           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206
        ELECTRONIC CITATION: 2000 FED App. 0169P (6th Cir.)
                    File Name: 00a0169p.06


UNITED STATES COURT OF APPEALS
                  FOR THE SIXTH CIRCUIT
                    _________________


                                  ;
                                   
 DONALD HARRIS,
                                   
        Petitioner-Appellant,
                                   
                                   
                                      No. 98-2308
           v.
                                   
                                    >
 CLARICE STOVALL,                  
        Respondent-Appellee. 
                                  1
      Appeal from the United States District Court
     for the Eastern District of Michigan at Detroit.
    No. 97-76301—Arthur J. Tarnow, District Judge.
                      Argued: May 3, 2000
               Decided and Filed: May 18, 2000
   Before: SUHRHEINRICH and COLE,* Circuit Judges;
               QUIST, District Judge.

                      _________________
                            COUNSEL
ARGUED: James Sterling Lawrence, Detroit, Michigan, for
Appellant. Vincent J. Leone, OFFICE OF THE ATTORNEY
GENERAL, HABEAS CORPUS DIVISION, Lansing,

    *
    The Honorable Gordon J. Quist, United States District Judge for the
Western District of Michigan, sitting by designation.

                                  1
2     Harris v. Stovall                            No. 98-2308

Michigan, for Appellee. ON BRIEF: James Sterling
Lawrence, Detroit, Michigan, for Appellant. Vincent J.
Leone, OFFICE OF THE ATTORNEY GENERAL,
HABEAS CORPUS DIVISION, Lansing, Michigan, for
Appellee.
                    _________________
                        OPINION
                    _________________
   GORDON J. QUIST, District Judge. This appeal of the
denial of a habeas corpus application requires us to apply the
provisions of the Antiterrorism and Effective Death Penalty
Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996)
(“AEDPA”). Donald Harris, a Michigan state prisoner
serving a mandatory life term for first-degree felony-murder,
appeals from an order of the district court denying his
application for habeas relief filed pursuant to 28 U.S.C.
§ 2254. The victim was John Anthony, who was killed at
gunpoint while working in his store in Detroit. Harris did not
commit the crime alone. Two others, Stanley West and
Frederick Wilkes, were tried together and convicted of the
murder. Harris was tried later. In this appeal, Harris contends
that he was denied due process of law when, as an indigent
defendant, he was denied free transcripts of the earlier trial of
West and Wilkes. Harris claims that the transcripts were
necessary for effective impeachment of the state’s witnesses,
which would support his theory of innocence. The district
court held that petitioner had adequate alternatives to the
transcripts because copies of the preliminary examination
transcripts from the prior trial had been filed. The district
court also found that any error was harmless. The underlying
habeas action was filed in early 1997, and the standards under
the AEDPA apply. See Lindh v. Murphy, 521 U.S. 320, 336,
117 S. Ct. 2059, 2067 (1997); Harpster v. Ohio, 128 F.3d
322, 326 (6th Cir. 1997). Although the district court
incorrectly applied the standards under the AEDPA, we
affirm the result it reached.
No. 98-2308                             Harris v. Stovall     3

               I. STANDARD OF REVIEW
   This court applies de novo review to the decision of the
district court in a habeas corpus proceeding. See, e.g.,
Harpster, 128 F.3d at 326; West v. Seabold, 73 F.3d 81, 84
(6th Cir. 1996). Federal habeas review of the state court’s
decision is governed by the standards established by the
AEDPA. See Harpster, 128 F.3d at 326. Under the AEDPA,
an application for writ of habeas corpus on behalf of a person
who is incarcerated pursuant to a state conviction cannot be
granted with respect to any claim that was adjudicated on the
merits in state court unless the adjudication: “(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 upon an unreasonable determination
of the facts in light of the evidence presented in the State
court proceeding.” 28 U.S.C. § 2254(d).
   On April 18, 2000, the Supreme Court issued a decision in
Williams v. Taylor, 120 S. Ct. 1495 (2000), setting forth the
standard of review that a federal habeas court must apply
under § 2254(d). The Court held that a decision of the state
court is “contrary to” clearly established federal law “if the
state court arrives at a conclusion opposite to that reached by
this Court on a questio n of law or if the state court decides a
case differently than this Court has on a set of materially
indistinguishable facts.” Id. at 1523. The Court further held
that an “unreasonable application” occurs when “the state
court identifies the correct legal principle from this Court’s
decision but unreasonably applies that principle to the facts of
the prisoner’s case.” Id. A federal habeas court may not find
a state adjudication to be “unreasonable” “simply because that
court concludes in its independent judgment that the relevant
state-court decision applied clearly established federal law
erroneously or incorrectly.” Id. at 1522.
  In this case, the district court referred to our holding in
Harpster, which simply noted the differing interpretations of
§ 2254(d) developing in our sister circuits, but found that the
4     Harris v. Stovall                             No. 98-2308      No. 98-2308                                     Harris v. Stovall          9

standard under § 2254(d) had not been met. See Harpster,             codefendants for purposes of impeaching witnesses.2 Such
128 F.3d at 326-27. Subsequently, in Nevers v. Killinger, 169        a rule would impose a new obligation on the state government
F.3d 352 (6th Cir.), cert. denied, 119 S. Ct. 2340 (1999), we        under factual circumstances beyond that recognized by the
found it appropriate to rely on the Fifth Circuit’s “debatable       Supreme Court. Consequently, we conclude that Supreme
among reasonable jurists” standard in Drinkard v. Johnson,           Court precedent existing at the time of petitioner’s trial did
97 F.3d 751 (5th Cir. 1996), combined with the First Circuit’s       not dictate or compel a rule that a defendant is entitled to a
standard of “so offensive to existing precedent, so devoid of        free copy of a transcript of his codefendants’ previous trial for
record support, or so arbitrary, as to indicate that it is outside   impeachment of witnesses. Although a petitioner’s case need
the universe of plausible, credible outcomes,” set forth in          not be factually identical to the facts in the case before the
O’Brien v. Dubois, 145 F.3d 16 (1st Cir. 1998). See Nevers,          Supreme Court, a better analog than as presented in this case
169 F.3d at 361-62. Later, we reaffirmed this approach in            is necessary. Thus, the result of the decision of the Michigan
Maurino v. Johnson, No. 98-1332, ___ F.3d ___, 2000 WL               Court of Appeals to affirm petitioner’s conviction was not an
432804, at *5 (6th Cir. Apr. 24, 2000). However, the                 unreasonable application of clearly established federal law as
Supreme Court in Williams found that the Fourth Circuit’s            determined by the Supreme Court because the Supreme Court
test—that a state court’s application of federal law was             precedent on the rule sought by petitioner was not clearly
“unreasonable” only if the court had applied federal law in a        established.
manner that reasonable jurists would all agree was
unreasonable—was erroneously subjective, as the inquiry                                      III. CONCLUSION
should be objective. The Court expressly disavowed the Fifth
Circuit’s “reasonable jurist” standard set forth in Drinkard.           For the foregoing reasons, the judgment of the district court
In light of the Supreme Court’s decision in Williams, we find        is AFFIRMED.
that Nevers and Maurino no longer correctly state the law on
the issue of the appropriate standard under 28 U.S.C.
§ 2254(d). We must therefore rely solely on the Supreme
Court’s decision in Williams for the appropriate standard
under § 2254(d).
                        II. ANALYSIS
     A. Lack of a state court decision articulating its
                        reasoning
   In this case, there appears to be no state court decision to
evaluate under § 2254(d). The issue concerning provision of
a free transcript was raised on appeal to the Michigan Court
of Appeals, which summarily issued an Order Granting [the
Prosecutor’s] Motion to Affirm on February 2, 1978. The
Michigan Supreme Court denied leave to appeal on February                2
                                                                           We note that even if the Supreme Court had stated the rule sought
7, 1979. Thus, the issue is how to apply § 2254(d) when there        by petitioner in a decision issued after petitioner’s trial, petitioner could
is no state court decision articulating its reasons.                 not rely upon it. The rule must have been “as of the time of the relevant
                                                                     state court decision.” Williams, 120 S. Ct. at 1523.
8    Harris v. Stovall                            No. 98-2308      No. 98-2308                                      Harris v. Stovall           5

needed); Long v. District Court of Iowa, 385 U.S. 192, 87 S.          Other circuit courts have concluded that where the state
Ct. 362 (1966)(per curiam)(transcript of habeas proceedings        court has not articulated its reasoning, federal courts are
needed for appeal); Draper v. Washington, 372 U.S. 487, 83         obligated to conduct an independent review of the record and
S. Ct. 774 (1963) (transcript needed for appeal); Eskridge v.      applicable law to determine whether the state court decision
Washington State Bd. of Prison Terms and Paroles, 357 U.S.         is contrary to federal law, unreasonably applies clearly
214, 78 S. Ct. 1061 (1958)(per curiam)(trial transcript needed     established law, or is based on an unreasonable determination
for an appeal); Griffin, 351 U.S. 12, 76 S. Ct. 585 (trial         of the facts in light of the evidence presented. See Aycox v.
transcript needed for an appeal).                                  Lytle, 196 F.3d 1174, 1177-78 (10th Cir. 1999) (“we must
                                                                   uphold the state court’s summary decision unless our
  Moreover, the statement in Britt that the state must provide     independent review of the record and pertinent federal law
an indigent defendant with the basic tools for an effective        persuades us that its result contravenes or unreasonably
defense was unquestionably broad. The Britt Court itself           applies clearly established federal law, or is based on an
recognized that "the outer limits of that principle are not        unreasonable determination of the facts in light of the
clear." Britt, 404 U.S. at 227, 92 S. Ct. at 433. Obviously,       evidence presented”); Schaff v. Snyder, 190 F.3d 513, 523
the basic tools needed for an effective defense are not            (7th Cir. 1999); Delgado v. Lewis, 181 F.3d 1087, 1091 n.3
contained in any list, and the Supreme Court has only begun        (9th Cir.1999), vacated on other grounds, 120 S. Ct. 1002
to delineate what the basic tools might be. For example, in        (2000); accord Gordon v. Kelly, No. 98-1905, 2000 WL
Ake v. Oklahoma, 470 US. 68, 105 S. Ct. 1087 (1985), the           145144, at *12 (6th Cir. Feb. 1, 2000). That independent
Court considered “whether, and under what conditions, the          review, however, is not a full, de novo review of the claims,
participation of a psychiatrist is important enough to             but remains deferential because the court cannot grant relief
preparation of a defense to require the State to provide an        unless the state court’s result   is not in keeping with the
indigent defendant with access to competent psychiatric            strictures of the AEDPA.1 In this appeal, we find that the
assistance in preparing the defense.” Id. at 77, 105 S. Ct. at     result reached by the Michigan Court of Appeals in its
1093. The Court specifically mentioned that the language in        summary denial of petitioner’s claim was not inimical to the
Britt regarding providing an indigent defendant the “basic         AEDPA.
tools of an adequate defense or appeal,” was only the
beginning of the inquiry. Id. Then, in Caldwell v.                  B. “Clearly established federal law as determined by the
Mississippi, 472 U.S. 320, 105 S. Ct. 2633 (1985), the Court                 Supreme Court of the United States”
considered whether and when an indigent defendant is
entitled to nonpsychiatric expert assistance. See id. at 323         The district court, applying Britt v. North Carolina, 404
n.1, 105 S. Ct. at 2637 n.1. Thus, the Supreme Court has not       U.S. 226, 92 S. Ct. 431 (1971), found that petitioner would be
completely answered the question of what basic tools are           entitled to a transcript from another defendant’s trial if the
necessary for an adequate defense.
  Petitioner has not cited any Supreme Court authority                 1
extending the principles of Britt to an indigent defendant’s              It would be error for a federal court to “remand” an action to the
request for free copies of transcripts from a prior trial of his   state appellate courts for the issuance of fuller findings to facilitate review
                                                                   under AEDPA or for a federal court to order any state court to issue fuller
                                                                   findings. Where a state court decides a constitutional issue by form order
                                                                   or without extended discussion, a habeas court should then focus on the
                                                                   result of the state court’s decision, applying the standard articulated
                                                                   above.
6    Harris v. Stovall                            No. 98-2308      No. 98-2308                             Harris v. Stovall      7

transcript were “necessary for discovery or impeachment            whether the relief requested would constitute a new rule, the
purposes and there were no available alternatives to fulfill       question becomes “‘whether a state court considering [the
those functions.” The district court also relied on other lower    petitioner’s] claim at the time his conviction became final
court decisions, including our decision in Riggins v. Rees, 74     would have felt compelled by existing precedent to conclude
F.3d 732 (6th Cir. 1996). We find that the district court          that the rule [he] seeks was required by the Constitution.’”
erroneously applied the AEDPA to the decision of the               Caspari v. Bohlen, 510 U.S. 383, 390, 114 S. Ct. 948, 953
Michigan Court of Appeals through a misinterpretation of the       (1994)(quoting Saffle v. Parks, 494 U.S. 484, 488, 110 S. Ct.
meaning of “clearly established federal law as determined by       1257, 1260 (1990)). Thus, applying Teague principles,
the Supreme Court of the United States” under § 2254(d) in         “clearly established federal law as determined by the Supreme
two critical ways.                                                 Court of the United States” means that the rule sought by
                                                                   petitioner must have been dictated or compelled by Britt. We
  First, the AEDPA expressly limits the source of law to           find that it was not.
cases decided by the United States Supreme Court. 28 U.S.C.
§ 2254(d). The Williams Court found that a federal court              Petitioner seeks a rule compelling the state to provide an
must find a violation of law “clearly established” by holdings     indigent defendant with free copies of trial transcripts of his
of the Supreme Court, as opposed to its dicta, as of the time      codefendants’ previous trial so that he can impeach the
of the relevant state court decision. See Williams, 120 S. Ct.     prosecution’s witnesses. In Britt, the Supreme Court
at 1523. We have stated that this provision marks a                considered whether an indigent petitioner was entitled to a
“significant change” and prevents the district court from          free transcript of his own previous trial, which had ended in
looking to lower federal court decisions in determining            a mistrial because the jury was deadlocked. The Court relied
whether the state court decision is contrary to, or an             on Griffin v. Illinois, 351 U.S. 12, 76 S. Ct. 585 (1956), which
unreasonable application of, clearly established federal law.      held that as a matter of equal protection, the state must
Herbert v. Billy, 160 F.3d 1131, 1135 (6th Cir. 1998). We          “provide indigent prisoners with the basic tools of an
reemphasize that point here. It was error for the district court   adequate defense or appeal, when those tools are available for
to rely on authority other than that of the Supreme Court of       a price to other prisoners.” Britt, 404 U.S. at 227, 92 S. Ct. at
the United States in its analysis under § 2254(d).                 433.
  Second, the district court failed to appropriately apply            Britt concerned a petitioner who requested a transcript of
“clearly established law” as determined by the Supreme Court       his own prior trial which resulted in a deadlocked jury. In
when it applied the rule in Britt to petitioner’s case. The        contrast, petitioner seeks transcripts from a previous trial of
Williams Court stated that “[w]hatever would qualify as an         his codefendants. The decisions relied upon by the Britt
‘old rule’ under Teague will constitute ‘clearly established       Court itself address situations where the petitioner needed a
Federal law, as determined by [this] Court.’” Williams, 120        transcript of proceedings in which he was directly involved.
S. Ct. at 1499 (citation omitted). Under Teague, “a case           See Williams v. Oklahoma City, 395 U.S. 458, 89 S. Ct. 1818
announces a new rule when it breaks new ground or imposes          (1969)(per curiam)(transcript of trial proceeding needed for
a new obligation on the States or the Federal Government.”         the petitioner’s appeal); Gardner v. California, 393 U.S. 367,
Teague v. Lane, 489 U.S. 288, 301, 109 S. Ct. 1060, 1070           89 S. Ct. 580 (1969) (transcript of state habeas proceedings
(1989). “To put it differently, a case announces a new rule if     needed to bring appeal); Roberts v. LaVallee, 389 U.S. 40, 88
the result was not dictated by precedent existing at the time      S. Ct. 194 (1967)(per curiam)(transcript of petitioner’s
the defendant’s conviction became final.” Id. In determining       preliminary hearing where state’s witnesses testimony was
