                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0586n.06

                                          No. 10-1066

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                     FILED

JAMES GAJDA,                                        )
                                                                                    Jun 06, 2012
                                                    )                         LEONARD GREEN, Clerk
       Petitioner-Appellant,                        )
                                                    )       ON APPEAL FROM THE
v.                                                  )       UNITED STATES DISTRICT
                                                    )       COURT FOR THE EASTERN
HUGH WOLFENBARGER,                                  )       DISTRICT OF MICHIGAN
                                                    )
       Respondent-Appellee.                         )
                                                    )




       BEFORE: KEITH, BOGGS, and MOORE, Circuit Judges.


       PER CURIAM. James Gajda, a Michigan prisoner represented by counsel, appeals the

district court’s judgment denying his petition for a writ of habeas corpus, filed under 28 U.S.C.

§ 2254.

       A jury found Gajda guilty of second-degree murder and possessing a firearm during the

commission of a felony. His convictions arose from the shooting death of David Porter. Gajda

admitted that he shot Porter and dragged him away from the roadway where the shooting took place,

but he asserted that the shooting was accidental and that his subsequent actions were the result of

panic and fear. The trial court sentenced Gajda to life in prison. The Michigan Court of Appeals

affirmed the trial court’s judgment, People v. Gajda, No. 233168, 2002 WL 31105294 (Mich. Ct.

App. Sept. 20, 2002), and the Michigan Supreme Court denied leave to appeal. People v. Gajda, 661

N.W.2d 239 (Mich. 2003) (table). The trial court denied Gajda’s subsequent motion for relief from
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Gajda v. Wolfenbarger

judgment. The Michigan Court of Appeals and Michigan Supreme Court denied leave to appeal

under Michigan Court Rule 6.508(D).

       Gajda filed a § 2254 petition, raising numerous claims. The district court denied the petition

on the merits and granted a certificate of appealability for only three claims: (1) the prosecutor

committed misconduct during closing and rebuttal arguments by arguing that Gajda was guilty of

second-degree murder based on a theory of liability that had no legal or factual support; (2) trial

counsel rendered ineffective assistance by failing to object to the prosecutor’s misconduct; and (3)

appellate counsel rendered ineffective assistance by failing to raise the misconduct issue on appeal.

The respondent argues that Gajda procedurally defaulted his prosecutorial misconduct claim by

failing to raise it on direct appeal. Because the cause-and-prejudice inquiry for that issue merges

with the substance of Gajda’s ineffective-assistance claims, we will consider the merits of the

prosecutorial misconduct claim.

       We review de novo a district court’s denial of a § 2254 petition. Tolliver v. Sheets, 594 F.3d

900, 915 (6th Cir.), cert. denied, 131 S. Ct. 605 (2010).

       [A] federal court shall not grant a writ of habeas corpus with respect to any claim that
       was adjudicated on the merits in state court proceedings unless the adjudication of
       the claim either:

               (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.

Id. at 915-16 (quoting 28 U.S.C. § 2254(d)).




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Gajda v. Wolfenbarger

       Gajda first argues that the prosecutor committed misconduct by arguing to the jury that, even

if it found the shooting to be accidental, it could find Gajda guilty of second-degree murder based

on his dragging the injured victim away from the roadway in an attempt to hide the victim and ensure

his death. The correct inquiry for evaluating a claim of prosecutorial misconduct is “whether the

improper comments or actions so infected the trial with unfairness as to make the resulting

conviction a denial of due process.” Hawkins v. Coyle, 547 F.3d 540, 552 (6th Cir. 2008) (internal

quotation marks omitted). We first determine whether the prosecution’s conduct was improper and,

if it was, we consider the following four factors to determine whether the conduct was flagrant

enough to warrant reversal: “(1) whether the evidence against the defendant was strong; (2) whether

the conduct of the prosecution tended to mislead the jury or prejudice the defendant; (3) whether the

conduct or remarks were isolated or extensive; and (4) whether the remarks were made deliberately

or accidentally.” Id. at 553 (citation omitted).

       The district court held that, even if the prosecutor’s statements were improper, the judge’s

instructions to the jury “cured” any inaccuracies regarding the requisite intent to convict for second-

degree murder. We agree. The prosecutor’s remarks were primarily aimed at demonstrating how

the act of dragging Porter’s body could provide circumstantial evidence that Gajda did not

accidentally shoot Porter. Michigan law allows a prosecutor to use such evidence to prove intent.

People v. Abraham, 599 N.W.2d 736, 745 (Mich. Ct. App. 1999). The trial court then properly

instructed the jury on the required mens rea for second-degree murder. The prosecutor’s remarks

were brief and isolated, they do not appear to have been the product of a deliberate attempt to

mislead the jury, and the court’s subsequent instruction vitiated any resulting prejudice, since we

presume that jurors follow the instructions they receive. United States v. Tosh, 330 F.3d 836, 842

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Gajda v. Wolfenbarger

(6th Cir. 2003). Finally, the evidence against Gajda—who admitted to shooting Porter and dragging

his body into a ditch—was overwhelming. The state court’s rejection of Gajda’s claim of

prosecutorial misconduct was neither contrary to, nor an unreasonable application of, federal law.

We do not reach the issue of procedural default or the ineffective-assistance-of-trial-counsel or

appellate-counsel claims, because we agree that Gajda’s underlying claim of prosecutorial

misconduct lacks merit.

          Accordingly, we affirm the district court’s judgment. Gajda’s motion for oral argument is

denied.




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