                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0187n.06

                                            No. 11-2341
                                                                                        FILED
                            UNITED STATES COURT OF APPEALS                           Feb 20, 2013
                                 FOR THE SIXTH CIRCUIT                        DEBORAH S. HUNT, Clerk

GEORGE GERARD BURGER,                              )
                                                   )
       Petitioner-Appellant,                       )
                                                   )
v.                                                 )   ON APPEAL FROM THE UNITED
                                                   )   STATES DISTRICT COURT FOR THE
JEFFREY WOODS,                                     )   EASTERN DISTRICT OF MICHIGAN
                                                   )
       Respondent-Appellee.                        )



       Before: BOGGS, MOORE and SUTTON, Circuit Judges.


       SUTTON, Circuit Judge. A Michigan jury convicted George Burger of armed robbery and

fleeing from the police. The state courts affirmed his convictions, and a federal district court denied

his habeas petition. We affirm.

                                                  I.

       On Easter Sunday in 2003, Steven Goble was working the graveyard shift at a Mobil gas

station in Highland, Michigan. Around 4:00 a.m., a middle-aged white man wearing a stocking hat

came in and told Goble, “This is a stick-up.” R. 6-6 at 138. Goble thought the man was joking until

the man pulled out a knife and tapped it against the counter. Goble gave the man all the money in

the cash register, and the man left. Goble called the police and gave a description of the man and

his pick-up truck.

       Oakland County Sheriff’s Deputy Steven Dooley responded to the call. A few minutes later,

he saw a pick-up truck on a nearby road that matched the description of the truck connected to the
No. 11-2341
Burger v. Woods

robbery. Dooley stopped the vehicle and asked its driver, Burger, to exit. When Dooley asked

Burger whether he had been near the Mobil station, Burger jumped back into the truck, said “I’m out

of here,” and sped away. R. 6-10 at 73.

       Dooley pursued. After a few miles, Burger pulled off the road, stopped, and fled on foot into

a forest. When other officers reached the scene, they found a knife and a crack-cocaine pipe inside

Burger’s truck. A few days later, police found Burger in an apartment in Farmington, Michigan, and

arrested him.

       At trial, Goble testified that Burger looked like the man who had robbed him, although he

could not be sure. Goble also told the jury that the knife from Burger’s truck “looks a lot like” the

one the robber used, although again he could not be sure. R. 6-6 at 144. Officer Dooley testified

about his encounter with Burger the night of the robbery. And Balani Kandaswamy testified that

in December 1996, Burger robbed his Shell station in Farmington. (Burger pleaded guilty to armed

robbery and spent five-and-a-half years in prison for that offense.) In the earlier robbery, Burger

said, “This is a stick-up,” while wearing a hooded sweatshirt and keeping one hand in his pocket as

if he had a gun. R. 6-7 at 244. The defense objected to this testimony, but the trial court ruled it

admissible as evidence of a distinctive characteristic because “this is a stick-up” is an “archaic”

choice of words. R. 6-5 at 18.

       The jury convicted Burger of armed robbery and fleeing from the police, and the Michigan

courts affirmed his convictions. See People v. Burger, No. 251788, 2005 WL 624277 (Mich. Ct.

App. Mar. 17, 2005); People v. Burger, 707 N.W.2d 194 (Mich. 2005). Back in the state trial court,



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Burger filed a motion for relief from judgment. The trial court denied it, and the court of appeals

denied him leave to appeal. Burger filed a federal habeas petition, which the district court denied.

                                                  II.

        Burger argues that the state courts violated his due process rights by admitting testimony

about the 1996 robbery. Were we being asked to decide whether the Michigan courts properly

applied Michigan evidence law, there might be something to this argument. Rule 404(b)(1) of the

Michigan Rules of Evidence, much like its federal counterpart, prohibits propensity

evidence—“[e]vidence of other crimes, wrongs, or acts . . . to prove the character of a person in order

to show action in conformity therewith.” And the testimony about the 1996 robbery at first glance

looks like a textbook example of evidence that might lead a jury to find that, because the defendant

robbed a gas station once before, he likely did so again. Even the exception to the rule—for other-

crimes evidence “marked with special characteristics so uncommon, peculiar and distinctive as to

lead compellingly to the conclusion that all were the handiwork of the defendant because all bore

his distinctive style or ‘touch,’” People v. Golochowicz, 319 N.W.2d 518, 528 (Mich. 1982)—seems

out of place. What the state courts thought was Burger’s trademark move—telling a gas station

attendant “this is a stick-up”—is exceedingly generic, even cliché. While the state courts thought

the threat was so “archaic” as to be distinct, a Westlaw search suggests that is not the case. See R. 12

at 14 (district court opinion describing a Westlaw search that uncovered 1,215 other cases in which

a robber said “this is a stick-up”). And it does not seem surprising or for that matter a signature

feature of a crime for a tentative fly-by-night robber (remember he has been caught twice, and this




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Burger v. Woods

attendant did not take him seriously at first) to invoke an old stand-by—“this is a stick-up”—in the

throes of trying to pull off a robbery.

        Unfortunately for Burger, second-guessing evidentiary rulings is not our job, at least not in

this context. Federal habeas courts do not review state-court rulings on state-law questions. Estelle

v. McGuire, 502 U.S. 62, 67–68 (1991). We may grant relief only if a state court’s evidentiary ruling

“is so egregious that it results in a denial of fundamental fairness,” thereby violating the Fourteenth

Amendment’s due process guarantee. Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003).

        Making matters worse, at least temporarily, Burger did not press a due process argument

during his direct appeal in the state courts, focusing almost exclusively on the merits of the state law

evidentiary ruling. For that reason, the state appellate court held that Burger forfeited the federal

claim. Burger, 2005 WL 624277, at *2 n.2. Ordinarily, that forfeiture would create a procedural

bar in a later federal habeas proceeding. See Coleman v. Thompson, 501 U.S. 722, 750 (1991). But

a State may forfeit a forfeiture. Trest v. Cain, 522 U.S. 87, 89 (1997). Although the State purports

to preserve the procedural-bar argument in a single sentence of its appellate brief (and, below it all,

in a footnote no less), Woods Br. at 15 n.1, that kind of undeveloped, bare-bones assertion does not

suffice to make, much less preserve, an appellate argument. See United States v. Johnson, 440 F.3d

832, 846 (6th Cir. 2006).

        As for the merits, the State invokes the Antiterrorism and Effective Death Penalty Act, see

28 U.S.C. § 2254(d), claiming that its deferential standard of review applies to Burger’s claims. That

may or may not be true. On the one hand, the Michigan courts did not issue a merits ruling on the




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point on direct review, as they found the due process argument forfeited, suggesting that AEDPA

does not apply. On the other hand, on postconviction review, Burger did make the argument, and

the Michigan Court of Appeals issued a summary decision denying Burger leave to appeal his

postconviction motion for relief from judgment. In some settings, that kind of decision might

amount to a ruling on the merits for AEDPA purposes. Cf. Werth v. Bell, 692 F.3d 486, 494 (6th Cir.

2012) (holding that a denial of leave to file a delayed direct appeal was a decision on the merits).

We need not resolve the point because the standard of review makes no difference to the outcome.

Burger’s due process claim fails either way.

       A due process claim premised on a mistaken state court evidentiary ruling faces a steep

climb. The kind of foundational unfairness and arbitrariness needed to show that a flawed state court

evidentiary ruling rises to the level of a due process violation is not a broad category, and the

Supreme Court to our knowledge (and Burger’s) has never identified an improper-character-evidence

case that falls into it. In Dowling v. United States, 493 U.S. 342, 352–53 (1990), the Court, on direct

review, held that a trial court did not violate a defendant’s due process right when it allowed the

prosecution to submit evidence that the defendant had previously been tried on robbery charges. The

Court came to a similar conclusion in a pre-AEDPA habeas case. In Estelle v. McGuire, the Court

held that a defendant did not suffer a due process violation when a state court admitted evidence and

that state evidentiary questions form “no part of a federal court’s habeas review of a state

conviction.” 502 U.S. at 67; see also Spencer v. Texas, 385 U.S. 554, 564 (1967) (“[I]t has never

been thought that . . . this Court [was] a rule-making organ for the promulgation of state rules of

criminal procedure.”).

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        It may well be that the trial court misapplied Michigan Evidence Rule 404(b). But this kind

of “garden-variety” character-evidence error does not “cross the constitutional threshold” of due

process. Watkins v. Meloy, 95 F.3d 4, 7 (7th Cir. 1996). Indeed, our court has rejected many similar

claims both before and after the passage of AEDPA. See, e.g., Sanborn v. Parker, 629 F.3d 554, 576

(6th Cir. 2010) (finding no constitutional violation when a state trial court admitted a defendant’s

confession to a minister); Bey v. Bagley, 500 F.3d 514, 523 (6th Cir. 2007) (holding that a

defendant’s “disagreement” with state-court rulings on the admissibility of character evidence was

“not cognizable on federal habeas review”); Clemmons v. Sowders, 34 F.3d 352, 358 (6th Cir. 1994)

(stating that a habeas petitioner’s claim that his trial court erroneously admitted evidence of his past

convictions “raises no constitutional infirmity”); Logan v. Marshall, 680 F.2d 1121, 1123 (6th Cir.

1982) (“The evidentiary ruling of the state trial court judge in the present case does not give rise to

a constitutional violation.”).

        That brings us to the second problem with this contention. Even if we assumed for the sake

of argument that the mistaken admission of other-acts evidence could violate a defendant’s right to

due process, though Burger has pointed us to no such case, the improper evidence would need to be

“material in the sense of a crucial, critical highly significant factor.” Brown v. O’Dea, 227 F.3d 642,

645 (6th Cir. 2000). The alleged similarity between Burger’s 1996 robbery conviction and the 2003

robbery, however, was just one brick in the wall of evidence against him. Deputy Dooley stopped

Burger near the scene of the robbery in a truck that matched the gas-station attendant’s description.

And the robbery took place at 4:00 a.m. on Easter Sunday, not a time when many vehicles are on the

road. As soon as Dooley brought up the robbery, Burger fled, and the police later found a knife in

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his truck. Goble, the gas-station attendant, testified that the robber looked like Burger and used a

knife that looked like the one police found.

       Even Burger’s efforts to poke holes in some, but not all, of this evidence faced problems.

Goble, it was true, was not certain that Burger was the man who robbed the station, and Goble had

failed to pick Burger out of lineups before trial. But Burger had shaved his beard after he was

arrested, and the photo of Burger in one of the pretrial lineups was six years old. On this record, any

uncertainties in Goble’s testimony were understandable and hardly sufficed to sink the government’s

case. As for the 1996 robbery, the trial court may have erred in admitting it, but the court did not

err in instructing the jury about its limited relevance. It instructed the jury that it could consider

evidence of the 1996 robbery only to find that Burger “used a plan, system or characteristic scheme

that he’s used before or since,” and that it “must not consider this evidence for any other purpose,”

including whether Burger “is a bad person or that he’s likely to commit crimes.” R. 6-7 at 347–48.

In the face of this instruction and the other evidence against Burger, the 1996 robbery was in no way

the linchpin to the government’s case—a “crucial” or “critical” factor in Burger’s conviction. Cf.

Brown, 227 F.3d at 645 (finding no constitutional violation in spite of a state-court evidentiary error

when there was ample evidence to convict the defendant). Right or wrong, the state court’s other-

acts evidentiary ruling does not supply a basis for federal habeas relief premised on the Due Process

Clause of the Fourteenth Amendment.

       Burger’s claim of ineffective assistance of appellate counsel fails to take flight for similar

reasons. To prove ineffective assistance, Burger must show that his lawyer performed poorly and

that the deficient representation prejudiced his case. Strickland v. Washington, 466 U.S. 668, 687

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(1984). In his brief to the Michigan Court of Appeals, Burger’s lawyer argued that the trial court’s

decision to admit evidence of the 1996 robbery was erroneous under Michigan evidence law, but he

made only a perfunctory argument that the trial court’s ruling was a violation of due process. See

Burger, 2005 WL 624277, at *2 n.2. As a result and as noted above, the state appeals court found

that Burger had forfeited the due process claim. Id. That forfeiture did not, however, prejudice

Burger. For the reasons just given, Burger could not have prevailed on his due process claim under

federal law, and he has not identified any (unmentioned) Michigan cases that would have granted

him relief on any state-law claims. An appellate lawyer “cannot be found to be ineffective for failure

to raise an issue that lacks merit.” Shaneberger v. Jones, 615 F.3d 448, 452 (6th Cir. 2010).

Burger’s lawyer is no exception, requiring us to deny this claim as well.

                                                 III.

       For these reasons, we affirm.




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