                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 12a0367n.06

                                           No. 11-1351

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                       FILED
ANDREW DOBEK,                                             )                       Apr 05, 2012
                                                          )                LEONARD GREEN, Clerk
       Petitioner-Appellant,                              )
                                                          )
v.                                                        )   ON APPEAL FROM THE UNITED
                                                          )   STATES DISTRICT COURT FOR
MARY BERGHUIS,                                            )   THE EASTERN DISTRICT OF
                                                          )   MICHIGAN
       Respondent-Appellee.                               )
                                                          )
                                                          )



       Before: MARTIN, COOK, and KETHLEDGE, Circuit Judges.

       KETHLEDGE, Circuit Judge. Petitioner Andrew Dobek went to trial in state court for

sexually abusing his step-daughter when she was an adolescent. The complainant made the

accusations several years after the alleged abuse, so there was no physical evidence. Thus, the trial

became a credibility contest between the complainant, on the one hand, and Dobek and some other

people who frequented the house where the alleged abuse occurred, on the other. The jury convicted

Dobek of multiple counts of criminal sexual conduct. The trial court sentenced him to a total of 25

to 40 years’ imprisonment.

       Dobek appealed to the Michigan Court of Appeals, claiming several instances of

prosecutorial misconduct. The state court rejected Dobek’s challenges. Dobek then filed this habeas
No. 11-1351
Dobek v. Berghuis

petition with the district court, again presenting claims of prosecutorial misconduct. The district

court denied the petition. This appeal followed.

        In his petition to the district court, Dobek complained about four general categories of

misconduct: vouching for witnesses and other assertions of facts not in evidence during closing

argument; denigrating the defense during closing argument; questioning the defendant about his

religion during cross-examination; and presenting prejudicial testimony. In his brief on appeal,

Dobek mentions only the first category of claims. He has therefore waived the others. See Sanborn

v. Parker, 629 F.3d 554, 579 (6th Cir. 2010).

        Dobek first argues that the prosecutor improperly suggested to the jury that she could judge

the trial witnesses’ credibility better than the jurors could. Dobek says that the prosecutor told the

jurors to “trust” her that the complainant was credible; that she was “here to tell” them that a defense

witness was not credible; and that she did not coach the complainant.

        The Michigan Court of Appeals considered all of these vouching claims together. It stated

that the claims “lack merit given that the challenged comments reflected arguments from the facts

and testimony that the witnesses at issue were credible or worthy of belief.” People v. Dobek, 732

N.W.2d 546, 556 (Mich. Ct. App. 2007). In particular, “[t]he prosecutor did not imply that she had

some special knowledge that the witnesses were testifying truthfully.” Id. Moreover, the court

concluded, even if there was some misconduct it “was not so egregious” as to warrant reversal. Id.

at 556 n.3. “[T]he trial court instructed the jury that the statements and arguments by counsel were

not evidence, and this instruction was sufficient to eliminate any prejudice that possibly resulted.”

Id. The state court did not flesh out these general conclusions with regard to any particular comment.

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       Dobek must show that the state court’s decision “was contrary to, or involved an

unreasonable application of” clear Supreme Court precedent or that it “was based on an unreasonable

determination of the facts.” 28 U.S.C. § 2254; see also Fleming v. Metrish, 556 F.3d 520, 530–32

(6th Cir. 2009). We review the district court’s denial of the writ de novo. Ruhlman v. Brunsman,

664 F.3d 615, 619 (6th Cir. 2011). In doing so, we may consider specific reasoning that “could have

supported” the court’s conclusions. See Harrington v. Richter, 131 S.Ct. 770, 786 (2011).

       A prosecutor should not express her personal opinion as to whether a witness is lying or

telling the truth. See United States v. Young, 470 U.S. 1, 8 (1985). To rise to the level of a

constitutional violation, however, a prosecutor’s improper comments must have “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) (citation omitted).

       Here, when arguing that the jury should believe the complainant, the prosecutor said, “Trust

me, ladies and gentlemen, if this was a lie . . . [the complainant’s] patience would have been

exhausted long ago in that it took us two years to get to” trial. The prosecutor had just recounted the

various times during the path to trial that the complainant had been required to describe the sexual

abuse. Dobek thinks that the phrase “Trust me” instructed the jury to believe the prosecutor’s own

assessment of the complainant’s credibility. The warden responds that “Trust me” was merely a

“colloquial introductory phrase” to a permissible argument that the complainant would not have put

herself through these traumatic procedures if she had been lying. The state court could have

reasonably adopted the warden’s reading and concluded that the statement was proper.



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        The prosecutor also addressed the credibility of Kathleen Dobek, the complainant’s mother

and the defendant’s wife. Her loyalties appeared divided, so it was critical for each side to explain

why Kathleen would have believed one story or the other. The prosecutor told the jury that Kathleen

had a pattern of “cover[ing] up for” her husband and “bury[ing] [her] head[] in the sand as if it didn’t

happen.” The prosecutor then remarked: “I’m here to tell you . . . don’t bury your head in the sand.”

Here too, Dobek reads “I’m here to tell you” as expressing a personal belief, whereas the warden

reads it as merely introductory. Here too, the state court could reasonably adopt the warden’s

reading. Indeed, that reading seems the most likely, because the prosecutor immediately clarified

to the jury that “you are the people who are gonna decide the credibility of these witnesses”; and that

doing so “is solely your job.”

        Similarly, the prosecutor stated, “I would submit to you that you can disregard [the

complainant’s] mother’s testimony as worthless.” Then she explained why: “There is no woman

that is going to come into this courtroom and want to admit that her husband was doing sexual things

with her own child.” The state court could have reasonably concluded that the prosecutor was

simply arguing as to why a woman in Kathleen Dobek’s position might not be credible.

        The prosecutor also addressed the suggestion that the complainant “had been coached.” The

prosecutor said, “She was not coached. She did not go through her testimony with myself.” Here

the prosecutor sounded like she was speaking from her own memory; and declarations of personal

knowledge are improper. See Young, 470 U.S. at 7 & n.3, 18. But the state court could reasonably

find that the improper remark did not produce an unfair trial. See Darden, 477 U.S. at 182.

Admittedly, the prosecution’s case hinged on the believability of the complainant; and thus there is

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Dobek v. Berghuis

some risk that an improper remark going to the complainant’s credibility would sway the jury. But

the judge instructed the jurors “that their decision was to be made on the basis of the evidence alone,

and that the arguments of counsel were not evidence.” Id. Moreover, as the district court noted, the

prosecutor’s comment about coaching was arguably made in response to defense suggestions that

the complainant had lied on the stand. We cannot say that the state court’s decision was “so far out

of line with the very general standard” set forth in Darden as to entitle Dobek to habeas relief. Davis

v. Lafler, 658 F.3d 525, 535 (6th Cir. 2011) (en banc).

       Dobek also cites the prosecutor’s statements that she had been prosecuting child sexual abuse

cases “for 18 years”; that she was “bound to follow the law”; and that “it is not unusual for these

cases not to be reported right away.” As the state court implicitly acknowledged, these comments

suggested personal knowledge on the prosecutor’s part. See Dobek, 732 N.W.2d at 556. And for

that reason the comments were improper. But on balance we think the comments were only

marginally prejudicial; and the judge’s cautionary instruction that counsel’s arguments are not

evidence mitigated the potential prejudice still further. The state court reasonably concluded that

these improper remarks did not deprive Dobek of his right to a fair trial.

       Finally, Dobek claims that prosecutor repeatedly made comments that impermissibly “shifted

the burden of proof to him.” But he never presented an independent claim along these lines to the

Michigan Court of Appeals or to the district court. Neither the Michigan Court of Appeals nor the

district court mentioned any burden-shifting claim in their opinions. Having reviewed the record,

we conclude that Dobek did not fairly present his burden-shifting claim to the Michigan Court of

Appeals. Thus, he has procedurally defaulted it. See Pudelski v. Wilson, 576 F.3d 595, 605–06 (6th

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Cir. 2009). Dobek does not try to show cause for the default, which is therefore unexcused. See

Awkal v. Mitchell, 613 F.3d 629, 646 (6th Cir. 2010) (en banc). Thus, we cannot grant relief on that

claim.

         The district court’s judgment is affirmed.




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