                                 RECOMMENDED FOR FULL-TEXT PUBLICATION
                                      Pursuant to Sixth Circuit Rule 206
                                              File Name: 06a0145p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                             X
                                       Petitioner-Appellant, -
 DANTA DAVIS,
                                                              -
                                                              -
                                                              -
                                                                           No. 03-2262
               v.
                                                              ,
                                                               >
 DENNIS STRAUB, Warden,                                       -
                                       Respondent-Appellee. -
                                                             N

                                             Filed: April 21, 2006
         Before: MERRITT and ROGERS, Circuit Judges; HOOD, Chief District Judge.*
                                         ________________________
                                            AMENDED ORDER
                                         ________________________
         This matter comes before the court upon the petition for rehearing en banc, filed by counsel
for the appellant, and the response of the appellee thereto. The petition has been circulated not only
to the original panel members but also to all other judges of the court in regular active service, less
than a majority of whom have voted in favor of rehearing en banc. Accordingly, the petition has
been returned to the panel for decision.
        Upon consideration of the petition and the response, the panel concludes that the issues
raised therein were fully considered upon the original submission and decision of the case, and the
request for rehearing is therefore denied.




         *
         The Honorable Joseph M. Hood, Chief United States District Judge for the Eastern District of Kentucky, sitting
by designation.


                                                          1
No. 03-2262           Davis v. Straub                                                            Page 2


        BOYCE F. MARTIN, JR., Circuit Judge, with whom DAUGHTREY, MOORE, COLE, and
CLAY, Circuit Judges, join, dissenting from the denial of rehearing en banc. I respectfully dissent
from the denial of rehearing en banc in this case because I believe that this Court’s recent decisions
have adopted an overly narrow interpretation of the “unreasonable application” prong of AEDPA’s
Section 2254(d)(1). These decisions have rendered the “unreasonable application” prong
indistinguishable from the “contrary to” prong and, in my opinion, such a narrow reading raises
grave constitutional concerns and undermines the ability of the federal courts to reach the full merits
of constitutional issues. This case is a prime example of the results of such an overly narrow reading
of AEDPA. For these reasons and for the reasons so ably articulated by Judge Merritt in his dissent
from the panel decision, Davis v. Straub, 430 F.3d 281, 291 (6th Cir. 2005) (Merritt, J., dissenting),
I respectfully dissent from the Court’s decision to deny rehearing en banc.
                                                   I.
        Under AEDPA, we are limited to granting relief where a petitioner’s state court
“adjudication . . . was contrary to, or . . . an unreasonable application of, clearly established Federal
[Supreme Court] law.” 28 U.S.C. § 2254(d). This means that to determine what constitutes “clearly
established” law, we look to the law established by Supreme Court holdings, and not its dicta. Lakin
v. Stine, 431 F.3d 959 (6th Cir. 2005) (citing Ruimveld v. Birkett, 404 F.3d 1006, 1010 (6th Cir.
2005)); see also Yarborough v. Alvarado, 541 U.S. 652 (2004); Williams v. Taylor, 529 U.S. 362,
412 (2000). An explicit statement from the Supreme Court is not necessary; rather, “the legal
principles and standards flowing from [Supreme Court] precedent” also qualify as “clearly
established law.” Ruimveld, 404 F.3d at 1010 (quoting Taylor v. Withrow, 288 F.3d 846, 852 (6th
Cir. 2002)). Thus, “clearly established” law includes not only bright-line rules, but also “the
governing legal principle or principles set forth by the Supreme Court” designed to apply to a range
of factual contexts. Lockyer v. Andrade, 538 U.S. 63, 71 (2003); see also Williams, 529 U.S. at 407
(observing that an unreasonable application of clearly established federal law occurs when a state
court decision “unreasonably refuses to extend [a legal] principle to a new context where it should
apply”). “A legal principle, by definition, applies to diverse factual scenarios. And those factual
scenarios can differ in innumerable ways, so long as they are analogous on the point to which the
legal principle applies.” Robinson v. Polk, — F.3d —, 2006 WL 894971 (4th Cir. 2006) (King, J.,
dissenting from the denial of rehearing en banc); see also Wiggins v. Smith, 539 U.S. 510, 520
(2003) (holding that “a federal court may grant relief when a state court has misapplied a governing
legal principle to a set of facts different from those of the case in which the principle was
announced” (internal quotation marks omitted)). Consequently, federal courts have found clearly
established law even where Supreme Court precedent does not rest factually “on all fours.” Lewis
v. Johnson, 359 F.3d 646, 655 (3d Cir. 2004); Hart v. Attorney Gen. of the State of Florida, 323 F.3d
884, 893 n.16 (11th Cir. 2003); Burdine v. Johnson, 262 F.3d 336, 354 (5th Cir. 2001); Torres v.
Prunty, 223 F.3d 1103, 1110 (9th Cir. 2000).
         Reading the “unreasonable application” clause of Section 2254(d)(1) to require the facts
between cases to be on all fours would conflate the clause with the “contrary to” clause. See
Williams, 529 U.S. at 405 (stating that the two clauses must be given “independent meaning”). The
unreasonable application prong requires a more nuanced approach than the panel majority gives it
and in the process, the Court has failed to give the clauses “independent meaning.” Id. As Judge
Merritt remarked, the panel majority’s “approach apparently looks first at the facts of the case,
extracts the narrowest possible legal rule to fit that situation, and then, upon predictably finding no
Supreme Court precedent resting on all fours, uncovers no clearly established law.” Davis, 430 F.3d
at 294 (Merritt, J., dissenting). This limited inquiry is wrong. Because the facts of cases will always
differ in some manner, where a state court “unreasonably refuses to extend [a legal] principle to a
new context where it should apply,” Williams, 529 U.S. at 407, that error will not necessarily “strike
us as wrong with the force of a five-week-old, unrefrigerated dead fish.” Parts & Elec. Motors, Inc.
v. Sterling Elec., Inc., 866 F.2d 228, 233 (7th Cir.1988). Instead, to determine the extent to which
No. 03-2262           Davis v. Straub                                                             Page 3


clearly established legal principles, such as the two principles in this case, apply to govern diverse
factual scenarios, we must determine how general the principles are and whether they are applicable
to new factual situations. Clearly established law does not mean “a case in the Supreme Court
directly on point on the facts, just exactly like the case you have before you.” Davis, 430 F.3d at
297 (Merritt, J., dissenting). Justice Kennedy characterized the proper inquiry, which has been
adopted by the Court, in Wright v. West, 505 U.S. 277, 308-09 (1992) (Kennedy, J., concurring):
       If the rule in question is one which of necessity requires a case-by-case examination
       of the evidence, then we can tolerate a number of specific applications without
       saying that those applications themselves create a new rule . . . Where the beginning
       point is a rule of this general application, a rule designed for the specific purpose of
       evaluating a myriad of factual contexts, it will be the infrequent case that yields a
       result so novel that it forges a new rule, one not dictated by precedent.
See also Davis, 430 F.3d at 292 (Merritt, J., dissenting) (acknowledging that the Supreme Court has
adopted the “spectrum of abstraction of Teague v. Lane, 489 U.S. 288 (1989), to determine whether
a particular legal principle was clearly established at the relevant time”). “Applying a general
standard to a specific case can demand a substantial element of judgment. As a result, evaluating
whether a rule application was unreasonable requires considering the rule’s specificity. The more
general the rule, the more leeway courts have in reaching outcomes in case by case determinations.”
Yarborough, 541 U.S. at 664.
        For example, as Judge Merritt discussed, the ineffective assistance of counsel standard is a
broad rule whose application to new factual situations still constitutes clearly established law.
Consequently, I think we can all agree that under the Supreme Court’s jurisprudence, an attorney
sleeping through trial would provide ineffective assistance of counsel. A case where the attorney
listened to music on headphones or played video games during trial would likewise constitute
ineffective assistance. We would not review the case and determine, as I believe the panel
majority’s approach would dictate, that the Supreme Court has not yet found that listening to music
or playing video games during trial constitutes ineffective assistance of counsel and therefore find
no clearly established federal law on point. This hypothetical illustrates the absurdity of the narrow
approach and the constraints it imposes on federal courts’ ability to remedy constitutional violations.

        The result is that this Court’s narrow reading of the unreasonable application prong offends
the judicial power under Article III. Under this narrow approach, the Court’s “case-by-case” view
is turned on its head — now, it is not “the infrequent case that yields a result so novel that it forges
a new rule, one not dictated by precedent,” Wright, 505 U.S. at 309 (Kennedy, J., concurring), but
rather the infrequent case is the one where this Court finds any precedent on point. Such an
approach yields the authority to interpret federal law to the state courts and uses Section 2254(d)(1)
as a “crutch.” Davis, 430 F.3d at 298 (Merritt, J., dissenting); see also Williams, 529 U.S. at 378-79
(Stevens, J., dissenting in part) (“At the core of [the judicial] power is the federal courts’
independent responsibility — independent from its coequal branches in the Federal Government,
and independent from the separate authority of the several States — to interpret federal law. A
construction of AEDPA that would require the federal courts to cede this authority to the courts of
the States would be inconsistent with the practice that federal judges have traditionally followed in
discharging their duties under Article III of the Constitution.”); Cooper v. Aaron, 358 U.S. 1, 18
(1958) (describing “the basic principle that the federal judiciary is supreme in the exposition of the
law of the Constitution” as “a permanent and indispensable feature of our constitutional system”);
see also Robinson, — F.3d —, 2006 WL 894971 (King, J., dissenting from the denial of rehearing
en banc) (“While I entirely agree that our review under AEDPA must be deferential, to read and
apply AEDPA’s provisions so narrowly is essentially to abdicate our responsibility to use the Great
Writ when a state court has unreasonably applied clearly established federal law as determined by
No. 03-2262               Davis v. Straub                                                                          Page 4


the Supreme Court.”). Federal judges may only be umpires calling balls and strikes but Article III
puts us in the game and behind home plate. This Court’s reading of AEDPA relegates us to
spectators with “no adjudicatory function to perform.” United States v. Klein, 80 U.S. 128, 146-47
(1871); United States v. Sioux Nation of Indians, 448 U.S. 371, 392 (1980); see also Yakus v. United
States, 321 U.S. 414, 468 (1944) (Rutledge, J., dissenting); Davis, 430 F.3d at 297 (Merritt, J.,
dissenting) (“Such a reading of § 2254(d)(1) renders it unconstitutional by preventing our Court
from giving our independent judgment on the legal effect of the evidence before us and by leaving
us ‘no adjudicatory function to perform.’”). This is hardly the judicial power authorized under the
Constitution where “[i]t is emphatically the province and duty of the judicial department to say what
the law is.” Marbury v. Madison, 5 U.S. 137, 177 (1803).
        Not only does this Court’s reading of Section 2254(d)(1) offend Article III, but it also
suspends the writ of habeas corpus in violation of Article I, Section 9 of the Constitution. This
Court’s interpretation of Section 2254(d)(1) “so broadly circumscribes the writ of habeas corpus that
we cannot reach the full merits of the constitutional issue[s] before us.” Davis, 430 F.3d at 299
(Merritt, J., dissenting). “The Suspension Clause of the Constitution, which carefully circumscribes
the conditions under which the writ can be withheld, would be a sham if it could be evaded by
congressional prescription of requirements other than the common-law requirement of committal
for criminal prosecution that render the writ, though available, unavailing.” Hamdi v. Rumsfeld, 542
U.S. 507, 124 S. Ct. 2633, 2672 (2004) (Scalia, J., dissenting) (emphasis in original).1 Under this
Court’s narrow standard the writ is available in theory but illusory in fact.
                                                         II.
        In this case, a proper and constitutional interpretation of Section 2254(d)(1) would require
the writ to issue. Two such clearly established principles apply here: (1) Under the Sixth
Amendment, a state may not arbitrarily deny a defendant the right to call a witness whose testimony
is relevant and material to the defense, Washington v. Texas, 388 U.S. 14, 23 (1967), and (2) a
witness may not invoke the self-incrimination privilege unless the danger is “real and probable,” not
“imaginary and unsubstantial,” Brown v. Walker, 161 U.S. 591, 608 (1896), and “where there can
be no further incrimination, there is no basis for the assertion of the privilege,” Mitchell v. United
States, 526 U.S. 314, 326 (1999). The majority concluded that these principles were not clearly
established because the Supreme Court has not applied them in a case with indistinguishable facts.
This approach is contrary to Supreme Court precedent applying general principles to new factual
situations and I would hold that the Michigan Court of Appeals’ decision unreasonably applied
clearly established federal law under the Fifth and Sixth Amendments.
       A witness to the murders at issue, Jourdan, made a series of pre-trial statements which
indisputably place Jourdan at the scene of the crime and strongly tend to exonerate petitioner Davis,
who has consistently maintained his innocence. Jourdan’s pre-trial statements place full blame on
a person named Bell who has confessed to the murders. See Davis, 430 F.3d at 293 (Merritt, J.,


       1
           In the Federalist Paper No. 84, by Alexander Hamilton, he wrote that:
       Independent of those [answers] which relate to the structure of the government, we find the following:
       .... Section 9 [Article I] clause 2 — “The privilege of the writ of habeas corpus shall not be suspended,
       unless when in cases of rebellion or invasion the public safety may require it ....” [T]he practice of
       arbitrary imprisonments, have been, in all ages, the favorite and most formidable instrument of
       tyranny. The observations of the judicious Blackstone, in reference to the latter, are well worthy of
       recital: ... “confinement of the person, by secretly hurrying him to jail, where his sufferings are
       unknown or forgotten, is a less public, a less striking, and, therefore a more dangerous engine of
       arbitrary government.” And as a remedy for this fatal evil he [Blackstone] is everywhere peculiarly
       emphatical in his encomiums on the habeas-corpus act, which in one place he calls “the Bulwark of
       the British Constitution.”
No. 03-2262           Davis v. Straub                                                         Page 5


dissenting) (“It was clear from his statements that he had nothing to do with the murder and neither
did Davis whose behavior Jourdan observed.”). When Davis called Jourdan to the stand, the
prosecutor brought to the court’s attention Jourdan’s Fifth Amendment privilege against self-
incrimination. Jourdan exercised that privilege by refusing to testify. Jourdan was never threatened
with prosecution. Even if he were threatened with prosecution, his prior statements would already
be admissible against him — thus, his presence at the crime scene was already overwhelmingly
established, and his testimony could do no further harm. Nevertheless, Jourdan was allowed to
invoke the privilege. Davis was not permitted to introduce eyewitness testimony that probably
would have exonerated him of the murders, in violation of his Sixth Amendment right to do so, and
he was then convicted and sentenced to multiple concurrent life sentences.
        The majority’s narrow construction of AEDPA prevents this court from granting the writ of
habeas corpus, despite the aforementioned “clearly established” principles that should be applied
to require a new trial at which Davis would be allowed to put Jourdan’s exculpatory testimony
before the jury.
       As the Supreme Court foresaw in Walker and Mitchell, there reaches a point where
       a piece of evidence — in this case Jourdan’s presence at the scene of the crime —
       which all parties agree is only incriminating in the most minimal and remote way,
       is so overwhelmingly and definitively established that it cannot be constitutionally
       used to stonewall introduction of other evidence that is highly exculpatory of a
       criminal defendant. The Fifth Amendment may not be so prompted and used as a
       shield for the flaw in the state’s case, [or] used in such a mechanistic way that it
       subsumes a criminal defendant’s Sixth Amendment right to present a defense.
Davis, 430 F.3d at 294 (Merritt, J., dissenting). The governing principles discussed above align this
case with Supreme Court precedent, and it was unreasonable for the Michigan Court of Appeals to
decline to apply it here.
                                                III.
        Judge Merritt said it best. “The majority’s decision achieves the unfortunate trifecta of
misapplying the Supreme Court’s jurisprudence under 28 U.S.C. § 2254(d)(1), gutting the Article
III judicial power while ‘suspending’ the writ of habeas corpus, and stranding a probably innocent
inmate in prison for life.” Davis, 430 F.3d at 291 (Merritt, J., dissenting). The Great Writ, what
Blackstone called “the Bulwark of the British Constitution,” the only writ named in the United States
Constitution, is not deserving of such an undistinguished death. I dissent from the Court’s decision
denying rehearing en banc to correct these errors.
                                              ENTERED BY ORDER OF THE COURT


                                                    /s/ Leonard Green
                                              __________________________________
                                                           Clerk
