                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0390n.06

                                            No. 08-1992                                     FILED
                                                                                        Jun 29, 2010
                             UNITED STATES COURT OF APPEALS                       LEONARD GREEN, Clerk
                                  FOR THE SIXTH CIRCUIT


ERIC PAUL COCKREAM,                                )
                                                   )
       Petitioner-Appellant,                       )
                                                   )
v.                                                 )
                                                   )
KURT JONES, Warden,                                )   ON APPEAL FROM THE UNITED
                                                   )   STATES DISTRICT COURT FOR THE
       Respondent,                                 )   EASTERN DISTRICT OF MICHIGAN
                                                   )
and                                                )
                                                   )
JOHN PRELESNIK, Warden, Handlon                    )
Michigan Training Unit,                            )
                                                   )
       Respondent-Appellee.                        )



       Before: BOGGS, ROGERS, and COOK, Circuit Judges.


       COOK, Circuit Judge. Eric Cockream appeals the district court’s denial of his petition for

habeas relief pursuant to 28 U.S.C. § 2254, in which he alleged prosecutorial misconduct and

ineffective assistance of trial and appellate counsel. Finding that his appellate counsel’s performance

did not prejudice him, and that the remainder of his claims necessarily fail as a result, we affirm the

district court’s judgment.
No. 08-1992
Cockream v. Jones

                                                  I.


       A Michigan jury convicted Cockream of kidnapping Michele Drogosch from the parking lot

of her apartment complex. At Cockream’s trial, Drogosch testified that, as she returned home from

work at 4:00 a.m. and approached the door of the complex, a man grabbed her from behind, putting

one arm around her neck and a hand over her nose and mouth. Her assailant dragged her across the

lot toward a white Ford Taurus with the engine running, but when he released his grip to open the

door, she escaped and ran back toward the building, screaming. Eye-witness Jonathan Pike testified

that he saw the Taurus in the lot before he entered the building, also at about 4:00 a.m., and, once

inside, heard screams that prompted him to look out the window. When he yelled out the window,

the Taurus “went flying.” Pike and his girlfriend then opened the front door for Drogosch, who Pike

described as “scared out of her mind.” The jury learned through police testimony that Cockream

initially denied being in the apartment complex’s parking lot, but later admitted pulling into the lot

to snort a line of cocaine, though he insisted he never got out of his car. Drogosch positively

identified Cockream as her attacker at a police lineup.


       On direct appeal, represented by counsel, Cockream challenged the jury instructions and the

sufficiency of the evidence against him, and contended that his 15- to 50-year sentence was

disproportionate to his offense. The Michigan Court of Appeals affirmed the judgment of

conviction, People v. Cockream, No. 235560, 2003 WL 356367 (Mich. Ct. App. Feb. 14, 2003), and

the Michigan Supreme Court denied leave to appeal, 666 N.W.2d 669 (Mich. 2003). Cockream then

sought state post-conviction relief, alleging three constitutional violations: prosecutorial

                                                -2-
No. 08-1992
Cockream v. Jones

misconduct1; ineffective assistance of trial counsel for failing to object to the misconduct and to an

allegedly improper jury instruction; and ineffective assistance of appellate counsel for failing to raise

ineffective assistance of trial counsel and prosecutorial misconduct. The state trial court held that

Cockream procedurally defaulted his ineffective assistance of trial counsel and prosecutorial

misconduct claims when he failed to raise them on direct appeal. People v. Cockream, No. 2000-

3533-FC (Macomb County Cir. Ct. Dec. 3, 2003). And though Cockream attempted to overcome

the default by claiming ineffective assistance of appellate counsel, the court found the prosecutor’s

conduct and the jury instructions proper, rendering Cockreams’s appellate counsel’s failure to raise

the now-defaulted claims nonprejudicial. Id. In one-sentence orders referencing Michigan Court

Rule (M.C.R.) 6.508(D), both Michigan appellate courts denied Cockream leave to appeal. People

v. Cockream, No. 252953 (Mich. Ct. App. Jul. 9, 2004); 690 N.W.2d 106 (Mich. 2004).


        Cockream then sought a federal writ of habeas corpus on grounds nearly identical to those

he raised in state post-conviction proceedings: prosecutorial misconduct; ineffective assistance of

trial counsel for failing to object to the misconduct (he no longer complained of the jury instruction);

and ineffective assistance of appellate counsel for failing to raise ineffective assistance of trial

counsel or prosecutorial misconduct on direct appeal. Though faced with a procedural default


        1
          The district court perceived Cockream’s post-conviction petition to include a stand-alone
prosecutorial misconduct claim. The federal court record, however, does not include the petition
itself, leaving only the Michigan trial court’s decision from which to divine the petition’s contents.
Though the Michigan court’s decision seems to indicate that Cockream raised only ineffective
assistance claims, mentioning prosecutorial misconduct only to challenge his counsels’ performance,
we, like the district court, give Cockream the benefit of the doubt and assume he raised prosecutorial
misconduct during state post-conviction proceedings as a distinct claim.

                                                  -3-
No. 08-1992
Cockream v. Jones

argument from the warden, the district court addressed the merits of Cockream’s claims in the

interest of judicial efficiency, denied the petition, and declined to issue a certificate of appealability.

Cockream timely appealed, and this court granted a certificate of appealability on each of his three

claims.


                                                    II.


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

error. Hill v. Hofbauer, 337 F.3d 706, 710 (6th Cir. 2003). The Antiterrorism and Effective Death

Penalty Act (AEDPA) governs Cockream’s federal habeas petition. Under AEDPA, when a state

court has adjudicated the merits of a claim, we may not grant a habeas petition unless the state court

adjudication of the claim:


          (1) resulted in a decision that was contrary to, or involved an unreasonable
          application of, clearly established Federal law, as determined by the Supreme Court
          of the United States; or
          (2) resulted in a decision that was based on an unreasonable determination of the
          facts in light of the evidence presented in the State court proceeding.


28 U.S.C. § 2254(d); see also Dorn v. Lafler, 601 F.3d 439, 442 (6th Cir. 2010) (AEDPA deference

limited to claims adjudicated in state court on the merits). An adjudication qualifies as “contrary”

to federal law when the court “arrives at a conclusion opposite to that reached by [the Supreme]

Court on a question of law” or “decides a case differently than [the Supreme] Court has on . . .

materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412–13 (2000). And “[a] state



                                                   -4-
No. 08-1992
Cockream v. Jones

court unreasonably applies Supreme Court precedent ‘if the state court identifies the correct

governing legal rule . . . but unreasonably applies it to the facts of the particular prisoner’s case.’”

Barnes v. Elo, 339 F.3d 496, 501 (6th Cir. 2003) (quoting Williams, 529 U.S. at 407). Under §

2254(e)(1), we presume the correctness of a state court’s factual findings unless the petitioner rebuts

them with clear and convincing evidence. Sinkfield v. Brigano, 487 F.3d 1013, 1016 (6th Cir. 2007).


         The warden seemingly urges us to conclude that Cockream procedurally defaulted all three

of the claims before us. But because this Circuit’s interpretation of references to M.C.R. 6.508(D)

in one-line state-court orders remains in flux, see Guilmette v. Howes, 591 F.3d 505 (6th Cir. 2010)

(opinion vacated; en banc rehearing granted), we turn directly to the merits of Cockream’s claims,

see Hudson v. Jones, 351 F.3d 212, 215 (6th Cir. 2003) (“[F]ederal courts are not required to address

a procedural-default issue before deciding against the petitioner on the merits.”). We begin by

examining whether his appellate counsel provided constitutionally effective assistance, asking

whether the Michigan trial court unreasonably applied Supreme Court precedent when it determined

that Cockream’s appellate counsel met constitutional requirements. If we endorse the reasonableness

of the state court’s decision, we necessarily conclude that Cockream’s two additional claims also

fail.2




         2
        The Michigan court determined that Cockream’s appellate counsel’s performance did not
prejudice him by concluding that the prosecutor’s misconduct did not render Cockream’s trial
fundamentally unfair. If that decision withstands AEDPA scrutiny, we must also find that
Cockream’s stand-alone prosecutorial misconduct claim lacks merit and that his trial counsel met
constitutional effectiveness standards even though he failed to object to the conduct.

                                                 -5-
No. 08-1992
Cockream v. Jones

       To establish ineffective assistance of appellate counsel, Cockream “must show that counsel’s

performance was deficient,” and that “the deficient performance prejudiced the defense.” Strickland

v. Washington, 466 U.S. 668, 687 (1984). Only where counsel’s performance falls “below an

objective standard of reasonableness,” which we evaluate “indulg[ing] a strong presumption that

counsel’s performance falls within the wide range of reasonable professional assistance,” do we

deem it deficient. Id. at 688–89. Prejudice, in this context, requires showing a “probability

sufficient to undermine confidence in the outcome” such that, “but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Id. at 694. “Both the performance

and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact entitled

to de novo review.” Combs v. Coyle, 205 F.3d 269, 278 (6th Cir. 2000).


       Cockream alleges that his appellate counsel erred by failing to raise (1) prosecutorial

misconduct; and (2) ineffective assistance of Cockream’s trial counsel for failing to object to the

misconduct. But we need not examine whether counsel performed deficiently because, as the state

court found, Cockream fails to establish that he suffered prejudice as a result of his attorney’s

performance. Strickland, 466 U.S. at 697 (“[A] court need not determine whether counsel’s

performance was deficient before examining the prejudice suffered by the defendant as a result of

the alleged deficiencies.”). As we explain below, the state court conformed its decision to relevant

federal law when it concluded that none of the alleged violations—vouching for the credibility of

witnesses, commenting on Cockream’s decision not to testify at trial, shifting the burden of proof

to Cockream, and appealing to the sympathy of the jury—were sufficient to undermine confidence


                                               -6-
No. 08-1992
Cockream v. Jones

in the outcome of the trial.


       The Michigan trial court applied the federal Strickland standard to trigger prejudice review,

prompting AEDPA deference. But when it examined the prosecutor’s conduct, it consistently cited

state court precedent to hold the prosecutor’s conduct proper. Reluctant to ensnare the federal courts

in deciphering state law claims, the Supreme Court has placed the burden on state courts to make

clear whether federal or state law controls their decisions. “In habeas, if the decision of the [state

court] fairly appeared to rest primarily on resolution of those claims, or to be interwoven with those

claims, and did not clearly and expressly rely on an independent and adequate state ground, a federal

court may address the petition.” Coleman v. Thompson, 501 U.S. 722, 735 (1991). Because

Cockream contends that the prosecutor’s remarks rendered his trial so fundamentally unfair as to

deny him due process of law, he raises a federal issue cognizable on habeas review. And though the

Michigan trial court’s decision relies on Michigan state court cases to reject Cockream’s claim, it

acknowledges that “[t]he test for prosecutorial misconduct is whether a defendant was denied his

right to a fair and impartial trial.” People v. Cockream, No. 2000-3533-FC, at 3. We thus afford the

state court’s decision due deference under AEDPA, assigning petitioner the burden of showing that

federal law demands a different conclusion. See Harris v. Stovall, 212 F.3d 940, 943 (6th Cir. 2000)

(Where a petitioner alleges constitutional error but the state court does not address the issue in

federal constitutional terms, we ultimately inquire “whether the state court result is contrary to or

unreasonably applies clearly established federal law.”).


       Under relevant Supreme Court precedent, prosecutorial misconduct demands reversal if that

                                                -7-
No. 08-1992
Cockream v. Jones

conduct “‘so infected the trial with unfairness as to make the resulting conviction a denial of due

process.’” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo,

416 U.S. 637, 643 (1974)). When reviewing the prosecutor’s remarks, we keep in mind that “the

appropriate standard of review for such a claim on writ of habeas corpus is the narrow one of due

process, and not the broad exercise of supervisory power.” Darden, 477 U.S. at 181 (internal

quotations omitted); see also Byrd v. Collins, 209 F.3d 486, 529 (6th Cir. 2000) (citing Cook v.

Bordenkircher, 602 F.2d 117, 119 n.5 (6th Cir. 1979), for the proposition that “it is the responsibility

of the [state courts] to police their prosecutors; we have no such authority.”). Thus, “the touchstone

of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not

the culpability of the prosecutor.” Smith v. Phillips, 455 U.S. 209, 219 (1982).


       To examine prosecutorial misconduct, we employ a two-prong test, asking first whether the

prosecution’s remarks qualified as improper, and, if so, whether they “were sufficiently flagrant to

warrant reversal.” Slagle v. Bagley, 457 F.3d 501, 516 (6th Cir. 2006). We measure flagrancy by

looking to (1) the strength of the prosecutor’s evidence; (2) the degree to which the prosecutor’s

remarks tended to mislead the jury or prejudice the defendant; (3) the extensivity (or isolated nature)

of the improper conduct; and (4) the deliberateness of the prosecutor’s statements. Id.


       Cockream attempts to establish the requisite prejudice by first contending that the prosecutor

rendered his trial fundamentally unfair when he vouched for the credibility of witnesses. “Improper

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

belief in a witness’ credibility.” Taylor v. United States, 985 F.2d 844, 846 (6th Cir. 1993).

                                                 -8-
No. 08-1992
Cockream v. Jones

Cockream fails to demonstrate that the prosecutor reached that threshold here. The trial transcript

reflects that the prosecutor made remarks in his opening and closing statements about how “nice”

Drogosch appeared and that she testified truthfully. Specifically, during his opening he commented

that “you’re going to listen to Michele and you’re going to see what an incredible nice young girl she

is and she is not making this up.” Trial Tr. Vol. II, Dist. Ct. Doc. (“Doc.”) 13, 79. He further

commented that “if we didn’t have all that [other evidence], you believe it just on the victim’s

testimony herself.” Id. In closing, he remarked that “ [t]is is a wonderful girl this happened to,” and

“[w]e’ve talked about how you would gauge somebody’s credibility,” and alluded to additional

evidence not in the record when he described her as “almost trying to minimize what happened to

her.” Trial Tr. Vol. III, Doc. 14, 31. Cockream also contends that the prosecutor erred when he

commented that “I believe the best witness we had here was the other guy who lived at the complex.”

Id.


       “Prosecutorial vouching is said to occur when the prosecutor supports the credibility of a

witness by indicating a personal belief in the witness’s credibility[,] thereby placing the prestige of

a [prosecutor’s office] behind that witness through comments that imply that the prosecutor has

special knowledge of facts not in front of the jury.” Davis v. Booker, 589 F.3d 302, 310 (6th Cir.

2009) (internal quotation marks and citation omitted). Asking the jury to infer credibility from facts

already in evidence by virtue of Drogosch’s testimony—that she appeared nice or minimized her

testimony—does not cross that impropriety threshold. United States v. Owens, 426 F.3d 800, 806

(6th Cir. 2005) (“Counsel may argue for a reasonable inference that a witness is not credible . . .


                                                 -9-
No. 08-1992
Cockream v. Jones

assuming there exists evidence from which to so infer.”). The prosecutor did not assert or imply that

he drew from anything but Drogosch’s trial testimony to argue that she was credible. And his

comments about the eye-witness’s testimony suggested only that Pike, as someone uninvolved in the

altercation, presented facts without bias—a conclusion the jury could, based on Pike’s testimony,

reach on its own. Coupled with the trial court’s instructions to the jury before opening statements

that the lawyers’ statement and arguments did not qualify as evidence, and standard instructions on

the factors the jury should use to evaluate a witness’s credibility, the prosecutor’s statements did not

deprive Cockream of his due process rights to a fair trial. See Byrd, 209 F.3d at 537–38.


        Next, Cockream alleges that the prosecutor impermissibly commented on his decision not

to testify when he stated in closing that there existed “no contradiction to what [Drogosch] said.”

Trial Tr. Vol III, Doc. 17-2, 3. The general principle Cockream relies upon finds strong support:

“[i]t is well established that a prosecutor’s direct reference to a criminal defendant’s failure to testify

is a violation of that defendant’s Fifth Amendment privilege against compelled self-incrimination.”

Byrd, 209 F.3d at 533 (citing Griffin v. California, 380 U.S. 609 (1965)). Even indirect references

to a defendant’s failure to testify may breach constitutional guarantees, but we must “‘look at all the

surrounding circumstances’” to assess a possible due process violation. Id. (quoting Butler v. Rose,

686 F.2d 1163, 1170 (6th Cir. 1982) (en banc)).


        This court has adapted its four-factor inquiry into the flagrancy of a prosecutor’s improper

remarks to address more specifically a prosecutor’s indirect comment on the right to silence. We

ask: “1) [w]ere the comments manifestly intended to reflect on the accused’s silence or of such a

                                                  - 10 -
No. 08-1992
Cockream v. Jones

character that the jury would naturally and necessarily take them as such; 2) were the remarks

isolated or extensive; 3) was the evidence of guilt otherwise overwhelming; [and] 4) what curative

instructions were given and when.” Bowling v. Parker, 344 F.3d 487, 514 (6th Cir. 2003) (internal

quotation marks and citations omitted). If we determine that some other equally plausible

explanation for the prosecutor’s remarks exists, we cannot find manifest intent. Gall v. Parker, 231

F.3d 265, 311 (6th Cir. 2000), superseded by statute on other grounds. And this court has previously

held that “[g]eneral references to evidence as uncontradicted, while not recommended, may not

reflect on the defendant’s failure to testify where witnesses other than the defendant could have

contradicted the evidence.” Byrd, 209 F.3d at 534 (quoting Raper v. Mintzes, 706 F.2d 161, 164 (6th

Cir. 1983)); see also United States v. Tarwater, 308 F.3d 494, 511 (6th Cir. 2002) (The prohibition

against commenting on a criminal defendant’s silence “does not extend to a defendant’s failure to

call a witness or to otherwise present exculpatory evidence.”). Because other witnesses who

testified—namely, Pike—could have called Drogosch’s version of the facts into question, the state

court reasonably concluded that the record does not give rise to “any implication that this was

designed to point out that Defendant did not testify in his own defense.” People v. Cockream, No.

2000-3533-FC, at 4.


       Cockream relies on the same remark—“there’s no contradiction to what [Drogosch]

said”—to argue that the prosecutor impermissibly shifted the burden of proof to him. Though “it

[is] improper for the prosecutor to suggest that the defendant ha[s] the burden of proof or any

obligation to produce evidence to prove his innocence,” United States v. Clark, 982 F.2d 965,


                                               - 11 -
No. 08-1992
Cockream v. Jones

968–69 (6th Cir. 1993), no error results from pointing out that the defense theory lacks evidentiary

support, United States v. Forrest, 402 F.3d 678, 686 (6th Cir. 2005). Indeed, we recently found

“nothing improper about highlighting uncontroverted testimony before the jury.” United States v.

Kuehne, 547 F.3d 667, 690 (6th Cir. 2008).


        Cockream next urges us to find prejudice in the prosecutor’s remarks that appealed to the

passions or sympathies of the jury, depriving him of a fair trial. We, like the district court, take issue

with the prosecutor’s description of the crime as “every woman’s nightmare, every father’s

nightmare”; his comment that Drogosch’s escape could be attributed to God; the explanation of the

effect that the crime had on his eating and sleeping patterns, and personal remarks that he worried

for his own mother’s safety; and the prosecutor’s repeated focus on the continuing traumatic impact

that the crime would have on Drogosch. See United States v. Payne, 2 F.3d 706, 712 (6th Cir. 1993)

(condemning “comments [that] had the ability to mislead the jury as well as ignite strong

sympathetic passions for the victims and against [the defendant].”). We strain to “understand how

any competent prosecutor could believe that such comments were proper in a criminal trial.” Dist.

Ct. Op. at 12. But though the statements were improper, given their isolated nature (compared to

the lengthy summary of the trial testimony comprising the remainder of the prosecutor’s remarks),

they did not rise to the flagrant level needed to warrant reversal. See Byrd, 209 F.3d at 532.

Moreover, the strength of the evidence against Cockream and the trial court’s instructions that the

jury must base their decision on the evidence, not sympathy or prejudice, weigh against finding that

the prosecutor’s statements violated Cockream’s due process rights. See id. at 533. Thus, as to this


                                                  - 12 -
No. 08-1992
Cockream v. Jones

and the three other prosecutorial improprieties that Cocrkeam contends undermined confidence in

his trial’s outcome, we cannot conclude that the state court unreasonably applied Supreme Court

precedent when it held that Cockream failed to establish the prejudice required to state a viable

ineffective assistance of appellate counsel claim.


        Finally, Cockream contends that the prosecutor’s comments, even if individually insufficient

to deny him due process, accumulated to his prejudice. But though aggregated harmless errors

require reversal when “the combined effect . . . was so prejudicial as to render [a] trial fundamentally

unfair,” United States v. Trujillo, 376 F.3d 593, 614 (6th Cir. 2004), only actual errors may combine

to generate cumulative prejudice. Because we discern impropriety only in the prosecutor’s remarks

that appealed to the jury’s sympathies, and nonetheless find the prosecutor’s comments insufficiently

flagrant to generate prejudice, Cockream’s cumulative argument fails. That is, even if Cockream

presents a meritorious attack upon the prosecutor’s attempts to generate juror sympathy, he still

exposes only that set of errors, and no others to combine it with. Accordingly, there was no

cumulative prejudice.


        Because Cockream fails to demonstrate that the state trial court unreasonably applied

Supreme Court precedent when it found that his appellate counsel’s performance did not prejudice

him, we deny his petition on ineffective assistance of appellate counsel grounds. And as the same

prosecutorial misconduct argument underlies the remainder of his claims, those necessarily fail as

well.



                                                 - 13 -
No. 08-1992
Cockream v. Jones

                                                   III.


          Accordingly, we affirm the district court’s denial of Cockream’s petition for a writ of habeas

corpus.




                                                  - 14 -
