                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0714n.06

                                            No. 09-2360                                  FILED
                                                                                     Nov 17, 2010
                           UNITED STATES COURT OF APPEALS                       LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


DAVID SCHAUER,                                    )
                                                  )
       Petitioner-Appellee,                       )
                                                  )
v.                                                )    ON APPEAL FROM THE UNITED
                                                  )    STATES DISTRICT COURT FOR THE
KENNETH MCKEE, Warden, Warden of                  )    EASTERN DISTRICT OF MICHIGAN
Bellamy Creek Correctional Facility,              )
                                                  )
       Respondent-Appellant.                      )


       Before: MERRITT, GIBBONS, and COOK, Circuit Judges.


       COOK, Circuit Judge. Petitioner David Schauer filed a writ of habeas corpus in district court

under 28 U.S.C. § 2554 following his state-court conviction for first-degree criminal sexual conduct.

The district court conditionally granted the petition based upon his claims of ineffective assistance

of counsel and prosecutorial misconduct. The state appeals. Because Schauer’s defense counsel’s

purported errors do not qualify as ineffective assistance, and because Schauer cannot show the

necessary cause to permit collateral review of his procedurally defaulted prosecutorial misconduct

claim, we reverse the district court’s decision granting habeas relief.


                                           I. Background


       A Michigan jury convicted Schauer of first-degree sexual misconduct arising from the sexual

assault of his teenage daughter (“the complainant”). At trial, the prosecution presented no physical
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or circumstantial evidence. In his opening statement, defense counsel explained that the case

focused squarely on the complainant’s testimony, but that he would prove she was unreliable.

Specifically, he told the jury he would “call any witness the People don’t [call] that they have talked

to,” and “show you how her stories have changed.” (Trial Tr. 150.)


       The complainant testified that on the night of the offense she was asleep in her bedroom.

Schauer entered the room, woke her, and engaged in sexual intercourse with her. Afterwards,

Schauer threatened the complainant that if she told anyone about the incident, he would harm her

or her family members. The complainant did not tell anyone; instead she wrote a note to her mother

disclosing the sexual assault, but never delivered it. The complainant’s mother eventually found the

note and confronted her. The complainant then admitted that Schauer had sexually abused her.


       The prosecution also called several witnesses who had talked to the complainant, including

her mother, her friend, and the police officers who interviewed her. In his closing argument, defense

counsel attacked the complainant’s credibility by pointing out the disparities in these witnesses’

testimony. He presented “inconsistency charts” highlighting how the complainant’s stories had

changed. Despite defense counsel’s efforts, the jury returned a guilty verdict, and the court

sentenced Schauer to fifteen to thirty years’ imprisonment.


       Following his conviction, Schauer appealed to the Michigan Court of Appeals. He asserted

five grounds for relief, including prosecutorial misconduct and ineffective assistance of counsel.

Specifically, Schauer claimed that the prosecution prejudicially vouched for the complainant, and

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that defense counsel provided ineffective assistance by failing to object to this vouching and to the

prosecution’s introduction of hearsay testimony. The appellate court rejected Schauer’s claims and

affirmed the conviction. People v. Schauer, No. 247721, 2004 WL 1672450 (Mich. Ct. App. July

27, 2004). Schauer next applied for leave to appeal to the Michigan Supreme Court, but the court

denied relief. People v. Schauer, 697 N.W.2d 156 (Mich. 2005). Schauer then filed a motion for

reconsideration, which the court also denied.


       In July 2006, Schauer petitioned for habeas relief under 28 U.S.C. § 2254. He raised four

claims, including the ineffective assistance and prosecutorial misconduct claims that the state court

had rejected. The district court granted habeas relief, finding that (1) Schauer had been denied

effective assistance of counsel; (2) though Schauer had procedurally defaulted his prosecutorial

misconduct claim, his ineffective assistance claim provided adequate cause and prejudice to permit

collateral review; and (3) the prosecution’s closing remarks were flagrant and prejudicial enough to

provide independent grounds for habeas relief. Schauer v. McKee, 662 F. Supp. 2d 864 (E.D. Mich.

2009). Following the district court’s decision, the state moved for a stay and now appeals.


                                            II. Analysis


A.     Standard of Review


       We review de novo a district court’s grant of habeas corpus. Wolfe v. Brigano, 232 F.3d 499,

501 (6th Cir. 2000). The Antiterrorism and Effective Death Penalty Act (AEDPA) allows a federal


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court to grant habeas relief if the state court’s adjudication of the claim either 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 resulted in a decision that was based upon

an unreasonable determination of the facts in light of the evidence presented in the state-court

proceeding. 28 U.S.C. § 2254(d). Schauer’s petition involves the first category.


        Under 28 U.S.C. § 2254(d)’s unreasonable application prong, “a federal habeas court may

not issue the writ simply because that court concludes in its independent judgment that the state-

court decision applied [a Supreme Court case] incorrectly.” Woodford v. Visciotti, 537 U.S. 19,

24–25 (2002) (per curiam) (citation omitted). “Rather, it is the habeas applicant’s burden to show

that the state court applied [that case] to the facts of his case in an objectively unreasonable manner.”

Id. at 25. “If the federal court finds that, viewed objectively, the state court has correctly identified

the governing legal principle from the Supreme Court’s decisions but unreasonably applied that

principle to the facts of the prisoner’s case, it may grant the writ.” Millender v. Adams, 376 F.3d

520, 523 (6th Cir. 2004) (citation omitted). Nonetheless, the statute’s “highly deferential standard

. . . demands that state-court decisions be given the benefit of the doubt.” Woodford, 537 U.S. at 24

(internal quotation marks and citation omitted).


B.      Ineffective Assistance of Counsel Claim


        As his first grounds for habeas relief, Schauer alleges that his trial counsel provided

ineffective assistance by permitting prosecution witnesses “to testify extensively to prior consistent

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hearsay statements,” and by “failing to object to the prosecutor’s highly improper vouching argument

in closing argument.” (Appellee’s Br. 19.) Under Strickland v. Washington, 466 U.S. 668 (1984),

a petitioner must demonstrate, considering all of the circumstances, that (1) counsel’s performance

fell below an objective standard of reasonableness, id. at 687–88; and (2) a reasonable probability

exists that, but for counsel’s conduct, the result would have been different, id. at 694.


       In assessing Strickland’s “objective standard of reasonableness” prong, we consider whether

the attorney demonstrated “reasonableness under prevailing professional norms.” Id. at 688. “There

are countless ways to provide effective assistance in any given case.” Id. at 689. A court “will

indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance,” O’Hara v. Wigginton, 24 F.3d 823, 828 (6th Cir. 1994) (quoting Strickland,

466 U.S. at 689) (internal quotation marks omitted), and may not judge his performance in hindsight,

but “within the context of the circumstances at the time of the alleged errors,” McQueen v. Scroggy,

99 F.3d 1302, 1311 (6th Cir. 1996), overruled on other grounds by In re Abdur’Rahman, 392 F.3d

174, 178–82 (6th Cir. 2004). Counsel’s reasonable trial decisions are permissible, “even if

mistaken.” Moss v. Hofbauer, 286 F.3d 851, 859 (6th. Cir. 2002) (internal quotation marks and

citation omitted). Where a petitioner fails to demonstrate that his defense counsel’s behavior was

objectively unreasonable, the habeas court need not consider its prejudicial effect. Strickland, 466

U.S. at 697 (“[T]here is no reason for a court deciding an ineffective assistance claim . . . to address

both components of the inquiry if the defendant makes an insufficient showing on one.”).



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       Schauer first faults his attorney for allowing the prosecution to introduce four instances of

hearsay testimony into evidence: two from the complainant, in which she read statements that she

had previously written; and two from officers who interviewed the complainant, in which they

testified as to her interview statements. Schauer argues that because this case lacks eyewitnesses and

physical evidence, the “defense counsel’s decision not to object . . . is both wholly inexplicable and

utterly inexcusable.” (Appellee’s Br. 23.) The record does not support this strong accusation. As

defense counsel explained in his opening statement, he intended to “call every witness . . . to show

how [complainant’s] story ha[d] changed.” (Trial Tr. 153.) Schauer repeatedly refers to the hearsay

statements as “consistent,” or “bolstering,” but overlooks how his attorney gleaned numerous

inconsistencies from them and used them to undermine the complainant’s credibility. Defense

counsel emphasized these disparities in his closing argument with “inconsistency charts.” Other

circuits endorse this trial strategy as sound. See, e.g., Bullock v. Carver, 297 F.3d 1036, 1053–54

(10th Cir. 2002) (“[A] fully informed attorney could have concluded that admitting the hearsay

statement [to highlight inconsistencies] was to [the defendant’s] strategic advantage and, therefore,

that [defendant’s] attorneys’ performance was not objectively unreasonable.”). We agree; “[t]he

Constitution does not guarantee every defendant a successful defense.” Moran v. Trippett, 149 F.3d

1184 (Table), 1998 WL 382698, at *3 (6th Cir. June 8, 1998) (citing Strickland, 466 U.S. at 690).

Although ultimately unsuccessful, defense counsel’s decision not to object to the hearsay testimony

fell within the wide range of reasonable assistance permitted under Strickland.




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       As alternate grounds for his ineffective assistance claim, Schauer cites defense counsel’s

failure to object to the prosecution’s improper vouching in closing argument. “Improper vouching

occurs when a jury could reasonably believe that a prosecutor was indicating personal belief in a

witness’ [sic] credibility,” Taylor v. United States, 985 F.2d 844, 846 (6th Cir. 1993), “thereby

placing the prestige of the [government] behind the witness,” United States v. Francis, 170 F.3d 546,

550 (6th Cir. 1999). A prosecuting attorney may not offer any “improper suggestions, insinuations,

and, especially, assertions of personal knowledge,” as these “are apt to carry much weight against

the accused when they should properly carry none.” Berger v. United States, 295 U.S. 78, 88 (1935);

see also United States v. Kerr, 981 F.2d 1050, 1052–53 (9th Cir. 1992) (finding that the prosecutor

may not properly ask jurors to consider whether four cooperating witnesses were “hoodwinking” the

government).


       Schauer challenges four sentences of the prosecution’s closing argument that asked the jury

to consider the complainant’s sophistication:


       Now, ladies and gentlemen, I’d also like you to consider when you’re considering her
       credibility—again, is this 15-year-old girl so sophisticated that she is able to pull off
       this lie, this crime, this perjury? Is she so sophisticated that she was able to fool
       state troopers and Children’s Protective Services’ workers and prosecutors, that she
       was able to concoct a lie so believable that brought this case into court? And was
       she able to keep it consistent within reason over the period of the last year in order
       to pull the wool over everybody’s eyes? Is she that sophisticated ladies and
       gentlemen? No.


(Trial Tr. 575–76) (emphasis added).


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       Even if we assume that the prosecution’s remarks were improper, the pertinent question is

whether counsel’s failure to object was both objectively unreasonable and prejudicial. While

Schauer claims that “defense counsel’s failure to object . . . was constitutionally deficient

performance,” (Appellee’s Br. 28), the state posits that this too was strategy because “defense

counsel may not have wanted to draw attention to the prosecutor’s remarks,” (Appellant’s Br. 50).

“[N]ot drawing attention to [a] statement may be perfectly sound from a tactical standpoint.” United

States v. Caver, 470 F.3d 220, 244 (6th Cir. 2006). To breach the unreasonableness threshold,

“defense counsel must so consistently fail to use objections, despite numerous and clear reasons for

doing so, that counsel’s failure cannot reasonably have been said to have been part of a trial strategy

or tactical choice.” Lundgren v. Mitchell, 440 F.3d 754, 774–75 (6th Cir. 2006). Conversely, “any

single failure to object [to closing arguments] usually cannot be said to have been error.” Id. at 774;

see also Smith v. Bradshaw, 591 F.3d 517, 522 (6th Cir. 2010) (finding that defense counsel’s failure

to object to one instance of alleged prosecutorial misconduct was not deficient). Together, these

precepts suggest that Schauer’s defense counsel’s failure to object to this aspect of the prosecution’s

closing argument falls within the broad range of reasonable trial conduct under Strickland. We

therefore deny Schauer’s ineffective assistance of counsel claim.


                                C. Prosecutorial Misconduct Claim


       Schauer also cites prosecutorial misconduct (stemming from the prosecution’s closing

statements) as independent grounds for habeas relief. As the state appellate court correctly decided,


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however, Schauer procedurally defaulted the claim due to his failure to object at trial.


       For a habeas petitioner to default a claim procedurally, he must have violated a state

procedural rule, and “the last state court rendering a judgment in the case must have based its

judgment on the procedural default.” Simpson v. Jones, 238 F.3d 399, 406 (6th Cir. 2000). “A state

prisoner who [procedurally defaults a claim] waives the right to federal habeas review [of that claim]

unless the prisoner can demonstrate cause for noncompliance and actual prejudice arising from the

alleged constitutional violation, or a showing of a fundamental miscarriage of justice.” Id. (citation

omitted).


       In addressing Schauer’s claim, the Michigan Court of Appeals limited its analysis to plain

error review because of a contemporaneous-objection rule. Schauer, 2004 WL 1672450, at *2; see

People v. Sharbnow, 174 Mich. App. 94, 100 (1989) (“The absence of an objection during trial

precludes appellate review of alleged prejudicial prosecutorial remarks unless the prejudicial effect

was so great that it could not have been cured by a cautionary instruction and failure to consider the

issue would result in a miscarriage of justice.”). Procedural default therefore bars our review unless

Schauer demonstrates cause and actual prejudice, or a fundamental miscarriage of justice.


       Schauer offers the ineffective assistance of his trial counsel to overcome this procedural

default. (Appellee’s Br. 32.) Ineffective assistance of counsel can provide the necessary cause to


excuse procedural default. Hofbauer, 228 F.3d at 698. As we have already discussed though,


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defense counsel’s activities do not constitute ineffective assistance; Schauer’s attempt to show cause

and actual prejudice therefore fails. And Schauer, recognizing the miscarriage of justice exception’s

narrowness, does not raise this argument. Because Schauer’s prosecutorial misconduct claim falls

outside of these two exceptions, procedural default forecloses this court’s collateral review.


                                           III. Conclusion


       Accordingly, we reverse the district court’s grant of habeas relief.




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