           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                    2     Ware v. Renico                               No. 02-2300
        ELECTRONIC CITATION: 2004 FED App. 0174P (6th Cir.)
                    File Name: 04a0174p.06                            ATTORNEY GENERAL, Lansing, Michigan, for Appellee.
                                                                      ON BRIEF: Elizabeth L. Jacobs, Detroit, Michigan, for
                                                                      Appellant. Janet A. Van Cleve, OFFICE OF THE
UNITED STATES COURT OF APPEALS                                        ATTORNEY GENERAL, Lansing, Michigan, for Appellee.
                  FOR THE SIXTH CIRCUIT                                                   _________________
                    _________________
                                                                                              OPINION
 GAMELIEL WARE ,                  X                                                       _________________
         Petitioner-Appellant, -                                        BOYCE F. MARTIN, JR., Circuit Judge. Gameliel Ware
                                   -
                                   -  No. 02-2300                     appeals the district court’s denial of his petition for a writ of
           v.                      -                                  habeas corpus, which alleged various errors related to his
                                    >                                 state court jury trial and conviction on counts of murder,
                                   ,                                  assault with intent to murder and possession of a firearm
 PAUL RENICO, Warden,              -
        Respondent-Appellee. -                                        during the commission of a felony. We AFFIRM.
                                  N                                                                  I
      Appeal from the United States District Court
     for the Eastern District of Michigan at Detroit.                    Ware and his co-defendant, Lamont Card, were tried and
   No. 01-74252—Avern Cohn, Senior District Judge.                    convicted before separate juries in the Circuit Court of Wayne
                                                                      County, Michigan. The events giving rise to Ware’s
                     Argued: April 27, 2004                           prosecution and conviction occurred during the early morning
                                                                      hours of February 17, 1994, as Ware and Card were leaving
               Decided and Filed: June 10, 2004                       a party in Detroit. They asked two individuals, Carlos Graves
                                                                      and Marcus Williams, for a ride home. Graves and Williams
 Before: MARTIN and ROGERS, Circuit Judges; BELL,                     agreed to drive them home, and the four men got into
               Chief District Judge.*                                 Graves’s car; Graves was driving, Williams was in the front
                                                                      passenger seat, Ware was in the back seat behind Williams,
                      _________________                               and Card was in the back seat behind Graves. Williams, the
                                                                      key prosecution witness at Ware’s trial, testified that he saw
                           COUNSEL                                    Card shoot Graves in the head. Then, according to Williams,
                                                                      Card turned the gun on him and shot him in the ear, causing
ARGUED: Elizabeth L. Jacobs, Detroit, Michigan, for                   him to slump over to the side. As Williams slumped over, he
Appellant. Janet A. Van Cleve, OFFICE OF THE                          was shot a second time – this time in the right shoulder – but
                                                                      he did not know who fired this second shot. Williams did
                                                                      testify, however, that after the shots were fired, he saw Ware
    *
                                                                      reach forward and put the car into park. He also testified that
     The Honorable Robert Holmes Bell, Chief United States District   Ware and Card then proceeded to pull Graves and him out of
Judge for the Western District of Michigan, sitting by designation.

                                1
No. 02-2300                              Ware v. Renico       3    4      Ware v. Renico                            No. 02-2300

the car, dump them in the street, and drive off in Graves’s car.   ineffective assistance of trial counsel, but the Michigan Court
While Williams survived this attack, Graves unfortunately          of Appeals reversed and reinstated Ware’s convictions. The
died from his injuries. The police located Graves’s car later      Michigan Supreme Court declined to review that decision.
that day, parked on a street near Card’s home.
                                                                     Ware then filed a petition for a writ of habeas corpus in the
   Officer Fred Moore arrested Ware in Ware’s home that            district court. In a comprehensive opinion, the district court
same day. There is some dispute regarding the circumstances        addressed each of Ware’s claims but ultimately concluded
of Officer Moore’s entry into Ware’s home. Apparently Ware         that they lacked merit. Accordingly, the district court denied
was not at home when Officer Moore arrived, but Ware’s             the petition, but granted a certificate of appealability with
brother, Chappell Ware, answered the door. According to            respect to the following issues:
Officer Moore, Chappell Ware let him into the home and
allowed him to wait there until Ware’s arrival. According to           [1] Where trial counsel failed to offer evidence
Chappell Ware, on the other hand, Officer Moore entered the                concerning the circumstances of the arrest on the
home without consent and without a warrant, and ordered that               issue of voluntariness, failed to challenge the
its occupants stay in a certain area. Ware later returned home             admissibility of the oral statement, and failed to
with his mother, at which point he was arrested and taken into             challenge the statements as the fruit of a Fourth
custody.                                                                   Amendment violation, Petitioner was denied his
                                                                           Sixth Amendment right to the effective assistance of
   Ware made two statements to the police in which he                      counsel.
admitted his role in the incident; the first was an oral
statement to Officer Moore and the second was a written                [2] Petitioner was also denied effective assistance of
statement secured by Officer Dale Collins. In each statement,              counsel in the following ways:
Ware admitted that he shot Williams, that he and Card
dragged the victims out of Graves’s car, and that they drove               A. Trial counsel failed to request that Officer
away in the car. At trial, Ware moved to suppress the written                 Collins’ comment be stricken as non-
statement, arguing that it was involuntary because he could                   responsive.
not read or understand the waiver of rights form. After
holding a hearing, the trial court denied the motion. Ware                 B. Trial counsel failed to ask for an instruction on
never attempted to suppress his oral statement in the trial                   self defense.
proceedings.
                                                                           C. Trial counsel failed to object to prosecutorial
  After Ware’s motion for a directed verdict was denied, the                  misconduct and to the instructions.
jury convicted him of first-degree murder, felony murder,
assault with intent to murder, and possession of a firearm             [3] Prosecutorial misconduct deprived Petitioner of due
during the commission of a felony. He was sentenced to life                process in the following ways:
imprisonment without parole.                                               A. The failure to comply with a request for
  Instead of filing a direct appeal, Ware filed a motion for a                discovery within seven days denied Mr. Ware
new trial. The trial court granted the motion, citing                         the right to present a defense and a fair trial.
No. 02-2300                                   Ware v. Renico         5    6     Ware v. Renico                               No. 02-2300

        B. The prosecutor appealed to the jurors’ fears and                   (2) resulted in a decision that was based on an
           emotions in order to obtain a conviction.                          unreasonable determination of the facts in light of the
        C. The prosecutor argued facts not in evidence.                       evidence presented in the State court proceeding.

  [4] The standard jury instruction on aiding and abetting                28 U.S.C. § 2254(d). A decision is “contrary to” clearly
      denied Petitioner the right to a properly charged jury              established federal law “if the state court arrives at a
      and to due process of law.                                          conclusion opposite to that reached by [the Supreme Court]
                                                                          on a question of law or if the state court decides a case
  [5] Petitioner’s conviction for felony murder should be                 differently than [the Supreme Court] has on a set of materially
      reversed because the evidence is insufficient to                    indistinguishable facts.” Williams v. Taylor, 529 U.S. 362,
      support the verdict.[1]                                             413 (2000). A state court decision involves “an unreasonable
                                                                          application” of clearly established federal law if “the state
                                  II                                      court identifies the correct governing legal principle from
                                                                          [the] Court’s decisions but unreasonably applies that principle
  We review de novo the district court’s denial of a petition             to the facts of the prisoner’s case.” Id. A writ of habeas
for a writ of habeas corpus. Maples v. Stegall, 340 F.3d 433,             corpus may not be issued simply because the state court
436 (6th Cir. 2003) (“This court applies de novo review to the            issued a decision that erroneously or incorrectly applies
decision of the district court in a habeas corpus proceeding.”)           clearly established law; rather, the state court’s application of
(citing Harris v. Stovall, 212 F.3d 940, 942 (6th Cir. 2000)).            law must have been objectively unreasonable. Id. at 410-11.
The Antiterrorism and Effective Death Penalty Act provides,
in pertinent part, as follows:                                              Our thorough review of the facts and arguments in this case
                                                                          leads us to the firm conclusion that Ware’s petition was
  (d) An application for a writ of habeas corpus on behalf                properly denied. Because we are in accord with the district
  of a person in custody pursuant to the judgment of a State              court’s persuasive and thorough reasoning with respect to
  court shall not be granted with respect to any claim that               each of the claims at issue in this appeal, we adopt that
  was adjudicated on the merits in State court proceedings                reasoning and find it unnecessary to offer any further
  unless the adjudication of the claim–                                   analysis. Therefore, the district court’s judgment is
                                                                          AFFIRMED.
     (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




    1
     This statement of the issues was quoted by the district court from
W are’s request for a certificate of appe alability.
