



         *
          The Honorable Walter Herbert Rice, United States District Judge for the Southern District of Ohio, sitting by
designation.
                                        Nos. 10-2477; 10-2532


follow, we REVERSE the district court’s judgment granting a writ of habeas corpus, VACATE the

writ, and REMAND with instructions that the case be dismissed.

                                           BACKGROUND

        This case is a tale of two opposing narratives: one of a battered woman killing her abusive

husband in self-defense, and another of premeditated murder. Petitioner’s husband, Robert Seaman,

was discovered by police officers responding to a missing person report on May 12, 2004. Mr.

Seaman’s body was hidden in the trunk of Petitioner’s car, which was parked in the driveway of the

couple’s home in Farmington Hills, Michigan. Mr. Seaman had been struck on the head and neck

with a hatchet at least sixteen times, slashed with a knife on the neck, stabbed at least twenty-one

times, and struck on the forehead with an unidentified blunt object.

        Petitioner admitted at trial that she killed her husband, but alleged that she did so only in self-

defense. Petitioner testified that her marriage was punctuated by decades of emotional and physical

abuse. She stated that she recently had purchased a condominium and was planning to leave the

marriage when Mr. Seaman discovered her plans. She claimed that her husband became violent

during a dispute about the condominium, and that he picked up a long knife from their kitchen, and

threatened to kill her. Petitioner fled to the garage, where she grabbed a hatchet and swung blindly

at Mr. Seaman. She testified that she was terrified, that she had no idea how many times she hit her

husband, and that she continued to hit him because she was afraid he would kill her for fighting

back.

        The prosecution argued, however, that the murder was planned. Central to this theory was

evidence showing that Petitioner purchased the hatchet the evening before the murder and that she

                                                    2
                                        Nos. 10-2477; 10-2532


shoplifted and then returned a similar hatchet in an attempt to cover her original purchase.

Additionally, Petitioner thoroughly cleaned the crime scene with bleach and repainted portions of

the garage to cover the blood. Petitioner then wrapped Mr. Seaman’s body and hid it in the trunk

of her car, where it remained for several days. When friends, family, and eventually the police began

to ask questions about her husband’s whereabouts, Petitioner fabricated stories to cover up his

disappearance.

        The couple’s two sons, Greg and Jeff Seaman, also testified. They provided generally

consistent accounts of their parents’ marriage, except for one critical issue: Jeff testified that he never

saw his father abuse his mother, whereas Greg testified that his father frequently abused his mother,

both verbally, and occasionally, physically.

        The jury convicted Petitioner of first-degree premeditated murder, in violation of Michigan

Compiled Laws § 750.316. On January 25, 2005, she was sentenced to life imprisonment. Petitioner

filed a motion for a directed verdict of acquittal/new trial. On August 31, 2005, the trial court denied

her motion, but reduced her conviction to second-degree murder, finding that the first-degree murder

conviction was not supported by sufficient evidence of premeditation or deliberation.

        The state filed an application for leave to appeal the reduction before the Michigan Court of

Appeals, and Petitioner filed an appeal of right. The two appeals were consolidated, and on February

13, 2007, the Michigan Court of Appeals reversed the trial court’s reduction and denied all of

Petitioner’s claims on appeal, with one judge dissenting. People v. Seaman, Nos. 260816, 265572,

2007 WL 466003 (Mich. Ct. App. Feb. 13, 2007) (“Seaman I”). Petitioner then filed an application



                                                    3
                                       Nos. 10-2477; 10-2532


for leave to appeal before the Michigan Supreme Court, which was denied. People v. Seaman, 738

N.W.2d 736 (Mich. 2007).

        In 2008, Petitioner filed for post-conviction relief before the state trial court. While her

motion for relief from judgment was pending, she also filed for a federal writ of habeas corpus,

pursuant to 28 U.S.C. § 2254. Although the federal case was initially held in abeyance to allow

Petitioner to complete her state proceedings, Petitioner requested that the stay be lifted, and she

abandoned her unexhausted claims in her federal habeas petition. The district court then conducted

an evidentiary hearing on April 21, 2010, which focused primarily on Petitioner’s claims of

ineffective assistance of counsel.

        On October 29, 2010, the district court issued a decision conditionally granting Petitioner the

writ of habeas corpus, reasoning that errors made by defense counsel in relation to Petitioner’s

evidence of battered spouse syndrome justified the issuance of the writ. See Seaman v. Washington,

No. 08-cv-14038, 2010 WL 4386930, at *12 (E.D. Mich. Oct. 29, 2010) (“Seaman II”). The district

court denied the remainder of Petitioner’s claims but granted a certificate of appealability for several

of them.1




        1
        Specifically, Petitioner was granted a certificate of appealability on her claims: “that counsel
was ineffective in failing to object to the jury instructions, that the prosecutor committed misconduct
when she argued that Petitioner removed [a cover from the hatchet], and that the prosecutor
committed misconduct when she questioned Petitioner regarding her religious beliefs.” Seaman II,
2010 WL 4386930, at *32. Because Petitioner failed to brief the prosecutorial misconduct claims
on appeal, we deem them abandoned. See Robinson v. Jones, 142 F.3d 905, 906 (6th Cir. 1998).

                                                   4
                                       Nos. 10-2477; 10-2532


       The state and Petitioner both filed timely notices of appeal, which have been consolidated

before this Court. The district court had jurisdiction pursuant to 28 U.S.C. § 2254, and we exercise

jurisdiction under 28 U.S.C. § 2253(a).

                                             ANALYSIS

I.     Legal Framework

       We review the district court’s legal conclusions de novo and its factual findings for clear

error. Smith v. Mitchell, 567 F.3d 246, 255 (6th Cir. 2009).

       Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a federal

court shall not grant a habeas petition with respect to any claim adjudicated on the merits in state

court unless the state adjudication:

       (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).

       A state court’s decision is “contrary to . . . clearly established federal law” if “the state court

arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the

state court decides a case differently than the Supreme Court on a set of materially indistinguishable

facts.” Lundgren v. Mitchell, 440 F.3d 754, 762–63 (6th Cir. 2006) (quoting Williams v. Taylor, 529

U.S. 362, 413 (2000)) (internal quotations and alterations omitted). A state court decision is “an

unreasonable application of clearly established federal law” if “the state court identifies the correct


                                                   5
                                        Nos. 10-2477; 10-2532


 governing legal principle but unreasonably applies that principle to the facts of the [petitioner’s]

 case.” Id. at 763. Clearly established federal law is determined by the holdings, as opposed to the

 dicta, of the Supreme Court’s decisions as of the time of the relevant state court decision. Id.

        The Supreme Court has stressed that AEDPA’s standard is “difficult to meet” and “demands

that [state court] decisions be given the benefit of the doubt.” Cullen v. Pinholster, 131 S. Ct. 1388,

1398 (2011) (internal quotations and citations omitted). A state court’s factual determinations are

entitled to a presumption of correctness, rebuttable only by “clear and convincing evidence” that the

state court based its determination on an “unreasonable determination of the facts.” Schriro v.

Landrigan, 550 U.S. 465, 473–74 (2007). In reviewing whether a state court decision was an

unreasonable application of federal law, we must remain mindful that “an unreasonable application

of federal law is different from an incorrect [one],” Williams, 529 U.S. at 410 (emphasis omitted), and

we decline to award habeas relief where fairminded jurists could disagree on the correctness of the

state court’s decision. Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (citing Yarborough v.

Alvarado, 541 U.S. 652, 664 (2004)).

       Recently, the Supreme Court further limited review under § 2254(d) “to the record that was

before the state court that adjudicated the claim on the merits.” Pinholster, 131 S. Ct. at 1398. Thus,

even if a petitioner was granted an evidentiary hearing pursuant to § 2254(e), the federal court must

disregard newly obtained evidence that supports a claim that was previously adjudicated on the merits

before the state court.2 Id. Pinholster suggested, however, that the prohibition on new evidence might


         2
         Section 2254(e) provides an incentive to diligently investigate and pursue claims in state
 court by instructing that a petitioner who has “failed to develop the factual basis of a claim” before

                                                  6
                                         Nos. 10-2477; 10-2532


not always apply, using as an example the hypothetical defendant who diligently pursues her claim

through the state courts, but nevertheless presents a “new claim” in federal court because the court

orders the production of evidence previously made unavailable during state court proceedings. See

id. at 1401 n.10; id. at 1417–18 (Sotomayor, J. dissenting). The Supreme Court, however, has thus

far declined to decide “where to draw the line between new claims and claims adjudicated on the

merits.” Id. at 1401 n.10.

        With this framework in mind, we review Petitioner’s claims for relief.

II.     Ineffective Assistance of Counsel

        A.      The Strickland v. Washington Standard

        Petitioner claims that she suffered ineffective assistance of counsel when her defense counsel

(1) failed to fully develop her claim that she was a victim of battered spouse syndrome; and (2) failed

to object to a deficient jury instruction. Both claims are analyzed under the familiar two-part

performance and prejudice framework first established in Strickland v. Washington, 466 U.S. 668, 687

(1984). See Darden v. Wainwright, 477 U.S. 168, 184 (1986).

        A convicted defendant’s claim that counsel’s assistance was so defective as to require
        reversal of a conviction or death sentence has two components. First, the defendant
        must show that counsel’s performance was deficient. This requires showing that
        counsel made errors so serious that counsel was not functioning as the “counsel”
        guaranteed the defendant by the Sixth Amendment. Second, the defendant must show
        that the deficient performance prejudiced the defense. This requires showing that
        counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose
        result is reliable. Unless a defendant makes both showings, it cannot be said that the


  the state courts should not be granted an evidentiary hearing on federal review, unless the claim
  relies on (1) a new, previously unavailable rule of constitutional law, or (2) facts that could not have
  been previously discovered through the exercise of due diligence. See Williams, 529 U.S. at 435.

                                                    7
                                        Nos. 10-2477; 10-2532


       conviction or death sentence resulted from a breakdown in the adversary process that
       renders the result unreliable.

Strickland, 466 U.S. at 687. “Ineffectiveness is not a question of basic, primary, or historical fact,”

but rather is “a mixed question of law and fact.” Id. at 698.

       This Court determines whether counsel’s performance was deficient by reference to an

objective standard of reasonableness, based on prevailing professional norms. Rickman v. Bell, 131

F.3d 1150, 1154 (6th Cir. 1997) (citing Strickland, 466 U.S. at 687–88). Counsel’s performance must

be assessed based on the standards and circumstances in place at the time of representation, rather than

viewed with the benefit of hindsight. See Strickland, 466 U.S. at 689 (“A fair assessment of attorney

performance requires that every effort be made to eliminate the distorting effects of hindsight, to

reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from

counsel’s perspective at the time.”). Because of the inherent difficulties in making this determination,

this Court must “indulge a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance.” Id. The burden rests on the defendant to overcome the

presumption that the challenged conduct might be considered sound trial strategy. Id.

       In order to show prejudice, a “defendant must show that there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id.

at 694. A reasonable probability is defined as “a probability sufficient to undermine confidence in the

outcome”; certainty of a different outcome is not required. Id. “Thus, an analysis focusing solely on

mere outcome determination, without attention to whether the proceeding was fundamentally unfair

or unreliable, is defective.” Lockhart v. Fretwell, 506 U.S. 364, 369 (1993).


                                                   8
                                        Nos. 10-2477; 10-2532


       B.      Battered Spouse Syndrome Claim

               1.      Background

       In Petitioner’s first claim for relief, she argues that her counsel was ineffective in handling the

expert witness testimony related to her claim that she suffered from battered spouse syndrome.

Specifically, Petitioner claims that her counsel should have asked her primary expert to interview her

prior to trial and that her counsel misinterpreted the full scope of expert testimony that would have

been admissible under Michigan law.         According to Petitioner, these errors undermined the

effectiveness of the evidence in her favor and left the jury without an expert opinion as to whether her

actions were consistent with those of a person suffering from BSS.

       The record does not establish whether either party filed a pre-trial motion regarding the

admission of BSS testimony. However, the record reveals that the subject was discussed during a pre-

trial hearing. In a colloquy between defense counsel and the trial court, a mutual understanding was

reached as to the admissibility of Petitioner’s BSS testimony. Defense counsel and the trial court

agreed that, in accordance with Michigan law, Petitioner’s BSS experts could testify generally about

the syndrome and its symptoms, but the experts would not be permitted to testify as to the particulars

of Petitioner’s case, nor could they provide an opinion as to whether Petitioner actually suffered from

the syndrome. As the trial court described, following the introduction of general testimony about the

syndrome, “it [would be] up to the jury to take a look at [the expert’s] testimony, and make a

determination, does [Petitioner] fit [the description of a BSS victim].”

       In accordance with the trial court’s ruling, the expert testimony regarding BSS was only general

in nature. Defense expert Michael Abramsky, Ph.D., testified that he met Petitioner on two separate

                                                   9
                                        Nos. 10-2477; 10-2532


occasions, reviewed the case file, and performed a battery of psychological tests. From this

background, Dr. Abramsky recommended referring Petitioner’s case to an expert on battered spouse

syndrome. Dr. Abramsky also explained BSS generally, typical patterns of domestic abuse, and the

syndrome’s effects on a battered spouse. Dr. Abramsky did not testify about Petitioner’s specific

conduct, the psychological tests he performed, or relate the syndrome to the particulars of Petitioner’s

case.

        Lenore Walker, Ed.D., also appeared on Petitioner’s behalf as a leading researcher in the field

of BSS studies. During testimony that lasted approximately an hour, Dr. Walker testified about the

general characteristics of the syndrome and the typical traits of a batterer and a battered spouse. She

explained that the pattern of domestic violence in such a relationship is cyclical, with the period when

a spouse is preparing to leave the relationship as the most violent and dangerous. Dr. Walker admitted

on cross-examination that she did not personally meet with Petitioner, but she testified that she did not

do so because the law did not permit her to provide a personal opinion about Petitioner’s individual

case. Dr. Walker was not asked and did not testify about whether Petitioner’s actions were consistent

with those of a battered spouse.

               2.      Procedural Posture and Scope of Review

        On direct appeal, the Michigan Court of Appeals summarily rejected Petitioner’s ineffective

assistance claim, finding that, “[i]n light of the restrictions placed on expert testimony regarding

[BSS], defendant’s allegations are insufficient to overcome the presumption that trial counsel was

effective.” Seaman I, 2007 WL 466003, at *17. The Michigan Court of Appeals also concluded that

defense counsel did not perform deficiently in failing to have Dr. Walker interview Petitioner, because

                                                   10
                                        Nos. 10-2477; 10-2532


under Michigan law “the experts were not permitted to testify regarding the specifics of the

testing . . . [or to] conclud[e] that defendant was a battered woman.” Id.

       Petitioner renewed her claim in her federal habeas case. In analyzing Petitioner’s ineffective

assistance of counsel claim, the district court conducted an evidentiary hearing at which defense

counsel and Dr. Walker both testified. In granting Petitioner relief, the district court extensively

reviewed Michigan’s case law regarding the admissibility of BSS testimony. Seaman II, 2010 WL

4386930, at *9–11. Although the district court recognized that “no Michigan Supreme Court case has

specifically addressed the admissibility of expert testimony in the [specific] context presented in this

trial,” it concluded that the Michigan courts would allow—contrary to the understanding of defense

counsel, the trial court, and the Michigan Court of Appeals—an expert witness to testify “that a

defendant’s actions were consistent with [that of] someone suffering from battered spouse syndrome.”

Id. at *12. Accordingly, the district court found that “reasonable efforts to argue [the] case required

defense counsel to attempt to introduce as much favorable testimony regarding battered spouse

syndrome as [the law] allowed.” Id. Likewise, the district court reasoned that “an attorney acting

within the wide range of reasonably competent assistance would have arranged for Dr. Walker to

personally evaluate Petitioner.” Id. Accordingly, the district court concluded that defense counsel

performed deficiently.

       The district court then addressed Strickland’s prejudice prong, and emphasized the importance

of the expert testimony and the relative weakness of the case against Petitioner. Because “[battered

spouse syndrome] was the defense’s only defense” and because “the prosecution did not present

overwhelming evidence Petitioner was guilty of first-degree premeditated murder,” the district court

                                                  11
                                        Nos. 10-2477; 10-2532


concluded that defense counsel’s errors created “a reasonable probability that at least one juror would

have struck a different balance had [] additional [BSS] testimony been presented.” Id. at *12, 15.

       Before turning to the merits, we first must address the state’s argument that this claim is limited

by the Supreme Court’s recent decision in Cullen v. Pinholster, 131 S. Ct. 1388 (2011). The state

contends that Pinholster precludes consideration of any of the evidence developed for the first time

at the federal evidentiary hearing, specifically the testimony of defense counsel and Dr. Walker.

Petitioner argues that Pinholster does not apply because the state court failed to truly reach the merits

of her ineffective assistance claim.

       This claim was clearly decided on the merits and is thus subject to review under § 2254(d) and

Pinholster’s limitations. See Harrington, 131 S. Ct. at 783–84. However, we need not dwell on this

matter, because for several reasons, Pinholster is not outcome-determinative in the instant case. For

one, the parties concede that the limitations placed on the BSS expert testimony were the direct

product of defense counsel and the trial court’s agreed-upon interpretation of Michigan law.3

Accordingly, because defense counsel’s strategic decision-making or lack thereof is not in dispute,

whatever testimony was elicited at the federal evidentiary hearing is of limited import. Setting aside

defense counsel’s testimony pursuant to Pinholster, therefore, does not change our analysis of

Petitioner’s ineffective assistance claim.


         3
          Because the parties do not press the point, we make no judgments about whether defense
 counsel simply misunderstood the unsettled nature of Michigan’s law, and therefore was incapable
 of developing a suitable strategy about the BSS testimony, or whether defense counsel understood
 the law correctly, but might have harbored strategic motivations for pursuing a more limited defense.
 In any event, because of Pinholster’s requirement that we are limited to the state court record, the
 case bars the introduction of the testimony that would be necessary to explore this issue any further.

                                                   12
                                       Nos. 10-2477; 10-2532


       As for Dr. Walker, the Michigan Court of Appeals noted that it considered, by way of an

affidavit, at least some of the expert testimony that Dr. Walker stated would have been proferred at

trial had she been permitted to directly link the symptoms of BSS to the particulars of Petitioner’s

behavior. Accordingly, even if Dr. Walker had expounded further at the federal evidentiary hearing,

the state courts nevertheless had already considered the basic parameters of her proposed testimony

and its relative value when they denied Petitioner’s ineffective assistance of counsel claim on the

merits. Therefore, we can fairly conclude that the Michigan Court of Appeals reweighed the evidence

and determined that Petitioner’s defense would not have succeeded even with additional testimony

from Dr. Walker.

       Accordingly, although we set aside the evidence elicited at the federal evidentiary hearing

pursuant to Pinholster, this ruling does not especially change our analysis on the merits for any

practical purpose.

               3.      Merits Analysis

       We turn next to the merits of Petitioner’s ineffective assistance of counsel claim. Having

carefully reviewed the district court’s analysis, we must reverse. Although the district court cited

Strickland and professed to apply its two-pronged performance and prejudice review, we are convinced

that Petitioner’s claim was not analyzed under the appropriate legal standard. The district court

erroneously focused most of its analysis on interpreting Michigan case law regarding the admissibility

of BSS testimony. However, “federal habeas corpus relief does not lie for errors of state law,” Lewis

v. Jeffers, 497 U.S. 764, 780 (1990). And, as the Supreme Court has repeatedly underscored, inquiry



                                                 13
                                         Nos. 10-2477; 10-2532


into issues of state law “is no part of a federal court’s habeas review of a state conviction. Estelle v.

McGuire, 502 U.S. 62, 67 (1991).

        AEDPA review provides that a federal court’s consideration of state law is limited, deferential,

and considered only to the extent required to answer whether the application of state law violated the

petitioner’s federal constitutional rights. Id. at 68; 28 U.S.C. § 2241. In all events, an application for

federal habeas corpus relief premised under § 2254(d)(1) review may be granted only if the state

court’s decision was contrary to, or involved an unreasonable application of, clearly established federal

law. 28 U.S.C. § 2254(d)(1). However, starkly absent from the district court’s analysis was any

discussion of cases applying Strickland or any other source of clearly established federal law.

        The district court’s error was a serious one. Under AEDPA review, the appropriate question

was not whether defense counsel misinterpreted the admissibility of BSS testimony; rather, the sole

inquiry should have been whether the state court unreasonably applied clearly established federal law

when it concluded that Petitioner did not suffer ineffective assistance of counsel. Bell v. Cone, 535

U.S. 685, 694 (2002); Williams, 529 U.S. at 412. On this much narrower question, Petitioner is clearly

not entitled to relief.

                          a.    Performance

        As noted above, Petitioner faced an uphill challenge from the start, inasmuch as federal habeas

relief rarely can turn on the misapplication of state law. “In conducting habeas review, a federal court

is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United

States.” Estelle, 502 U.S. at 68. Accordingly, “it is not the province of a federal habeas court to

reexamine state-court determinations on state-law questions.” Id. at 67–68. Thus, whether or not

                                                   14
                                        Nos. 10-2477; 10-2532


defense counsel and the state court misinterpreted Michigan law, Petitioner is not entitled to federal

habeas relief unless she can demonstrate that “counsel’s deficient performance render[ed] the result

of the trial unreliable or the proceeding fundamentally unfair.” Lockhart, 506 U.S. at 372 (1993).

       According to clearly established Supreme Court precedent, “[u]nreliability or unfairness does

not result if the ineffectiveness of counsel does not deprive the defendant of any substantive or

procedural right to which the law entitles [her].” Id. at 372. Therefore, federal habeas review

“validates reasonable, good-faith interpretations of existing precedents made by state courts even [if]

they are shown to be contrary to later decisions.” Id. at 372–73 (quoting Butler v. McKellar, 494 U.S.

407, 414 (1990)) (internal quotation marks omitted).

       As the district court recognized, the evidentiary question at issue here has never been squarely

answered by the Michigan courts. Our obligation under AEDPA review is not to theorize about what

state law would or would not have permitted to be admitted. Rather, our only duty is to determine how

the unsettled nature of the law affects Strickland’s parameters of constitutionally adequate

representation.

       As the Supreme Court recently explained, “a lack of clarity in the law . . . affect[s] the scope

and nature of counsel’s advice.” Padilla v. Kentucky, 130 S. Ct. 1473, 1484 n.10 (2009). Where the

law is “truly clear,” the duty to give correct advice is “equally clear.” Id. However, where the law is

“unclear or uncertain,” counsel’s duty “is more limited.” Id. Ultimately, “the Sixth Amendment does

not require that counsel do what is impossible or unethical. If there is no bona fide defense to the

charge, counsel cannot create one and may disserve the interests of [the] client by attempting a useless

charade.” United States v. Cronic, 466 U.S. 648, 656 n.19 (1984).

                                                  15
                                         Nos. 10-2477; 10-2532


        In applying Strickland’s performance prong, we are mindful that the Sixth Amendment does

not obligate counsel to pursue legal theories that are not available under the law. Id. At best, the

admissibility of BSS testimony remains an open question under Michigan precedent. At worst, the

state courts have spoken, and they have spoken against Petitioner’s interpretation of Michigan law.

See Seaman I, 2007 WL 466003, at *17; see also In re Humphrey, No. 287759, 2009 WL 695396, at

*1 (Mich. Ct. App. Mar. 17, 2009). Under these restrictions, we cannot deem defense counsel’s failure

to argue for broader admission of evidence to constitute deficient performance.

        Moreover, we cannot conclude that BSS testimony was excluded because counsel simply failed

to research the law or failed to investigate the facts of Petitioner’s case. Cf. Dando v. Yukins, 461 F.3d

791, 798–99 (6th Cir. 2006) (granting habeas relief where counsel conducted no investigation into the

admissibility of BSS testimony). Likewise, there is nothing on record to show that defense counsel

failed to pursue or was refused access to psychiatric examinations or the advice of BSS experts. Cf.

Powell v. Collins, 332 F.3d 376, 381 (6th Cir. 2003), and Ake v. Oklahoma, 470 U.S. 68, 81 (1985)

(finding a denial of due process where defendant denied access to a psychologist). Instead, the record

makes perfectly clear that trial counsel thoroughly investigated the possibility of a BSS defense, hired

two experts on the subject, arranged for Petitioner to be examined by one of those experts, and

vigorously argued for the admission of a battered spouse defense. Given these efforts, we cannot say

that counsel was constitutionally deficient.

        Finally, we have considered and reject the possibility that Petitioner’s trial was fundamentally

unfair because her counsel failed to argue for the admission of evidence that she would have been

entitled to as a matter of due process. See Clark v. Arizona, 548 U.S. 735, 753 (2006); Estelle, 502

                                                   16
                                         Nos. 10-2477; 10-2532


U.S. at 71–72. As with our sister circuits who have confronted similar arguments, we find that

Petitioner is not entitled to relief. See Michael v. Crosby, 430 F.3d 1310, 1320–21 (11th Cir. 2005);

Lannert v. Jones, 321 F.3d 747,751–53 (8th Cir. 2003); Anderson v. Goeke, 44 F.3d 675, 681 (8th Cir.

1995). Accordingly, Petitioner cannot meet Strickland’s performance prong because she has not

shown that defense counsel’s interpretation of state law, even if erroneous, was either constitutionally

deficient or otherwise deprived her of her federal constitutional rights.

                        b.      Prejudice

        In addition, Petitioner cannot meet Strickland’s prejudice prong. Finding otherwise would

require us to draw two, not insignificant, assumptions: that had defense counsel raised the argument

above, (1) there is a reasonable probability that the trial court would have permitted the additional,

excluded expert testimony in support of the BSS claim; and (2) there is a reasonable probability that

the additional testimony would have resulted in a different verdict. Strickland, 466 U.S. at 694. As

to the first assumption, the record shows that the trial court apparently harbored the same interpretation

of the permissible scope of BSS evidence admissible under Michigan law as did defense counsel. And

while it is certainly possible the court’s interpretation might have changed as a result of counsel’s

argument, that possibility is speculative at best.

        Furthermore, even had the additional expert testimony been admitted, we cannot conclude that

there is a reasonable probability the jury’s verdict would have been affected. In finding prejudice, the

district court emphasized the difference between an argument supported by expert testimony versus

one presented solely through defense counsel’s argument. While we agree that having an expert testify

that Petitioner’s actions were in conformity with BSS would have strengthened the defense, we cannot

                                                     17
                                         Nos. 10-2477; 10-2532


ignore the fact that defense counsel raised the same argument for the jury during opening and closing

statements. Although, concededly, the jury was instructed by the trial judge that arguments of counsel

are not evidence, the jury was not deprived of any of the information or inferences necessary to link

the general symptoms of BSS to the specific facts of Petitioner’s case. See Clark, 548 U.S. at 778

(noting that states enjoy wide latitude “to channel . . . expert testimony . . . on the insanity defense .

. . .”) In considering the limited expert testimony which was admitted, along with the other evidence

presented, the jury always remained the fact-finder ultimately charged with deciding whether or not

Petitioner actually was suffering from the effects of BSS when she killed her husband.

        Finally, BSS is not itself a defense under Michigan law. See People v. Christel, 537 N.W.2d

194, 202 (Mich. 1995). Rather, the syndrome is recognized only as a mental condition about which

a properly qualified expert may testify when “relevant and helpful to the jury in evaluating a [BSS]

complainant’s credibility.” Id. at 196. Contrary to the district court’s opinion, BSS was not “the

defense’s only defense.” Seaman II, 2010 WL 4386930, at *12. In fact, the only true defense available

was self-defense. Even if the jurors believed that Petitioner was a battered spouse, they still could

have rejected her claim of self-defense. Accordingly, in light of the limited legal status of the BSS

testimony under Michigan law and the comparatively marginal degree of testimony that was excluded

from trial, Petitioner has not proved the requisite level of prejudice required under Strickland’s high

standard for relief.




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                                        Nos. 10-2477; 10-2532


       C.      Jury Instruction Claim

               1.      Background

       Petitioner next contends that defense counsel rendered constitutionally deficient performance

when he failed to object to an allegedly faulty jury instruction.

       Michigan’s standard jury instruction for first-degree premeditated murder contains four

elements, with a possible fifth element appropriate in certain cases:

       [(1)]   that the defendant caused the death of the victim;
       [(2)]   that the defendant intended to kill the victim;
       [(3)]   that the intent to kill was premeditated; and
       [(4)]   that the killing was deliberate.

       [(5)]   [that the killing was not justified, excused, or done under circumstances that reduce it
               to a lesser crime].

See Mich. Crim. Jury Instructions. 16.1(6) at 16–3–4 (2d ed.) (brackets in last element in original).

A use note, in pertinent part, sets forth the following instructions:

       Paragraph [(5)] may be omitted if there is no evidence of justification or excuse, and
       the jury is not being instructed on manslaughter or any offense less than manslaughter.
       Justification or excuse instructions may be inserted here, but they are more commonly
       given at a later time.

Id. at 16.1(6) n.4. Finally, in the commentary, the instructions provide:

       [T]he committee bracketed paragraphs on justification, excuse, and mitigation for use
       in appropriate cases. Of course, when a defense of self-defense, accident or
       provocation is raised by the evidence, the prosecutor is required to disprove the defense
       beyond a reasonable doubt and the trial court is obligated to give the appropriate
       bracketed language.

Id. at 16.1 (commentary).




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                                        Nos. 10-2477; 10-2532


       The trial court instructed the jury on the first four elements of the offense, but did not instruct

on the bracketed language. However, later in the jury charge, the trial court extensively instructed the

jury on the law of self-defense. Additionally, the trial court instructed the jury regarding the

differences between first- and second-degree murder and provided the jurors with a chart contrasting

the two offenses.

               2.      Procedural Posture and Scope of Review

       Though Petitioner presented an ineffective assistance of counsel argument with respect to the

jury instructions on direct appeal, the Michigan Court of Appeals only addressed her underlying

challenge to the jury instructions themselves, finding that Petitioner waived any challenge to the

instructions by failing to object to them at trial. See Seaman I, 2007 WL 466003, at *18. Because only

the underlying claim was adjudicated on the merits by the state courts and because the state has not

argued that Petitioner’s related Strickland claim is procedurally barred, we review the district court’s

analysis of Petitioner’s ineffective assistance of counsel claim de novo. Higgins v. Renico, 470 F.3d

624, 630 (6th Cir. 2006); Baze v. Parker, 371 F.3d 310, 320 (6th Cir. 2004).

               3.      Merits Analysis

       We also evaluate this ineffective assistance of counsel claim under Strickland’s two-part

standard. Accordingly, whether or not Petitioner was entitled to an instruction on the bracketed

language as a matter of state law, she is only entitled to AEDPA relief if defense counsel’s failure to

request the additional language “fell below an objective standard of reasonableness” and created a

“reasonable probability” that, had the omitted language been given, “the result of the proceeding would

have been different.” Strickland, 466 U.S. at 688, 694. In conducting this analysis, “[i]f it is easier

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                                         Nos. 10-2477; 10-2532


to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,” we may do so

without deciding whether counsel’s performance was deficient. Id. at 697. That approach is

appropriate here.

       A challenge to a jury instruction may not be judged in “artificial isolation” but must be

considered “in the context of the instructions and the trial record as a whole.” Estelle, 502 U.S. at 72.

We are obligated to consider “whether there is a reasonable likelihood that the jury [] applied the

challenged instruction in a way that violates the Constitution.” Id. (quoting Boyde v. California, 494

U.S. 370, 380 (1990)) (internal quotation marks omitted). The category of infractions related to flawed

jury instructions that can render an entire trial fundamentally unfair is narrow. Id. at 72–73 (quoting

Dowling v. United States, 493 U.S. 342, 352 (1990)).

       Having reviewed the instructions in their entirety, it is clear that the jury was appropriately

instructed on Michigan’s law of self-defense. Seaman I, 2007 WL 466003, at *10. The jurors were

adequately advised that they could not convict Petitioner of first-or second-degree murder unless the

state carried its burden of proof as to each element of the offense. See Sandstrom v. Montana, 442

U.S. 510, 520–21 (1979). In addition, the jurors were fully advised that self-defense is a complete

defense under Michigan law. The instructions admonished the jurors to return a verdict of not guilty

if they believed Petitioner had indeed acted in self-defense.

       Accordingly, even if the bracketed language had been included, it would have been largely

duplicative. The omitted language only underscored the “commonsense understanding of the

instructions” that already accurately advised the jurors of the law. Boyde v. California, 494 U.S. at

380–81. Accordingly, the omission of the bracketed language did not so adversely affect the

                                                   21
                                        Nos. 10-2477; 10-2532


fundamental fairness of the trial as to warrant federal habeas relief. Id. Therefore, Petitioner cannot

show prejudice and her Strickland claim must fail.

                                          CONCLUSION

       For the reasons stated above, we REVERSE the district court’s judgment granting a writ of

habeas corpus, VACATE the writ, and REMAND with instructions that the case be dismissed.




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