                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 10a0664n.06

                                  Nos. 09-1921, 09-1922 & 09-2244
                                                                                              FILED
                            UNITED STATES COURT OF APPEALS                                 Oct 28, 2010
                                 FOR THE SIXTH CIRCUIT                              LEONARD GREEN, Clerk


JESSIE WAYNE PILLETTE,                               )
                                                     )
        Petitioner-Appellant Cross-Appellee,         )
                                                     )   ON APPEAL FROM THE UNITED
v.                                                   )   STATES DISTRICT COURT FOR THE
                                                     )   EASTERN DISTRICT OF MICHIGAN
MARY BERGHUIS,                                       )
                                                     )
        Respondent-Appellee Cross-Appellant.         )




        Before: BATCHELDER, Chief Judge; MOORE, and COOK, Circuit Judges.


        COOK, Circuit Judge. Petitioner Jessie Wayne Pillette sought habeas relief from several

state convictions, claiming that (1) the prosecution violated his Fifth Amendment rights by using his

post-arrest silence against him, and then his trial counsel violated his right to effective assistance of

counsel by failing to object to the violation; (2) the state trial court violated his confrontation rights

under the Sixth Amendment by improperly admitting into evidence the preliminary examination

testimony of an adverse witness; and (3) his trial counsel rendered ineffective assistance by failing

to call several witnesses to testify on his behalf, failing to introduce evidence, and failing to impeach

the credibility of a key prosecution witness. The district court rejected the first two claims but

granted conditional relief on the third, ordering the state to take steps to re-try Pillette within 90 days
Nos. 09-1921/09-1922/09-2244
Pillette v. Berghuis


or release him from custody. Rather than re-try Pillette, the state released him. The district court

subsequently entered an order barring re-prosecution. Both sides appeal.


                                                 I.


       A Michigan jury convicted Pillette of assault with intent to commit murder, two counts of

felonious assault, and three counts of carrying a weapon with unlawful intent, stemming from his

involvement in a series of altercations on August 31, 2003 at the trailer park where he resided.


       The prosecution’s witnesses explained that at a large social gathering—in attendance at

various times were Pillette, Anthony Kuzia, Megan Kimbler, Rick Duarte, Tara Bowron, Shannon

Brower, Mary Barrette, Melissa Siirila, and three stepbrothers, Charles Bell, Dennis Washington,

and Quavis Roby—Pillette grew increasingly agitated and belligerent, cursing those in attendance,

throwing a beer, and attempting to instigate a fight. He eventually picked a fight with Washington,

which, after an exchange of words, escalated to physical violence when Pillette hit Washington in

the mouth. Washington fought back, and the ensuing fistfight left Pillette badly beaten. In

Washington’s version, the fistfight ended when Kuzia grabbed him from behind, freeing Pillette to

run up the porch steps and arm himself with a baseball bat. Pillette returned and, standing within

striking distance, faked a swing at Washington, but Bowron stood between the two and prevented

Pillette from swinging. Then, according to Washington, Pillette said, “I’m goin’ to get my F...in’

gun,” and ran back into the trailer.



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        Roby testified that he followed Pillette into the trailer and twice asked him whether he was

all right. After the second query, Pillette picked up the shotgun and pointed it at him, at which point

Roby fled. At trial, he conceded that he did not know whether Pillette actually pulled the trigger.

Those present reported hearing several gunshots (when exactly during this sequence the shots were

heard is not at all clear, nor particularly relevant).


        At Pillette’s preliminary examination, Brower testified that she remained at the trailer shared

by Duarte and Kimbler while the fight was going on, but watched Roby approach the back door of

Pillette’s trailer and say, “You don’t need a gun, man. You don’t need a gun.” She then saw the

barrel of a gun she believed to be a shotgun sticking out of the door and heard the gun produce an

audible click. Shortly thereafter, Roby came running to Duarte’s trailer, purportedly complaining

that Pillette had pointed a gun at him. Asked during the preliminary examination whether anything

but the gun could have produced the click, Brower said, “It could have been. It could have been a

rock. It could have been anything.” Because police could not locate her after several attempts, she

did not testify at Pillette’s trial. Instead, over the defense’s objection, the prosecutor read Brower’s

preliminary examination testimony into the record at trial.


        Siirila, who around the time of the gunshots was inside Duarte’s trailer, testified that after

hearing a young woman (apparently, Barrette) claim to have been shot, she went outside to check

on the woman when Pillette approached her from behind and grabbed her shoulder, knocking her




                                                   -3-
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to the ground. Siirila claimed that Pillette pointed the gun at her and threatened to kill her.1

According to Siirila, Kuzia yelled out something along the lines of “The niggers [meaning

Washington, Bell, and Roby] are down here,” and Pillette took off running in Kuzia’s direction,

toward the entrance to the trailer park.


       Pillette, testifying as the lone witness in his defense, told a different story. He testified that

Washington, Bell, and Roby had arrived uninvited and unwanted,2 and that Kuzia, Duarte, and

Kimbler all asked him to say something to the group to get them to leave. Pillette claimed that as

he lost his footing, Washington hit him, to which Pillette responded, “Let’s do this, then, Nigger,”

and punched Washington back. At that point, Roby joined in the fracas on Washington’s behalf.

According to Pillette, Washington bounced him off of the trailer, a nearby car, and onto the ground,

where Washington and others punched and kicked him repeatedly. Washington began choking

Pillette from behind, and Roby hit Pillette in the face with a rock. Pillette testified that Kuzia

eventually succeeded in pulling his attacker3 off of him, and after breaking free, he ran into the

trailer, grabbed a baseball bat, and went back outside. Pillette then asked Kuzia for “the keys,”

which were hanging in the kitchen, intending to lock up the trailer. The key chain that held the key

to the front door also contained the key needed to unlock the gun cabinet.


       1
         In her trial testimony, Siirila could not recall exactly whether Pillette used the word “shoot”
or “kill” when threatening her.
        2
       On cross-examination, Pillette conceded that Kuzia had invited the three into the trailer
when the gathering moved indoors.
       3
            At this point in his testimony, it is unclear whether Pillette referred to Washington or Roby.
                                                       -4-
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       Back inside the trailer, Pillette fell to the floor, dizzy, and nearly passed out. Then, after

hearing the sound of windows breaking, Pillette unlocked the gun cabinet, which contained guns

belonging to Kuzia. According to Pillette, Kuzia assembled and loaded a .20 gauge shotgun, while

Pillette grabbed a .22 caliber rifle, which he struggled to load. After dropping a bullet on the floor,

Pillette eventually succeeded in chambering a single round. He went outside the trailer and fired a

warning shot into the air, but then noticed that everyone (meaning Washington, Roby, and Bell) was

already gone. According to Pillette, he heard Barrette screaming, and approached her to see if she

was injured. He then returned to the house to load the .22, but soon left to look for Kuzia outside,

where he eventually passed out in an empty lot next to the road. Pillette maintains that, throughout

the entire episode, he fired only the single warning shot with the .22 rifle. He testified to hearing

other gun shots that sounded like they came from a .22, and suggested that Kuzia kept another .22

caliber weapon—a handgun—in the trailer. Pillette denied ever pointing a gun at Siirila or Roby,

or ever even possessing the shotgun, but admitted that he “did have a gun.”


        The police arrived, responding to reports of gunshots at the trailer park, and, after obtaining

Kuzia’s consent, searched the trailer. They found the shotgun, the .22 rifle, ammunition for both

weapons strewn about, and two wooden baseball bats. Outside the trailer, they found a third baseball

bat (this one aluminum), as well as a spent .22 caliber shell casing that matched the rifle. Inspection

of the .22 revealed a bullet jammed in the chamber. The shell found in the chamber of the shotgun

bore a marking on the primer consistent with the firing pin.



                                                 -5-
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           An ambulance transported Pillette to the emergency room where they took x-rays and

treated him for minor cuts and bruises. Officer Cavanaugh described Pillette’s condition at the time

as “highly intoxicated” and “somewhat irate.” For his part, Pillette admitted to drinking “[p]robably

more than thirty” beers. After police advised him of his Miranda rights, Pillette gave a statement

indicating that he had been “jumped” by a group of “niggers.” He stated that no shots were fired and

denied having a rifle. He also told police—he claims in jest—that “the only good nigger is a dead

nigger.” At trial, Pillette expressly stated that he never asked for a lawyer while the police were

questioning him.


       The jury found Pillette guilty of all the charges. For the assault with intent to commit murder

conviction, the trial court imposed a 48-year4 maximum sentence with a 12-year minimum;

Petitioner also received terms of 2 to 4 years for the each of the felonious assaults and 2 to 5 years

for each of the weapons charges, to be served concurrently with the lengthier assault with intent to

murder sentence.


       Pillette appealed his conviction to the Michigan Court of Appeals, claiming, through his

appellate counsel, that his trial counsel provided constitutionally ineffective assistance by failing to

object to Officer Cavanaugh’s expert testimony on weapons and ballistics issues, and by failing to

object to the prosecution’s purported violation of Pillette’s Fifth Amendment right to remain silent.

In a supplemental brief filed pro se, Pillette asserted an ineffective assistance claim premised on


       4
         Respondent’s brief states the maximum as 24 years, but this conflicts with the sentencing
transcript from state court, as well as the Michigan Court of Appeals opinion.
                                                -6-
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counsel’s failure to call witnesses. His brief did not identify what witnesses his counsel should have

called, but he attached a copy of Duckett’s police statement to his filing. Pillette’s pro se supplement

also asserted the Confrontation Clause violation stemming from the admission of Brower’s

preliminary examination testimony. The additional exhibits attached to the supplement included a

police report discussing the theft of a .22 caliber gun from Pillette’s residence, as well as police

reports indicating that the other men involved in the altercation had previously stolen or discharged

weapons in the same trailer park where the incident occurred. The Michigan Court of Appeals

denied relief. People v. Pillette, No. 254587, 2005 WL 1399312 (Mich. Ct. App. June 14, 2005).

Pillette filed a pro se motion for reconsideration, in which he asserted that trial counsel led him to

believe that Kimbler, Duarte, Barrette, Duckett, and Kuzia would be called to testify in his defense.

The court of appeals denied the motion (Dist. Ct. Doc. (“Doc.”) 1-3 at 28), and the Michigan

Supreme Court denied leave to appeal. People v. Pillette, 711 N.W.2d 305 (Mich. 2006).


         At the conclusion of his direct appeal, Pillette returned to the trial court and filed a post-

conviction motion for relief from judgment raising three new claims (not at issue here), which the

court denied. He then filed a habeas petition in the Eastern District of Michigan, and the court stayed

proceedings to allow him to exhaust his state remedies. The Michigan Court of Appeals rejected his

appeal from the denial of post-conviction relief, People v. Pillette, No. 270513 (Mich. Ct. App. Nov.

28, 2006), and the Michigan Supreme Court denied leave, People v. Pillette, 731 N.W.2d 751 (Mich.

2007).



                                                 -7-
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        Returning to the federal courts, Pillette sought a writ of habeas corpus on grounds that (1)

trial counsel’s failure to object to the alleged Fifth Amendment violation deprived him of

constitutionally effective assistance; (2) the trial court violated his Confrontation Clause rights by

admitting Brower’s preliminary examination testimony; and (3) trial counsel rendered ineffective

assistance by failing to: call favorable witnesses, introduce a police report about an allegedly stolen

gun, and impeach Roby with evidence of a prior conviction. The district court granted an evidentiary

hearing on the third claim, finding that Pillette “made a reasonable attempt to fairly present” his

claims to the state courts, and that those claims, “if true, would entitle him to habeas relief.” Pillette

v. Berghuis, No. 2:06-14511, at *6 (E.D. Mich. July 28, 2008) (internal quotation marks and citation

omitted).


        Pillette and his trial attorney, James Deamud, testified at the federal evidentiary hearing.

Deamud recalled little about his work on the case. He testified that “in this type of a case” he usually

relied on the prosecutor to find witnesses, and that the individuals involved were a transient bunch

(and thus difficult to locate). Deamud testified that the statement Duckett—Pillette’s then-

girlfriend—made to police “was somewhat inconsistent with almost all the rest of the stories,” and

that such discrepancies, coupled with the obvious potential bias, led him to conclude that Duckett’s

credibility issues seriously undermined her potential usefulness as a witness. He also explained that

he did not believe the evidentiary rules allowed him to utilize for impeachment purposes Roby’s

convictions for receiving and concealing a firearm and malicious destruction of property under $200.

Told by Pillette’s habeas counsel that some of the uncalled witnesses could have helped Pillette’s

                                                  -8-
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defense because they provided statements indicating that they heard only one gunshot, Deamud

explained that:


        [t]he issue over the number of gunshots did not seem to be a particularly important
        issue. One, nobody was actually accused of shooting at anybody. Two, there was a
        lot of excitement going on. There was a lot of alcohol going on. And it didn’t strike
        me as odd that one person would hear one and one would hear three.


On re-cross, the state’s attorney pointed to Pillette’s trial testimony that he “fired one shot, but . . .

heard more than one shot myself too.” And when he took the stand, Pillette acknowledged that he

testified at trial to hearing multiple gunshots. In addition, Pillette testified that Deamud assured him

that Barrette, Duarte, Duckett, and Kimbler had been subpoenaed to appear at trial, and that the

police reports about the stolen .22 and Roby’s prior conviction would be used in his defense.


        In an opinion and order issued June 19, 2009, the district court rejected Pillette’s first two

claims, finding them without merit, but granted a conditional writ on the third claim, which

encompassed seven separate elements of trial counsel’s purportedly defective assistance: the failure

to call Duckett, Barrette, Duarte, Kimbler, and Kuzia, the failure to introduce the police report about

the theft of the .22, and the failure to impeach Roby using his prior convictions. Pillette v. Berghuis,

630 F. Supp. 2d 791 (E.D. Mich. 2009) (hereinafter “Dist. Ct. Merits Op.”). The order stated that

“unless the state takes action to afford petitioner a new trial within ninety days of the date of this

opinion, he may apply for a writ ordering respondent to release him from custody forthwith.” Id. at

807.


                                                  -9-
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       On September 17, 2009, Respondent filed a notice confirming its compliance with the

conditional writ, indicating that the Michigan Department of Corrections released Pillette from

custody on that date. Nevertheless, the very next day, the district court (acting sua sponte) entered

an order stating that “[b]ecause the State of Michigan has failed to comply with the terms of the

conditional writ, an unconditional writ of habeas corpus shall issue in this case.” Pillette v.

Berghuis, 683 F. Supp. 2d 518, 519 (E.D. Mich. 2009). The court ordered that the Otsego County

Circuit Court’s March 8, 2004 judgment of conviction be vacated and the record of conviction

expunged. And finding that the State of Michigan “offered no excuse . . . for its failure to timely

cure the error caused by taking steps to bring petitioner back to the Otsego County Circuit Court for

a new trial,” and that allowing the state “to reprosecute petitioner would amount to an

unconscionable windfall to the State of Michigan and would essentially reward them for their

noncompliance with this Court’s orders,” the court barred Pillette’s re-prosecution. Id.


                                                 II.


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

error. Hill v. Hofbauer, 337 F.3d 706, 710 (6th Cir. 2003). Pillette’s petition is subject to the

requirements of AEDPA because he filed it after April 24, 1996. Carter v. Mitchell, 443 F.3d 517,

524 (6th Cir. 2006). Accordingly, he may not obtain relief unless the state court’s adjudication of

his claim:




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


28 U.S.C. § 2254(d). An adjudication is “contrary” to federal law when the court “arrives at a

conclusion opposite to that reached by [the Supreme] Court on a question of law” or “decides a case

differently than [the Supreme] Court has on . . . materially indistinguishable facts.” Williams v.

Taylor, 529 U.S. 362, 412–13 (2000). And “[a] state court unreasonably applies Supreme Court

precedent ‘if the state court identifies the correct governing legal rule . . . but unreasonably applies

it to the facts of the particular prisoner’s case.’” Barnes v. Elo, 339 F.3d 496, 501 (6th Cir. 2003)

(quoting Williams, 529 U.S. at 407). Pursuant to 28 U.S.C. § 2254(e)(1), we presume the correctness

of a state court’s factual findings unless the petitioner rebuts them with clear and convincing

evidence. Sinkfield v. Brigano, 487 F.3d 1013, 1016 (6th Cir. 2007).


                                                  III.


       The district court granted a certificate of appealability to allow us to consider two claims it

rejected: (1) that trial counsel’s failure to object to the alleged Fifth Amendment violation deprived

him of constitutionally effective assistance; and (2) that the trial court violated his Confrontation

Clause rights by admitting Brower’s preliminary examination testimony.




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A.      Fifth Amendment - Violation of Right to Remain Silent


        Pillette argues that the prosecutor violated his constitutional rights by questioning a police

witness about Pillette’s post-Miranda silence and by commenting on this silence in arguments to the

jury. Acknowledging that his counsel did not object to the prosecutor’s conduct, Pillette asserts that

this failure constituted ineffective assistance.


        Pillette’s appellate counsel raised (and the Michigan Court of Appeals decided) this claim

in his direct appeal, so we evaluate the claim under AEDPA’s deferential standard.5


        “[B]ecause the Miranda warnings contain an implicit assurance that ‘silence will carry no

penalty,’ it would be fundamentally unfair to allow a prosecutor to use a defendant’s post-Miranda

warnings silence to impeach the explanation he offered at trial.” Franklin v. Bradshaw, 545 F.3d

409, 415 (6th Cir. 2008) (quoting Doyle v. Ohio, 426 U.S. 610, 618 (1976)). Accordingly, “Doyle

bars the use against a criminal defendant of silence maintained after receipt of government

assurances.” Anderson v. Charles, 447 U.S. 404, 408 (1980). But Doyle does not apply where the

defendant does not invoke his right to remain silent because “a defendant who voluntarily speaks

after receiving Miranda warnings has not been induced to remain silent.” Id.


        The Michigan Court of Appeals held that Pillette never invoked his right to remain silent.

Deputy Cavanaugh testified that he read Pillette the Miranda warnings and Pillette agreed to


        5
         Respondent argued procedural default on this claim below, but the district court did not rely
on it, and Respondent does not renew the argument here.
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continue speaking with him, and proceeded to make several statements. Specifically, Pillette told

Cavanaugh that “he didn’t point a gun at nobody and . . . didn’t shoot at nobody.” Cavanaugh further

testified that, after a while, Pillette became “uncooperative,” a comment Pillette seizes on here to

suggest that Cavanaugh referenced his refusal to speak. But in his testimony, Cavanaugh clarified

that “uncooperative” referred to Pillette’s repeated use of racial slurs during the interview. Although

Pillette testified at times that he “didn’t tell the police anything,” he also acknowledged making

statements about how many shots he heard and denying pointing a gun at anyone. Pillette has not

presented clear and convincing evidence to rebut the state court’s factual finding that he never

invoked his right to silence.


        Although Pillette insists the prosecutor asked him several questions on cross-examination

from which the prosecutor intended “to draw meaning from silence” (an impermissible purpose

under Doyle) rather than “to elicit an explanation for a prior inconsistent statement” (a permissible

purpose under Doyle), Anderson, 447 U.S. at 408, this argument overlooks the preliminary inquiry

whether Doyle applies. Doyle does not apply here because, as the state court found, Pillette never

invoked his right to remain silent.


        Because Pillette himself admitted giving statements to police, he cannot demonstrate clear

error in the state court’s determination that he never invoked his right to remain silent. Thus, the

state court’s rejection of Pillette’s Fifth Amendment claim did not involve an unreasonable

application of clearly established federal law. The district court correctly denied relief on this claim.


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B.     Sixth Amendment - Violation of Confrontation Clause


       Pillette asserts that the introduction of Brower’s preliminary examination testimony at his

trial violated his Confrontation Clause rights.


       The Sixth Amendment secures a criminal defendant’s right “to be confronted with the

witnesses against him.” U.S. Const. amend. VI. “Thus, the prosecution may not substitute former

testimony for live testimony unless the government first demonstrates that the witness remains

unavailable for trial proceedings.” Hamilton v. Morgan, 474 F.3d 854, 858 (6th Cir. 2007). This

exception to the Confrontation Clause requires establishing that (1) the testimony to be used was

given at a prior judicial proceeding against the same defendant and was subject to cross-examination,

Crawford v. Washington, 541 U.S. 36, 54 (2004); and (2) the government undertook a good faith

effort to secure the presence of the unavailable witness at trial, Ohio v. Roberts, 448 U.S. 56, 74

(1980), abrogated on other grounds by Crawford v. Washington, 541 U.S. 36, 60-68 (2004). Pillette

challenges the state court’s unavailability finding, arguing that the police failed to undertake good

faith efforts to find Brower before trial. “A good-faith effort, however, is not an ends-of-the-earth

effort, and the lengths to which the prosecution must go to obtain a witness generally amount to a

question of reasonableness.” United States v. Cheung, 350 F. App’x 19, 23 (6th Cir. 2009) (internal

quotation marks, citations, and alterations omitted).


       Two officers—Cavanaugh and Crane—testified to their considerable efforts aimed at

tracking down Brower, who had moved away from the area without leaving a forwarding address.

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They looked up the address on her driver’s license and drove out to the physical location, only to find

that it did not exist. They inquired with the other witnesses who knew her, as well as with the local

postmaster, but learned only that she had relocated to Howell, Michigan—more than 200 miles

away—and still had an active P.O. Box in Vanderbilt. They ran a statewide computer search for any

recent police contacts, but turned up nothing. And they managed to locate Brower’s father in

Hillman, Michigan (more than 50 miles away), and left a phone message that went unreturned.


       Although the state trial court expressed some reservations about the belated nature of a

portion of the efforts undertaken to secure Brower’s presence (some of which did not occur until just

before trial), the court found that they satisfied the police’s good faith obligations, and the Michigan

Court of Appeals affirmed. Pillette fails to cite any cases suggesting that the Michigan courts

unreasonably applied clearly established federal law in reaching that conclusion. Moreover, under

the circumstances, the reasonableness of the police department’s efforts is readily apparent. They

pursued numerous independent avenues in their efforts to find Brower, and Officer Cavanaugh

testified that the search they undertook in this case exceeded their typical investigation. And though

Pillette suggests that they could have done more, such as driving out to Brower’s father’s house

rather than just leaving him a message, the police possessed no facts suggesting that Brower had any

contact with her father, and indeed had it on good information that she was living several hundred

miles away in Howell—but where, in Howell, they had no idea, despite diligent efforts to find out.

The law does not require such “ends-of-the-earth” efforts of the police.



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       Pillette also argues that the trial court erred by admitting Brower’s preliminary examination

testimony because it lacked adequate indicia of reliability. But this argument utilizes a standard the

Supreme Court overruled in Crawford. See Davis v. Washington, 547 U.S. 813, 825 n.4 (2006)

(recognizing that Crawford overruled this aspect of Roberts); see also United States v. Moncivais,

492 F.3d 652, 659 n.3 (6th Cir. 2007). Under Crawford, testimonial statements like Brower’s are

admissible as long as the defendant received a prior opportunity for cross-examination. 541 U.S.

at 53–54. And since Pillette does not dispute that the preliminary examination afforded him the

opportunity to cross-examine Brower, his Confrontation Clause claim lacks merit.


       Finally, Pillette contends that the court’s failure to sequester Brower prior to her preliminary

examination testimony compounds the alleged Confrontation Clause violation. But the district court

properly analyzed this as a separate claim apart from the Confrontation Clause; whether or not

Brower remained in the courtroom in violation of a sequestration order before testifying at the

preliminary examination has no bearing on the Crawford inquiry, i.e., whether the trial court

properly found her unavailable for trial or whether her testimony was subject to cross-examination.

Addressing it separately, the district court correctly rejected the claim. The Michigan Court of

Appeals did not unreasonably apply federal law in concluding that the trial court’s discretionary

decision not to bar Brower from testifying at the preliminary examination did not supply a basis for

granting habeas relief.




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                                                 IV.


       Respondent appeals the grant of the writ on ineffective assistance grounds, arguing that none

of the seven bases referenced by the district court—the failure to call each of the five witnesses,

introduce the police report regarding the stolen gun, and impeach Roby with his prior

conviction—demonstrate a constitutional infirmity in counsel’s performance.


       To establish ineffective assistance of counsel, Pillette “must show that counsel’s performance

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

Washington, 466 U.S. 668, 687 (1984).           “[D]eficient performance” means that counsel’s

representation “fell below an objective standard of reasonableness.” Id. at 688. In evaluating

reasonableness, we “indulge a strong presumption that counsel’s conduct falls within the wide range

of reasonable professional assistance; that is, the defendant must overcome the presumption that,

under the circumstances, the challenged conduct might be considered sound trial strategy.” Id. at

689 (quotation marks and citation omitted). Prejudice, in this context, requires showing “that there

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

would have been different. A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id. at 694. “Both the performance and prejudice components of the

ineffectiveness inquiry are mixed questions of law and fact entitled to de novo review. Combs v.

Coyle, 205 F.3d 269, 278 (6th Cir. 2000).




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        As a threshold matter, we note that although the petition complains of counsel’s failure to

call witnesses, the district court’s analysis (and eventual grant of relief) mostly concerned what it

deemed a failure by counsel to investigate. The court found that despite counsel’s vague recollection

that he talked to some witnesses, he could not remember which witnesses he spoke with and his file

contained no notes of witness interviews. It faulted trial counsel for “fail[ing] to present adequate

evidence that he ever interviewed any of these potential witnesses.” Dist. Ct. Merits Op., 630 F.

Supp. 2d at 800. This finding, coupled with its legal statement that “[w]here a defense counsel fails

to investigate and interview promising witnesses, and therefore has no reason to believe they would

not be valuable in securing a defendant’s release, counsel’s inaction constitutes negligence, not a trial

strategy,” led the court to conclude that “counsel was deficient for failing to adequately investigate

or interview these witnesses.” Id.


        Critically, however, nowhere in the state courts or in his petition for habeas corpus did

Pillette assert a claim that counsel failed to investigate witnesses. Rather, Pillette’s claims at all

times focused on the failure to call witnesses, a separate and distinct claim. See English v.

Romanowski, 602 F.3d 714, 2010 WL 1488354 at *10–12, (6th Cir. Apr. 15, 2010) (treating failure

to call and failure to investigate as analytically distinct). Moreover, even after the court ordered an

evidentiary hearing and appointed counsel to represent Pillette, counsel’s initial briefing did not

mention a failure to investigate witnesses. See Doc. 26.6 Only in supplemental briefing filed after


        6
         Counsel’s brief complains of trial counsel’s failure to investigate the police report about the
stolen .22 (Doc. 26 at 4) and the prior acts of some of witnesses, including Roby (id. at 2, 5), but
never about failing to investigate the witnesses’ statements.
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the evidentiary hearing occurred, and even then only in the most cursory manner, did counsel begin

to suggest that the claim involved a failure to investigate witnesses. See Doc. 48.7 In any event,

regardless of when the concept first arose in the federal court proceedings, it is not properly before

this court on appeal because Pillette never gave the state courts any opportunity to address it. A

petitioner procedurally defaults “by failing to raise a claim in state court, and pursue that claim

through the state’s ‘ordinary appellate review procedures.’” Williams v. Anderson, 460 F.3d 789,

806 (6th Cir. 2006) (quoting O’Sullivan v. Boerckel, 526 U.S. 838, 846–47 (1999)). So to the extent

the district court issued the writ based on such a claim, it did so in error. Accordingly, we limit our

review of Pillette’s witness-related claims to counsel’s failure to call the witnesses to testify at trial,

not to any purported failure to interview them. Respondent also asserts that Pillette procedurally

defaulted four of the five failure-to-call witness claims, but we decline to resolve those procedural

default issues and instead turn directly to a discussion of the merits.


        A.      Failure to Call Witnesses


        The failure to call favorable witnesses can amount to ineffective assistance where it results

in prejudice to the defense. See, e.g., Towns v. Smith, 395 F.3d 251, 258–60 (6th Cir. 2005) (counsel

ineffective for failing to call a witness who could have created an alternative theory of the case). But

“[a] defense counsel has no obligation to call or even interview a witness whose testimony would


        7
         In the eight-page section of the supplemental brief discussing the failure-to-call claim,
Pillette’s counsel uses the word ‘investigate’ only once, and then only in a general description of the
claim. The substantive discussion of each of the five witness claims never mentions a failure by
counsel to investigate what those individuals knew or would have testified to.
                                                - 19 -
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not have exculpated the defendant.” Millender v. Adams, 376 F.3d 520, 527 (6th Cir. 2004)

(quotation marks and citation omitted).


               i.       Lacey Duckett


       Before addressing the merits of Pillette’s claim involving counsel’s failure to call Duckett

as a witness, we first must determine the proper standard of review. Citing Brown v. Smith, 551 F.3d

424, 428–29 (6th Cir. 2008), the district court concluded that “[i]n light of the fact that the state

courts failed to conduct an evidentiary hearing on petitioner’s ineffective counsel claims and limited

their review to ‘mistakes apparent on the record,’ petitioner’s ineffective assistance of counsel claims

were never truly adjudicated on the merits, for purposes of applying the deferential standard of

review contained in § 2254(d).” 630 F. Supp. 2d at 797. Thus, the district court applied de novo

review to the claim involving Duckett, and to the other four witness claims as well.


       The district court misinterpreted Brown, and, as a result (at least with respect to the Duckett

claim) erred in applying de novo review. In Brown, the court refused to apply AEDPA deference

because the state courts never adjudicated the petitioner’s claim on the merits. The Michigan Court

of Appeals did not have before it the evidence forming the basis for the petitioner’s claim and in its

decision “explicitly acknowledged that its review was limited to mistakes apparent on the record.”

Brown, 551 F.3d at 429 (quotation marks and citation omitted). Neither factor relied on by the court

in Brown is present in this case. Petitioner attached Duckett’s witness statement to his pro se

supplement, and the Michigan Court of Appeals did not, expressly or otherwise, limit its review of

                                                 - 20 -
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Pillette v. Berghuis


this claim to mistakes apparent on the record, but, in fact, clearly resolved the Duckett claim on the

merits using the same evidence—Duckett’s statement to police—Pillette presented in federal court.

2005 WL 1399312, at *4. Where the state court adjudicates a claim on the merits, the deferential

review called for by AEDPA applies. McElrath v. Simpson, 595 F.3d 624, 630 (6th Cir. 2010).


          Turning to the merits of the claim that his counsel performed ineffectively by failing to call

Duckett as a witness, Pillette argues (and the district court found while erroneously applying de novo

review) that Duckett’s testimony would have supported Petitioner’s contentions that Washington,

Roby, and perhaps Bell jumped him, that he fired only a single shot, and “would have contradicted

Siirila’s testimony that petitioner had threatened to kill her.” Dist. Ct. Merits Op., 630 F. Supp. 2d

at 799.


          After reviewing Duckett’s statement, the Michigan Court of Appeals concluded that Pillette:


          was not deprived of a substantial defense because the statement provided no clear
          alibi for defendant when considering it in conjunction with the evidence presented
          at trial, including defendant’s testimony. Duckett’s statements in the report were not
          totally consistent with defendant’s testimony, and this may have been the reason
          defense counsel did not call her as a witness. Moreover, there is no error apparent
          from the record with respect to defense counsel’s failure to call Duckett. Defendant
          has not overcome the presumption that defense counsel’s decision not to call the
          witnesses was a matter of strategy. This Court will not second-guess counsel in
          matters of trial strategy.


2005 WL 1399312, at *4.




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        In rejecting this claim, the state court did not unreasonably apply clearly established federal

law. Although the district court’s improper de novo assessment of Duckett’s utility as a witness

identified some potential helpfulness to the defense, the strategic decision counsel made not to call

her at trial did not amount to performance below the constitutionally-adequate threshold. The

Michigan Court of Appeals identified one valid reason not to call Duckett—her account conflicted

with Pillette’s in some respects, see id.—and the federal evidentiary hearing turned up at least one

other—inherent bias, and concomitant credibility issues, stemming from the fact that she was

Pillette’s girlfriend, see Doc. 72 at 46–47. Under AEDPA’s deferential standard, these reasons for

not calling Duckett, standing independently, suffice to protect counsel’s decision from second-

guessing by this court. In combination, along with the strong presumption that counsel’s conduct

fell within the range of reasonable professional assistance, they illustrate with clarity that counsel’s

decision not to call Duckett did not render his representation constitutionally deficient. Because the

Michigan Court of Appeals did not unreasonably apply Strickland in rejecting this claim, we must

defer. Accordingly, we reverse the district court’s decision to grant the writ based on counsel’s

failure to call Duckett.


                ii.        Mary Barrette


        Unlike the claim involving Duckett, which the state court confronted on the merits, the four

other witness claims never received a merits-adjudication from the state courts, and thus warrant de




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novo review. See Dorn v. Lafler, 601 F.3d 439, 442 (6th Cir. 2010) (“Where there was no state-

court adjudication on the merits of a habeas claim, we review that claim de novo.”).


       Pillette’s counsel deposed Barrette during the federal court proceedings and submitted her

testimony at the evidentiary hearing. The district court concluded that Pillette’s counsel was

ineffective for failing to call Barrette because she “would have corroborated petitioner’s testimony

that he did not point a gun at Melissa Siirila.” Dist. Ct. Merits Op., 630 F. Supp. 2d at 797. The

district court’s evaluation of Barrette’s testimony hinges on its understanding that “Barrette was with

Siirila at the time [Pillette allegedly assaulted Siirila] and did not witness any assault against

Siirila”—a statement the district court explains “was known early in the case, from the summary of

Barrette’s information in a memorandum written by Officer Crane.” Id. at 798. This point is crucial

because unless Barrette and Siirila were together the entire time, her testimony that she simply did

not see Pillette assault Siirlia would not help exonerate him.8


       8
         Invoking the concurrent sentence doctrine, Respondent insists that we can effectively decline
review of this claim because Barrette’s testimony does not even arguably relate to the Roby assault,
which led to the longest of Pillette’s concurrent sentences. We disagree. The concurrent sentence
doctrine acts as a discretionary bar to judicial review, see Benton v. Maryland, 395 U.S. 784, 787–91
(1969), as it “allows appellate courts to decline to review a conviction carrying a concurrent sentence
when one ‘concurrent’ conviction has been found valid.” Cheeks v. Gaetz, 571 F.3d 680, 689 (7th
Cir. 2009) (citing United States v. Kimberlin, 675 F.2d 866, 867 (7th Cir. 1982)). Our circuit “has
been admittedly hesitant to apply this doctrine,” invoking it only “when there is no possibility of
‘adverse consequences’ if the convictions stand.” Winn v. Renico, 175 F. App’x 728, 732 (6th Cir.
2006) (citations omitted). The types of adverse consequence that can prevent the doctrine from
applying include an effect on parole or a potential pardon, the existence of state recidivist statutes,
the possibility of impeachment at a future trial, the potential for use as evidence of a prior bad act,
and possible stigma. See United States v. Vargas, 615 F.2d 952, 959–60 (2d Cir. 1980); see also
Sanders v. Sullivan, 863 F.2d 218, 226 n.8 (2d Cir. 1988) (applying Vargas analysis to review of
habeas petition). Respondent makes no effort at all to demonstrate a lack of collateral consequences
                                                   - 23 -
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       Examination of Officer Crane’s memorandum reveals that the district court read it

incorrectly. The summary of Barrette’s interview consists of four sentences. None of them indicates

that Barrette and Siirila were together throughout the incident; indeed, the summary suggests quite

the opposite. It states that after walking back to her trailer with Duckett, Barrette “began screaming,

then Melissa [Siirila] showed up and screamed at her.” Doc. 33-8 at 4 (emphasis added). This

statement strongly implies that Barrette and Siirila were separated for a period of time between when

the Pillette-Washington fight ended and when they reunited at the trailer. And in her deposition

testimony, Barrette unequivocally stated that she and Siirila were not together the entire time after

the fight broke out.9 Doc. 45 at 13. This contradicts the district court’s statement that Barrette and

Siirila were together at the time of Siirila’s alleged assault. Thus, from Pillette’s perspective, the

most Barrette could say in his favor was that she never saw Pillette with a gun and did not witness

him threatening Siirila; her testimony comes nowhere close to absolving Pillette of the Siirila assault.


       Moreover, Barrette’s version of events contradicted Pillette’s on at least two points, one of

them highly important, and thus, as with Duckett, suggesting counsel made an informed strategic

choice not to call her to testify. Fundamental to Pillette’s account of the evening was his contention

that Washington did not fight him alone, but that Washington, Roby, and Bell, acting in concert,



attaching to Pillette’s convictions, so we decline to apply the concurrent sentence doctrine in this
case.
       9
        Barrette’s testimony leaves little room for confusion on this point:
Q: And you weren’t with Ms. Siirila the entire time after the fight broke out; is that right?
A: No, I was not. We were not friends.
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“jumped” him. Barrette’s testimony contradicted Pillette’s, as she testified that Washington fought

Pillette on his own. Doc. 45 at 5. Officer Crane’s summary of Barrette’s interview reflects that she

told him the same version, describing the fight as “between Washington and Jessie.” Doc. 33-8 at

4. Barrette also told Officer Crane that she heard only a single gun shot, not the multiple shots that

Pillette and others reported. The prosecution provided Officer Crane’s statement to Pillette’s trial

counsel in discovery, and it appeared in the file counsel produced in the federal proceedings.

Accordingly, counsel possessed legitimate reasons for not calling Barrette to testify at trial. Pillette

fails to rebut the presumption of reasonableness accorded counsel’s actions, and thus fails to

demonstrate that the failure to call Barrette amounted to ineffective assistance.


               iii.    Rick Duarte


       The district court characterized Duarte’s potential testimony as “important to petitioner’s

defense to rebut the prosecution witnesses” because the statement he provided police does not

mention seeing Pillette with a gun and that he recalled hearing only a single gunshot. Dist. Ct.

Merits Op., 630 F. Supp. 2d at 799.


       Counsel’s failure to call Duarte was neither objectively unreasonable performance nor

prejudicial to the defense. Duarte’s statement to police lacked significance. He stated that:

Washington and Pillette fought, he started to go home, heard windows break, then a gun shot, and

then the police arrived; nothing more. Doc. 26-2 at 5. In that statement, Duarte provided no

information that would have materially aided the defense, and said two things that would have

                                                 - 25 -
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Pillette v. Berghuis


contradicted Pillette’s testimony—namely, that the fight involved only Washington and Pillette, and

that he heard only one gunshot. Just as he could have done with Barrette, trial counsel could have

reasonably decided not to call Duarte because his testimony would have damaged Pillette’s

credibility while doing nothing to advance the defense. Pillette fails to demonstrate that counsel

performed ineffectively by failing to call Duarte. Similarly, he fails to show how such a failure, even

if unreasonable, prejudiced the defense.


               iv.     Megan Kimbler


       The district court viewed Kimbler as important to combat Brower’s testimony about hearing

the shotgun click while pointed at Roby. According to the district court, “Kimbler’s testimony

would have contradicted that of Brower, in that Kimbler could have testified that Brower was not

in a position to hear what she testified to, because Brower was in Kimbler’s house the entire time

without an opportunity to observe what she testified to.” Dist. Ct. Merits Op., 630 F. Supp. 2d at

799 (emphasis added).


       As Respondent points out, however, speculation about what Kimbler “could have” testified

to cannot establish that Pillette was prejudiced by counsel’s failure to call her as a witness. The only

evidence ever adduced about Kimbler’s potential testimony derives from the statement she gave

police on the night of the incident. Nowhere in that statement did Kimbler indicate that Brower was

not in a position to hear the shotgun make a clicking sound. Although Kimbler might have testified

exactly as the district court speculated and cast doubt on Brower’s perception of the events, it is

                                                 - 26 -
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Pillette v. Berghuis


equally possible that she would have confirmed Brower’s account. The salient point is that nobody

knows what she would have said. Speculation cannot suffice to establish the requisite prejudice.

See Bentley v. Motley, 248 F. App’x 713, 717 (6th Cir. 2007) (citing Baze v. Parker, 371 F.3d 310,

322 (6th Cir. 2004)). This is particularly true where, as here, the district court granted Pillette an

evidentiary hearing and afforded him every opportunity to drum up any evidence available to support

his claim. See Clinkscale v. Carter, 375 F.3d 430, 447 (6th Cir. 2004) (McKeague, J., dissenting)

(addressing speculation by the majority regarding what a witness would have testified to,

highlighting the factual record as inadequate, and suggesting the propriety of ordering an evidentiary

hearing to resolve the doubt). Lacking evidence that calling Kimbler actually would have produced

the favorable testimony he hoped for, Pillette cannot establish either unreasonable performance or

prejudice, so his claim fails.


                v.      Anthony Kuzia


        In his petition, Pillette also identified Kuzia as a witness whom counsel should have called

at trial. Although the district court did not expressly reject this claim, it did not rely on Kuzia’s

potential testimony in granting relief, so we touch on it here only briefly to note its complete lack

of merit. As Respondent explains (see Resp. Br. at 35–36), counsel’s decision not to call Kuzia

vividly illustrates the reasonableness of counsel’s decisionmaking. Unlike the other witnesses

Pillette claims his counsel should have called, Kuzia actually witnessed many of the critical events

leading to Pillette’s convictions, particularly the assault on Roby, because he was present in the


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Pillette v. Berghuis


trailer with Pillette after the fight with Washington ended. Kuzia gave two statements to police. He

told Deputy Cavanaugh that Roby came into the trailer, Pillette pointed the shotgun at him, and it

made a click. Doc. 76 at 38. And he told Officer Crane the same thing. Id. at 40. Pillette

nevertheless asserted, both in his motion for reconsideration to the Michigan Court of Appeals and

in his federal habeas petition, that trial counsel rendered constitutionally ineffective assistance by

failing to call Kuzia to testify. But presenting Kuzia’s inculpatory testimony—particularly where

the prosecution did not—likely would have been both an unreasonable decision and prejudicial to

the defense.


       For the reasons explained, Pillette’s ineffective assistance of counsel claim premised on

counsel’s failure to call witnesses fails because he cannot satisfy either prong of the Strickland

analysis. Counsel did not act unreasonably in failing to call witnesses, and, in any event, Pillette

cannot demonstrate prejudice.


       B.      Police Report Regarding Stolen .22 Caliber Firearm


       Parroting the district court’s holding, Pillette argues that trial counsel performed ineffectively

by failing to introduce evidence (in the form of a police report) that a .22 caliber weapon was stolen

from Pillette’s trailer the night of the incident. In finding that this failure amounted to ineffective

assistance, the district court explained:


       The failure to investigate a police report that would corroborate a defendant’s
       testimony constitutes the ineffective assistance of counsel. See Espinal v. Bennett,

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Nos. 09-1921/09-1922/09-2244
Pillette v. Berghuis


        588 F. Supp. 2d 388, 401 (E.D.N.Y. 2008). In the present case[,] [t]he police report
        could have provided corroboration to petitioner’s story that his .22 caliber gun was
        stolen on the night in question, so as to support his theory that the other .22 caliber
        bullets that were found in the trailer park were fired by someone else, not him.


Dist. Ct. Merits Op., 630 F. Supp. 2d at 801.


        For starters, it is unclear what the district court believed the police report showed. Before

it reached its conclusion, the court noted that Pillette’s counsel—whose shoddy memory of this case

pervaded the evidentiary hearing—“testified that Petitioner reported the .22 caliber rifle missing on

December 23, 2003, some three months after the preliminary examination in this case.” Id.

(emphasis added). But contrary to what this statement implies—that the weapon allegedly stolen

on the night of the incident was the .22 rifle—the police report itself, as well as Pillette’s own

characterization of it in his petition, clearly indicate that the stolen weapon was a .22 caliber two-shot

Deringer pistol. See Pet., Doc. 1-2 at 44; Ex. ii.


        Pillette admitted in his own testimony that he possessed the .22 rifle and used it to fire the

warning shot; the defense simply never took the position that the .22 rifle had been stolen such that

the witnesses who testified to seeing him with it must have been lying. Thus, introducing the police

report would have further undermined Pillette’s credibility, while doing nothing to advance his

defense. As for the assault on Roby, the witnesses to that crime—Roby and Brower—both testified

that it involved the shotgun, not the .22. With respect to Siirila, although the record is less clear as

to which weapon Pillette used to threaten her (in her testimony, she called the weapon “a long gun”),


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Pillette v. Berghuis


Pillette never argued that he could not have threatened Siirila because the gun he allegedly used to

do it had been stolen. And while Pillette presented a vague “self-defense” theory,10 suggesting that

he acted the way he did (which even in his version included wielding the baseball bat and firing the

warning shot with the .22 rifle) out of fear for his safety after being beaten in an unevenly-matched

brawl, he never suggested that any of his victims was armed.


       Nor did Pillette present a theory that “the other .22 caliber bullets that were found in the

trailer park were fired by someone else, not him.” Dist. Ct. Merits Op., 630 F. Supp. 2d at 801. The

police recovered only a single shell casing from the scene, and it came from a .22. Pillette testified

that he used the .22 to fire a single warning shot. The prosecutor discussed the shell casing with

Pillette during his cross-examination, and Pillette acknowledged that it must have come from the

warning shot he fired. Contrary to the district court’s statement, there was no testimony about other

.22 caliber bullets being recovered from the trailer park. But even if there had been, the police report

about the stolen gun would remain irrelevant for the simple reason that the charges against Pillette

had nothing to do with firing a gun. The most the police report could have accomplished for the

defense would have been to supply an explanation for the testimony from several witnesses about

hearing multiple gunshots. But the question of where the gunshots came from and who fired them



       10
         Although the district court referred to Pillette’s “self-defense” theory, Dist. Ct. Merits Op.,
630 F. Supp. 2d at 801, with the possible exception of the felonious assault charge stemming from
his swinging the baseball bat at Washington, Pillette did not argue self-defense. Rather, he insisted
simply that he did not do the things the prosecution alleged. He certainly never argued that he
reasonably perceived a threat of imminent harm from either Roby or Siirila, much less that assaulting
them with a shotgun was a reasonable reaction to such a threat.
                                                 - 30 -
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played no part in the conviction offenses—assaulting Roby and Siirila with a gun and Washington

with a baseball bat. None of the assaults produced a single gunshot, so even if Pillette had presented

the “theory” the district court suggests, neither the theory nor the police report that purportedly

bolstered it would have helped him defend against the crimes actually charged.


        Moreover, had Pillette argued this supposed “theory,” his counsel would not have been

ineffective for failing to introduce the police report as support. As Respondent explains in its brief,

the police report does not establish the theft of a gun from Pillette’s trailer on the night of August

31, 2003. What the report actually says is that on December 22, 2003, someone named James Allen

Burbo reported the theft of a .22 caliber, two-shot Deringer pistol from the trailer occupied by

Pillette and Kuzia. The report places the date of the theft at some point between August 1, 2003, and

September 30, 2003; the incident in this case occurred right in the middle of this period, on August

31, 2003. The record contains absolutely no evidence linking Burbo or his gun to the events that led

to the charges against Pillette. Pillette’s trial included no pertinent testimony concerning this pistol.11

In sum, far from demonstrating counsel’s ineffectiveness, the police report bears no relationship to

the case.




        11
         In his trial testimony, Pillette mentioned the theft of a .22 handgun in passing. The jury
followed up on this by asking whether the existence of the gun had been established or whether it
had been found. Officer Cavanaugh was recalled to answer the question, and responded that no .22
handgun had ever been found, that Kuzia (the owner of the other guns) never mentioned it, nor did
any of the witnesses in the case. Nothing in the report contradicts Cavanaugh’s response or explains
why the court should have attached any significance to the .22 handgun.
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        Finally, the sole authority relied upon by the district court in this portion of its opinion is

easily distinguished. In Espinal, a New York district court held that “an existing trial strategy, even

if initially reasonable, cannot excuse counsel’s failure to investigate new evidence that could

potentially exonerate his client or create reasonable doubt in the minds of the jury.” 588 F. Supp.

2d at 401. Here, counsel did not introduce the police report because it lacked relevance to the issues

in the case. As explained, nothing about the police report held any potential to exonerate Pillette or

to plant the seeds of reasonable doubt. The report placed the theft within a sixty-day range, half of

which post-dated the offenses in this case. More importantly, none of the testimony or defense

theories presented at trial would have been materially affected by evidence of the gun’s theft on the

night of the incident. Accordingly, the district court erred in finding that counsel’s failure to present

the report demonstrated constitutionally ineffective assistance.


        C.      Impeachment of Roby With Prior Convictions


        Respondent also challenges the district court’s holding that counsel performed deficiently

by failing to impeach Roby with evidence of two prior convictions: one for receiving a stolen

firearm, the other for malicious destruction of property under $200. The district court found that

“[t]his evidence could have been used to bolster petitioner’s defense that he acted in self-defense,

as well as his defense that someone else fired the additional bullets that were recovered from the

trailer park.” Dist. Ct. Merits Op., 630 F. Supp. 2d at 802.




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       Only the stolen firearm conviction was arguably admissible for impeachment purposes; the

malicious destruction of property conviction was a misdemeanor not involving an element of theft,

see Mich. Comp. Laws § 750.377a(c), and thus inadmissible under Michigan Rule of Evidence

609.12 According to the documents, Roby’s firearm conviction involved a nickel-plated handgun that

belonged to his girlfriend’s father. Roby apparently flashed the handgun in front of a group at the

trailer park, and later shot a hole in the roof of his girlfriend’s car. He was arrested and charged,

eventually pleading guilty to one count of receiving and concealing a stolen firearm.


       Pillette’s trial counsel did not act unreasonably in failing to use the stolen firearm conviction

to impeach Roby, nor did the failure prejudice Pillette’s defense. The conviction held little

usefulness as an impeachment tool, given that it did not involve an element of dishonesty or false

statement. It only arguably qualifies for admission because the offense involved an element of theft,

but the circumstances of the theft—the gun belonged to Roby’s girlfriend’s father and had not been

reported stolen—lessen its impact for impeachment purposes. In any event, counsel’s cross-

examination of Roby focused on much more fertile ground and achieved productive results. Counsel

forced Roby to admit that he “didn’t see Jessie do anything with the gun, like pull the trigger,” and


       12
          The district court apparently thought the malicious destruction of property conviction could
come in under Michigan Rule of Evidence 404(a)(2) as a “pertinent trait” of the victim, but the case
it relied on for that proposition, People v. Anderson, 383 N.W.2d 186 (Mich. App. 1985), is
inapposite. Anderson had nothing to do with the use of a prior conviction for impeachment
purposes, but instead dealt with the admissibility of evidence of a victim’s violent character to shed
light on whether a killing was intentional or accidental. Id. at 188. Roby’s conviction for malicious
destruction of property does not in any way evince a violent character or any other potentially
relevant character trait. Nor, moreover, does it make any sense to label a prior conviction a character
“trait” to allow circumvention of Michigan Rule of Evidence 609.
                                                 - 33 -
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that Pillette was not armed while walking around the trailer park with Kuzia. Roby also conceded

that he broke windows in Pillette’s trailer. Importantly, given Roby’s admission that he didn’t see

Pillette pull the trigger, Roby’s credibility was not a key issue at trial; the testimony that doomed

Pillette as to the Roby assault came from Brower, not Roby. Under the circumstances, counsel had

little to gain by attempting to impeach Roby with the prior conviction. Viewed as a whole, and

indulging the presumption of reasonableness, counsel’s examination of Roby did not fall below the

standards of constitutionally adequate representation. Nor did the failure to introduce evidence of

Roby’s prior conviction prejudice the defense, since it held little impeachment value, and, in any

event, the jury could have disbelieved the entirety of Roby’s testimony and still convicted Pillette

of the assault with intent to murder based upon Brower’s account. Accordingly, Pillette’s ineffective

assistance claim relating to the failure to impeach Roby with his prior convictions lacks merit, and

the district court’s issuance of the writ on this basis therefore warrants reversal.


                                                  V.


       After the 90-day period specified in the conditional writ expired and the state released Pillette

from custody, the district court issued an unconditional writ and barred the state from re-prosecuting

him. Because, as explained above, we find that the district court granted the writ in error, the order

barring re-prosecution—which was necessarily predicated on the issuance of a valid writ—must also

be reversed.13


       13
          We do not address the question of the district court’s jurisdiction to bar re-prosecution as
it is unnecessary in view of our reversal of the grant of the writ.
                                                - 34 -
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Pillette v. Berghuis


                                                  VI.


       For these reasons, we affirm the denial of relief on Pillette’s Fifth Amendment Miranda

claim and Sixth Amendment Confrontation Clause claim, and reverse the grant of relief on Pillette’s

ineffective assistance claim. And because the district court erred in granting the writ, we also reverse

its order barring re-prosecution.




                                                 - 35 -
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       KAREN NELSON MOORE, Circuit Judge, dissenting. Unlike the majority, I conclude

that the prosecutor clearly erred in using Pillette’s post-Miranda silence during his cross-examination

and that the Michigan Court of Appeals’s conclusion to the contrary was an unreasonable application

of federal law. Therefore, I respectfully dissent.


       “[T]he use for impeachment purposes of [a defendant’s] silence, at the time of arrest and after

receiving Miranda warnings, violate[s] the Due Process Clause of the Fourteenth Amendment.”

Doyle v. Ohio, 426 U.S. 610, 619 (1976). Here, during Pillette’s cross-examination, the prosecutor

repeatedly focused upon Pillette’s failure to provide the police with certain information and did so

in a manner that was clearly and unabashedly aimed at encouraging the jury to infer guilt from

silence. For instance, one exchange between the prosecutor and Pillette proceeded as follows:


       [Prosecutor:] Okay. How’d the shotgun get out?
       [Pillette:] Tony. Tony loaded it and put the barrel on it.
       Q: Tony loaded it.
       A: Yes.
       Q: Put the barrel on it.
       A: Yes, sir.
       Q: Is that what you told the police?
       A: I didn’t tell the police anything.
       Q: Wait a minute. You had a chance to tell the police your side of the story and you
          didn’t tell them anything?
       A: Yes, sir.




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Doc. 11-13 (Trial Tr. (1/21/2004) at 189) (emphasis added). In another instance, the prosecutor

asked Pillette: “If . . . all you’re planning on doing is telling the truth, then why didn’t you make a

statement to the police.” Trial Tr. at 209; see also Trial Tr. at 200 (Prosecutor: “. . . this is the first

time that anybody’s ever heard this story?”), 218 (Prosecutor: “. . . why is it that you just told us that

now?”). Comments such as these are paradigmatic examples of precisely the kind of questioning

that Doyle sought to prohibit.


        The majority responds by suggesting that Doyle applies only when a defendant “invoke[s]

his right to remain silent.” Maj. Op. at 13. Invoking the right to remain silent is not a prerequisite

to a Doyle claim, however. See United States v. Caruto, 532 F.3d 822, 831 (9th Cir. 2008) (“Even

in non-invocation cases . . . mere omissions are not enough to justify cross-examination or argument

regarding what was not said at the time of arrest.”). Invocation bears on whether the officers

interrogating a suspect are aware that the suspect wishes to remain silent and know when to cease

their questioning. Berghuis v. Thompkins, 130 S. Ct. 2250, 2259–60 (2010). A Doyle violation, by

contrast, involves a scenario in which a defendant is not challenging the questions asked by the

interrogating officers or seeking to suppress the answers he gave in response to those questions, but

rather argues that he is being punished for remaining silent.


        The Supreme Court’s decision in Anderson v. Charles, 447 U.S. 404 (1980), is not to the

contrary. Under Anderson, the mere fact that a defendant made some post-Miranda statements to

the police is not itself dispositive. Anderson never suggested that Doyle was inapplicable whenever


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Pillette v. Berghuis


a defendant chooses to speak; it simply held that “Doyle does not apply to cross-examination that

merely inquires into prior inconsistent statements.” Anderson, 447 U.S. at 408. The critical question

is whether the prosecutor’s comments at trial were “designed to draw meaning from silence,” which

is constitutionally prohibited, or were an attempt to “elicit an explanation for a prior inconsistent

statement.” Id. at 409. Thus, in order for a prosecutor to be permitted to refer to a defendant’s post-

Miranda silence, there usually must be some inconsistency between the defendant’s testimony and

the statements he made to the police. See Caruto, 532 F.3d at 831 (explaining that an inconsistency

between the defendant’s post-Miranda statements and his trial testimony is key in determining

whether there was a Doyle violation); United States v. Casamento, 887 F.2d 1141, 1179 (2d Cir.

1989), cert. denied, 493 U.S. 1081 (1990) (“[F]or purposes of analysis under Doyle, even if a

defendant has made statements to the police after receiving Miranda warnings, he is deemed to have

maintained his silence, unless the post-arrest statements are inconsistent with the defendant’s

testimony at trial.”); see also Gravely v. Mills, 87 F.3d 779, 787 (6th Cir. 1996) (holding that there

was a Doyle violation when the “prosecutor’s cross-examination . . . went far beyond calling the

jury’s attention to [an] inconsistency.”). Furthermore, even if a defendant’s testimony is inconsistent

with his post-Miranda statements, the prosecutor’s comments must actually be aimed at exposing

that inconsistency. Otherwise, a prosecutor cannot be said to be “elicit[ing] an explanation for a

prior inconsistent statement.” Anderson, 447 U.S. at 409; Gravely, 87 F.3d at 787.


       Nothing in Anderson provides otherwise. Although Anderson did state that “a defendant who

voluntarily speaks after receiving Miranda warnings has not been induced to remain silent,” it

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explained that such a defendant “has not remained silent” only “[a]s to the subject matter of his

statements,” Anderson, 447 U.S. at 408, and accordingly, a prosecutor may probe inconsistencies

between those statements and trial testimony. The invocation requirement that the majority seeks

to draw from Anderson goes well beyond that decision’s limited holding.


        The majority points to the inconsistency between Pillette’s testimony that he “didn’t tell the

police anything” and his admission that he made certain statements to the police, such as his telling

them that he “didn’t point a gun at nobody and didn’t shoot a gun at nobody.” Doc. 11-13 (Trial Tr.

(1/21/2004) at 191) (internal quotation marks omitted). Although the prosecutor may have been

permitted to explore this inconsistency, there is no indication that its questioning had such a focus.

The prosecutor’s questioning with respect to Pillette’s silence was focused upon the information that

Pillette consistently acknowledged not providing when he was arrested.                Furthermore, the

prosecutor’s emphasis upon Pillette’s failure to tell his “side of the story,” Trial Tr. at 189, suggests

that the prosecutor was more interested in the negative implications of silence itself than it was in

any perceived inconsistency. Therefore, the prosecutor’s questioning could only have been an

attempt to “draw meaning from silence,” Anderson, 447 U.S. at 409, which is precisely what Doyle

forbids.


        I also have reservations with respect to the majority opinion’s analysis of Pillette’s claims

of ineffective assistance of counsel. Because I think the above-described Doyle errors by themselves




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warrant habeas relief, however, I see no need to address this ineffectiveness issue at this time. I

respectfully dissent.




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