                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 13a0352n.06

                                                 No. 10-2633
                                                                                                   FILED
                               UNITED STATES COURT OF APPEALS                                  Apr 09, 2013
                                    FOR THE SIXTH CIRCUIT                               DEBORAH S. HUNT, Clerk


ARTHUR BURGESS,

                 Petitioner-Appellant,                    ON APPEAL FROM THE UNITED
                                                          STATES DISTRICT COURT FOR THE
        v.                                                EASTERN DISTRICT OF MICHIGAN

RAYMOND BOOKER,                                                    OPINION

                 Respondent-Appellee.



Before: MOORE and COLE, Circuit Judges; and ROSE, District Judge.*

        Rose, District Judge. Petitioner-Appellant Arthur Burgess appeals the denial of his petition

for a writ of habeas corpus challenging his conviction for the murder of three individuals in

Dearborn, Michigan.          Petitioner-Appellant asserts that the writ should issue because his

constitutional rights under Brady v. Maryland, 451 U.S. 477 (1981) were violated, because his

constitutional rights under Strickland v. Washington, 466 U.S. 688 (1984) were violated, and because

his rights under Evitts v. Lucey, 469 U.S. 387 (1985) were violated. The panel will AFFIRM the

dismissal of the petition, as neither Petitioner’s rights under Brady v. Maryland, 451 U.S. 83 (1967),

nor those under Strickand v. Washington, 466 U.S. 668 (1984) and Evitts v. Lucey, 469 U.S. 387

(1985) were violated.




        *
          The Honorable Thomas M. Rose, United States District Judge for the Southern District of Ohio, sitting by
designation.
No. 10-2633; Burgess v. Booker


I.      JURISDICTION

        The district court exercised jurisdiction under 28 U.S.C. § 2254. This Court has jurisdiction

over final orders pursuant to 28 U.S.C. § 1291 and additionally over issues certified under 28 U.S.C.

§ 2253(c).

II.     STANDARD OF REVIEW

        Section 2254(d) imposes the following standard of review in a habeas case:

        An application for a writ of habeas corpus on behalf of a person in custody pursuant
        to the judgment of a State court shall not be granted with respect to any claim that
        was adjudicated on the merits in State court proceedings unless the 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.

Id. § 2254(d).

        A decision is “contrary to” clearly established federal law “if the state court arrives at a

conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court

decides a case differently than [the Supreme] Court has on a set of materially indistinguishable

facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000). A decision involves an “unreasonable

application” of clearly established federal law “if the state court identifies the correct governing legal

principle from [the Supreme] Court’s decisions but unreasonably applies that principle to the facts

of the prisoner’s case.” Id.



                                                    2
No. 10-2633; Burgess v. Booker


III.   FACTS AND PROCEDURE

       Arthur Burgess was found guilty of the April 14, 1974 murders of his romantic rival and

dishonest narcotic supplier Leslie Kinsman, as well as Kinsman’s landlord, Victor Bossio, and

Kinsman’s bodyguard, James Ketelaar in Kinsman’s apartment in Dearborn, Michigan. His

conviction was supported by the testimony of two men: Scott Allan Croydon and Claude Johnson.

Burgess now posits that another man present at the murder scene, Roman Poronczuk, committed

the murder and that the testimony supporting his conviction was fabricated.

       Kinsman lived with Mary, his wife of nine months, and their three-month-old son. Mary

testified that on April 12, 1974 she heard someone enter the side door to the house, which led jointly

to the two residences in the house, the Kinsmans’ upstairs apartment and the landlord Bossio’s abode

in the basement. A few minutes after Mary heard the entrance, Bossio came up the stairs, knocked

on the kitchen door, and stated that he wanted to see Leslie in the basement. Leslie Kinsman went

to the basement alone.

       Shortly thereafter Mary heard three shots from the basement. She started for the kitchen with

Ketelaar, the bodyguard, ahead of her. She heard someone running up the stairs. Ketelaar stepped

into the open door and shouted “what the hell is going on.” Mary then heard another shot and saw

Ketelaar fall backwards. Mary heard the outer door slam and a car start and speed away.

       Mary yelled downstairs for Leslie with no response. When she walked down the stairs and

into Victor Bossio’s apartment she saw Bossio lying on the floor with his face covered with blood.

She ran up the stairs and called Oakwood Hospital. She was told to call the police. Shortly

thereafter, she called some friends who called the police. The police arrived within minutes.

                                                  3
No. 10-2633; Burgess v. Booker


       Upon arrival, the Dearborn police officers discovered the bodies of Leslie Kinsman and

Victor Bossio in the basement, and the body of Jim Ketelaar in the dining room. The officers

preserved the scene for State Police Crime Lab experts. In their cursory review of the crime scene,

they observed a house guest of the Kinsman’s, Roman Poronczuk, who claimed to be showering

during the shooting, had wet hair and the shower appeared to have been recently used. Poronczuk

admitted that he took some heroin when he arrived at the house and said that he knew Leslie

Kinsman was involved in drug trafficking.

       A Michigan State Police technician determined that the trajectory of the single bullet fired

upstairs passed through Ketelaar, which was consistent with Mary Kinsman’s description of the

events. The technician also testified that the blood stains found in the basement, the stairs leading

from the basement, and the outside door knob were consistent with the blood types of Victor Bossio

and Leslie Kinsman. The state police technical witness testified that bullet fragments found at the

scene were consistent with having been fired from a .38 caliber pistol. The latent fingerprint expert

testified that no fingerprints matching Burgess’s were found at the scene.

       Mary Kinsman testified that she first met Burgess in February 1972 in New Orleans. She

stayed with him and his wife for five months before the trio moved to Las Vegas. During that same

period of time and continuing for several months, Mary testified, she had sexual relations with

Burgess, who was going to leave his wife for Mary.

       In the fall of 1972, Mary met Leslie Kinsman and ended her affair with Burgess. The next

time she had contact with him was at the funeral home after Leslie Kinsman was killed. She next

saw Burgess at a restaurant in Ohio in the fall of 1974. She was staying in Ohio with her parents

                                                 4
No. 10-2633; Burgess v. Booker


when Burgess called her. He said he was no longer with his wife and wanted Mary to return to

Detroit with him. Mary complied and further agreed when Burgess refused to allow her to mention

Leslie’s name during their conversation.

       Two witnesses implicated Burgess in the Dearborn triple murders: Scott Allan Croydon and

Claude Johnson. Croydon refused to testify, so the trial court allowed his preliminary examination

testimony to be read to the jury. He said that he had first met Burgess around March 25, 1976, nearly

two years after the Dearborn triple murder. Croydon testified that on several occasions, Burgess told

him that Claude Johnson knew too much information about a triple murder that Burgess had

committed in Dearborn in 1974 and that Johnson was spreading that information. Croydon testified

that Burgess told him one of the people he killed was named Kinsman, and he killed him because

Kinsman was “messing around with his old lady and crossed him up on some deals—business deals,

dope deals.” Burgess also told Croydon that he killed two other innocent people, one being the

landlord. Croydon testified that “he had to take them out because they were witnesses.” According

to Croydon, Burgess explained that he shot and stabbed the people, then left in a car and later asked

Claude Johnson to pick him up at another location to get rid of the guns.

       Croydon also testified about Burgess’s efforts to eliminate Claude Johnson. Croydon said

that on April 12, 1976, Burgess’s son, Gerald Hessel, and he went to Burgess’s apartment in

Roseville because Burgess planned to go to Johnson’s house to kill him. At the apartment, Hessel

called Claude Johnson, telling him that he and Croydon wanted to come over to buy some marijuana

from Johnson.



                                                 5
No. 10-2633; Burgess v. Booker


       Croydon said Burgess took a .45 caliber automatic pistol and gave Hessel and Croydon each

a hunting knife, telling them that these were the knives he used during the Dearborn murders. The

three drove to Johnson’s house in two cars. Burgess gave Hessel the pistol and waited in one of the

cars while Hessel and Croydon went to get Johnson. Hessel, Johnson, and Croydon went to

Johnson’s car, supposedly to purchase the marijuana. When they got to the car, Hessel pulled the

gun and ordered Johnson to Burgess’s car, threatening to rob Johnson. Johnson protested, saying

that he would give Hessel and Croydon anything but that they did not have to rob him.

       Johnson testified that he was forced into a car with Burgess and Hessel; Hessel drove, with

Johnson and Burgess in the back seat. Croydon was ordered to follow them in the car, allowing him

to observe some of the events that transpired. In the first car, Burgess questioned Johnson about

being an informant, about money he owed him, and about a letter from the state police from his

prison file. Burgess accused Johnson of being an informant and stated, “This ain’t for nothing

you’ve done. It’s for what you could do.” Johnson testified that he tried to escape as the car turned

down a dead end street. Before he could leap from the car, however, Burgess and Hessel both

stabbed him.

       Johnson exited the car and ran approximately 50 feet, but he stopped because he was bleeding

profusely. He said Burgess walked up to him, asked him if he wanted to go to the hospital, and then

shot him repeatedly. Hessel and Croydon picked up Burgess some distance from Johnson’s body.

Burgess hesitated, stating “I got to turn back. Go see—go back and see if he is alive.” By the time

they returned to the scene, people were near Johnson, so the three men left the scene. Johnson

survived, however, and Croydon, Hessel and Burgess were arrested on April 12, 1976, by a police

                                                 6
No. 10-2633; Burgess v. Booker


officer who later found two hunting knives in their cars, which were introduced into evidence.

Burgess was prosecuted in a Macomb County court for the assault on Johnson.

       Croydon testified that he had known Gerald Hessel for thirteen years, having grown up with

him. Croydon stated that either Hessel or Brenda Burgess, Burgess’s wife, were present during his

conversation with Burgess about Johnson, during which Burgess showed Croydon portions of

Claude Johnson’s prisoner file and other documents that indicated Johnson had once cooperated with

prison officials against another prisoner. Croydon remembered that Burgess said he used a .38

caliber pistol for the Dearborn murders.

       Croydon testified at the preliminary examination that he was not promised any inducement

by the Wayne County Prosecutor or the Dearborn police for his testimony. He acknowledged that

the Macomb County prosecutor agreed to reduce a murder charge against him to armed robbery in

exchange for testimony in the case against Burgess for assaulting Johnson.

       Claude Johnson testified at Burgess’s trial that he had known Burgess for 20 years as a friend.

Johnson stated that a short time after the Dearborn murders, Johnson took Burgess to Saratoga

Hospital after Burgess was involved in a motorcycle accident. At the hospital, Burgess told Johnson

that he had stabbed and shot Leslie Kinsman, and killed the landlord and a man named Ketelaar.

According to Johnson, Burgess said he shot Ketelaar because he was looking down the stairs after

Burgess killed Kinsman and the landlord. Burgess explained that he initially went to the landlord’s

apartment in the basement and persuaded him to call Kinsman down. Johnson stated that the

conversation was private, even though Mrs. Burgess went with them to the hospital. Johnson also



                                                  7
No. 10-2633; Burgess v. Booker


testified that Burgess had stated on several occasions that he did not like Leslie Kinsman, due to the

fact that Kinsman married Burgess’s girlfriend.

       The defense called four witnesses: Brenda Burgess, Gerald Hessel, Ronnie Bankston, and

William Cleary. Brenda Burgess testified that she had been married to Burgess for seven years,

during which they had separated on several occasions. During one of their separations, Burgess lived

with Mary Kinsman. Mrs. Burgess acknowledged that she saw a letter from the corrections

department in July 1973 concerning Claude Johnson’s cooperation with authorities. She said that

her husband kept it in his jewelry box. She also testified that her husband had several knives and

used them to clean fish.

       Contrary to Croydon’s testimony, Brenda Burgess insisted that Claude Johnson never had

the opportunity to carry on a private conversation with Burgess at the hospital on the day of the

motorcycle accident because she was with him at all times and Burgess was in too much pain to talk.

She said she kept clippings of the Dearborn triple murder at their home, and at one time showed

them to Scott Croydon. Mrs. Burgess stated that when she and Burgess went to see a concert with

Gerald Hessel and Scott Croydon, that Burgess was always with her.

       Hessel testified that he and Croydon visited Burgess together regularly in March and April

of 1976. He said that he knew Croydon had been arrested and sent to a youth home on several

occasions and had been convicted of attempted breaking and entering. Hessel testified that the

Dearborn triple murder was never discussed when he was at Burgess’s house with Croydon. But

once, according to Hessell, Brenda Burgess gave Croydon a newspaper clipping about the Dearborn

triple murder, when Burgess was not present.

                                                  8
No. 10-2633; Burgess v. Booker


       Hessel testified that after he, Burgess, and Croydon were arrested in April 1976 for the

assault of Johnson, Croydon brought up the Dearborn triple murder while they were in jail together.

Hessel said Burgess once told him never to trust Johnson because he was an informant, and he

showed him documents to verify that accusation.

       Hessel also testified that on April 12, 1976, he, Croydon, and Burgess went to rob Johnson

because he owed Burgess money; the Dearborn triple murder was never discussed. He stated that

Burgess never said he used the hunting knives in the Dearborn triple murder. Hessel did

acknowledge that Burgess told him after they were arrested and were with Croydon in the “bullpen”

at the Macomb County jail that he believed Claude Johnson was trying to pin the Dearborn triple

murder on him.

       Hessel admitted that at one time he decided to try to testify against Burgess about the

Dearborn triple murder in order to “extricate” himself from the Macomb County charges for

assaulting Johnson, so he made statements to Dearborn police officers implicating Burgess. Hessel

said he told Croydon about his intentions, and Croydon said they should both do that. Hessel said

he and Croydon discussed this secretively since they did not want it “getting back to [Burgess].”

State’s Br. on Direct Appeal to Mich. Ct. App., at 15.

       A man named Ronnie Bankston testified for the defense that in 1973 Burgess showed him

a letter that indicated that Johnson was a State Police informant. Bankston said Burgess told him

that if he did not “want any of my business known, don’t say nothing around [Johnson].” Ibid.

       Another man, William Cleary testified Burgess gave him a job as head maintenance man at

a co-op apartment complex, where he once found two hunting knives and gave them to Burgess. He

                                                 9
No. 10-2633; Burgess v. Booker


identified the knives confiscated from Burgess at his arrest as those knives. He said he gave them

to Burgess in the summer of 1974, before the Dearborn triple murder. Cleary also said that Burgess

showed him a letter that related to Johnson in late 1973.

       The jury found Burgess guilty of murder in the first-degree in the murder of Leslie Kinsman

and guilty of second-degree murder of the other two victims. He was sentenced to three terms of life

in prison.

       In 1977, Burgess was convicted by a jury of one count of first-degree murder, Michigan

Compiled Laws (M.C.L.) 750.316, and two counts of second-degree murder, M.C.L. § 750.317, in

the deaths of Leslie Kinsman, Victor Bossio, and James Katelaar. Following his conviction and

sentence, Burgess filed an appeal of right, through counsel, and raised the following six claims for

relief, none of which substantially resembles the issues raised in the petition under review:

       I. Defendant was deprived of his right to a fair trial under the Due Process Clause
       of the 14th Amendment to the United States Constitution and under Section 17,
       Article 1, Michigan Constitution 1963 when the trial judge failed to exercise his
       discretion in denying defendant’s motion for a protective order against
       cross-examination by the prosecutor of him concerning his past criminal convictions.

       II. Defendant was deprived of his right under the 6th Amendment to the United
       States Constitution and under Section 20, Article 1, Michigan Constitution 1963 to
       confront the witnesses against him and of his right under the Due Process Clause of
       the 14th Amendment to the United States Constitution and Article 1, Section 17,
       Michigan Constitution 1963 to a fair trial when the trial judge permitted the
       testimony of a prosecution witness given at preliminary examination to be read to the
       jury in lieu of his testifying at trial on the basis of his unavailability without the trial
       judge making a determination that the witness’s claim of privilege against
       self-incrimination was supportable in fact and in law.

       III. Defendant was deprived of due process under the 14th Amendment to the United
       States Constitution and under Section 17, Article 1, Michigan Constitution 1963
       when he was convicted of murder of the first degree under Count I of the information

                                                   10
No. 10-2633; Burgess v. Booker


       when the record was devoid of any evidence to establish the necessary element of
       premeditation save defendant’s extra-judicial ‘confession’ that he had planned the
       killing of deceased.

       IV. Defendant was deprived of his right to due process and a fair trial under the 14th
       Amendment to the United States Constitution and under Section 17, Article 1,
       Michigan Constitution 1963 when the trial judge gave the jury an erroneous
       definition of malice and thereby removed that necessary element of the crimes
       charged from the jury’s consideration.

       V. Defendant was deprived of his right to a fair trial under the 14th Amendment to
       the United States Constitution when the trial judge erroneously cast the burden of
       proof upon him contrary to his right to have the prosecution prove beyond a
       reasonable doubt all elements of the crime charged.

       VI. Defendant was deprived of his right to a fair trial under the Due Process Clause
       of the 14th Amendment of the United States Constitution when the trial court in
       instructions to the jury shifted the burden of casting question upon credibility of
       witnesses upon the defendant.

The Michigan Court of Appeals affirmed Burgess’s convictions in a published opinion. (R. 10-19,

Opinion; People v. Burgess, 96 Mich. App. 390 (1980)).

       Burgess’s appellate counsel filed an application for leave to appeal in the Michigan Supreme

Court, which raised the same claims that were raised in the Michigan Court of Appeals. The

Michigan Supreme Court denied the application because it was not persuaded that the questions

presented should be reviewed by the Court. (R. 10-21; People v. Burgess, Mich. Sup. Ct. No. 64971

(September 9, 1980)).

       On December 18, 1981, Burgess filed a petition for writ of habeas corpus in the Eastern

District of Michigan; however, that petition was dismissed without prejudice due to Burgess’s failure

to fully exhaust two claims contained in the petition. (R. 1, Petition, Appendix A (Opinion and Order

Dismissing Petition for Writ of Habeas Corpus (July 9, 1982)).

                                                 11
No. 10-2633; Burgess v. Booker


         Over twenty-one years later, in May 2003, Burgess filed a motion for relief from judgment

in the state trial court, wherein he raised for the first time the issues presently before the Court.1

Following a series of hearings, the motion was denied by the trial court based on the court’s finding

that the claims were procedurally defaulted and they were also meritless. (R. 10-18, Motion Hearing

Tr. 12/2/05 (Part B), pp. 57-61; see also R 10-24, Order (Wayne County Cir. Ct. Jan. 17, 2006)).

         After the state trial court denied the motion for relief from judgment, Burgess filed an

application for leave to appeal in the Michigan Court of Appeals. The Michigan Court of Appeals

denied the application for leave to appeal for failure to establish entitlement to relief under Mich.

Ct. R. 6.508(D). (R. 10-23, Order; Michigan v. Burgess, No. 268233 (Mich. Ct. App. Aug. 16,

2006).

         Burgess then applied for leave to appeal this decision in the Michigan Supreme Court but was

also denied relief under Mich. Ct. R. 6.508(D). (R. 10-25, Order; People v. Burgess, 477 Mich. 1055

(2007) (unpublished table decision).

         On March 29, 2007, Burgess filed a second petition for a writ of habeas corpus in the Eastern

District of Michigan wherein he raised the following claims for relief:

         I. Petitioner was denied his right to a fair trial under the Due Process Clause of the
         United States Constitution (14th Amendment) and under Mich. Const. 1963, Art. I,
         Sec. 17, where the prosecutor failed to timely disclose critical Brady material.

         II. Petitioner was denied the effective assistance of counsel guaranteed by the federal
         and state constitutions (U.S. Const., Amendment VI; Mich. Const., Art. 1, Sec. 20)


         1
          The parties not having had the opportunity to brief the applicability of Wood v. Milyard, 132
S.Ct. 1826 (2012), the Court will not consider its discretion to enforce the one-year limitation on
filing a petition challenging the merits of a conviction after it becomes final.

                                                   12
No. 10-2633; Burgess v. Booker


        where his trial attorney, with             no    strategic   purpose,    made     several
        outcome-determinative errors.

        III. Petitioner was denied the effective assistance of counsel guaranteed by federal
        and state constitutions (U.S. Const., Amendment VI; Mich. Const. 1963, Art. 1, Sec.
        20) where his appellate counsel, on direct appeal, neglected “dead bang winners.”

        IV. Assuming arguendo that the standard of review set forth in 28 U.S.C. §
        2254(d)(1) precludes relief in this action, the Court should not apply the standard
        because it is unconstitutional, and the court should grant the writ under a de novo
        standard of review.

        On November 17, 2010, United States District Court Judge David M. Lawson issued an

opinion and order denying Burgess’s request for habeas relief. Burgess v. Bell, No. 07-11367, 2010

WL 4790910 (E.D. Mich. 2010). The district court granted Burgess a certificate of appealability on

his claim that the prosecutor committed misconduct when he failed to disclose potentially

exculpatory evidence in violation of the law set forth in Brady v. Maryland, 373 U.S. 83 (1963). (R.

17, Order Granting in Part and Denying in Part Certificate of Appealability). Upon Burgess’s

motion, this Court expanded the certificate of appealability to include two other claims for relief that

Burgess raised in his habeas petition to the district court (effectiveness of trial and appellate counsel).

(See Order dated November 23, 2011).

IV.     ANALYSIS

A.      Brady Claims

        Petitioner-Appellant Arthur Burgess asserts that a variety of materials should have been

provided pursuant to Brady v. Maryland, 373 U.S. 83, 87 (1963). It was in Brady, that the Supreme

Court held that a prosecutor’s failure to disclose evidence favorable to the defense constitutes a

denial of due process “where the evidence is material either to guilt or to punishment, irrespective

                                                    13
No. 10-2633; Burgess v. Booker


of the good faith or bad faith of the prosecution.” Id.         Evidence is “material” if “there is a

reasonable probability that, had the evidence been disclosed to the defense, the result of the

proceeding would have been different.” Kyles v. Whitley, 514 U.S. 419, 433-434 490 (1995).

Material evidence is that which is “so clearly supportive of a claim of innocence that it gives the

prosecution notice of a duty to produce.” United States v. Clark, 988 F.2d 1459, 1467 (6th Cir.

1993). A “reasonable probability” is “a probability sufficient to undermine confidence in the

outcome.” United States v. Bagley, 473 U.S. 667, 682 (1985).

        The Supreme Court has further stated that: “[t]he question is not whether the defendant

would more likely than not have received a different verdict with the evidence, but whether in its

absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A

“reasonable probability” of a different result is accordingly shown when the government’s

evidentiary suppression “undermines confidence in the outcome of the trial.” Kyles, 514 U.S. at 434

(quoting Bagley, 473 U.S. at 678).

        To establish a Brady violation, a petitioner must make a three-part showing: (1) that the

evidence in question is favorable, (2) that the state suppressed the relevant evidence, either

purposefully or inadvertently, and (3) that the state’s actions resulted in prejudice. Robinson v. Mills,

592 F.3d 730, 735 (6th Cir. 2005); see also Strickler v. Greene, 527 U.S. 263, 281-82 (1999). The

disclosure obligation under Brady includes evidence that could be used to impeach the credibility

of a witness. Schledwitz v. United States, 169 F.3d 1003, 1011-12 (6th Cir. 1999). However, there

“is no Brady violation if the defendant knew or should have known the essential facts permitting him

to take advantage of the information in question, or if the information was available to him from

                                                   14
No. 10-2633; Burgess v. Booker


another source.” Carter v. Bell, 218 F.3d 581, 601 (6th Cir. 2000). Also, Brady does not apply to

information “that is not wholly within the control of the prosecution,” or “where a defendant knew

or should have known the essential facts permitting him to take advantage of any exculpatory

information,” or obviously, where the information is not exculpatory at all. Coe v. Bell, 161 F.3d

320, 344 (6th Cir. 1998).

        In the instant case, Burgess has failed to establish (1) that any of his newly discovered

evidence was exculpatory in nature, (2) that the prosecution actually suppressed the evidence, and

(3) that any state action resulted in prejudice.

        The first piece of evidence Burgess claims was improperly suppressed by the prosecution in

violation of Brady is a supplementary police report from the Dearborn Police Department. (R. 1-2,

Petition, Appendix A (Dearborn Supplementary Report)). The report was obtained through a

Freedom of Information Act (FOIA) request in 2002. The information in this report was provided

by an informant who conveyed the information to an FBI agent.

        Burgess alleges that information in the report suggests that Mary Kinsman (Burgess’s wife)

and Roman Poronczuk were responsible for the triple murder. Poronczuk was in the house, taking

a shower, at the time of the Dearborn triple murder. Burgess notes that the informant told authorities

that Mary and Roman were romantically involved and used drugs together. Also, the informant

stated that Mary had stolen $20,000 from her husband (Leslie Kinsman, one of the victims) and that

Mary had waited until James Ketelaar died before she called the police on the night of the shootings.

The report also details how Leslie Kinsman had recently been arrested on drug charges with a



                                                   15
No. 10-2633; Burgess v. Booker


“Mexican” while Kinsman attempted to purchase a pound of heroin from the Mexican. Kinsman

was released, allowing one to speculate that he was acting as a government informant.

       This, however, does not demonstrate a Brady violation with respect to this evidence because

the record evidence before the federal district court suggests that Burgess possessed the alleged

“newly discovered” evidence at the time of trial and, in fact, made use of it at trial. Testimony at

trial indicates that both Mary Kinsman and Poronczuk had done drugs together on the night of the

Dearborn triple murder. (R. 10-7, Tr. 10/14/77, p. 50-52).

       Also within the report was a statement from an informant that Leslie Kinsman (the victim)

was in the process of purchasing a pound of heroin from a Mexican on Vernor Highway when they

were both arrested; Leslie Kinsman was later released. (R. 1-2, Petition, Appendix B (Dearborn

Supplementary Report), p. 16). The report also contains information that a person named Frank

Parker was involved with Leslie Kinsman in the drug business. (R. 1-2, Petition, Appendix B

(Dearborn Supplementary Report), p. 16).

       Burgess’s counsel was aware of both Kinsman’s drug deal with the Mexican, his arrest and

release, as well as Kinsman’s involvement of Frank Parker because these situations were discussed

at trial. (R. 10-4, Tr. 10/11/77, pp. 90-91; R 10-5, Tr. 10/12/77, pp. 93, 111, 136-142, 144; R 10-6,

Tr. 10/13/77, p. 10; see also R 10-23, State’s Brief on Appeal to Mich. Ct. App. dated Feb 27, 2006,

at 26-27 (citing R 10-4, Tr. 10/11/77, p. 87; R 10-5, Tr. 10/12/77, pp. 3, 20, 38, 88, 103, 105, 143).

       Thus, if Burgess was not in possession of the report at the time of the trial, his counsel did

possess the information contained therein, as he used information contained within it at trial.



                                                 16
No. 10-2633; Burgess v. Booker


       Neither can Burgess demonstrate that he was actually prejudiced. First, the information

contained in the supplementary report would likely not have been admissible at trial because the

allegations came from an informant who spoke with an FBI agent. The FBI agent was the person

who forwarded the information to local law enforcement. The statement from the informant

consisted of inadmissible hearsay. The Supreme Court has held that there is no Brady violation

where the evidence would have been inadmissible during trial. Wood v. Bartholomew, 516 U.S. 1,

6 (1995); see also Henness v. Bagley, 644 F.3d 308, 325 (6th Cir. 2011); Jeffries v. Morgan, 522

F.3d 640 (6th Cir. 2008).

       And second, this case was, in effect, a credibility contest between prosecution witness Claude

Johnson and the preliminary examination testimony of Scott Croydon on one side and the

testimonies of Burgess’s son, Gerald Hessel, and Burgess’s wife, Brenda Burgess, on behalf of the

defense. The information presented in the Dearborn supplementary report simply does not “put the

whole case in such a different light as to undermine confidence in the verdict.” Kyles, 514 U.S. at

435.

       Burgess has failed to establish a Brady violation. Because the state trial court’s finding that

Burgess had possession of the police report referenced in Appendices A and B attached to his habeas

petition was not objectively unreasonable, Burgess is not entitled to habeas relief. Accordingly, the

district court’s denial of relief on this portion of Burgess’s Brady claim will be affirmed.

       Burgess also protests the failure to provide a police report by Detective Henry, who

conducted a neighborhood canvass following the shootings. The report contains information on a

statement made by Celia Rubay, a neighbor of Leslie and Mary Kinsman. (R. 1-3, Petition,

                                                 17
No. 10-2633; Burgess v. Booker


Appendix C (Supplemental Report of Detective Henry), p. 3). Burgess alleges that information

provided by Celia Rubay suggests that the four people she saw in a vehicle near the time of the

shootings may have had a connection to the crime. Celia Rubay told Officer Henry that she noticed

a vehicle outside of window with four occupants in it. (R. 1-3, Petition, Appendix C (Supplemental

Report of Detective Henry), p. 3). The driver attempted to park several times, but ended up driving

away, apparently without any of the occupants exiting the vehicle. (R. 1-3, Petition, Appendix C

(Supplemental Report of Detective Henry), p. 3).

       Rubay’s statement that a vehicle tried to park, but then drove away, does not have

exculpatory value. (R. 16, Opinion and Order, p. 23). Moreover, the trial record demonstrates that

Burgess’s counsel had possession of the original canvass report, because Officer Harworth testified

at trial and stated that Celia Rubay was someone that he had interviewed and the document was

introduced as a trial exhibit. (R. 10-6, Tr. 10/13/77, pp. 19-25). This record evidence supports the

trial court’s finding that the evidence was not suppressed or that Burgess could have obtained it with

reasonable diligence. Thus, the information presented in Detective Henry’s supplemental report

simply does not “put the whole case in such a different light as to undermine confidence in the

verdict.” Kyles, 514 U.S. at 435.

       Burgess has failed to establish a Brady violation. Because the state trial court’s finding that

Burgess had possession of the police report was not objectively unreasonable, Burgess is not entitled

to habeas relief. Accordingly, the district court’s denial of relief on this portion of Burgess’s Brady

claim will be affirmed.



                                                  18
No. 10-2633; Burgess v. Booker


       Burgess next claims that the Dearborn supplementary report obtained through a FOIA request

was improperly suppressed by the prosecution in violation of Brady for yet another reason. The

report also contains information regarding Leslie Kinsman’s alleged cooperation with federal law

enforcement and information about an associate of Kinsman who was killed with a shotgun. (R. 1-2,

Petition, Appendix B (Dearborn Supplementary Report), p. 12). Burgess contends that information

about Leslie Kinsman’s involvement with federal law enforcement and the fact that one of his

alleged associates was killed with a shotgun suggests that Kinsman may have been killed as a result

of his cooperation with law enforcement.

       Burgess cannot demonstrate a Brady violation with respect to this evidence, however,

because the record evidence before the federal district court suggests that Burgess possessed the

alleged “newly discovered” supplemental report at the time of trial. Other information contained

within the Dearborn supplementary report was actually used by Burgess’s counsel at trial. As

previously noted, Burgess’s counsel was aware of other facts that were contained in the report. This

information, regarding Kinsman’s drug deal with the Mexican and Kinsman’s association with Frank

Parker, which was explored at trial, was found in the same report containing the information on

Kinsman’s cooperation with law enforcement. Thus, the record evidence supports the trial court’s

finding that the Dearborn supplementary report was not suppressed. Additionally, Kinsman’s

apparent cooperation with federal authorities and the death of one of his associates simply does not

“put the whole case in such a different light as to undermine confidence in the verdict.” Kyles, 514

U.S. at 435.



                                                19
No. 10-2633; Burgess v. Booker


       Burgess has failed to establish a Brady violation. Because the state trial court’s finding that

Burgess had possession of this police report was not objectively unreasonable, Burgess is not entitled

to habeas relief. Accordingly, the district court’s denial of relief on this portion of Burgess’s Brady

claim should be affirmed.

       Burgess also claims that the Dearborn supplementary report obtained through a FOIA request

was improperly suppressed by the prosecution in violation of Brady for yet another reason. The

report also contains information suggesting that Leslie Kinsman’s landlord, Victor Bossio, was

aware of Kinsman’s drug business. (R. 1-2, Petition, Appendix B (Dearborn Supplementary Report),

p. 18; R 1-3, Petition, Appendix B (Dearborn Supplementary Report), p. 19). Burgess asserts that

information about Victor Bossio’s knowledge of Kinsman’s drug business suggests that Bossio

himself may have been involved in that business, thereby suggesting that both Kinsman and Bossio

were killed as a result of their drug dealing.

       Burgess cannot demonstrate a Brady violation with respect to this evidence because, again,

the record evidence before the federal district court suggests that Burgess possessed the alleged

“newly discovered” supplemental report at the time of trial. As previously noted, other information

contained within the Dearborn supplementary report was actually used by Burgess’s counsel at trial.

This information, regarding Kinsman’s drug deal with the Mexican and Kinsman’s association with

Frank Parker, which was explored at trial, was found in the same report containing information that

Victor Bossio knew of Kinsman’s drug business. Thus, the record evidence supports the trial court’s

finding that the Dearborn supplementary report was not suppressed. Additionally, Bossio’s potential



                                                  20
No. 10-2633; Burgess v. Booker


knowledge of his tenant’s drug business simply does not “put the whole case in such a different light

as to undermine confidence in the verdict.” Kyles, 514 U.S. at 435.

       Burgess has failed to establish a Brady violation. Because the state trial court finding that

Burgess had possession of the police report was not objectively unreasonable, Burgess is not entitled

to habeas relief. Accordingly, the district court’s denial of relief on this portion of Burgess’s Brady

claim should be affirmed.

       Burgess claims that Scott Croydon’s guilty plea and sentencing transcripts from his Macomb

County conviction, as well as Croydon’s 17-page statement to police regarding Burgess’s

involvement in the shooting of Claude Johnson and the murder of Theresa Martell were improperly

suppressed by the prosecution in violation of Brady. Specifically, Burgess argues that transcripts

from Macomb County contain information suggesting that Croydon’s testimony against Burgess in

Wayne County was “paid for” and that the content of the 17-page statement suggests that Croydon’s

testimony in Burgess’s Wayne County preliminary examination on the Dearborn triple murder was

recently fabricated.

       Burgess fails, however, to demonstrate a Brady violation with respect to Croydon’s guilty

plea and sentencing transcript evidence because there is no evidence that the Wayne County

prosecutor actually had the transcripts from Croydon’s proceedings in Macomb County in his

possession. Moreover, the transcripts at issue were public records that Burgess was able to obtain

from a source other than the Wayne County prosecutor. This Court has previously made clear that

“‘records of public court proceedings, transcripts of [a government witness’s] trial testimony, plea

hearing, and sentencing hearing were available to [the defendant] from sources other than the

                                                  21
No. 10-2633; Burgess v. Booker


prosecution. Brady does not apply to materials that are not ‘wholly within the control of the

prosecution.’” (R. 16, Opinion and Order, p. 25 (quoting United States v. Delgado, 350 F.3d 520,

527 (6th Cir. 2003)(quoting Coe, 161 F.3d at 344)). For these reasons, Brady is inapplicable with

respect to Croydon’s plea and sentencing transcripts in Macomb County because the Wayne County

prosecutor had no duty to obtain and provide copies of the transcripts to Burgess.

       As regards the claims of inducement to testify, there is no evidence in the federal district

court record to support Burgess’s claim that Croydon was given an inducement by the Wayne County

prosecutor to testify against Burgess in the Dearborn triple murder case. During the preliminary

examination in Burgess’s Wayne County case, Croydon testified that he was not offered a deal by

the Wayne County prosecutor or the Dearborn police in exchange for his testimony. (R. 10-2,

Prelim. Exam. Tr., pp. 118, 120-122). Burgess was aware that Croydon had pleaded guilty in

Macomb County for his role in Burgess’s attack on Claude Johnson and the murder of Theresa

Martell because Croydon had already testified to the deal he received from Macomb County in

Burgess’s Macomb County trial on those offenses. (R. 16, Opinion and Order, pp. 25-26). There

is no evidence to established that Croydon agreed to testify against Burgess in Wayne County

pursuant to a plea agreement from the Wayne County prosecutor or the Dearborn police.

       Thus, the record evidence supports the trial court’s finding that the Scott Croydon’s plea and

sentencing transcripts from Macomb County were not suppressed. Additionally, because the Wayne

County prosecutor did not give Croydon a deal in exchange for his testimony, Croydon’s plea and

sentencing transcripts from another county, regarding another crime, do not “put the whole case in

such a different light as to undermine confidence in the verdict.” Kyles, 514 U.S. at 435.

                                                22
No. 10-2633; Burgess v. Booker


       Burgess has failed to establish a Brady violation. Because the state trial court’s finding that

Burgess had possession of Scott Croydon’s transcripts or could have obtained them with reasonable

diligence is presumed correct and because the trial court’s adjudication was not objectively

unreasonable, Burgess is not entitled to habeas relief. Accordingly, the district court’s denial of

relief on the portion of Burgess’s Brady claim relating to the Macomb County transcripts will be

affirmed.

       As regards Croydon’s 17-page statement to the Macomb County Sheriff officers, Burgess

was aware that Croydon made a statement to Macomb County officers at the time of trial, and he

could have obtained the statement with reasonable diligence. During the preliminary examination

in Burgess’s Wayne County case, Croydon testified that he made a statement to Detective Savalox

regarding the Macomb County case. (R. 10-2, Prelim. Exam. Tr., p. 121). Burgess was aware of

Croydon’s statement because Croydon testified in open court that he had made one. Thus, Burgess

could have obtained that statement with reasonable diligence. Additionally, the district court

correctly noted that the content of the statement is not as exculpatory as Burgess contends. (R. 16,

Opinion and Order, p. 27).

       Specifically, Burgess asserts that Croydon’s testimony against Burgess was fabricated

because the statement alludes to money being the motive for Burgess’s attack on Johnson, rather than

Johnson’s knowledge of Burgess’s role in the Dearborn triple murder. In the statement, Croydon

posited that money was part of the motivation for Burgess’s attack on Johnson, but Croydon also

added that Burgess told him that he “wanted to kill Johnson because [] Johnson had a lot against him

that could send him back to prison – if [] Johnson talked.” (R. 1-3, Petition, Appendix G (Statement

                                                 23
No. 10-2633; Burgess v. Booker


of Scott Croydon, 3/1/77), pp. 3-6). Thus Croydon’s statement did not univocally assert that money

was Burgess’s only motive to kill Johnson. (R. 16, Opinion and Order, p. 27). Thus, the evidence

was not exculpatory as to Burgess’s role in the Dearborn triple murder.

          Finally, defense counsel used Croydon’s 17-page statement in his cross-examination of

Croydon during Burgess’s Macomb County trial for his attack on Claude Johnson and his murder

of Theresa Martell. (See R 10-23, State’s Brief on Appeal to Mich. Ct. App. dated Feb 27, 2006,

pp. 16-17).

          The district court properly stated that Burgess did not dispute Assistant Prosecutor Puleo’s

assertion that he used Croydon’s statement in Burgess’s Macomb County trial in any of his state

court pleadings, nor did he do so in the district court. (R. 16, Opinion and Order, p. 26). As the

district court pointed out, if Burgess used the 17-page statement in the Macomb County trial, “it is

difficult to see how he can contradict the state court’s finding that the evidence was not suppressed

in the Wayne County case.” (R. 16, Opinion and Order, p. 26).

          Thus, the record evidence supports the trial court’s finding that Scott Croydon’s 17-page

statement to Macomb County officers was not suppressed and it was not exculpatory so as to “put

the whole case in such a different light as to undermine confidence in the verdict.” Kyles, 514 U.S.

at 435.

          Burgess has failed to establish a Brady violation. Because the state trial court’s finding that

Burgess both had possession of Scott Croydon’s 17-page statement to police and, even if he did not,

could have obtained it with reasonable diligence was not objectively unreasonable, Burgess is not



                                                    24
No. 10-2633; Burgess v. Booker


entitled to habeas relief. Accordingly, the district court’s denial of relief on this portion of Burgess’s

Brady claim will be affirmed.

        Burgess also claims that Claude Johnson’s statements to police regarding Burgess’s

involvement in his shooting were improperly suppressed by the prosecution in violation of Brady.

Specifically, Burgess argues that Johnson’s statements to police contain information suggesting that

Johnson believed Burgess’s motive in attacking him was because he was a “snitch” due to Johnson

implicating another man in an arson crime, not because he knew about Burgess’s role in the

Dearborn triple murder, as Johnson testified at Burgess’s Wayne County trial. (See R 1-3, Petition,

Appendix F (Claude (Bob) Johnson Statements)).

        Burgess cannot demonstrate a Brady violation with respect to this evidence because the

record evidence, however, before the federal district court suggests that Burgess possessed these

statements at the time of trial. Johnson’s statements were taken in relation to Burgess’s Macomb

County prosecution for his attack on Johnson and his murder of Theresa Martell. A Wayne County

Assistant Prosecutor stated in his response to Burgess’s motion for relief from judgment that the

officers who took Johnson’s statements all testified at Burgess’s Macomb County trial. As correctly

noted by the district court, Burgess did not dispute that assertion in the state courts. (R. 16, Opinion

and Order, p. 27). Further, Johnson testified at the Wayne County trial that Burgess considered him

a “snitch.” (R. 10-13, Tr. 10/20/77, pp. 15-18, 25-26, 64-65).

        Thus, the record evidence supports the trial court’s finding that the Johnson’s statements to

police in Macomb County were not suppressed. Burgess has failed to establish a Brady violation.

Because the state trial court’s finding that Burgess had possession of Johnson’s statements to police

                                                   25
No. 10-2633; Burgess v. Booker


was not objectively unreasonable, Burgess is not entitled to habeas relief. Accordingly, the district

court’s denial of relief on this portion of Burgess’s Brady claim will be affirmed.

B.     Ineffective Assistance of Trial Counsel Claims

       Burgess asserts that his trial counsel was ineffective in three ways. First, by failing to elicit

testimony from Burgess’s wife, Brenda Burgess, which, Burgess asserts, would have established an

alibi for him at the time the Dearborn triple murder occurred. Burgess’s second asserted basis claims

that trial counsel failed to investigate and present evidence regarding Mary Kinsman and Roman

Poronczuk’s motive to commit the Dearborn triple murder, or by extension, to better support the

defense theory that the Dearborn triple murder happened as a result of victims’ drug dealing. Finally,

Burgess asserts that trial counsel failed to thoroughly cross-examine Scott Croydon during Burgess’s

preliminary examination.

       To prevail on a claim of ineffective assistance of trial counsel, a petitioner must establish that

his counsel’s performance was deficient and that he was prejudiced by his counsel’s deficient

performance. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). “[T]here is no reason for a

court deciding an ineffective assistance claim to approach the inquiry in the same order or even to

address both components of the inquiry if the [petitioner] makes an insufficient showing on one.”

Strickland, 466 U.S. at 697. Regarding the performance prong, judicial scrutiny of counsel’s

performance must be “highly deferential” and a reviewing court “must indulge a strong presumption

that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689.

Beyond the general requirement of reasonableness, “specific guidelines are not appropriate.” Id. at

688. “No particular set of detailed rules for counsel’s conduct can satisfactorily take account of the

                                                  26
No. 10-2633; Burgess v. Booker


variety of circumstances faced by defense counsel or the range of legitimate decisions . . . .” Id. at

688-689 (“It is ‘[r]are’ that constitutionally competent representation will require ‘any one technique

or approach.’” Pinholster, 131 S. Ct. at 1407 (quoting Richter, 131 S. Ct. at 789)). The Supreme

Court has said that there “are countless ways to provide effective assistance in any given case” and

that “[e]ven the best criminal defense attorneys would not defend a particular client in the same

way.” Strickland, 466 U.S. at 689. Regarding the prejudice prong, the petitioner must show that

“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694. Notably, the “likelihood of a different result

must be substantial, not just conceivable.” Richter, 131 S. Ct. at 792.

       “Surmounting Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 130 S. Ct.

1473, 1485 (2010). In other words, “under de novo review, the standard for judging counsel’s

representation is a most deferential one.” Richter, 131 S. Ct. at 788. In a habeas case such as this

one, “[e]stablishing that a state court’s application of Strickland was unreasonable under § 2254(d)

is all the more difficult.” Richter, 131 S. Ct. at 788. As noted above, for purposes of § 2254(d)(1),

an unreasonable application of federal law is different from an incorrect application of federal law.

Williams, 529 U.S. at 410. The question is not whether a federal court believes the State court’s

determination under Strickland was incorrect but whether it was unreasonable—a substantially

higher threshold. Knowles v. Mirzayance, 129 S. Ct. 1411, 1420 (2009) (internal quotations omitted).

On habeas review, a State court “must be granted a deference and latitude that are not in operation

when the case involves review under the Strickland standard itself.” Richter, 131 S. Ct. at 785. And

“even a strong case for relief does not mean that the state court’s contrary conclusion was

                                                  27
No. 10-2633; Burgess v. Booker


unreasonable.” Id. at 786 (When § 2254(d) applies, the question is not whether counsel’s actions

were reasonable—the question is whether there is any reasonable argument that counsel satisfied

Strickland ‘s deferential standard. Richter, 131 S. Ct. at 788). Moreover, because the Strickland

standard is a general standard, a State court “has even more latitude to reasonably determine that a

defendant has not satisfied that standard.” Knowles, 129 S. Ct. at 1420; see also Renico v. Lett, 130

S. Ct. 1855, 1864 (2010); Yarborough v. Alvarado, 541 U.S. 652, 664 (2004) (“[E]valuating 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.”).

       According to the Supreme Court, “[t]he standards created by Strickland and § 2254 are both

‘highly deferential,’” and “when the two apply in tandem, review is ‘doubly’ so.” Richter, 131 S. Ct.

at 788, quoting Strickland, 466 U.S. at 689; Richter, 131 S. Ct. at 788, quoting Knowles, 129 S. Ct.

at 1413.

       First, Burgess claims that his trial counsel was ineffective for failing to elicit alibi testimony

from his then-wife, Brenda Burgess. Burgess fails to satisfy either prong of the Strickland analysis.

Burgess cannot demonstrate that his counsel’s performance was deficient. In 2003, Brenda Clavenna

signed an affidavit wherein she attests that she remembers being with Burgess and another couple

at a bar at the time the Dearborn triple murder occurred. (R. 1-3, Petition, Appendix D (Affidavit of

Brenda Clavenna (Burgess), p. 1). Clavenna also asserted that she remembered that Burgess’s trial

counsel attempted to elicit testimony about her and Burgess’s whereabouts on the night of the

Dearborn triple murder, but objections by the prosecutor were accepted by the trial court. (R. 1-3,

Petition, Appendix D (Affidavit of Brenda Clavenna (Burgess), p. 3). For this reason, Clavenna

                                                  28
No. 10-2633; Burgess v. Booker


never ended up testifying that Burgess had an alibi for the night of the Dearborn triple murder.

Brenda also noted in her affidavit that defense counsel told her to contact the couple that she and

Burgess were with that night, but the couple did not want to get involved. (R. 1-3, Petition,

Appendix D (Affidavit of Brenda Clavenna (Burgess), p. 1).

       As correctly noted by the district court, exculpatory affidavits made years after the events are

“treated with a fair degree of skepticism,” especially when there is “no reasonable explanation for

the . . . delay.” Herrera v. Collins, 506 U.S. 390, 423 (1993). Additionally, it is just as likely that

trial counsel chose an alternate strategy instead of presenting an alibi defense that he could not

otherwise support. (R. 16, Opinion and Order, p. 33). Further, the evidence presented in the

affidavit is suspect because if it were true, Burgess would have gone to great lengths to present that

claim on direct appeal. While Burgess claims that his appellate counsel was ineffective for failing

to raise the claim on direct appeal, Burgess submitted a “Layman’s Pleading” wherein he raised

several claims that he argues his appellate counsel should have raised–yet, Burgess failed to raise

a claim of ineffective assistance of counsel for failure to pursue an alibi defense. (R. 1-3, Petition,

Appendix H (Layman’s Pleading)). Thus, Burgess has failed to demonstrate that his trial counsel’s

performance was deficient with respect to the alibi testimony.

       As to the prejudice prong, Burgess is unable to demonstrate the requisite prejudice in light

of the evidence presented by both Claude Johnson and Scott Croydon, which implicated Burgess in

the Dearborn triple murder. Because Burgess is unable to satisfy either prong of the Strickland

analysis, the state trial court’s determination that Burgess was not entitled to relief is not an



                                                  29
No. 10-2633; Burgess v. Booker


unreasonable application of Supreme Court law. Accordingly, this Court will affirm the district

court’s denial of relief.

        As to Burgess’s claim that his trial counsel was ineffective for failing to investigate and

present evidence on Mary Kinsman and Roman Poronczuk’s motives to kill the victims. Burgess

fails to satisfy either prong of the Strickland analysis. Burgess argues that his counsel should have

found the supplementary police report from the Dearborn Police Department, which, he asserts,

would have suggested that Kinsman and Poronczuk had a motive for murder and that it was related

to the victims’ drug business. (R. 1-2, Petition, Appendices A-B (Dearborn Supplementary Report)).

However, as previously noted, Burgess has not rebutted the presumption that his counsel actually

possessed the Dearborn Supplementary Report. Further, defense counsel did, in fact, present

questions to Mary Kinsman about her husband’s fears in this regard just prior to his death. (R. 10-4,

Tr. 10/11/77, pp. 90-92). Defense counsel also attempted to undercut Roman Poronczuk’s testimony

and cast him in a suspicious light when counsel got Poronczuk to admit that he took heroin when

he arrived at Leslie Kinsman’s house on the night of the Dearborn triple murder. (R. 16, Opinion

and Order, p. 34).

        Thus, the district court correctly determined that defense counsel did, in fact, present a

defense that the victims’ deaths were related to Kinsman’s drug business and were not perpetrated

by Burgess. (R. 16, Opinion and Order, p. 34). In light of the highly deferential Strickland standard,

Burgess is unable to establish that his counsel’s method was anything other than a reasonable trial

strategy. Neither is Burgess able to demonstrate the requisite prejudice in light of the evidence

presented by both Claude Johnson and Scott Croydon, which implicated Burgess in the triple murder.

                                                 30
No. 10-2633; Burgess v. Booker


       Because Burgess is unable to satisfy either prong of the Strickland analysis, the state trial

court’s determination that Burgess was not entitled to relief is not an unreasonable application of

Supreme Court law. Accordingly, this Court will affirm the district court’s denial of relief.

       Finally, Burgess claims that his trial counsel was ineffective for failing to thoroughly

cross-examine Scott Croydon at the preliminary examination due to the fact that counsel was given

insufficient time to prepare. Burgess claims that his counsel’s inadequate preparation time qualified

as a constructive absence of counsel at a critical stage, thereby resulting in a presumption of

prejudice. See generally United States v. Cronic, 466 U.S. 648, 659-660 (1984).

       Burgess’s claims fails for two reasons. First, the law set forth in Cronic is inapplicable in

this case because Cronic was decided after Burgess’s conviction became final in 1980, the rule

established in Cronic was prospective only, and neither of the exceptions applies here. (R. 16,

Opinion and Order, p. 35-36 (citing Teague v. Lane, 489 U.S. 288 (1989); Duncan v. United States,

552 F.3d 442, 444 (6th Cir. 2009); see also Lambrix v. Singletary, 520 U.S. 518, 539 (1997)).

Second, the circumstances presented here would not qualify as a structural error even if Cronic was

applicable. Burgess claims that his counsel was appointed to represent him only a few days before

the preliminary examination and did not have adequate time to prepare. However, as the district

court correctly notes, the record indicates that defense counsel accepted the assignment, visited his

client in jail, and represented him at the preliminary examination. (R. 16, Opinion and Order, p. 37).

Burgess may believe that his counsel’s performance could have been better if he had had more time,

but such a situation does not qualify as a lawyer who “fails to subject the prosecution’s case to

meaningful adversarial testing.” (R. 16, Opinion and Order, p. 37(quoting Cronic, 466 U.S. at

                                                 31
No. 10-2633; Burgess v. Booker


659)). Because Cronic’s presumed prejudice is inapplicable here, Burgess is required to demonstrate

both prongs of the Strickland analysis in order to establish ineffective assistance of counsel. Burgess

failed to argue the prejudice component in both the state courts as well as the federal district court.

Accordingly, Burgess cannot meet his burden and this Court should affirm the district court’s denial

of relief.

C.      Application of Federal Law to Petitioner’s Claim of Ineffective Assistance of Appellate
        Counsel

        In his final claim, Burgess contends that he was denied the effective assistance of appellate

counsel due to his counsel failing to raise the issues discussed above during his direct appeal.

Burgess’s claim must fail because he is unable to establish either prong of the Strickland analysis.

        Burgess has failed to demonstrate that his appellate counsel’s performance was deficient or

that he was prejudiced by any error because, as the state court and the federal district court correctly

held, the issues discussed above are without merit. Jones v. Barnes, 463 U.S. 745 (1983) (a criminal

defendant lacks a constitutional right to have appellate counsel raise every non-frivolous issue on

appeal). Appellate counsel therefore was not ineffective for failing to raise the issues on direct

appeal because they would not have succeeded. (R. 24, Opinion, p. 22). Accordingly, Burgess is

not entitled to relief on this claim.

V.      CONCLUSION

        Because neither Burgess’s rights under Brady v. Maryland, 451 U.S. 83 (1967), nor

Burgess’s rights under Strickand v. Washington, 466 U.S. 668 (1984) and Evitts v. Lucey, 469 U.S.

387 (1985) were violated., the judgment of the district court is AFFIRMED.


                                                  32
No. 10-2633; Burgess v. Booker


       KAREN NELSON MOORE, Circuit Judge, concurring in the judgment. I concur in

the judgment affirming the judgment of the district court. Burgess has failed to show that the district

court erred in denying him a writ of habeas corpus on any ground developed in his brief.




                                                  33
