                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit Rule 206
                                      File Name: 12a0357p.06

                UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


                                             X
                                              -
 ROY BLACKMON,
                                              -
                               Petitioner-Appellee,
                                              -
                                              -
                                                  No. 11-1038
         v.
                                              ,
                                               >
                                              -
                    Respondent-Appellant. -
 RAYMOND BOOKER, Warden,
                                             N
               Appeal from the United States District Court
              for the Eastern District of Michigan at Detroit.
             No. 03-71206—Arthur J. Tarnow, District Judge.
                                    Argued: March 6, 2012
                            Decided and Filed: October 9, 2012
             Before: MARTIN, SUTTON and BALDOCK,* Circuit Judges.

                                      _________________

                                           COUNSEL
ARGUED: Bruce H. Edwards, OFFICE OF THE MICHIGAN ATTORNEY
GENERAL, Lansing, Michigan, for Appellant. Bradley R. Hall, FEDERAL
DEFENDER OFFICE, Detroit, Michigan, for Appellee. ON BRIEF: Laura Moody,
OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for
Appellant. Bradley R. Hall, FEDERAL DEFENDER OFFICE, Detroit, Michigan, for
Appellee.
                                      _________________

                                            OPINION
                                      _________________

        BALDOCK, Circuit Judge. A 1998 neighborhood shooting in Detroit, Michigan
resulted in the death of an eighteen year old male bystander, Kenneth Tinsley, and injury
to two other bystanders, a twenty-one year old male, Michael Hearn, and a nine year old

        *
         The Honorable Bobby R. Baldock, Circuit Judge for the United States Court of Appeals for the
Tenth Circuit, sitting by designation.


                                                 1
No. 11-1038         Blackmon v. Booker                                               Page 2


female, Tiffany Smith. A year later, a Michigan state court jury found then twenty-two
year old Petitioner Roy Blackmon responsible and convicted him of second-degree
murder, using a firearm during the commission of a felony, and two assaults with intent
to do great bodily harm. The state court sentenced Petitioner to between forty and sixty
years imprisonment on the murder count, concurrent three to ten year terms on the
assault counts, and a consecutive two year term on the firearm count. Eleven years of
legal wrangling later, a federal district court on collateral review pursuant to 28 U.S.C.
§ 2254 held Michigan had deprived Petitioner of his right to a fair trial in violation of
the Fourteenth Amendment’s Due Process Clause. Blackmon v. Booker, 762 F. Supp.
2d 1031 (E.D. Mich. 2010). The district court granted Petitioner a conditional writ of
habeas corpus and told Michigan to retry him. The State appealed pursuant to § 2253(a).
The issue, as framed by the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), is:      Whether the Michigan Court of Appeals holding—namely, that
the state prosecution’s (1) elicitation of, and (2) comment upon, testimony regarding
Petitioner’s gang affiliation did not render his trial so unfair as to result in a denial of
federal due process—“resulted in a decision that . . . involved an unreasonable
application of clearly established Federal law, as determined by the Supreme Court of
the United States.” 28 U.S.C. § 2254(d)(1). The district court thought so; we do not.
Because the district court’s decision plainly exceeds the limitations that § 2254(d)(1)
imposes on federal habeas review, we reverse.

                                             I.

        On habeas review pursuant to § 2254, a “court faced with a record of historical
facts that supports conflicting inferences [and a fortiori findings] must presume—even
if it does not affirmatively appear in the record—that the trier of fact resolved any such
conflicts in favor of the prosecution, and must defer to that resolution.” McDaniel v.
Brown, 130 S. Ct. 665, 673 (2010) (internal quotations omitted). Accordingly, in Part
I.A. we summarize the record evidence in a light most favorable to the State, accounting,
of course, for the gang-related testimony on which Petitioner bases his claims of
unconstitutional prejudice. With that evidence in hand, we next recite in Part I.B. the
No. 11-1038        Blackmon v. Booker                                             Page 3


challenged portions of the prosecution’s opening and closing statements within the
context of the defense’s own statements to the jury.          In Part II we trace the
case’s procedural history. Finally in Part III of our opinion, we assess Petitioner’s
claims under the deferential AEDPA standard. That standard requires Petitioner to show
“the state court’s ruling on the claim being presented in federal court was so lacking in
justification that there was an error well understood and comprehended in existing
[Supreme Court precedent] beyond any possibility for fairminded disagreement.”
Harrington v. Richter, 131 S. Ct. 770, 786–87 (2011).

                                           A.

       During the early evening hours of Easter Sunday, April 12, 1998, while still
daylight, twenty-one year old Duane Harris, also known as Jimmy Crost (Crost), stopped
by to visit twenty year old Nancy Ellis at her house on Woodmont Street in Detroit.
Nancy, her twenty-one year old sister Adrienne Ellis, and their cousin Tiffany Coggans
(presumably of similar age) were inside the house. Crost, accompanied by his two year
old daughter, parked the Grand Prix he was driving in the driveway. Nancy described
Crost and Petitioner as friends. Nancy also described Crost and herself as friends. But
twenty-two year old Autumn Taylor, Adrienne’s best friend, knew Crost and Nancy as
“more than friends.” Appellant’s Appendix (Aplt’s App.) at 506. Adrienne said “I guess
they kick it.” Id. at 559. Nancy testified she had “just broken up” with Kenyatta Simons
“like a week before.” Id. at 410. Simons testified, however, that he had been going out
with Nancy since “like ninth grade” and was “still going out with” Nancy “at the time.”
Id. at 600–01.

       Simons, who lived down the street from Nancy, showed up at her house moments
after Crost arrived. Nancy met Simons outside near the porch steps. Crost stood in the
front door where Simons could see him. Adrienne testified Simons “push[ed] [her]
sister’s face.” Id. at 562. Nancy testified Simons told her to tell Cross that when he
“come outside he getting bust at, meaning shot at.” Id. at 415. Crost testified he heard
Simons say “when he come out the house, tell him I’m going to pop him.” Id. at 665.
No. 11-1038           Blackmon v. Booker                                                       Page 4


At that point, Crost went back inside Nancy’s house and upstairs to use the telephone.
Nancy listened:

        Q.       When he’s on the phone, did you hear him talking to someone on
                 the other end?
        A.       Yes.
        Q.       Did you hear what he said?
        A.       Come and get me, I’m on Woodmont.
                                            ***
        Q.       Was he angry when he was on the phone?
        A.       No. Probably a little scared, not angry.
        Q.       Scared. Okay. Did he say anything or indicate anything about
                 having problems on Woodmont?
        A.       He could have. I don’t remember. That was a year ago.
        Q.       He could have. That’s something you might have heard?
        A.       Yeah, he could have said it.
        Q.       So not just pick me up, I’m having some problems on
                 Woodmont, the street you’re on, right?
        A.       Right.

Id. at 417–18.

        The record suggests Nancy was not particularly forthcoming in her trial
testimony. She admitted she did not “want to involve [herself] . . . in this matter at all.”
Id. at 441. Nancy testified that shortly after Crost hung up the phone, a burgundy Impala
stopped on Woodmont Street near the end of the driveway south of her house. Nancy
said she saw no one get in or out of the vehicle. But she did see Crost walk toward the
vehicle. At the same time, she saw a person wearing a red shirt approach Crost. Nancy
then heard five gunshots in rapid succession, but testified she did not see the shooter.1
Nancy acknowledged that shortly thereafter someone phoned her about the shooting, but
testified “I’m not sure who.” Id. at 427. When asked if Crost was a member of a gang
known as the Schoolcraft Boys, Nancy stated she was “not sure,” but “[h]e hang around
them.” Id. at 438.




        1
          Investigating Officer Marlise Ann Harowski testified that following the shooting she observed
“five spent casings” in the “middle of the street” one house south of Nancy’s residence. Aplt’s App. at
651–52.
No. 11-1038        Blackmon v. Booker                                                 Page 5


       During her testimony, the prosecution presented Nancy with three signed
statements she gave to police investigators following the shooting. Nancy testified that
each of those statements were true. See id. at 434, 436–37. She told investigators:

       •       Crost informed whomever he was speaking to on the phone that
               “he was having some problems on Woodmont.” Id. at 428.
       •       She “saw a guy in a red shirt get out of the passenger’s side of the
               car” and walk toward Crost. Id. at 430.
       •       After the shooting, “Roy called and told [her] if anyone asked
               who he was, that [she] didn’t know who he was. [She] asked him
               if he knew he shot three people and a little girl and he didn’t say
               anything except you don’t know me.” Id. at 432.
       •       Crost had been a member of the Schoolcraft Gang “[s]ince [she]
               known him, a couple of years.” Id. at 439.

       Nancy’s sister Adrienne was by record appearance an even more difficult
witness. Adrienne testified she was on the front porch when she too heard Simons
threaten to shoot Crost. Adrienne saw an Impala pull into the alley south of the house
moments later. Crost was “running or walking towards the car” with his daughter. Id. at
543. Adrienne then saw a black male wearing a red shirt and wielding a gun get out of
the passenger’s side of the car. She described the man’s hair as “nappy,” i.e., tightly
curled. Id. at 553. When Adrienne saw the man “pull the gun up” and heard shots, she
ran inside and phoned the police. Id. at 546. When asked if she had “seen the shooter
before,” she replied “[h]e looked familiar but —.” Id. Like her response to many of the
prosecution’s questions, Adrienne answered “I don’t recall” when asked whether Nancy
or their cousin Tiffany Coggans said anything about “seeing the shooter.” Id. at 548–49.
In a prior statement to investigators, Adrienne indicated she had seen the shooter and
“[h]is first name is Roy, I don’t know his last name.” Id. at 558. On cross-examination,
Adrienne said she lied and identified “Roy” as the gunman only after police told her she
would not be allowed to go home, but would be charged as an accessory to murder, if
she did not say “Roy did it.” Id. at 573. On redirect examination, the prosecution
inquired:
No. 11-1038         Blackmon v. Booker                                               Page 6


        Q.     So if you’re lying to the police, then you[’re] basically pinning a
               murder on someone named Roy Blackmon, this being the person
               right here as you described?
        A.     Yeah.
        Q.     You have no problem with that and walking into the police
               station and pinning someone for a murder?
        A.     I did have a problem with that. That’s why I asked [the
               investigator] to give me police custody [sic] because she had me
               saying somebody did it who didn’t. . . . I don’t know if they did
               it or not.
Id. at 588.

        Tiffany Coggans testified she was “[i]n the back room” of Nancy’s house during
the course of events and, other than hearing gunshots, had no knowledge of what
occurred. Id. at 480. Coggans responded no when asked whether Nancy or Adrienne
had identified the shooter to her. The prosecution impeached Coggans with her previous
statements to investigators that (1) Adrienne said “a guy named Roy pulled a gun and
started shooting,” and (2) Nancy said “she didn’t think they were going to do anything
because Jimmy had his daughter.” Id. at 490, 492. The trial court instructed the jury to
consider Coggans’ prior statements only for the purpose of assessing her credibility.

        Adrienne’s friend Autumn Taylor testified she was on her way to visit Adrienne
when the shooting occurred. Taylor was near the end of the house’s walkway when she
heard the gunfire. “[A] whole street full of people” was nearby. Id. at 508. Taylor
crawled from the end of the sidewalk onto the porch, and into the house with Nancy and
Adrienne. Taylor testified that Nancy had not identified the gunman to her. In her
statement to investigators, however, she indicated Nancy “identified the actual shooter.”
Id. at 513.

        Michael Hearn, a victim of the shooting, “lived down the street” from Nancy.
Id. at 186. Although under subpoena, Hearn expressed a willingness to testify. Hearn
testified he knew both Crost and Petitioner from the nearby “Grand River, Greenfield”
neighborhood, or what Hearn also referred to as the “Schoolcraft Greenfield area.” Id.
at 181–82. Over defense counsel’s continuing objection, Hearn testified to Petitioner’s
gang affiliation:
No. 11-1038        Blackmon v. Booker                                               Page 7


       Q.      Are you aware of a gang by the name of Schoolcraft Boys?
       A.      Oh yeah, I’m aware of a gang named Schoolcraft.
       Q.      Are you aware of members of the Schoolcraft Boys?
       A.      Yes.
                                          ***
       Q.      Are you aware of . . . those gang members in the neighborhood
               if you saw those persons?
       A.      Yeah, basically, I would know a few.
       Q.      Do you see any of them in the courtroom today? Remember
               you’re under oath.
       A.      Yeah, I see one in front of me.

Id. at 183–84. Hearn identified that “one” as “[h]im, Roy.” Id. at 256.

       Describing the events of April 12, 1998, Hearn testified that moments prior to the
shooting “a whole bunch of people [was] out in the street” three or four houses from
where Nancy lived on Woodmont. Id. at 193. Hearn’s friend Kenyatta Simons stood
a few feet further down the street. Hearn described the houses as “close together.” Id.
at 201. Hearn testified he saw a burgundy Impala pull up in front of Nancy’s driveway
and Crost come out of her house. Hearn further testified he saw Petitioner get out of
the passenger’s side of the Impala. The Impala then “backed in the alley.” Id. at 198.
Hearn described Petitioner as wearing a red shirt and a red hat with “little braids hanging
out his hat.” Id. at 196. Hearn testified to what happened next:

       Q.      When Mr. Blackmon came out of the car, where did he go?
       A.      He like stood . . . in front of Nancy’s house, and like Jimmy came
               out the house and they had said—like a word or two.
                                              ***
       Q.      How long did they converse?
       A.      Maybe a few seconds or so.
                                              ***
       Q.      Was there anybody else . . . around them?
       A.      No.
       Q.      Did Mr. Blackmon ever look in your direction?
       A.      Yeah, they both looked down the street.
                                              ***
       Q.      After they conversed with each other and look at you, what
               happens then?
       A.      Jimmy began to walk away.
       Q.      Jimmy Crost?
No. 11-1038        Blackmon v. Booker                                              Page 8


        A.     Began to walk away towards the alley.
                                         ***
        Q.     That’s where the car was at?
        A.     Right
        Q.     Okay. Was the car still there?
        A.     Yeah. This happened like all in one motion.
        Q.     Okay.
        A.     And Roy turned and started shooting.

Id. at 200-01. Hearn estimated he was standing about a thirty-second walk or thirty-five
feet from Petitioner, but was “able to still see him clearly.” Id. at 202. Meanwhile,
Kenneth Tinsley, who was fatally wounded in the shooting, stood about four feet from
Hearn “in the line of fire.” Id. at 210. According to Hearn, Simons also stood where he
might “have been struck by bullets.” Id. at 215. Hearn testified Petitioner fired “six to
eight” shots. Id. at 203. One shot struck Hearn in the right bicep and a second struck
him in the neck behind the left ear. After stumbling a few steps, Hearn collapsed.

        Another shot struck nine year old Tiffany Smith in the hip while she was riding
her bicycle in front of her house. Tiffany testified “I fell off my bike and my mama
dragged me up the steps.” Id. at 379. She said she heard shots coming from both the
alley and the street, but did not see anyone actually shooting a gun. Tiffany further
testified that some time after the shooting someone marked the slide on the playground
at her school with “a whole bunch of writing . . . and it had R.I.P. Tiffany on the slide,
. . . an[d] then it had the Schoolcraft gang at the bottom.” Id. at 383.

        Q.     You said there’s writing on the slide?
        A.     Yes.
        Q.     R.I.P., what does that mean to you?
        A.     Rest in peace.
        Q.     And it had your name on it?
        A.     Yes.
        Q.     You scared when you saw your name?
        A.     A little.

Id. at 384.
No. 11-1038          Blackmon v. Booker                                                  Page 9


       Nineteen year old Arthur Anderson lived “[t]hree or four houses down” from
Nancy. Id. at 301. Anderson indicated he was friends with the two male victims,
Michael Hearn and Kenneth Tinsley. Anderson also stated he had known Jimmy Crost
and Petitioner since high school. He identified both Crost and Petitioner as members of
the Schoolcraft Boys and stated their gang membership made him fearful of testifying:

       Q.        [I]s Mr. Blackmon a member of that group?
       A.        Yes.
       Q.        Mr. Crost is a member of that group?
       A.        Yes.
       Q.        . . . . Does that fact that they are a part and members of that gang,
                 does that give you fear or intimidation about testifying? . . .
       A.        Yes.

Id. at 293. In fact, the court had ordered Anderson detained pending trial because he
earlier failed to appear for a related court hearing:

       Q.        Did you want to come to court on this matter?
       A.        No.
       Q.        Why not?
       A.        Because–you know what I’m saying.
       Q.        No you’re going to have to tell me, I’m sorry.
       A.        I feared for my life.
       Q.        From these officers?
       A.        Huh?
       Q.        From the officers?
       A.        You know what I’m saying, I didn’t want to put myself in this
                 situation.
       Q.        Involving the officers or the person that you saw do the shooting?
       A.        All of it.
       Q.        All of it?
       A.        You know what I’m saying, I just didn’t want to be with this.
       Q.        Okay. You understand you actually saw the shooting?
       A.        Yeah, I saw the shooting.

Id. at 287–88.

       Anderson testified he had just come out the front door of his house on Woodmont
Street when he heard gunshots. Anderson looked towards Nancy Ellis’s house in the
No. 11-1038         Blackmon v. Booker                                           Page 10


direction of the shots. He did not see Crost or the Impala, but did see Petitioner wearing
a red hat:

        Q.       Did you see anything in Mr. Blackmon’s hands?
        A.       Yes.
        Q.       What did you see?
        A.       A gun, I saw him pointing a gun.
                                          ***
        Q.       [C]ould you see him actually firing it?
        A.       Yes.
                                          ***
        Q.       Was he pointing the gun at all towards you or was it just being
                 pointed down toward the street?
        A.       It was pointed towards the people that was . . . out in front of
                 [my] house.
                                          ***
        Q.       [W]hat people were out in front of your house?
        A.       The people I saw out there was Kenyatta and like three other
                 guys.

Id. at 299–302. After identifying Petitioner as the shooter, Anderson again expressed
his reluctance to testify:

        Q.       And you’re telling me you’re not scared of testifying?
        A.       It could be, you know what I’m saying, dangerous . . . .
                                             ***
        Q.       [W]ho exactly [are] . . . you scared of retaliation from?
        A.       It could be—they could want to do something. You never know.
        Q.       Who’s they?
        A.       The Schoolcraft gang. You never know.
                                             ***
        Q.       The gang that Mr. Blackmon’s a member of?
        A.       Yeah.

Id. at 356–59.

        The prosecution called Kenyatta Simons as its final witness. Simons admitted
seeing Crost at Nancy’s house shortly before the shooting, but denied threatening him.
Contrary to his prior statement to investigators, Simons also denied confronting Nancy
about the situation. Simons testified he was standing on the sidewalk talking to Michael
No. 11-1038         Blackmon v. Booker                                           Page 11


Hearn and others when he saw a “dark-skinned” man wearing “a bunch of red,”
including a red hat, “in front of [Nancy’s] house.” Id. at 605–06, 622.

       Q.        [W]hat did [the man] do?
       A.        Just stopped in front of [Nancy’s] house and then the other dude
                 walked up.
       Q.        What other dude walked out?
       A.        Jimmy. Yeah, it was Jimmy.
       Q.        The guy from the house?
       A.        Yeah, from the house.
                                            ***
       Q.        Did he meet up with that other person in the red?
       A.        Yeah, they met on the sidewalk.
                                            ***
       Q.        They looked at you?
       A.        No, they was looking down in our direction, that’s all.
       Q.        . . . . So you were with Michael Hearn?
       A.        Yes.
                                            ***
       Q.        And other people?
       A.        Yes.
                                            ***
       Q.        Where did Jimmy go after they talked?
       A.        They talking, they was shooting then.
       Q.        You said they were shooting?
       A         Not they were shooting but it was a shooter in the red.

Id. at 607–09.

       Crost and Petitioner testified on behalf of the latter’s defense. Crost stated he
was friends with Nancy Ellis and Petitioner, and acknowledged being at Nancy’s house
shortly before the shooting. Crost witnessed an argument between Nancy and Simons
and heard Simons threaten to shoot him. Crost denied taking Simons’ threat seriously
or calling anyone on the phone for assistance. Rather, Crost testified he did not want to
become involved so he decided to leave. As he was stepping off the porch, he heard
shots coming from “[d]own towards Kenyatta’s and them house, down that way where
he had walked from when he first came walking up the street.” Id. at 681. Crost ran
away with his daughter and never returned to pick up the Grand Prix in which they
arrived. On cross-examination, Crost testified that neither he nor Petitioner were
No. 11-1038        Blackmon v. Booker                                              Page 12


affiliated with the Schoolcraft Boys. Petitioner similarly denied any involvement in the
April 12, 1998, shooting on Woodmont Street. He said he was home alone at the time
and had no alibi. Petitioner further denied receiving a phone call from Crost that
evening about “some problems on Woodmont,” or phoning Nancy following the
shooting to tell her “you don’t know me.” Id. at 428, 432. Although aware of various
gangs in the surrounding areas, he also denied being a member of the Schoolcraft Boys.

                                            B.

       Given the fact-intensive nature of Petitioner’s claim that the prosecution violated
his right to federal due process by eliciting testimony regarding his gang affiliation, and
the need to consider the record as a whole, we necessarily have reviewed in some detail
the entirety of the inconsistent and conflicting trial testimony. Given Petitioner’s
additional claim that the prosecution’s characterization of such testimony before the jury
similarly violated his right to due process, we now necessarily turn for much the same
reasons to a detailed recitation of those germane portions of both the prosecution’s and
defense’s opening and closing statements.

       Mindful of the testimony to come, both the prosecution and defense in their
opening statements to the jury emphasized witness credibility, and referred to how
Petitioner’s and Crost’s alleged gang affiliation might bear upon the truth. The
prosecution stated:

       And it’s going to be interesting, I guarantee you, . . . when we look at the
       credibility of witnesses how they testify. . . . [I]t’s going to become very
       important and clear to you as we proceed because I anticipate that the
       witnesses for the prosecution, that being the witnesses that I have to
       present to you . . . if I put my money on it, are going to change their
       story. . . . It’s going to be up to you to evaluate their credibility, why
       they changed their stories, what motivation they had to lie, what
       motivation do they have to tell the truth, what are their bias[es], what are
       their prejudices.
                                            ***
       See, this isn’t just a serious crime. See this . . . will appear to you to be
       a little feud. See, the defendant, Mr. Blackmon, it’s alleged through
       other witnesses which you’re going to hear, is a member of the
       Schoolcraft Boys, Schoolcraft Boys being a local gang that hang around
No. 11-1038             Blackmon v. Booker                                                           Page 13


         the area of Schoolcraft Road. And those individuals don’t get along too
         well with the individuals who live on Woodmont, including possibly . .
         . some of my witnesses.

Id. at 158–60. Meanwhile, the defense stated:

         And unfortunately all that talk about credibility of the witnesses that we
         did in the voir dire, that’s exactly what this case is going to boil down to.
                                              ***
         Now, though I tell you . . . that we can’t assure you of what people are
         going to say, I believe I can give you some idea of what went on out
         there. I don’t know anything about a feud. . . . I don’t know anything
         about whether Mr. Blackmon’s a Schoolcraft Boy or whatever the
         Schoolcraft Boys are or whether they don’t like people that live on
         Woodmont, . . . . Maybe somebody’s going to say that, and if they do,
         you can consider it for what it’s worth.
Aplt’s App. at 168–69.

         In its closing statement, the prosecution returned to the topic of witness
credibility. The prosecution asked the jury what motivation Michael Hearn and Arthur
Anderson, the two witnesses who identified Petitioner as the shooter, would have to lie.
But as for a number of the prosecution’s other witnesses, “[s]omething is causing these
witnesses to hedge.” Trial Transcript (Trial Tr.) at 754.2 To prove its point, the
prosecution summarized the possible inferences to be drawn from the testimony of
Anderson and Tiffany Smith:

         Funny Tiffany Smith . . . goes over to the slide in the school and it says
         R.I.P. Tiffany Smith, signed Love, the Schoolcraft Boys, . . . . Tiffany
         Smith, I mean you can gather from her age, is she scared? Yes she’s
         scared. Scared why, because she told her mother[.] This is the
         intimidation. That’s why people are scared of these people. . . . [Y]ou
         wonder why these people are scared. You wonder why these people
         don’t want to come forward. You wonder why witnesses . . . come in
         here and are scared to involve themselves in the system, scared to testify.

Id. at 768.



         2
           The State omitted the parties’ closing arguments from the appendix it submitted on appeal. In
citing portions of those arguments, we therefore rely on the actual state court trial transcript, which circuit
and district court clerk staff working in tandem graciously uploaded to the district court docket.
No. 11-1038            Blackmon v. Booker                                                        Page 14


         And Arthur Anderson’s under the gun even more because he candidly
         admitted to you on the stand I’m intimidated. . . . He knows that the
         defendant and his buddy, Jimmy Crost or Duane Harris or however you
         want to know . . . his name . . . , member of these Schoolcraft Boys.
         Matter of fact, during the testimony he looked around and I asked him do
         you see any of them, any others in the courtroom? And he . . . looked
         right at Mr. Blackmon, if you caught that. . . . You don’t understand
         what kind of position I’m in he says. This is not a good thing.

Id. at 757–58.

         The prosecution also relied on the testimony of Nancy Ellis to suggest a motive
for the shooting, i.e., the reason why Petitioner showed up on Woodmont Street and fired
into the crowd shortly after Simons threatened Crost:3

         Nancy Ellis indicates that . . . Kenyatta Simons makes some type of
         feeble threat, I’m going to pop you or something of the like, which
         obviously didn’t scare Jimmy Crost, didn’t scare him at all, not scared at
         all. But he goes to the phone, he uses the phone. That was Nancy Ellis’s
         testimony, uses the phone and calls one of his people. Here’s that person
         right here. Because shortly thereafter, just like a storybook, here come
         his people and his people come and . . . back into the alley.
                                            ***
         Coming over to a house to protect your people, come out there and fire
         a gun down a public street, a neighborhood, . . . .
                                            ***
         Schoolcraft Boys and Jimmy and the rest of them and Roy Blackmon
         aren’t going to come there and do what they used to do, beat you up.
         They come down there firing because that’s what cowards do, they fire.

Id. at 760–61, 769, 771.

         For its part, the defense criticized the prosecution’s characterization of many of
its own trial witnesses as liars and purveyors of half-truths who falsely claimed “the
police picked on them.” Id. at 782. If everyone is a liar, the defense asked, why should
the jury believe Nancy Ellis’s testimony that Crost made a phone call from her house
shortly before the shooting when Crost denied the fact?


         3
           The trial court instructed the jury: “You may consider whether the defendant had a reason to
commit the alleged crime, but a reason by itself is not enough to find a person guilty of the crime.” Trial
Tr. at 832.
No. 11-1038        Blackmon v. Booker                                               Page 15


       Do you want to know why? Because it’s the prosecutor’s job to prove
       the case beyond a reasonable doubt. And the prosecutor has to have . . .
       even though he’s not required to prove a motive, he wants you to at least
       think, well, this is the way it happened. Jimmy summoned Roy, because
       [the prosecutor] knows it makes no sense for Roy Blackmon to be down
       there shooting people he doesn’t know.
                                            ***
       But Jimmy, . . . because he’s a defense witness and because, of course,
       he’s probably the king of the Schoolcraft gang . . . , Jimmy is a liar . . . .

Id. at 783–85. Further into its closing statement, the defense again brought the character
of its witnesses into focus, criticizing the evidence of Petitioner’s and Crost’s gang
affiliation as nothing more than the prosecution’s efforts to portray them as bad apples:

       [The prosecutor] made much of everyone is scared . . . . He’s not just
       telling you that people are scared in general. . . . [T]his case . . . started
       out as a murder case, . . . but it’s really turned into much more than that
       because now the theme of the case is . . . they’re scared of [Petitioner]
       and the Schoolcraft gang. That’s what this is all about.
                                             ***
       So the theory of this case from the prosecutor’s standpoint is, number
       one, we’ve got . . . some kind of identification of Roy Blackmon so you
       ought to convict him of murder for that reason, but really what you ought
       to convict him for is for being in a gang. Whether he’s the president of
       the gang or he’s in the gang, he’s in a gang and it’s called the Schoolcraft
       Boys and they’re bad.
                                             ***
       [Because his prosecution] turned into a gang case . . . Mr. Blackmon is
       being blamed for anything that ever happens on the west side of Detroit
       because he’s Roy Blackmon . . . .

Id. at 792–95. The defense did not stop there. The defense subsequently used the word
“gangster(s)” no less than one half dozen times and made facetious statements such as:

       •       “But they’re gangsters you see. Duane Harris [i.e., Jimmy Crost]
               is a gangster.” Id. at 799.
       •       “[A]ll this other stuff . . . that [is] meant to make you think Roy
               Blackmon is bad, this big business about gangs . . . .” Id. at 800.
       •       “Roy Blackmon tells [the prosecutor] I’ve heard of a number of
               gangs. [The prosecutor] then . . . tells you that shows what a
No. 11-1038            Blackmon v. Booker                                                          Page 16


                  gangster he is, that shows you how bad he is because . . . he
                  named off gangs . . . in the neighborhood.” Id. at 800–01.
         •        “The guy knows of gangs. Therefore, not only is he a gangster
                  but he’s a murderer.” Id. at 801.
         •        “He gets up there to defend himself against all these charges, not
                  only that he’s the murderer and assaulter with intent to murder
                  but that he’s a gangster, even though he’s not charged with being
                  a gangster.” Id. at 804–05.

         Thereafter, the prosecution presented its rebuttal statement. The prosecution
began by emphasizing its theory of the case:

         Nancy Ellis . . . essentially indicates that Jimmy started the whole
         thing. . . . I am arguing that Jimmy started the whole thing because . . .
         when he picked up that phone, as Nancy Ellis testified to, that’s what
         brought Mr. Blackmon over to enforce whatever on behalf of his people.
         This gang stuff, this is nothing I’m making up out of the blue. This is
         what witnesses indicated. . . . [Defense counsel] knows it’s an issue in
         this case. Absolutely.
                                              ***
         [Y]ou don’t throw your common sense out the window when you walk
         in here. . . . [S]omething is causing a whole lot of fear in these witnesses.
         Something is causing a whole lot of fear about this man here, Mr.
         Blackmon. Not just run of the mill stuff, I’m testifying against a shooter,
         something about the Schoolcraft Boys, which I have nothing to do with,
         no control over until I get a file and I get a witness. And if you didn’t
         have a witness who indicated that, guess what? It wouldn’t be in this
         case. . . . I’m not pulling this out of the air to pull him down. That is an
         important part of this case, and I didn’t make it a part of this case. Mr.
         Blackmon did and Mr. Crost did.
                                              ***
         I’ve shown what took place between Kenyatta [Simons] and Jimmy
         [Crost] and there’s the motive. Having problems over here on
         Woodmont, send your boys—send some boys out, send some of my
         gang, my group.[4]

         4
           When during the prosecution’s case-in-chief, the defense objected to the admission of testimony
relating to Petitioner’s gang membership on the basis of relevancy and undue prejudice, the prosecution
made the same argument to the court:
         I see it as relevant because, again, it goes to the whole circumstances. That there’s an
         argument, someone says—makes a threat to one person, that person says fine, and then
         according to our theory, calls the so-called muscle to come over there and then at this
         point this whole shooting takes place. . . . I think it’s relevant for those purposes, that
         here an individual uses his, quote, muscle. I think it’s a part of the theme of this case
No. 11-1038            Blackmon v. Booker                                                         Page 17


Id. at 807–11. The prosecution next attacked Petitioner’s testimony that he was not a
member of the Schoolcraft Boys or any other gang:

         I hope nobody expected him to say I’m a gang member because that’s not
         going to happen. It’s a beautiful defense in the sense that there’s nothing
         else I can go into with him. . . . [Y]ou don’t throw your common sense
         out the door when you’re sitting here in that chair and all these people are
         identifying you and you’re laughing about it. Why? Because you’re
         going to take care of business later. Obviously you didn’t scare these
         witnesses enough. You should have wrote tombstones on their front
         doors.

Id. at 812. The prosecution concluded: “Jimmy Crost . . . started the whole progression
of what happened. [Defense counsel] can ignore, argue it doesn’t happen on behalf of
his client. I don’t know anything about this gang stuff and I can be naive. That’s in this
case. That’s what this case is about.” Id. at 816.

                                                    II.

         On direct appeal, Petitioner argued among other things that the trial court
wrongly permitted the prosecution as a matter of state law to elicit and comment upon
“irrelevant and prejudicial testimony” regarding Petitioner’s affiliation with the
Schoolcraft Boys. People v. Blackmon, 2001 WL 1081603, at *1 (Mich. App. 2001)
(unpublished). The Michigan Court of Appeals held as a matter of state law that the
“evidence regarding [Petitioner’s] alleged association with the Schoolcraft Gang was
unfairly prejudicial and merited exclusion under M[ich.] R[.] E[vid.] 403” because “the
record is void of any evidence that the shooting was in any way gang related.” Id. at *2.
The court further held “the prosecution’s repeated elicitation of such testimony and
argument to the jury in the absence of a factual basis to support its theory constituted
prosecutorial misconduct.”5 Id. The appellate court concluded, however, that the


         ....
Aplt’s App. at 278.
         5
            We wonder how the prosecution’s actions could be labeled “misconduct” when the trial court
ruled testimony of Petitioner’s gang affiliation was relevant and admissible. See Webb v. Mitchell,
586 F.3d 383, 397 (6th Cir. 2009) (“A prosecutor may rely in good faith on evidentiary rulings made by
the state trial judge and make arguments in reliance on those rulings.”). The label is unimportant, however,
No. 11-1038           Blackmon v. Booker                                                      Page 18


trial court’s erroneous admission of gang-related testimony and the prosecution’s
improper comments thereon were harmless:

         Notwithstanding the instances of prosecutorial misconduct and the
         erroneous admission of gang evidence, we conclude that reversal is not
         required. In order to overcome the presumption that preserved
         nonconstitutional error is harmless, a defendant must persuade the
         reviewing court that it is more probable than not that the error in question
         was outcome determinative. . . .
         In this case, the untainted evidence against defendant was overwhelming.
         Hearn testified that he saw defendant “turn and start shooting.”
         Anderson testified about defendant, “I saw him shoot.” Hearn’s and
         Anderson’s eye-witness testimony alone would support a conviction of
         the crimes charged. Given the strong evidence of defendant’s guilt, we
         are confident that the improper admission of gang affiliation and
         prosecutorial misconduct did not undermine the reliability of the verdict
         and was therefore not outcome determinative.

Id. at *3 (internal brackets omitted). The Michigan Supreme Court denied Petitioner
leave to appeal. People v. Blackmon, 649 N.W.2d 78 (Mich. 2002).

         After unsuccessfully seeking post-conviction relief in state court, Petitioner
sought a writ of habeas corpus pursuant to § 2254 in federal district court. This time
Petitioner claimed the errors recognized by the Michigan Court of Appeals deprived him
of his due process right to a fair trial in violation of the Fourteenth Amendment. The
district court held the trial court’s admission of gang-related testimony and the
prosecution’s statements before the jury about Petitioner’s gang membership deprived
him of a fair trial. The court granted Petitioner a conditional writ. Blackmon v. Booker,
312 F. Supp. 2d 874 (E.D. Mich. 2004). The State appealed and we reversed without
reaching the constitutional questions. We instructed the district court to dismiss the
petition for failure to exhaust because Petitioner had not fairly presented his federal
constitutional claims to the state courts, and still had an opportunity to do so. Blackmon
v. Booker, 394 F.3d 399 (6th Cir. 2004).



as the question before us remains whether, applying § 2254(d)(1), the introduction of such testimony and
the prosecution’s comments thereon deprived Petitioner of due process in contravention of “clearly
established Federal law, as determined by the Supreme Court of the United States.”
No. 11-1038        Blackmon v. Booker                                             Page 19


       To make an already long story shorter, Petitioner was back before the Michigan
Court of Appeals four years later after the state trial court again denied him post-
conviction relief. The appellate court couched Petitioner’s constitutional claims solely
in terms of prosecutorial misconduct: “Here, the prosecutorial misconduct consisted of
(1) improper elicitation of gang-affiliation testimony, [and] (2) improper argument to the
jury concerning defendant’s alleged gang affiliation.” People v. Blackmon, 761 N.W.2d
172, 177 (Mich. App. 2008); see Blackmon, 762 F. Supp. 3d at 1039 n.5 (“To be fair, the
court notes that the Michigan Court of Appeals likely did not separately address the
evidentiary issue because Petitioner’s counsel did not brief it as such.”). As to the
question of the improper elicitation of gang-related testimony, the court opined the
prosecution’s inquiries “were supported by specific evidentiary rulings by the trial court”
and “did not so infect the trial with unfairness as to deprive defendant of due process.”
Id. at 182. In fact, this time around the appellate court for purposes of federal
constitutional analysis acknowledged that evidence of Petitioner’s gang-affiliation
“supported the prosecution’s theory” of the case. Id. at 175; compare Blackmon, 2001
WL 1081603, at *2 (reasoning for purposes of state law analysis that evidence of
Petitioner’s gang affiliation did not support the prosecution’s theory of the case).
Meanwhile, on the question of the prosecution’s improper argument to the jury
concerning such testimony, the court explained:

       We also conclude that the misconduct consisting of improper argument
       to the jury did not so infect the trial with unfairness as to render
       [defendant’s] conviction[s] a denial of due process. There was evidence
       that defendant was a member of the Schoolcraft gang and that these
       crimes (shooting of innocent bystanders) were committed because
       defendant was coming to the aid of fellow gang member Crost. Crost
       had visited Kenyatta Simons’ girlfriend, Nancy Ellis, who testified that
       Simons threatened to harm Crost, and that Crost made a telephone call
       asking to be picked up because of some trouble. Hearn testified that
       defendant arrived, spoke to Crost and then fired several shots, two of
       which hit Hearn as he stood near Simons. This evidence suggests (and
       the jury concluded) that defendant intended to shoot and murder Simons
       (for threatening to harm Crost), but instead hit the victims. Thus, there
       was evidence that defendant’s crimes were gang-motivated, or at least
       gang-related. Accordingly, the prosecution’s misconduct, consisting of
       improper argument to the jury regarding defendant’s gang affiliation, did
No. 11-1038         Blackmon v. Booker                                                Page 20


        not rise to the level of a constitutional violation, because it did not so
        infect the trial with unfairness as to render [defendant’s] conviction[s] a
        deprivation of liberty without due process of law.

Id.   The Michigan Supreme Court again denied review.                 People v. Blackmon,
765 N.W.2d 339 (Mich. 2009).

        Petitioner thereafter renewed his § 2254 application for a writ of habeas corpus
before the federal district court. In his amended petition, Petitioner once again claimed
the state trial court deprived him of the right to a fair trial in violation of the Due Process
Clause by permitting the prosecution to (1) introduce irrelevant and highly prejudicial
testimony regarding his gang affiliation and (2) comment repeatedly on that testimony.
See Blackmon, 762 F. Supp. 2d at 1038. Contrary to the Michigan Court of Appeals’
decision, the district court held the state trial court’s admission of testimony regarding
Petitioner’s gang affiliation rendered his trial fundamentally unfair within the meaning
of the Fourteenth Amendment:

        [T]he admission of the gang evidence eroded the presumption of
        innocence because it encouraged jurors to find Petitioner guilty of
        offenses based upon his purported gang affiliation rather than the
        evidence presented at trial. Such a process is inconsistent with the
        demands of due process and the constitutional guarantee of a fair trial.
        Given the limited probative value of the gang affiliation testimony and
        its highly prejudicial effect upon the jury, this court concludes that the
        trial court constitutionally erred in admitting such testimony.

Id. at 1042. The court further held the prosecution’s comments regarding Petitioner’s
alleged gang ties constituted misconduct and likewise “rendered Petitioner’s trial
fundamentally unfair in violation of the Constitution.” Id. at 1045.

                                             III.

        The Supreme Court has observed that “[f]ederal habeas review of state
convictions frustrates both the States’ sovereign power to punish offenders and their
good-faith attempts to honor constitutional rights.” Harrington, 131 S. Ct. at 787. This
is why AEDPA, much to the consternation of some courts, restricts habeas review of
federal claims previously “adjudicated on the merits” in state court. As the district court
No. 11-1038             Blackmon v. Booker                                                            Page 21


here ostensibly recognized, the strictures of § 2254(d)(1) limit federal review of
Petitioner’s state convictions:

                 (d) 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.

28 U.S.C. § 2254(d)(1). We may limit our review still further by distinguishing between
(d)(1)’s references to state court decisions that are “contrary to,” and those that involve
an “unreasonable application of, clearly established Federal law, as determined by the
Supreme Court:”6

         Under [subsection (d)(1)’s] “contrary to” clause, a federal habeas court
         may grant the writ 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. Under the “unreasonable application”
         clause, a federal habeas court may grant the writ 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.

Williams v. Taylor, 529 U.S. 362, 412–13 (2000).




         6
             Alternatively, subsection (d)(2) limits issuance of the writ to those federal claims previously
adjudicated in state court that “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)(2). We
do not read the district court’s opinion to say the Michigan Court of Appeals’ denial of post-conviction
relief involved such a decision. A jury determined the facts in this case. The district court did not purport
to identify any mistaken factual determination of the appellate court. Rather, the district court pointed out
some weaknesses in the prosecution’s case (weaknesses the jury was entitled to discount) and concluded
“the record reveals that the evidence against Petitioner was far from overwhelming.” Blackmon, 762 F.
Supp. 2d at 1043 (noting Petitioner’s convictions rested not on any “physical evidence linking Petitioner
to the shooting” but on the identification testimony of only two witnesses whose testimony was “subject
to significant challenge”). The district court differed with the state court’s characterization, or “application
of . . . the facts,” not the facts themselves. Id. at 1040, 1046. See Bobby v. Dixon, 132 S. Ct. 26, 29 n.1
(2011) (per curiam) (refusing to apply subsection (d)(2) where the federal court differed from the state
court “only on the ultimate characterization” of the facts).
No. 11-1038         Blackmon v. Booker                                             Page 22


        Neither Petitioner nor the district court have ever seriously suggested the
Michigan Court of Appeals’ adjudication of Petitioner’s constitutional claims resulted
in a decision that was “contrary to . . . clearly established” Supreme Court precedent.
Nor, as we shall see, could they do so. To our knowledge, the Supreme Court has never
held (except perhaps within the capital sentencing context) that a state trial court’s
admission of relevant evidence, no matter how prejudicial, amounted to a violation of
due process. Cf. Dowling v. United States, 493 U.S. 342, 352–54 (1990) (holding the
admission of prior bad acts evidence that had “the potential to prejudice the jury” but
was “at least circumstantially valuable in proving petitioner’s guilt” did not violate due
process); Estelle v. McGuire, 502 U.S. 62, 67–70 (1991) (holding the admission of prior
injury evidence tending to prove battered child syndrome did not violate due process).
Accordingly, the only question before us is whether the Michigan state court’s
adjudication of Petitioner’s constitutional claims “resulted in a decision that . . .
involved an unreasonable application of clearly established” Supreme Court law to the
facts of this case. 28 U.S.C. § 2254(d)(1) (emphasis added).

        Under AEDPA’s “unreasonable application” clause, habeas relief is available
only “where there is no possibility fairminded jurists could disagree that the state court’s
decision conflicts with [the Supreme] Court’s precedents.” Harrington, 131 S. Ct. at
786. A federal court “may not issue the writ simply because that court concludes in its
independent judgment that the relevant state-court decision applied clearly established
federal law erroneously or incorrectly.” Williams, 529 U.S. at 411. Rather, to justify
issuance of a writ, the state court’s application of “clearly established” Supreme Court
authority must be “objectively unreasonable.” Id. at 409. And in making that
determination, a federal court must not forget that the specificity of the legal principle
to be applied affects the range of reasonable judgment in the principle’s application to
the facts of a particular case:

        If a legal rule is specific, the range may be narrow. Applications of the
        rule may be plainly correct or incorrect. Other rules are more general,
        and their meaning must emerge in application over the course of time.
        Applying a general standard to a specific case can demand a substantial
No. 11-1038           Blackmon v. Booker                                           Page 23


           element of judgment. As a result, evaluating whether a rule application
           was unreasonable requires considering the rule’s specificity. The more
           general the rule, the more leeway court’s have in reaching outcomes in
           case-by-case determinations.

Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).

           On post-conviction review, the Michigan Court of Appeals framed the question
as whether the prosecution’s elicitation of, and comment upon, testimony regarding
Petitioner’s gang affiliation “so infected [Petitioner’s] trial with unfairness as to make
[his] resulting conviction[s] a denial of due process of law.” Blackmon, 761 N.W.2d at
178. As framed, the state’s court’s inquiry undoubtedly reflects the general due process
standard applicable to Petitioner’s claim of prosecutorial misconduct. In Darden v.
Wainwright, 477 U.S. 168, 181 (1986), the Supreme Court held a prosecutor’s numerous
improper comments to a jury in a capital murder case did not violate the Constitution
because they had not “so infected the trial with unfairness as to make the resulting
conviction a denial of due process.” (quoting Donnelly v. DeChristoforo, 416 U.S. 637,
643 (1974)). Just last Term, the Court recognized that “[t]he ‘clearly established Federal
law’ relevant [to constitutional claims of prosecutorial misconduct] is our decision in
Darden.” Parker v. Matthews, 132 S. Ct. 2148, 2153 (2012) (per curiam).

           Endorsing a virtually identical due process standard by which to measure a trial
court’s admission of evidence, the Supreme Court in Payne v. Tennessee, 501 U.S. 808
(1991), cited Darden exclusively. In holding victim impact evidence introduced at the
penalty phase of a capital trial admissible, the Court cautioned: “In the event that
evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally
unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for
relief.”     Id. at 825 (citing Darden, 477 U.S. at 179–83); see also Chambers v.
Mississippi, 410 U.S. 284, 302 (1973) (holding the trial court’s exclusion of testimony
coupled with its refusal to permit cross-examination denied defendant “a trial in accord
with traditional and fundamental standards of due process”). Undoubtedly, the Michigan
Court of Appeals, consistent with “clearly established” Supreme Court precedent,
No. 11-1038             Blackmon v. Booker                                                          Page 24


properly identified the legal principle —fundamental fairness—applicable to Petitioner’s
constitutional claims.7 See Lockyer v. Andrade,538 U.S. 63, 71–72 (2003) (“[C]learly
established Federal law” under § 2254(d)(1) is the governing legal principle or principles
set forth by the Supreme Court at the time the state court renders its decision.”).

         Now that we have identified the legal principle applicable to Petitioner’s due
process claims, determining whether the state appellate court unreasonably applied that
principle to the facts of his case is our remaining task. The Supreme Court has explained
that “[b]eyond the specific guarantees enumerated in the Bill of Rights, the Due Process
Clause has limited operation.” Dowling, 493 U.S. at 352. Accordingly, the Court has
“defined the category of infractions that violate ‘fundamental fairness’ very narrowly.”
Id. (emphasis added). In particular, the Court has recognized that “the Darden standard
is a very general one, leaving courts ‘more leeway . . . in reaching outcomes in case-by-
case determinations.’” Parker, 132 S. Ct. at 2155 (ellipses in original) (quoting
Yarborough, 541 U.S. at 664). Perhaps this is why the district court’s opinion cites no
Supreme Court decision that even remotely suggests an inferior federal court should
resolve the constitutional questions here presented in Petitioner’s favor—let alone on an
evidentiary record comparable to the one before us. See Wright v. Van Patten, 552 U.S.
120, 126 (2008).

         In analyzing Petitioner’s claim that the state trial court committed constitutional
error by allowing the prosecution to elicit testimony regarding his membership in the
Schoolcraft Boys, the district court cited a host of federal district and circuit court


         7
           Because a state trial court’s evidentiary rulings must comport with federal due process, Petitioner
argues the Michigan Court of Appeals’ statement that “[e]videntiary errors are nonconstitutional”
establishes the state court’s decision to deny him post-conviction relief involved an unreasonable
application of Supreme Court precedent. Blackmon, 761 N.W.2d at 176. But this statement is hardly
sufficient in itself to establish Petitioner’s entitlement to habeas relief. Cf. Harrington, 131 S. Ct. at 784
(“Where a state court’s decision is unaccompanied by an explanation,” the habeas petitioner must still meet
his burden “by showing there was no reasonable basis for the state court to deny relief.”). More
importantly, the state appellate court effectively adjudicated the constitutional aspect of Petitioner’s
evidentiary claim when it decided, within the rubric of prosecutorial misconduct, that the “evidentiary
misconduct did not so infect the trial with unfairness as to deprive [Petitioner] of due process.” Blackmon,
761 N.W.2d at 182. The prosecution was able to elicit testimony about Petitioner’s gang affiliation only
because the state trial court deemed it admissible. And because the Supreme Court has told us we are to
judge Petitioner’s two constitutional claims—evidentiary error and prosecutorial misconduct—under the
same standard of fundamental fairness, the appellate court’s statement, though overbroad, was
inconsequential.
No. 11-1038        Blackmon v. Booker                                             Page 25


decisions discussing the admissibility of gang-related evidence. See Blackmon, 762 F.
Supp. 2d at 1040–42. The district court repeatedly prefaced its discussion by stating
“federal courts have ruled,” “[f]ederal courts have long-recognized,” and “[f]ederal
courts have found.” Id. at 1040–41. Suffice to say “circuit [and district] precedent does
not constitute ‘clearly established Federal law, as determined by the Supreme Court,’
28 U.S.C. § 2254(d)(1). It therefore cannot form the basis for habeas relief under
AEDPA.” Parker, 132 S. Ct. at 2155. Nor can Petitioner defend the district court’s
reliance on lower court precedents, including our own “on the ground that they merely
reflect what has been ‘clearly established’ by [Supreme Court] cases.” Id. After
referencing the constitutional standard of fundamental fairness, the district court cited
two Supreme Court decisions in its discussion of Petitioner’s evidentiary claim. But
neither of these decisions suggests in the slightest that the Michigan Court of Appeals’
application of Supreme Court authority was objectively unreasonable in this case.

       The first case, United States v. Abel, 469 U.S. 45 (1984), did not even involve
a constitutional claim of evidentiary error, but a claim arising under the Federal Rules
of Evidence. And as the district court recognized, Abel stands for the unremarkable
proposition that “the admission of gang affiliation testimony may be appropriate when
it is probative of a witness’s bias toward a defendant.” Blackmon, 762 F. Supp. 2d at
1040. Specifically, the Supreme Court held that “evidence showing [a witness’s] and
[defendant’s] membership in the [same] prison gang was sufficiently probative of [the
witness’s] possible bias towards [defendant] to warrant its admission into evidence.”
Abel, 469 U.S. at 49. The Court reasoned:

       Bias is a term used in the “common law of evidence” to describe the
       relationship between a party and a witness which might lead the witness
       to slant, unconsciously or otherwise, his testimony in favor of or against
       a party. Bias may be induced by a witness’ like, dislike, or fear of a
       party, or by the witness’ self interest. Proof of bias is almost always
       relevant because the jury, as finder of fact and weigher of credibility, has
       historically been entitled to assess all evidence which might bear on the
       accuracy and truth of a witness’ testimony.

Id. at 52 (emphasis added).
No. 11-1038            Blackmon v. Booker                                                         Page 26


         Given Abel’s conclusion that the defendant’s and witness’s gang membership in
that case could bear on the “accuracy and truth” of the witness’s testimony, surely the
apparent fear generated by Petitioner’s and Crost’s membership in the Schoolcraft Boys
may have bore on the “accuracy and truth” of numerous witnesses’ testimony in this
case. In other words, if the admission of the gang-related evidence in Abel did not
violate the Federal Rules of Evidence, surely the admission of similar evidence in this
case viewed through the lense of AEDPA was not fundamentally unfair. One need not
have a degree in criminal justice to understand the violent and retributive nature of urban
street gangs, often at the expense of innocent victims.8 See id. at 53 (“[T]he jury may
be permitted to draw an inference of subscription to the tenets of an organization from
membership alone.”). On the evidentiary record before us, a jury could conclude the
Schoolcraft Boys’ tendency to violence as illustrated by the events in question provided
the prosecution’s witnesses with a reason to slant their testimony in favor of Petitioner
or “even commit perjury outright.” Id. at 54 (explaining the attributes of gang
membership may bear directly “not only on the fact of bias but also on the source and
strength of [that] bias”).

         The record indicates that at least five Government witnesses, namely Nancy Ellis,
Adrienne Ellis, Tiffany Coggans, Autumn Taylor and Kenyatta Simons, gave statements
to the police within hours after the shootings. These statements to varying degrees
tended to implicate Petitioner in the April 12 shootings on Woodmont Street. A year
later, this time before a jury, Petitioner, and the public, those same witnesses were
reluctant to confirm their initial version of events. In fact, each of those witnesses
except Nancy Ellis denied the truth of his or her prior statements in whole or in part.
The prosecution, through the testimony of Tiffany Smith and Arthur Anderson and the
questioning of other witnesses, sought to attribute the change to its witnesses’ fear of
gang reprisal. Meanwhile, the defense on cross-examination suggested the police had


         8
           According to one commonly accepted definition: “A gang is a group of recurrently associating
individuals with identifiable leadership and internal organization identifying with or claiming control over
territory in the community and engaging either individually or collectively in violent or other forms of
illegal behavior.” Walter B. Miller, Violence by Youth Gangs and Youth Groups as a Crime Problem in
Major American Cities 9 (Nat’l Inst. for Juv. Just. and Delinq. Prev. 1975).
No. 11-1038            Blackmon v. Booker                                                          Page 27


strong-armed the prosecution’s witnesses into implicating Petitioner. Which side to
believe was the jury’s call. Reweighing the evidence, the district court invaded the
province of the jury when it discounted the prosecution’s theory of witness bias in favor
of the defense’s under the auspices of a constitutional analysis.9 See Abel, 469 U.S. at
54 (“Assessing the probative value of common membership in any particular group, and
weighing any factors counseling against admissibility is a matter first for the [trial]
court’s sound judgment under Rules 401 and 403 and ultimately, if the evidence is
admitted, for the trier of fact.”)

         The district court also cited the Supreme Court’s decision in Dawson v.
Delaware, 503 U.S. 159 (1992), to support its issuance of the writ on the basis of
evidentiary error. In Dawson, the Court held the State violated a defendant’s First
Amendment right to association when it introduced evidence in a capital sentencing
proceeding that defendant was a member of the Aryan Brotherhood, even though “the
evidence ha[d] no relevance to the issues being decided in the proceeding.” Id. at 160
(emphasis added). On the record presented, the Court was “left with the feeling that the
Aryan Brotherhood evidence was employed simply because the jury would find [the
gang’s] beliefs morally reprehensible.” Id. at 167.

         Where a specific guarantee of the Bill of Rights such as the First Amendment is
involved, a federal court on habeas review must take “special care” to assure itself that
the state court’s alleged evidentiary error did not impermissibly infringe such guarantee



         9
           The district court’s discussion of the (un)likelihood of witness bias attributable to Petitioner’s
gang affiliation provides just one example of the court improperly reweighing the evidence to reach a
conclusion inconsistent with the jury’s verdicts:
         Most witnesses, including Michael Hearn, Tiffany Smith, Nancy Ellis, and Adrienne
         Ellis, denied being afraid of Petitioner. Several witnesses, including Michael Hearn,
         Nancy Ellis, Adrienne Ellis, and Arthur Anderson, stated that they were pressured by
         police and intimidated by prosecuting authorities. Of the witnesses who seemed
         reluctant to testify, only one, Arthur Anderson, indicated that he feared Petitioner
         because of his gang membership. However, Anderson then clarified that he felt
         intimidated and was reluctant to testify because it was a murder trial. Anderson further
         stated that he would have felt the same way no matter who was on trial.
Blackmon, 762 F. Supp. 2d at 1040. We find nothing remarkable about the prosecution witnesses’
reluctance to acknowledge fear of retribution from the Schoolcraft Boys, an alleged member of which was
on trial for crimes of violence. Neither, obviously, did the jury.
No. 11-1038         Blackmon v. Booker                                              Page 28


as interpreted by the Supreme Court. Donnelly, 416 U.S. at 643. But Petitioner’s
evidentiary claim is that the prosecution’s elicitation of gang-related evidence, and the
trial court’s admission thereof, so infected his trial with unfairness as to make the
resulting conviction a denial of his right to due process. See id. Unlike a First
Amendment claim, Petitioner’s due process claim calls for the application of a general
standard posing a “greater . . . potential for reasoned disagreement among fair-minded
judges,” and thus much less likely to support issuance of a writ. Renico v. Lett, 130 S.
Ct. 1855, 1864 (2010).

        Moreover, unlike the challenged evidence in Dawson, the evidence of
Petitioner’s gang affiliation most certainly was relevant, at least for purposes of federal
due process analysis. See Blackmon, 761 N.W.2d at 183 (White, J., concurring)
(recognizing the distinction between state evidentiary error and federal constitutional
error). As we have just explained, the gang affiliation evidence tended to make the fact
of witness bias in favor of Petitioner based on fear more probable. Of equal if not
greater importance, such evidence also tended to make Petitioner’s presence at the scene
of the shootings, where at least two individuals clearly saw him fire a gun into the
crowd, more likely “than it would be without the evidence.” Fed. R. Evid. 401 (defining
relevant evidence as that having a “tendency to make a fact more or less probable than
it would be without the evidence”). This is a critical point the district court simply failed
to grasp in its mischaracterization of the record:

        [T]estimony regarding Petitioner’s alleged gang membership was not
        necessary for the prosecution to establish its case and had little probative
        value. . . . There was no evidence indicating the shooting was motivated
        by gang activity. To the contrary, the testimony revealed that the
        shooting arose from a domestic situation involving Nancy Ellis, Kenyatta
        Simons, and Duane Harris [i.e., Jimmy Crost]. The prosecution offered
        testimony to demonstrate a friendship between [Crost] and Petitioner and
        had no cause to resort to the introduction of gang-affiliation testimony
        and argument to show motive, particularly since [Crost] and Petitioner
        both denied gang membership.

Blackmon, 762 F. Supp. 2d at 1040.
No. 11-1038        Blackmon v. Booker                                             Page 29


       Notwithstanding uncontroverted evidence of the friendship between Petitioner
and Crost, however, even the defense in its closing statement suggested to the jury that
“it makes no sense for Roy Blackmun to be down there [on Woodmont Street] shooting
people he doesn’t know.” Trial Tr. at 783. Petitioner’s presence at the scene does not
make sense simply because Petitioner and Crost were friends. Petitioner claimed he was
at home when the shootings occurred and denied receiving a phone call from Crost
shortly before the shootings. Consequently, Petitioner never claimed he went to pick up
Crost from Nancy Ellis’ house. For his part, Crost denied he phoned Petitioner in
response to Kenyatta’s Simons’ threat. To make sense of it, the prosecution presented
evidence of Petitioner’s and Crost’s common gang membership.               This evidence
supported in no small measure the inference arising from Nancy’s testimony that Crost
had phoned Petitioner and asked him to come to Woodmont Street where trouble was
brewing. Or in the words of the prosecutor: “I’ve shown what took place between
[Simons] and [Crost] and there’s the motive. Having some problems over here on
Woodmont, send your boys—send some boys out, send some of my gang, my group.”
Trial Tr. at 811. Based on evidence of Petitioner’s and Crost’s membership in the
Schoolcraft Boys, the jury could readily infer an allegiance between the two
men significantly stronger than mere friendship—an allegiance lending credence to the
prosecution’s theory of the case and raising doubt about the veracity of Petitioner’s and
Crost’s denials. See Abel, 469 U.S. at 52 (“A witness’ and party’s common membership
in an organization, even without proof that the witness or party has personally adopted
its tenets, is certainly probative of bias.”).      The Michigan Court of Appeals’
characterization of the facts is at least as plausible, and probably much more so, than the
district court’s recharacterization. The state court’s characterization bears repeating:

       There was evidence that defendant was a member of the Schoolcraft gang
       and that these crimes (shooting of innocent bystanders) were committed
       because defendant was coming to the aid of fellow gang member Crost.
       Crost had visited Kenyatta Simons’s girlfriend, Nancy Ellis, who
       testified that Simons threatened to harm Crost, and that Crost made a
       telephone call asking to be picked up because of some trouble. Hearn
       testified that defendant arrived, spoke to Crost and then fired several
       shots, two of which hit Hearn as he stood near Simons. This evidence
No. 11-1038            Blackmon v. Booker                                                        Page 30


         suggests (and the jury evidently concluded) that defendant intended to
         shoot and murder Simons (for threatening to harm Crost), but instead hit
         the victims. Thus, there was evidence that defendant’s crimes were
         gang-motivated, or at least gang-related.[10]

Blackmon, 761 N.W.2d at 182.

         The point is this: Based on the record evidence, the Michigan Court of Appeals’
decision upholding the prosecution’s elicitation, and the trial court’s admission, of
evidence related to Petitioner’s gang affiliation “was not objectively unreasonable.”
Renico, 130 S. Ct. at 1865.              The Supreme Court has told us that in applying
§ 2254(d)(1), we first must determine what reasons “supported or . . . could have
supported the state court’s decision.” Harrington, 131 S. Ct. at 786. We have just
explained that the Michigan Court of Appeals decided, or could have decided, the
admission of gang-related evidence against Petitioner did not render his trial
fundamentally unfair because such evidence was relevant to show both witness bias and
criminal motive. We next ask whether a fairminded jurist might agree that the state
court’s decision did not conflict with then-existing Supreme Court precedent. See id.
The straight answer is yes. Accordingly, the Michigan Court of Appeals’ decision was
not objectively unreasonable and Petitioner is not entitled to habeas relief under the
AEDPA standard. The district court’s analysis ignored the myriad of limitations that
§ 2254(d)(1) imposed on its review, and thus failed to afford the Michigan Court of
Appeals the deference AEDPA demands. See Renico, 130 S. Ct. at 1862 (explaining
AEDPA imposes a “highly deferential standard” on habeas review and demands that
state court resolutions of constitutional claims “be given the benefit of the doubt”).

         At this point, not much remains of Petitioner’s additional claim that the
prosecution’s gang-related comments before the jury rendered his trial fundamentally
unfair. The district court cited no Supreme Court decision, and we have found none, to
support the proposition that notions of “fundamental fairness” prohibit the prosecution


         10
            As our earlier factual recitation confirms, other eyewitness testimony apart from Crost’s did
not conflict with Hearn’s testimony but rather tended to confirm it to varying degrees. We need not restate
that evidence here lest we belabor the point.
No. 11-1038             Blackmon v. Booker                                                            Page 31


from emphasizing relevant evidence, regardless of its nature, bearing on either a
witness’s bias or a criminal defendant’s motive, or both. Instead, the district court
analyzed Petitioner’s constitutional claim of prosecutorial misconduct under our own
Sixth Circuit precedents and applied a multistep test “for determining whether
prosecutorial misconduct violates a defendant’s due process rights.” Blackmon, 762 F.
Supp. 2d at 1045 (citing Macias v. Makowski, 291 F.3d 447, 452 (6th Cir. 2002)). But
because, in the Supreme Court’s words, “[t]he highly generalized standard for evaluating
claims of prosecutorial misconduct set forth in Darden bears scant resemblance to the
elaborate, multistep test employed by the Sixth Circuit,” our test has no application on
collateral review of a state court conviction under § 2254(d)(1).11 Parker 132 S. Ct. at
2155.

         In any event, the only prosecutorial comment to the jury that gives us momentary
pause was that Petitioner would “take care of business later” and “should have wrote
tombstones on [the witnesses’] front doors” because he had not “scare[d] these witnesses
enough” to keep them from testifying against him. Trial Tr. at 812. Notably, this
comment came in response to the defense’s own series of comments, which we earlier
recounted, suggesting the prosecution was seeking to convict Petitioner based on his
suspect character. One such comment summarized the whole: “So the theory of this
case from the prosecutor’s standpoint is . . . really what you ought to convict [Petitioner]
for is for being in a gang.” Id. at 794; see Darden, 477 U.S. at 182 (explaining the “idea
of ‘invited response’” was not designed to excuse improper comments “but to determine
their effect on the trial as a whole”). But even assuming the prosecution’s comment was
unduly inflammatory, this would not establish that the Michigan Court of Appeals’
“rejection of the Darden prosecutorial misconduct claim ‘was so lacking in justification


         11
             In applying that multistep test to the prosecution’s statements, the district court concluded those
statements were improper because (1) “the prosecutor did not have a legitimate purpose for soliciting the
gang affiliation evidence”; (2) “the prosecutor’s statements concerning the gang evidence were flagrant”;
(3) “the prosecutor’s statements were not isolated in nature, but rather constituted a pattern of questioning
and argument throughout trial”; and (4) “the evidence against Petitioner was not overwhelming.”
Blackmon, 762 F. Supp. 2d at 1045–46. As the reader surely understands by now, points (1), (2), and
(4) find little basis in the record viewed in a light most favorable to the jury’s verdicts. Point (3) is
arguable only because evidence of Petitioner’s gang affiliation bore directly on important questions for the
jury regarding witness credibility and criminal motive.
No. 11-1038           Blackmon v. Booker                                            Page 32


that there was an error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.’”       Parker, 132 S. Ct. at 2155 (quoting
Harrington, 131 S. Ct. at 786–87).

       Darden held a closing statement that contained a series of inflammatory remarks
did not warrant issuance of a writ:

       The prosecutors . . . closing argument . . . deserves the condemnation it
       has received from every court to review it, although no court has held
       that the argument rendered the trial unfair. Several of the comments
       attempted to place some of the blame for the crime on the Division of
       Corrections, because Darden was on weekend furlough from a prison
       when the [shootings] occurred. Some comments implied that the death
       penalty would be the only guarantee against a future similar act. Others
       incorporated the defense’s use of the word “animal.” [The prosecutors]
       made several offensive comments reflecting an emotional reaction to the
       [heinous facts of the] case. These comments were undoubtedly improper.
       But as both the district court and the original panel of the court of appeals
       . . . recognized, it is not enough that the prosecutors’ remarks were
       undesirable or even universally condemned. The relevant question is
       whether the prosecutors’ comments so infected the trial with unfairness
       as to make the resulting conviction a denial of due process.

Darden, 477 U.S. at 179–81 (internal footnotes, citations, and quotations omitted). The
Supreme Court’s denial of habeas relief in Darden coupled with the fact that the
“Darden standard is a very general one” satisfies us the district court had no business
setting aside the Michigan Court of Appeals’ decision on the basis that the prosecution’s
opening and closing statements rendered Petitioner’s trial fundamentally unfair. Parker,
132 S. Ct. at 2155.

       The district court’s failure to adhere to the strictures of § 2254(d)(1), as construed
by the Supreme Court, resulted in the court’s “improper intervention in state criminal
processes, contrary to the purpose and mandate of AEDPA and to the now well-settled
meaning and function of habeas corpus in the federal system.” Harrington, 131 S. Ct.
at 787. Accordingly, the district court’s issuance of the writ of habeas corpus is
reversed. This cause is remanded to the district court with instructions to deny the writ.

       REVERSED and REMANDED.
