           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206
        ELECTRONIC CITATION: 2000 FED App. 0144P (6th Cir.)
                    File Name: 00a0144p.06


UNITED STATES COURT OF APPEALS
                  FOR THE SIXTH CIRCUIT
                    _________________


                                   ;
                                    
 MICHAEL MAURINO,
                                    
        Petitioner-Appellant,
                                    
                                    
                                       No. 98-1332
            v.
                                    
                                     >
RICHARD JOHNSON, Warden,            
         Respondent-Appellee. 
                                   1
       Appeal from the United States District Court
      for the Eastern District of Michigan at Detroit.
No. 97-71622—Lawrence P. Zatkoff, Chief District Judge.
                  Argued: September 20, 1999
               Decided and Filed: April 24, 2000
    Before: KENNEDY and* NORRIS, Circuit Judges;
             HOLSCHUH , District Judge.
                      _________________
                           COUNSEL
ARGUED: James Sterling Lawrence, Detroit, Michigan, for
Appellant. Vincent J. Leone, OFFICE OF THE ATTORNEY
GENERAL, HABEAS CORPUS DIVISION, Lansing,

    *
     The Honorable John D. Holschuh, United States District Judge for
the Southern District of Ohio, sitting by designation.

                                 1
2     Maurino v. Johnson                            No. 98-1332

Michigan, for Appellee. ON BRIEF: James Sterling
Lawrence, Detroit, Michigan, for Appellant. Vincent J.
Leone, OFFICE OF THE ATTORNEY GENERAL,
HABEAS CORPUS DIVISION, Lansing, Michigan, for
Appellee.
  KENNEDY, J., delivered the opinion of the court, in which
NORRIS, J., joined. HOLSCHUH, D. J. (pp. 19-26),
delivered a separate opinion concurring in part and dissenting
in part.
                     _________________
                         OPINION
                     _________________
   KENNEDY, Circuit Judge. Petitioner, Michael J. Maurino,
appeals the District Court’s denial of his request for a writ of
habeas corpus. Following a jury trial in the Detroit
Recorder’s Court, petitioner was found guilty of second-
degree murder, M.C.L. § 750.317, M.S.A. § 28.549, and
possession of a firearm during the commission of a felony,
M.C.L. § 750.227b, M.S.A. § 28.424(2). He was sentenced
to twenty-five to seventy-five years imprisonment for the
murder conviction plus two years consecutive imprisonment
for the felony-firearm conviction. Petitioner filed a motion
for a New Trial and a Motion to Set Aside the Sentence and
for Resentencing, which were denied. Petitioner, then
appealed to the Michigan Court of Appeals, which affirmed
his conviction. The Supreme Court of Michigan denied
petitioner’s request for leave to appeal. He then filed a habeas
petition in state court, which was denied, as were his
subsequent state appeals. After exhausting his state remedies,
petitioner filed a petition for a writ of habeas corpus in federal
court. The district court denied this petition and the petitioner
appealed. On appeal petitioner raises three issues: (1)
whether petitioner was denied a fair trial due to the bias of the
trial judge against defense counsel; (2) whether petitioner was
denied the effective assistance of counsel where a critical
defense witness was not called; and (3) whether the trial
prosecutor improperly acted as a witness depriving petitioner
26   Maurino v. Johnson                          No. 98-1332      No. 98-1332                           Maurino v. Johnson     3

  said the petitioner had given her a bullet with the             of his constitutional right to confrontation, by asserting
  statement that “this one’s for Vicki,” thereby resulting in     without evidence that petitioner told a waitress he intended to
  a substantial and injurious influence on the verdict.           kill the victim. Because we find that reasonable jurists could
  Since there is grave doubt as to whether the prosecutorial      find the state court’s decision to be a reasonable application
  misconduct created a substantial and injurious influence        of Supreme Court law, we shall affirm.
  on the verdict, the error was not harmless. Accordingly,
  then, the Michigan Supreme Court engaged in an                                             I. Facts
  unreasonable application of Chapman’s harmless error
  test, and under § 2254(d), a writ of habeas corpus should          On August 6, 1984, petitioner went to the Silver Cricket
  issue.                                                          Lounge to see the victim, Vicki Lynn Lee. Prior to arriving
                                                                  at the lounge, petitioner consumed both cocaine and alcohol
  Also, even more recently, this Court held that an               and while at the lounge, petitioner continued to consume
inflammatory cross-examination of the defendant and an            alcohol. Petitioner and the victim left the lounge together
improper closing argument (less egregious in my view than         around 2:00 a.m. Approximately a half hour after leaving the
the prosecutorial misconduct in the present case), required the   lounge, petitioner brought the victim to Westland Medical
granting of a conditional writ of habeas corpus. In Boyle v.      Center because she had been shot. On September 2, 1984, the
Million, 201 F.3d 711 (6th Cir. 2000), this Court said:           victim died from the gunshot wound. Petitioner conceded
                                                                  that he was with the victim when she was shot and that the
  It is true that the case against Boyle was relatively           gun in his possession was the weapon which discharged the
  straightforward and strong. Given the egregious and             bullet. Petitioner, however, contended that the incident was
  inflammatory nature of the behavior and arguments of            an accident and that he was not aware that the gun was
  the prosecutor throughout trial, however, we are left with      loaded.
  “grave doubt” as to whether the prosecutorial errors “had
  a substantial and injurious effect or influence in                Petitioner made two verbal and one written statements to
  determining the jury’s verdict.” Brecht v. Abrahamson,          police about the incident. The first statement occurred at the
  507 U.S. 619, 637, 113 S. Ct. 1710, 123 L. Ed.2d 353            hospital immediately following the shooting. Upon bringing
  (1993)(quoting Kotteakos v. United States, 328 U.S. 750,        the victim into the hospital, the petitioner told the security
  776, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946)); see also           guard on duty that he had shot the victim and that it was an
  O’Neal v. McAninch, 513 U.S. 432, 436, 115 S. Ct. 992,          accident. The police were called and petitioner was given
  130 L. Ed.2d 947 (1995).                                        Miranda warnings. Petitioner admitted to shooting the victim
                                                                  and stated that the gun discharged after he had racked the gun.
Id. at 717-18.                                                    He said that he and the victim had been arguing and that he
                                                                  had exited the car. The victim followed him in the car as he
  For the reasons stated above, I would reverse the judgment      walked and convinced him to get back inside the vehicle.
of the District Court and order that a conditional writ of        They began arguing again and the petitioner hit the
habeas corpus be granted unless the State of Michigan             windshield three or four times. He then withdrew a handgun
commences trial proceedings against Maurino within 180            from his jacket and racked the gun, removed the clip and
days of this opinion.                                             pointed the gun at her. He said to the victim, “You see how
                                                                  mad you make me? You see what you make me do? See
4     Maurino v. Johnson                           No. 98-1332      No. 98-1332                          Maurino v. Johnson       25

what you can make me do?”             At that point, the gun          determining the jury’s verdict,” that error is not harmless.
discharged.                                                           And, the petitioner must win.
   He was arrested for investigation of a homicide and              Id. at 436.
transported to the police station. At the police station, the
petitioner was interrogated. In response to questioning by the        Citing O’Neal, this Court in the Barker case said:
police, he gave a more detailed description of the events of
the evening. Prior to giving this statement he again was                 Only if a federal habeas court can say with certainty
advised of his Miranda rights. He also responded in the               that a trial error had little to no impact on the judgment,
affirmative to an inquiry as to whether he was intoxicated. In        should the judgment stand. See id. at 435-38, 115 S.Ct.
this second statement, he explained that he had been at a             at 994-995. In this matter, the only thing of which this
friend’s home drinking when he received a call from his               court is certain is that the erroneous jury instruction left
stepson indicating that his stepson knew where the                    the door wide open. A reasonable juror could have very
petitioner’s niece was located. The petitioner stated that he         well walked through the door and rejected Barker’s claim
had been looking for his niece for a couple of days and that he       for self defense because that juror believed that Madsen’s
intended to bring her home once he found her. Knowing that            assault would not have led to death or serious bodily
the individual who was with his niece was a dangerous man,            injury, thereby resulting in a substantial and injurious
the petitioner brought along a gun for protection. Before             influence on the verdict. Since there is grave doubt as to
going to find his niece, he stopped by the victim’s place of          whether the erroneous jury instruction created a
employment to inform her of where he would be. The victim             substantial and injurious influence on the verdict, the
requested that he stay until her shift ended and take her with        error was not harmless. Accordingly, then, the Michigan
him. He complied and had a few drinks while he waited. The            Supreme Court engaged in an unreasonable application
victim and the petitioner left the lounge around 2:00 a.m. in         of Chapman’s harmless error test, and under § 2254(d),
a Pontiac Firebird. He stated that he and the victim got into         a writ of habeas corpus should issue.
an argument about the manner in which the victim danced at
her place of employment. He said that in response to his            199 F.3d at 874.
comments, the victim lied to him and that this lying made him
stop the car in a bowling alley parking lot. Petitioner got out       With only slight paraphrasing, this same language applies
of the car and proceeded to walk away from the victim.              equally to this case:
While in the parking lot, petitioner fired a shot in the air. The       Only if a federal habeas court can say with certainty
victim requested that the petitioner return to the car and the        that a trial error had little to no impact on the judgment,
petitioner agreed. Once back in the car the petitioner                should the judgment stand. See O’Neal v. McAninch,
attempted to unload the gun by removing the clip and racking          513 U.S. 432 at 435-38, 115 S.Ct. at 994-995. In this
the gun, which expelled a bullet. The victim and the                  matter, the only thing of which this court is certain is that
petitioner continued to argue and the petitioner hit the              the prosecutorial misconduct left the door wide open. A
windshield a number of times. He also continued to play with          reasonable juror could have very well walked through the
the gun by racking it. Sometime during the argument, the              door and rejected Maurino’s claim that he did not intend
petitioner pointed the gun at the victim and stated, “See how         to create a high risk of death or great bodily harm to his
mad you make me?” The petitioner then racked the gun and              girlfriend because that juror believed the prosecutor’s
the gun discharged. At the end of the interrogation, petitioner       representation that there was an impartial person who
24   Maurino v. Johnson                           No. 98-1332      No. 98-1332                          Maurino v. Johnson        5

1999), in its interpretation of what must be shown to be an        provided the police with a written statement which conformed
“unreasonable application of federal law,” if a habeas             with the verbal statements he had made during the
petitioner can demonstrate that the trial error meets the Brecht   interrogation.
standard, “he will surely have demonstrated that the state
court’s finding that the error was harmless beyond a                  At the preliminary exam, the prosecutor proffered an expert
reasonable doubt – the Chapman standard – was outside the          witness to testify about the firearm used in this incident. The
realm of plausible credible outcomes, and therefore resulted       witness testified that he racked the gun fifty times and that
from an unreasonable application of Chapman.” Nevers at            this racking of the gun did not result in the discharge of the
371-372. In my view, this is such a case. The petitioner has       gun. He also testified that when the base of the gun was
shown that: (1) there is no indication whatsoever that the         struck with a metal hammer four times the gun did discharge.
Michigan court applied the harmless error Chapman standard;        Petitioner was present at the preliminary examination when
(2) the prosecutorial misconduct meets the test of Brecht, if      this testimony was given.
Brecht is to be applied, and was not harmless error; and (3)
the Michigan court’s decision therefore involved an                  At trial, the petitioner testified on his own behalf. His
unreasonable application of clearly established federal law as     version of the events differed from his previous statements in
determined by the Supreme Court of the United States.              some important ways. He stated that the first shot, in the
                                                                   bowling alley parking lot, was an unexpected gun discharge.
   It is my belief that two very recent decisions by this Court    He said that he was taking the gun out of his jacket when the
support the conclusion I have reached in this case. In Barker      gun discharged. In a previous statement, he stated that he had
v. Yukins, 199 F.3d 867 (6th Cir. 1999), the petitioner for a      intentionally fired the gun in the air. He also clarified that he
writ of habeas corpus had been convicted of first degree           racked the gun while the clip was still in the gun; thus,
murder in Michigan. The defense was that petitioner killed         explaining how the gun could eject one bullet from the
the decedent while resisting a rape. The error of the trial        chamber while placing another in the chamber. In addition,
court was in refusing to instruct the jury that petitioner was     he stated that he could not remember how the gun discharged.
entitled to use deadly force to resist an imminent rape. The       He did not know whether he was hitting the windshield with
Michigan Supreme Court denied the petition on the ground           the gun, but he did remember that he was playing with the
that the error was harmless because, under the evidence            gun prior to the gun discharging. Petitioner’s testimony was
presented at trial, no reasonable juror could have believed        the only evidence presented by the defense.
deadly force was necessary to prevent a rape.
                                                                      The prosecution offered not only the petitioner’s prior
  This Court reversed the district court’s denial of habeas        statements as evidence, but also presented the testimony of
relief and ordered that a conditional writ of habeas corpus be     numerous witnesses. The firearms expert testified to the same
granted unless Michigan commenced a new trial within 180           information that he presented at the preliminary hearing. The
days of the opinion. This Court recognized the Supreme             victim’s father testified that he witnessed bruises on the
Court’s decision in O’Neal v. McAninch, 513 U.S. 432               victim’s wrist when he visited her in the hospital. The
(1995), in which the Supreme Court emphatically stated:            prosecution, however, offered no medical testimony as to how
                                                                   or when these bruises occurred. Finally, the prosecutor
  When a federal judge in a habeas proceeding is in grave          presented the testimony of individuals who worked with the
  doubt about whether a trial error of federal law had             victim. None of these individuals were questioned about or
  “substantial and injurious effect or influence in                testified to hearing the petitioner threaten the victim.
6      Maurino v. Johnson                          No. 98-1332    No. 98-1332                         Maurino v. Johnson       23

Nevertheless, on cross-examination of the petitioner, and after   error. As the Supreme Court said in Kotteakos v. United
the prosecution had rested its case, the following exchange       States:
between the prosecutor and the petitioner took place:
                                                                    The inquiry cannot be merely whether there was enough
    Q: And, when she [the victim] became a dancer, you              to support the result, apart from the phase affected by the
       knew the kind of place it was, is that right?                error. It is rather, even so, whether the error itself had
    A: Yes, I did.                                                  substantial influence. If so, or if one is left in grave
    Q: In fact, you had been in the bar at an earlier – earlier     doubt, the conviction cannot stand.
       times, when she was a waitress, isn’t that right?
    A: Yes, I did.                                                328 U.S. 750, 765 (1946).
    Q: Did you ever deliver a bullet to her?
    A: A what?                                                       The majority states that if petitioner had been convicted of
    Q: A bullet?                                                  first degree murder they would agree that the prosecutorial
    A: No.                                                        misconduct had a substantial and injurious effect on the
    Q: Didn’t you in fact deliver a bullet to one of the          outcome of the trial, but since petitioner was convicted of
       waitresses, and say to her that, “This one’s for           second degree murder, the prosecutorial misconduct did not
       Vicki,” several – just a few months before this?           have a substantial and injurious effect on the outcome of the
    A: No.                                                        trial. I cannot, however, see that the distinction between first
    Q: And, if someone came in, and testified to that effect,     degree murder and second degree murder is a sufficient basis
       that –                                                     for denial of relief in this case. A defendant’s intent is a
                                                                  critical element of both crimes under Michigan law, and the
        Mr. Strauss [defense counsel]: (Interposing) I’d          prosecutorial misconduct involved proving that intent in an
                                       object, this is            egregious manner and, at the same time, impugning the
                                       improper cross-            credibility of petitioner’s own testimony concerning his
                                       examination.               intent. In my view, basic fairness, as well as the
                                                                  constitutional right to due process, prohibits such conduct
        The Witness:     They’d be lying, because I’ve never      and, regardless of the degree of the offense in question, such
                         done anything like that.                 conduct cannot avoid having a substantial and injurious effect
                                                                  on the outcome of the trial.
        Mr. Strauss: I’ll withdraw the objection.
                                                                    The Michigan Court of Appeals, in finding harmless error,
        Ms. Petito [prosecutor]: Okay.                            was required to apply the test set forth in Chapman v.
                                                                  California, 386 U.S. 18 (1967), i.e., whether the prosecutorial
    Q: Now, let’s – you in fact –                                 misconduct was “harmless beyond a reasonable doubt.”
    A: (Interposing) Can I ask you something? How come            There is absolutely no indication in its opinion that it
       you insinuate something like this, that is an out-and-     followed this clearly established federal law as determined by
       out lie?                                                   the Supreme Court of the United States. To the contrary, it
                                                                  merely found that “it is unlikely that he (the defendant)
        Ms. Petito:    Well, your Honor –                         suffered any prejudice as a result” (of the prosecutorial
                                                                  misconduct). J.A., Part 1, p. 51. Even under the high
        Mr. Strauss: (Interposing) Your Honor –                   requirement of Nevers v. Killinger, 169 F.3d 352 (6th Cir.
22       Maurino v. Johnson                             No. 98-1332        No. 98-1332                       Maurino v. Johnson           7

the grant of habeas relief even if it did not substantially                     The Court:    (Interposing) Now, just a moment.
influence the jury’s verdict.”2
                                                                                Ms. Petito:   I can make a showing.
   Third, even if the Brecht standard of harmless error is to be
applied and this case does not fall within the exception noted                  The Court:    Just a moment.
in Brecht, I still would find that the defendant should be given
habeas relief. Contrary to the majority view, I do not believe                  Ms. Petito:   If we want to get into it.
that simply because the state did not have to prove an intent
to kill, the prosecutorial misconduct did not have a                            The Court:    The lawyers ask the questions, not the
“substantial and injurious effect or influence in determining                                 witnesses. I have told the jury, at least
the jury’s verdict.” The defense was based entirely on                                        six times, anything the lawyers say,
defendant’s contention that the fatal shot was fired                                          either lawyer, is not evidence, it’s the
accidentally without any intent to kill or injure his girlfriend                              answers of the witnesses that provide
or to create a high risk of death or injury to her. The                                       it. The mere fact that a lawyer, either
defendant’s intent was a critical element of the charged                                      lawyer, says something, doesn’t make
offense, and the defendant’s own testimony regarding his                                      it true.
intent was the foundation of his defense. The prosecutor’s
effort to destroy the defendant’s credibility before the jury and               The Witness: I apologize, your Honor.
to put before the jury a matter that was not in evidence – the                  The Court:    All right.
alleged testimony of a disinterested person that would prove
an intent by the defendant to kill his girlfriend – in violation                Mr. Strauss: Your Honor, I have a motion. I ask
of defendant’s constitutional right to cross-examine such a                     that you hold the prosecuting attorney in contempt of
witness, could not, in my opinion, fail to have an influence on                 court for this comment. She just rested her case, this
the jury. As the majority opinion implicitly finds, the standard                afternoon. And, if she had some competent
cautionary instruction was inadequate to “unring the bell,”                     evidence that my client had sent a bullet, by a
and defendant’s reaction to the prosecutor’s statements, if                     waitress, just a couple of months before this death,
anything, only served to pit his credibility against the                        here, to this Vicki, while she was working, then she
credibility of a disinterested person who was not produced as                   should have presented it in her case-in-chief.
a witness and subjected to cross-examination.
                                                                                The Court:    Now –
  The majority finds that, apart from the attempt by the
prosecutor to influence the jury in a totally improper way,                     Mr. Strauss: (Interposing) And, I object, and move
there was sufficient admissible evidence in the record, in the                  it to be stricken, and move for a mistrial. And, you
form of petitioner’s statements to the police, to support the                   can deny them all, if you want, but they are on the
jury’s verdict. This, I believe, is an improper approach to                     record.
determine whether the prosecutorial misconduct was harmless
                                                                                The Court: Anything the lawyers say is not
                                                                                evidence, either what Mr. Strauss said, or Ms. Petito.
     2
     In Section II(D) of the majority opinion, Judges Kennedy and Norris        Let’s proceed with the case. Motions are denied.
agree that “the prosecutor’s statements were egregious prosecutorial
misconduct.”
8      Maurino v. Johnson                          No. 98-1332      No. 98-1332                          Maurino v. Johnson        21

   At the close of evidence, the court instructed the jury that     not have a substantial injurious effect on the outcome of the
in order to find the defendant guilty of second-degree murder,      trial. I have several problems with this.
the jury had to find that the defendant had either (1) the intent
to kill; (2) the intent to inflict great bodily harm; or (3) the       First, the issue before us, under the Antiterrorism and
intent to create a high risk of death or great bodily harm with     Effective Death Penalty Act (“AEDPA”), is whether the
knowledge that such is the probable result. The defense             decision of the Michigan Court of Appeals involved an
counsel requested that the court instruct the jury not only on      unreasonable application of clearly established federal law, as
second-degree murder, but also on manslaughter. The court           determined by the Supreme Court of the United States. I
complied with this request and the jury was released for            think it is clear from the state court’s opinion that it did not
deliberation. The jury returned a verdict finding the petitioner    apply the criteria set forth in Darden v. Wainwright, 447 U.S.
guilty of second-degree murder and guilty of possession of a        168, 181 (1985) or, for that matter, the Angel criteria adopted
firearm in the commission or in the attempt to commit a             in this Circuit, to determine whether the admitted
felony.                                                             prosecutorial misconduct violated defendant’s constitutional
                                                                    right to a fair trial. Furthermore, as discussed later, I think it
                        II. Discussion                              is also clear that the state court did not apply the Chapman
                                                                    standard in its finding of harmless error. In my view,
                   A. Standard of Review                            applying the Supreme Court’s Darden criteria or the Angel
                                                                    criteria of this Circuit, the result is that defendant’s
  Because petitioner filed his petition for a writ of habeas        constitutional right to a fair trial was violated.
corpus after April 24, 1996 this court applies the standard of
review as set forth in 28 U.S.C. § 2254(d), as amended by the          Second, even if the violation of defendant’s constitutional
Antiterrorism and Effective Death Penalty Act (“AEDPA”).            right to a fair trial is subject to the Brecht standard of
This provision states as follows:                                   harmless error, I believe that the prosecutorial misconduct in
                                                                    this case was so outrageous that it falls within the exception
      (d) An application for a writ of habeas corpus on             noted in the following footnote in Brecht:
    behalf of a person in custody pursuant to the judgment of
    a State court shall not be granted with respect to any            Our holding does not foreclose the possibility that in an
    claim that was adjudicated on the merits in State court           unusual case, a deliberate and especially egregious error
    proceedings unless the adjudication of the claim –                of the trial type, or one that is combined with a pattern of
         (1) resulted in a decision that was contrary to, or          prosecutorial misconduct, might so infect the integrity of
    involved an unreasonable application of, clearly                  the proceeding as to warrant the grant of habeas relief,
    established Federal law, as determined by the Supreme             even if it did not substantially influence the jury’s
    Court of the United States; or                                    verdict. Cf. Greer v. Miller, 483 U.S.756, 769, 107 S.Ct.
         (2) resulted in a decision that was based on an              3102, 3110, 97 L.Ed.2d 618 (1987) (STEVENS, J.,
    unreasonable determination of the facts in light of the           concurring in judgment). We, of course, are not
    evidence presented in the State court proceeding.                 presented with such a situation here.
28 U.S.C. § 2254(d) (1994 & Supp. 1999).                            507 U.S. at 638 n.9. In my opinion, the deliberate and
                                                                    especially egregious prosecutorial misconduct in the present
Before applying this new standard to the case before the court,     case so infected “the integrity of the proceeding as to warrant
this court must determine how this new standard differs from
20   Maurino v. Johnson                           No. 98-1332     No. 98-1332                          Maurino v. Johnson           9

deem the error as not being harmless and should reverse the       the standard that this court previously applied on habeas
conviction. O’Neal v. McAninch, 513 U.S. 432, 436 (1995).         review.
  In Kincade v. Sparkman, 175 F.3d 444 (6th Cir. 1999), the          In Nevers v. Killinger, 169 F.3d 352 (6th Cir. 1999), this
Sixth Circuit set forth the criteria for determining whether      Circuit considered the appropriate interpretation of the
habeas relief should be granted for prosecutorial misconduct:     standard set forth in § 2254(d). The Nevers court reviewed
                                                                  the interpretations of this provision as set forth by other
  To grant relief in such cases as this, we must find that the    circuits. The court noted that other circuits viewed the
  prosecutor’s comments constituted more than simply trial        “contrary to” clause as encompassing a different challenge to
  error under state law. The misconduct must be “so               the state court decision than those challenges pursued under
  fundamentally unfair as to deny him due process,”               the “unreasonable application” clause. For example, the Fifth
  Donnelly v. DeChristoforo, 416 U.S. 637, 645, 94 S.Ct.          and Seventh Circuits contend that “[t]he ‘contrary to’ clause
  1868, 40 L.Ed.2d 431 (1974), based on “the totality of          in § 2254(d)(1) addresses questions of pure law; the
  the circumstances” of the case, taking into account             ‘unreasonable application’ clause in § 2254(d)(1) addresses
    the degree to which the remarks complained of have            mixed questions of law and fact; and § 2254(d)(2) addresses
    a tendency to mislead the jury and to prejudice the           questions of pure fact. Nevers, 169 F.3d at 358. The
    accused; whether they are isolated or extensive;              Eleventh Circuit has adopted a two-prong test in which the
    whether they were deliberately or accidentally                court first must “determine the ‘clearly established’ law at the
    placed before the jury, and the strength of the               relevant time.” Neelley v. Nagle, 138 F.3d 917, 922 (11th
    competent proof to establish the guilt of the accused.        Cir. 1998). Then the court must apply either the “contrary to”
  Angel v. Overberg, 682 F.2d 605, 608 (6th Cir. 1982) (en        clause if it is a question of law and the “unreasonable
  banc) (quoting from United States v. Leon, 534 F.2d 667,        application” clause if it is a mixed question of law and fact.
  677 (6th Cir. 1976)).                                           Id. at 923-34. The First Circuit, however, has rejected the
                                                                  classifications of the other circuits and instead has approached
175 F.3d at 445-46.                                               the issue in the following manner:
   The majority opinion appears to apply the test for               First, the habeas court asks whether the Supreme Court
determining whether the prosecutorial misconduct in this case       has prescribed a rule that governs the petitioner’s claim.
violated the defendant’s right to due process, as set forth in      If so, the habeas court gauges whether the state court
Kincade and the earlier case of Angel v. Overberg, 682 F.2d         decision is “contrary to” the governing rule. In the
605, 608 (6th Cir. 1982) and, with the exception of the             absence of a governing rule, the “contrary to” clause
prosecutorial misconduct being isolated, “every other prong         drops from the equation and the habeas court takes the
of the [Angel] test” has been satisfied. Opinion, Section           second step. At this stage, the habeas court determines
II(D). The majority nevertheless then applies the Brecht            whether the state court’s use of (or failure to use) existing
standard for harmless error and, because a second degree            law in deciding the petitioner’s claim involved an
murder conviction in Michigan does not require an intent to         “unreasonable application” of Supreme Court precedent.
kill, and there was sufficient evidence to support a finding of
intent to create a high risk of death or bodily harm, the         O’Brien v. Dubois, 145 F.3d 16, 24 (1st Cir. 1998).
conclusion is reached that the prosecutorial misconduct did
                                                                    Although acknowledging that other circuits had taken a
                                                                  variety of approaches in interpreting this provision, the
10       Maurino v. Johnson                               No. 98-1332        No. 98-1332                                 Maurino v. Johnson            19

Nevers court found that it did not have to chose which                        ______________________________________________
specific approach it found most persuasive because the issue
in the case clearly fell under the unreasonable application                    CONCURRING IN PART, DISSENTING IN PART
prong of the statute. The case before this   court also falls                 ______________________________________________
under the unreasonable application prong1, so this court finds
it unnecessary to choose which approach is most appropriate                    HOLSCHUH, District Judge, concurring in part and
to adopt.2                                                                   dissenting in part. I concur with the majority opinion
                                                                             regarding the issues of alleged judicial bias and ineffective
  The Nevers court announced the standard of deference to                    assistance of counsel. It is only the issue of prosecutorial
afford state court decisions under the “unreasonable                         misconduct that causes me to dissent from the opinion of my
application” prong of § 2254(d). This standard requires this                 colleagues.
court to uphold a state court’s determination unless the
“unreasonableness of a state court’s application of clearly                    Initially, and as a matter of law, I must agree with the
established Supreme Court precedent will not be ‘debatable                   majority that the prosecutorial misconduct in this case is
among reasonable jurists,’ Drinkard, 97 F.3d at 769, if it is ‘so            subject to the doctrine of harmless constitutional error as set
offensive to existing precedent, so devoid of record support,                forth in Brecht v. Abrahamson, 507 U.S. 619 (1993).1 If,
or so arbitrary, as to indicate that it is outside the universe of           however, a reviewing court is in “grave doubt” as to the
plausible, credible outcomes.’” 169 F.3d at 362. We believe                  constitutional error’s impact on the verdict, the court should
that it is appropriate to apply this standard to this case.
  Applying the Nevers standard to the facts of this case, this
court must ask whether there is a clearly established law                        1
                                                                                    Prosecutorial misconduct has not been considered a “structural
                                                                             defect” in the trial proceedings that would require an automatic reversal.
                                                                             See Arizona v. Fulminante, 499 U.S. 279 (1991). I, nevertheless, have
     1                                                                       felt that if, in applying the criteria for determining whether prosecutorial
      Although the petitioner argues that this case falls under the          misconduct rises to the level of a violation of defendant’s constitutional
“contrary to” clause because the lower court analyzed his claim under a      right to due process, see Darden v. Wainwright, 477 U.S. 168, 181
Seventh Circuit case that was overturned by the Supreme Court, he is         (1985); Swofford v. Detella, 101 F.3d 1218 (7th Cir. 1996), it is found
incorrect. The standard of review set forth in § 2254 (d) applies to this    that this fundamental right to a fair trial has been violated, there should be
court’s review of the state court decision, not our review of the district   no place for a harmless error analysis. If, in applying that criteria, the
court decision. This court reviews the district court’s legal conclusions    prosecutorial misconduct does not rise to the level of a constitutional
de novo and its factual findings for clear error. See Nevers, 169 F.3d at    violation, there is no basis for habeas relief. Darden, 477 U.S. at 181
357. Because the petitioner does not assert either (1) “that the facts       n.15. The misconduct in such a case can be deemed to be harmless error,
before the state trial court . . . were ‘essentially the same as those the   but this is not the result of a Brecht harmless error analysis. By applying
Supreme Court has faced earlier’ and that the state court reached a result   a harmless error analysis when there has been a constitutional violation,
different than that reached by the Supreme Court” or (2) “that the state     egregious prosecutorial misconduct is permitted if the state’s case is
courts failed to apply the correct legal standards” this court’s analysis    deemed to be sufficiently strong, a result that not only reflects adversely
focuses on the “unreasonable application” prong. Tucker v. Prelesnik,        on the judicial process in criminal cases, but also does not serve as a
181 F.3d 747, 752 (6th. Cir. 1999).                                          deterrent to prosecutorial abuse. The Sixth Circuit, however, has
     2                                                                       specifically held that, in cases involving prosecutorial misconduct, the
      This Court avoids this issue because the Supreme Court has granted     reviewing court must apply a harmless error analysis. Eberhardt v.
certiorari and heard arguments in a case in which the issue before the       Bordenkircher, 605 F.2d 275 (6th Cir. 1979); Pritchett v. Pitcher, 117
Court is the appropriate interpretation of the meaning of § 2254(d). See     F.3d 959 (6th Cir. 1997). I respect and, of course, am bound by those
Williams v. Taylor, 119 S. Ct. 1355, 143 L. Ed.2d 516 (1999).                decisions.
18   Maurino v. Johnson                           No. 98-1332      No. 98-1332                          Maurino v. Johnson        11

that these statements did not have a substantial and injurious     which has been violated. The petitioner raises three issues on
effect on the outcome of the trial. Determining that               habeas. The first issue -- judicial bias -- is a structural error
reasonable jurists could find the state court’s decision to be a   and if found, requires automatic reversal. The other two
reasonable application of Supreme Court law, we deny               issues -- the prosecutorial misconduct and the ineffective
petitioner’s third claim for relief.                               assistance of counsel claims -- are to be reviewed for harmless
                                                                   error. Prior to the AEDPA amendments, the Supreme Court
                       III. Conclusion                             held in Brecht v. Abrahamson, 507 U.S. 619, 113 S. Ct. 1710,
                                                                   123 L. Ed.2d 353 (1993), that federal courts should apply a
  For the foregoing reasons, this court denies petitioner’s        higher harmless error standard when reviewing habeas claims
request for a writ of habeas corpus and affirms the judgment       than is appropriate on direct review. The Court held that
of the District Court.                                             habeas relief should be granted when the error “ha[s a]
                                                                   substantial and injurious effect or influence in determining the
                                                                   jury’s verdict.” Brecht, 507 U.S. at 623, 113 S. Ct. at 1714.
                                                                   Because the AEDPA amendments were intended to restrict
                                                                   further federal courts’ review of state courts’ determinations
                                                                   this appeal raises the question of whether the changes to
                                                                   § 2254(d) require this court to adopt a new method for
                                                                   reviewing harmless error determinations. The Nevers court,
                                                                   however, has held that the Brecht standard continues to be the
                                                                   appropriate standard to apply on habeas review. 169 F.3d at
                                                                   371. Because there has been no intervening Supreme Court
                                                                   decision invalidating that panel’s decision, this panel
                                                                   conforms to the holding in Nevers and applies the Brecht
                                                                   standard in its review of the state court’s determination of
                                                                   harmless error.
                                                                      Accepting that the analysis set forth by the Nevers court is
                                                                   the appropriate method for reviewing petitioner’s claims, the
                                                                   court must first determine whether there is a “clearly
                                                                   established federal law” applicable to the petitioner’s claim.
                                                                   If there is, then the court must assess whether the state court’s
                                                                   application of this law was reasonable in light of the great
                                                                   deference afforded state courts. This court can overturn a state
                                                                   court determination only if it finds that the unreasonableness
                                                                   of the state court’s application of the “clearly established law”
                                                                   is not debatable among reasonable jurists because it is “so
                                                                   offensive to existing precedent, so devoid of record support,
                                                                   or so arbitrary, as to indicate that it is outside the universe of
                                                                   plausible, credible outcomes.” Nevers, 169 F.3d at 362.
12    Maurino v. Johnson                            No. 98-1332       No. 98-1332                         Maurino v. Johnson       17

                       B. Judicial Bias                                  The prosecutorial misconduct in this case can be analogized
                                                                      to the trial error in the Nevers case. The Nevers court stated
   Petitioner claims that the state trial court judge was biased      that “[t]he issue at the heart of Nevers’s prosecution was not
against his counsel; thus, infringing on his Sixth Amendment          what Nevers did, but why he did it.” 169 F.3d at 372.
right to counsel. Petitioner asserts that there were numerous         Because it was the province of the jury to determine Nevers’s
times during trial where the trial judge spoke harshly to his         credibility the court determined that the exposure of
counsel, but he offers one specific exchange intended to              extraneous information to the jury was not harmless under the
demonstrate the trial court’s bias. In this exchange, the trial       Brecht standard. This case does differ from Nevers in that the
court, outside the presence of the jury, inquired of the              trial court in Nevers accepted as true the affidavits of jurors
defendant whether he would like to change his counsel. He             that the extraneous information influenced the jury’s decision-
suggested to the defendant that his counsel could not count           making process. In this case, we have no finding that the
and insinuated that he thought defense counsel was a jerk. He         prosecutorial misconduct influenced the jury, so this court
then proceeded to hold defense counsel in contempt of court,          must determine whether the prosecutorial misconduct had a
though he did allow counsel to expunge himself of contempt            substantial and injurious effect on the outcome of the trial.
before the jury returned to the courtroom. Petitioner contends        We find that it did not.
that the animosity between the judge and his counsel so
infected his trial as to make it substantially unfair.                   Petitioner argues that the prosecutor’s improper statements
                                                                      were the only evidence offered as to his intent. Had petitioner
   Because judicial bias infects the entire trial process it is not   been convicted of first-degree murder we would agree that
subject to harmless error review. See Chapman v. California,          these statements could have had a substantial and injurious
386 U.S. 18, 23 & n.8, 87 S. Ct. 824, 827-28 & n.8, 17 L.             effect on the outcome of the trial. Petitioner, however, was
Ed.2d 705 (1966) (stating that the right against coerced              convicted of second-degree murder. Although second-degree
confession, the right to counsel and the right to an impartial        murder requires the prosecutor to prove intent, it does not
judge were examples of constitutional rights “so basic to a           require the prosecutor to prove intent to kill. Rather, a
fair trial that their infraction can never be treated as harmless     defendant can be convicted of second-degree murder if the
error.”). Instead, the court is required to assess whether the        defendant has the intent to create high risk of death or great
actions of the judge rose to the level of judicial bias. If the       bodily harm with knowledge that such is the probable result.
court determines that the actions resulted in a constitutional        See People v. Porter, 425 N.W.2d 514 (Mich. App. 1988). At
violation, then the court is required to overturn the state court     trial, the prosecution’s theory of this case was that petitioner
decision. In reviewing claims of judicial bias, this court is         was guilty of second-degree murder because he had the intent
guided by the decision in Liteky v. United States, 510 U.S.           to cause the risk of harm that resulted in the victim’s death.
540, 114 S. Ct. 1147, 127 L. Ed.2d 474 (1994). The Liteky             The prosecution’s closing arguments focused on the fact that
court held that “[a] judge’s ordinary efforts at courtroom            the petitioner was waving around a dangerous weapon in an
administration – even a stern and short-tempered judge’s              agitated state. In particular, the prosecution noted that the
ordinary efforts at courtroom administration – remain                 petitioner stated that he had pointed the gun directly at the
immune.” 510 U.S. at 556, 114 S. Ct. at 1157. The court               victim immediately prior to discharge. Petitioner’s statements
stated that “expressions of impatience, dissatisfaction,              to the police above provided sufficient evidence of intent to
annoyance, and even anger, that are within the bounds of what         satisfy the requirement for a second-degree murder conviction
imperfect men and women, even after having been confirmed             on this theory. Although we believe that the prosecutor’s
                                                                      statement were egregious prosecutorial misconduct we find
16   Maurino v. Johnson                           No. 98-1332      No. 98-1332                          Maurino v. Johnson        13

  In every case, we consider the degree to which the               as federal judges, sometimes display” do not establish “bias
  remarks complained of have a tendency to mislead the             or partiality.” Id. at 555-56, 114 S. Ct. at 1157.
  jury and to prejudice the accused; whether they are
  isolated or extensive; whether they were deliberately or            Although the trial judge did display some animosity toward
  accidentally placed before the jury, and the strength of         defense counsel, this did not permeate the trial. Most, if not
  the competent proof to establish the guilt of the accused.       all, of the disagreements between defense counsel and the
                                                                   court occurred outside the presence of the jury. The state
Angel v. Overberg, 682 F.2d 605, 608 (6th Cir. 1982) (en           court found that the trial court’s behavior did “not rise to the
banc).                                                             level of error cited in the controlling case law.” Because the
                                                                   state court’s decision was not “so clearly incorrect that it
Looking at the facts of this case in light of these factors, we    would not be debatable among reasonable jurists” we deny
agree with the state court’s determination that the                petitioner’s request for relief and affirm the district court’s
prosecutor’s improper questions constitute prosecutorial           decision that the trial court’s action did not constitute judicial
misconduct. Although the prosecutorial misconduct in this          bias.
case does not satisfy the continual and extensive prong of the
Angel test, it satisfies every other prong of the test and the                C. Ineffective Assistance of Counsel
state court found it was egregious prosecutorial misconduct.
The prosecution had rested its case before raising the issue of       Petitioner’s second claim of error is that his trial counsel
this threat, so a strong argument can be made that the             was ineffective because he failed to proffer a defense witness
information was deliberately placed before the jurors in an        who would testify as to a likely cause of the bruises suffered
attempt to mislead them. Because there were no witnesses to        by the decedent. In support of his argument, the petitioner
the shooting other than the decedent and the petitioner, the       offers the affidavit of Michael Dale Williams. This affidavit
jury’s decision turned on whether it found the petitioner’s        states that on the day of the shooting, Michael, another
testimony to be credible. By insinuating that the petitioner       individual, and decedent were wrestling and that the decedent
had threatened the decedent on a prior occasion, the               stated that this wrestling was the cause of her bruises.
prosecutor called into question the defendant’s testimony          Petitioner contends that this hearsay would be admissible
about his relationship with the decedent. While defendant’s        under both M.R.E. 803(1), present sense impression, and
counsel withdrew his objection to the question after his           M.R.E. 803(3), then existing mental, emotional or physical
client’s answer in which he denied any threat, the prosecutor      condition. Whether this testimony is admissible is not the
then suggested to the court that she could “make a showing,”       focus of this court’s review. Rather, the court must assess
despite the fact that she had already rested her case. At no       whether the state court’s determination that counsel’s actions
time during the presentation of her case had the prosecutor        were harmless was appropriate under the Brecht standard.
even broached this subject with any of the witnesses she
presented. While the judge gave a general instruction that the       The standard for reviewing ineffective assistance of counsel
lawyers’ questions were not to be considered as evidence, the      claims is set forth in Strickland v. Washington, 466 U.S. 668,
judge never admonished the prosecutor nor did he specifically      104 S. Ct. 2052, 80 L. Ed.2d 674 (1984). This test requires a
instruct the jury to disregard the prosecutor’s statement. The     reviewing court to assess whether counsel’s performance was
judge denied defense counsel’s motion to hold the prosecutor       deficient. The court must determine whether counsel’s
in contempt of court, his motion for a mistrial, and his request   performance was so deficient “that counsel was not
that the exchange be stricken from the record.                     functioning as the ‘counsel’ guaranteed the defendant by the
                                                                   Sixth Amendment.” Id. at 687, 104 S. Ct. at 2064. If the
14   Maurino v. Johnson                           No. 98-1332      No. 98-1332                          Maurino v. Johnson        15

petitioner demonstrates that his counsel was deficient, he then    substantial prejudice at petitioner’s trial was erroneous.
must establish that this deficiency prejudiced the defense in      Petitioner argues that this misconduct had an injurious effect
order to obtain relief. Id. This test requires the court to        on the outcome of his trial because this misconduct provided
utilize an objective standard of reasonableness. Id. at 688,       the jury with inappropriate evidence of intent. At the
104 S. Ct. at 2064.                                                conclusion of petitioner’s trial, the court instructed the jury as
                                                                   to the elements of second-degree murder and the three types
  On direct appeal, the Michigan Court of Appeals applied          of manslaughter. To convict the petitioner of either second-
the Strickland test in evaluating petitioner’s claim. Although     degree murder or involuntary manslaughter, the prosecution
the court did not specifically address the issue raised on         had to produce evidence of intent. The petitioner contends
petitioner’s habeas claim – unwillingness to call a crucial        that the prosecution offered no other evidence of intent at
defense witness to testify – in its decision, its use of the       trial; thus, for the jury to have convicted the petitioner of
Strickland test demonstrates that it understood and applied the    second-degree murder, the jury must have believed the
appropriate standard in reviewing the petitioner’s claim of        inappropriate statements made by the prosecutor.
ineffective assistance of counsel. We review this decision for
harmless error.                                                       During the prosecution’s cross-examination of the
                                                                   petitioner, the prosecutor insinuated by her question that the
   Applying Brecht to the facts of this case, this court finds     petitioner had threatened the decedent on a prior occasion.
that any error that occurred was harmless error. On his direct     Despite the fact that the prosecution had rested its case, she
appeal, petitioner raised the issue of ineffective assistance of   stated in response to the defense counsel’s objection that she
counsel, but he did not request that the court hold an             could offer proof to support the question. Although the court
evidentiary hearing; thus, this court can consider only the        immediately instructed the jury that nothing the attorneys say
evidence in the record. A review of that evidence                  is evidence and that only the answers to the attorneys’
demonstrates that any error that occurred was harmless. The        question are to be considered as evidence, the trial court did
petitioner “bears the burden of overcoming the presumption         not strike the question from the record, nor did he specifically
that the challenged action might be considered sound trial         instruct the jury to disregard the prosecutor’s statements.
strategy.” Tucker, 181 F.3d at 754. The record shows that
defense counsel believed that the prosecution did not have           On direct appeal the Michigan Court of Appeals determined
sufficient evidence to prove second-degree murder; thus, he        that the prosecution’s question and remarks were
chose to limit the defense to the testimony of the defendant.      prosecutorial misconduct. Yet, the court stated that it did not
A review of the evidence presented at trial, of which defense      “believe that [the] error was so prejudicial that reversal [wa]s
counsel was aware prior to trial, supports defense counsel’s       required for the reason that the court cured the taint with an
belief and leads this court to conclude that petitioner has not    immediate cautionary instruction.” The court also reasoned
overcome the presumption that defense counsel was                  that any prejudice was alleviated by the defendant’s response
exercising sound trial strategy. Finding that the state court      to the question. Because prosecutorial misconduct falls into
decision should be upheld under the Brecht standard, this          the category of trial, rather than structural, errors this court
court denies petitioner’s request for relief on this claim.        should review the state court’s decision for harmless error.
                                                                   See Pritchett v. Pitcher, 117 F.3d 959, 964 (6th Cir. 1997).
               D. Prosecutorial Misconduct
                                                                     The Sixth Circuit has identified several factors that should
  The petitioner’s third claim is that the state court’s           be considered when weighing prosecutorial misconduct.
determination that prosecutorial misconduct did not result in
