                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 05a0679n.06
                            Filed: August 9, 2005

                                           No. 02-4237

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


MAURICE MACKEY,                                          )
                                                         )       ON APPEAL FROM THE
       Petitioner-Appellant,                             )       UNITED STATES DISTRICT
                                                         )       COURT FOR THE NORTHERN
v.                                                       )       DISTRICT OF OHIO
                                                         )
HARRY K. RUSSELL, Warden,                                )                          OPINION
                                                         )
       Respondent-Appellee.                              )


BEFORE:        MARTIN, COLE, and GIBBONS, Circuit Judges

       R. GUY COLE, JR., Circuit Judge. Petitioner-Appellant Maurice Mackey was convicted

of murder and attempted murder. He now appeals the district court’s denial of habeas corpus relief.

Mackey alleges that he was denied his Sixth Amendment right to effective assistance of counsel, and

that he was denied due process by the government’s use, for impeachment purposes, of both

Mackey’s prior misconduct and his invocation of his Miranda right to remain silent following his

arrest. Because we find that the state appeals court failed to consider the cumulative effect of

Mackey’s attorney’s errors, and because Mackey’s attorney’s errors likely prejudiced the jury’s

verdict given the paucity of evidence as to who drew his gun first, we VACATE the judgment of

the district court and REMAND with instructions to issue a conditional writ of habeas corpus,

giving the State of Ohio 180 days within which to retry Mackey or release him from state custody.
No. 02-4237
Mackey v. Russell

                                                  I.

       On the night of April 14, 1999, Maurice Mackey and his girlfriend Stephanie Whitmore were

at a bar known as the Office Lounge in Cleveland. Also there were off-duty out-of-uniform

Cleveland Police Officer David Smith and his friend Edward Wright, an off-duty mall security

guard. Officer Smith’s girlfriend, Bridget Jackson, worked as a dancer at the lounge. When

Whitmore walked over to Smith, Wright, and Jackson to ask Jackson if she would perform a “lap

dance” for Mackey, Smith made a remark which Whitmore interpreted as hostile. When Whitmore

returned to the table she and defendant Mackey were sharing, Mackey asked her what Smith had

said, and she said she had not heard. Smith and Mackey then exchanged several hostile stares, but

never spoke to each other. After fifteen to thirty minutes of hostile glances, Mackey and Whitmore

decided to leave to avoid trouble. Smith and Wright decided to leave at the same time.

       In the parking lot, Mackey and Whitmore heard the door to the lounge open behind them.

Wright testified that Mackey turned around and asked if Smith and Wright had a problem with him.

Mackey testified that Smith asked if Mackey had something to say to him. Either way, it is

undisputed that both men then drew handguns. It is also undisputed that Mackey shot Smith, killing

him instantly, and then shot Wright, injuring him, as he turned to flee. Mackey testified at trial that

he had seen Smith begin to draw his gun, and that in response, Mackey drew his weapon in self-

defense. Neither Whitmore nor Wright were in a position to see which man drew first, and there

were no other witnesses to the shooting.

       Neither man had any reason to know the other was carrying a firearm; Mackey was carrying

his gun illegally, Smith was not in uniform, and the men had never met each other before. The

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coroner testified that forensic evidence showed Smith had indeed drawn his gun at the time he was

shot; the gun was found gripped in his hand away from the holster, with a bullet in the chamber. In

addition, there was laboratory evidence that Smith was legally intoxicated at the time of the

shooting. No other direct physical or testimonial evidence was introduced that would tend to show

who drew first.

        Immediately after the shooting, Mackey fled with Whitmore to their house in Solon, Ohio.

From there, Whitmore called a friend who worked at the lounge. When she found out that one of

the victims was not expected to live, she told the friend not to mention the call. The friend informed

the police, who came to the Solon house and knocked on the door. Mackey and Whitmore did not

answer, but later that morning, on the advice of their attorney, they surrendered to the police.

        Mackey was convicted of murder in the Cuyahoga County Court of Common Pleas, and

properly exhausted all required state court review of the claims now before us. The parties agree

that the only disputed issue at trial was who drew first, Mackey or Smith. Mackey alleges three

errors at trial that strongly prejudiced the jury against him on this question. First, he argues that the

prosecutor’s portrayal of Mackey as a violent person through prior bad acts constitutes reversible

error. Next, he claims that his due process rights were violated when the court repeatedly allowed

the prosecutor to mention Mackey’s post-arrest silence. Finally, he claims that his appointed

counsel, John Luskin, was constitutionally ineffective, because he (a) called Whitmore as a witness

when she had nothing to add to his case; (b) failed to request a limiting instruction to limit the use

of facts regarding Mackey’s prior bad acts that were used to impeach Whitmore; (c) failed to object

to the use of Whitmore’s prior bad acts, which, Mackey argues, worked to prove guilt by

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association; (d) failed to object to the introduction of evidence that Mackey maintained an “arsenal”

of guns at his house; (e) failed to object to prosecutorial statements that could imply that Mackey

was guilty solely because he was carrying a gun illegally; and (f) failed to object to the prosecutor’s

repeated reference to Mackey’s post-arrest silence as evidence of his guilt.

                                                  II.

       We review the decision of a district court to grant or deny a writ of habeas corpus de novo,

but review factual findings by that court for clear error, except where the district court has made

factual determinations based on its review of trial transcripts and other court records; in such cases

we review such findings de novo. Wolfe v. Brigano, 232 F.3d 499, 501 (6th Cir. 2000). However,

both we and the district court may grant a writ of habeas corpus vacating a state court conviction

only if we conclude that the state courts’ decisions are “contrary to, or involved an unreasonable

application of, clearly established law as determined by the Supreme Court of the United States.”

28 U.S.C. § 2254(b).

A. Prior Bad Acts Evidence

       Mackey first claims that the prosecutor’s portrayal of Mackey as a violent person, through

Whitmore’s testimony as to Mackey’s prior bad acts, was reversible error. At trial, on cross-

examination, the prosecutor asked Whitmore if Mackey was a jealous or violent type of person.

When she answered in the negative, the prosecution then proceeded to ask her about several

previous times when Mackey had been violent, including once towards Whitmore and another time

towards a man who had been harassing her. After extensive voir dire, the trial court decided to

allow the introduction of these prior acts for the purpose of impeaching Whitmore. Mackey claims

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that the trial court erred in allowing this testimony, basing this claim on the Ohio Rules of Evidence,

as well as on fundamental due process concerns under the Fifth Amendment of the U.S.

Constitution.

        Mackey argues that the admission of the prior bad act evidence violated the Ohio Rules of

Evidence in two ways:        First, he claims, its admission violated the rule against collateral

impeachment. Ohio R. Evid. 404(A)(3), 608(B). In addition, Mackey argues that Whitmore’s

testimony was not proper as evidence of Mackey’s “motive or intent,” and was thus not relevant to

his case. See Ohio R. Evid. 404(B). However, since we are “highly circumscribed in [our] ability

to second-guess state . . . court rulings on state law in order to grant habeas relief,” Baze v. Parker,

371 F.3d 310, 322 (6th Cir. 2004), we can only grant habeas on this ground if the state court’s

violation (if any) of the state’s rules of evidence so seriously impugned fundamental fairness as to

deny a fair trial. Cooper v. Sowders, 837 F.2d 284 (6th Cir. 1988).

       As to the first of the two Ohio evidentiary claims, Mackey argues that the State, having asked

Whitmore about Mackey’s jealousy and prior violence, should not have been able to inquire into her

truthfulness on these subjects, because Whitmore had not testified to them on direct examination,

and because the issues were collateral and “not material to any issue in the trial.” See, e.g., United

States v. Warledo, 557 F.2d 721, 726 (10th Cir. 1977); State v. Boggs, 588 N.E.2d 813, 817 (Ohio

1992). This contention is incorrect. The state trial court allowed the prosecution’s inquiries into

the acts at issue only for the purposes of impeaching Whitmore, not for the purposes of attacking

Mackey. The state appeals court noted that, in two of the incidents at issue, Whitmore had lied to

the police about Mackey committing a crime. State v. Mackey, No. 75300, 1999 WL 1129589, at

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*4 (Ohio Ct. App. Dec. 9, 1999). This, the court found, was directly related to the issue of

Whitmore’s truthfulness, and thus the trial court did not abuse its discretion in allowing the use of

the evidence for the purposes of impeaching Whitmore, under Ohio Rules of Evidence 404(A)(3)

and 608(B). This reasonable conclusion evinces no constitutional error.

        As to Mackey’s second claim, that the evidence should not have been used against him

directly as evidence of motive or intent, Mackey argues that, because he had claimed self-defense,

motive and intent, as elements of murder, were no longer at issue; and that, in any case, the trial

court never admitted this evidence as proof of motive or intent. The state appellate court found that

the evidence was properly admitted under Ohio R. Evid. 404(B), which allows use of character

evidence to show a defendant’s motive or intent. Stating that the trial court “did not abuse its

discretion by admitting the evidence under [Ohio] Evid. R. 404(B),” the state appellate court found

no error in the use of this evidence against Mackey directly. Mackey, 1999 WL 1129589, at *4.

        However, as Mackey notes on appeal, the trial court did not admit the evidence under Rule

404(B), but rather admitted it under Rule 404(A)(3), which only allows evidence related to the

character of a testifying witness as to the witness’s credibility. As a result, the state appellate court’s

decision that the evidence was properly introduced against Mackey directly was clear error, since

in fact the trial court did not allow it to be introduced against him directly. However, since both the

trial court and the state appellate court reasonably found that the evidence was usable for the

alternate purpose of attacking Whitmore’s credibility, Mackey can claim no constitutional error in

the trial court’s admission of the testimony. See, e.g., NLRB v. Dayton Motels, Inc., 474 F.2d 328,




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333 n.3 (6th Cir. 1973) (“The doctrine that evidence inadmissible for one purpose can be admitted

for another purpose is firmly established in the law.”).

       Given the state trial and appellate courts’ determination that the evidence was admissible to

impeach Whitmore under Ohio law, we find no error worthy of habeas relief in the state courts’

decisions to allow the admission of this testimony, the state appeals court’s misstatement of the

decision below notwithstanding.

       Mackey further argues, however, that the admission of this testimony rendered his trial

fundamentally unfair, regardless of Ohio evidentiary law. See, e.g., Bugh v. Mitchell, 329 F.3d 496,

512 (6th Cir. 2003); Doan v. Brigano, 237 F.3d 722, 736 (6th Cir. 2001) (holding that a state court

ruling that was proper under state evidentiary rules nonetheless violated due process by rendering

a trial unfair), abrogated on other grounds by Wiggins v. Smith, 539 U.S. 510 (2003). While it may

be true that the evidence at issue should not have been used directly against Mackey, his counsel did

not request a limiting instruction on this issue. It is a well-settled proposition of law in Ohio that

“it is not error for the court to admit evidence which may be admissible for one purpose and

inadmissible for another when the objection to the evidence is general.” 42 Ohio Jur. 3d 392,

Evidence and Witnesses § 165 (2003); see also State v. Collins, 585 N.E.2d 532, 537 (Ohio Ct. App.

1990); Agler v. Schine Theatrical Co., 17 N.E.2d 118, 119 (Ohio Ct. App. 1936). Further, the

court’s failure to give a limiting instruction in such a circumstance is also not error in the absence

of a specific request for such an instruction. See, e.g., 42 Ohio Jur. 3d 392, Evidence and Witnesses

§ 165 (2003) (“[T]he trial court’s failure to give an instruction limiting the scope of evidence

admissible for one purpose but inadmissible for others is not a ground for reversal when no such

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instruction was requested.”); see also Ohio R. Evid. 105, staff note (1980) (stating same and citing

the relevant section in Ohio Jur.); State v. King, No. 88AP-665, 1998 WL 83577 (Ohio Ct. App. Jul.

18, 1989) (unpublished decision). Since the testimony at issue here was indeed admissible for the

purposes of impeaching Whitmore, the lack of an instruction or other admonishment to the jury as

to its use against Mackey cannot be reversible error, since no such instruction was requested. And

to the extent that Mackey’s claim on this point is just that this evidence was more prejudicial than

probative, we are not “firmly convinced” that the decision to allow this evidence for the purpose of

impeaching Whitmore was an abuse of discretion. See, e.g., Pressman v. Franklin Nat’l Bank, 384

F.3d 182, 187 (6th Cir. 2004); Oliphant v. Koehler, 594 F.2d 547, 555 (6th Cir. 1979) (holding that

such matters are best left to the sound discretion of the trial court).

        We thus find no error warranting habeas relief in the evidentiary decisions of the state courts.

B. Use of Mackey’s Post-Arrest Silence

        Next, Mackey claims that the prosecution’s repeated references to Mackey’s post-arrest

silence during cross-examination and closing argument violated his due process rights. Explaining

that the Miranda warning of a right to remain silent implied that such silence would not be used

against a defendant, the Supreme Court in Doyle v. Ohio, 426 U.S. 610, 619 (1976), held that

prosecutors may not refer, for impeachment purposes, to a defendant’s post-Miranda silence. While

Doyle does not apply to the use of such silence as to prior inconsistent statements, see Anderson v.

Charles, 447 U.S. 404, 408 (1980), no such use was made in Mackey’s case, nor is any alleged by

the State. Outside of this exception, no court has found any other valid reason for allowing the

government to use a defendant’s silence to impeach him. However, once having found a Doyle

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violation, we may not order a retrial (or grant a writ of habeas corpus) without a determination that

the violation substantially affected the outcome of the trial. See, e.g., Brecht v. Abrahamson, 507

U.S. 619, 637 (1993) (holding that, to require reversal, the error must have had a “substantial and

injurious effect or influence in determining the jury’s verdict.”). In criminal cases, where “beyond

a reasonable doubt” is the standard for conviction, however, “if one cannot say, with fair assurance,

. . . that the judgment was not substantially swayed by the error, it is impossible to conclude that

substantial rights were not affected.” Kotteakos v. United States, 328 U.S. 750, 765 (1946).

       Mackey contends that, under Doyle, the prosecution’s repetitive discussion of the fact that

he did not mention his defense of self-defense between the time of his arrest and the time of his trial

was both improper and a violation of his right to due process under the Fourteenth Amendment.

During the prosecution’s cross-examination of Mackey, just after Mackey testified that his lawyer

told him not to say anything to the police when turning himself in, the following exchange occurred:

       Q: And you have never given your side of the story since April 14th or 15th, until
       today in court, September 15th, 1998?

       A: Is it the 15th?

       Q: So five months have gone by since these events occurred, is that fair to say?

       A: Yes, sir.

       Q: And that five months is the first time you have given your version of what
       happened in front of the Office Lounge, right?

       A: I beg your pardon.

       Q: This is the first time you have given your version as to what happened in the
       Office Lounge to any type of authority?



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       A: [Y]es, this is the first time.

       Q: And you maintained, though, that from the day it happened, it was strictly self-
       defense, correct?

       A: Yes, sir.

Later, in closing, the prosecution made the following statement:

               [Mackey] claims that David Smith went for his gun. He’s the defendant in
               this case. He’s charged with a crime. So I anticipate that’s what his
               testimony is going to be, although it took five months for him to so indicate.

(emphasis added). Several minutes later, the prosecutor added:

               There’s no voluntariness here. We hear his version. He was arrested April
               15th. The first time any official version of what happened was when
               Maurice Mackey took the witness stand and gave his accounts of some five
               months later. I find it a little peculiar, you are alleging self-defense, it takes
               you five months to so indicate.

(emphasis added). No objection was made to any of these statements by trial counsel, nor did the

trial judge instruct the jury in any way as to these statements. There can be little question that such

direct references to Mackey’s post-Miranda silence are clear violations of the standard elucidated

in Doyle. See, e.g., Gravley v. Mills, 87 F.3d 779, 787–88 (6th Cir. 1996) (citing similar references

as Doyle violations).

       However, it does not appear that the Doyle error, considered alone, significantly affected the

outcome of Mackey’s case. True, Mackey’s case involves significantly less evidence, and a

significantly more believable defense, than did the case in Gravley, where a panel of this Court

found that Doyle error required retrial. Id. One would expect verdicts in closer cases (such as

Mackey’s) to be more easily affected by Doyle errors. However, in his closing, Luskin, despite not



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objecting to the prosecution’s mention of Mackey’s silence, significantly diminished the chance that

the jury used the prosecution’s repeated mentions of Mackey’s silence against Mackey:

               If an individual, whoever that individual is, you, I, Mr. Kellon, Judge
               McGinty, anyone has an inalienable right, a constitutional right to talk
               to their attorney. Ladies and gentlemen, no individual can disparage an
               individual because they wanted to talk to their attorney before they talk
               to the government. And if that attorney says to them, “He does not wish
               to make any type of statement,” be it self-incriminating or not, ladies
               and gentlemen, it’s the Fifth Amendment to the Constitution of the
               United States of America.

               And Mr. Rubin advised his client, Maurice Mackey, “Maurice does not
               want to make a statement,” and that is a right that Mr. Mackey exercised
               on the advice of his counsel.

               So [if] it took five months to hear Maurice Mackey’s story, then you
               blame it on Irl Rubin and blame it on John Luskin, because that’s
               what we advised him to do.


       It is, of course, not inconceivable that a juror could have disbelieved this statement, but the

right to an attorney and the right to remain silent are commonly known to society at large. Given

both the common popular knowledge of the right to remain silent and to the advice of an attorney,

and given Mackey’s counsel’s statement on closing that substantially mitigated the adverse effects

of the Doyle violation, we can say with fair assurances that the judgment was not substantially

swayed by the Doyle error in this case, when considering that error by itself. Therefore, the state

courts’ determination that the prosecution’s Doyle references, when considered alone, do not rise

to the level required to issue a writ of habeas corpus was not unreasonable.



C. Ineffective Assistance of Counsel

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       In order to establish a violation of the Sixth Amendment right to counsel, a defendant must

show that the attorney’s performance was deficient, “meaning that counsel made errors so serious

that counsel was not functioning as counsel guaranteed the defendant by the Sixth Amendment.”

Riggs v. United States, 209 F.3d 828, 831 (6th Cir. 2000) (quoting Strickland v. Washington, 466

U.S. 668, 687 (1984)). Under the familiar Strickland standard, this involves a two-step process.

First, we must judge the reasonableness of counsel’s challenged conduct, determining whether the

acts or omissions identified by a defendant are outside the wide range of professionally competent

assistance. Strickland, 466 U.S. at 690. During this step, there is a strong presumption that counsel

rendered adequate assistance and made all significant decisions in the exercise of reasonable

professional judgment. Id.

       If any alleged errors of counsel are found to be constitutionally deficient performances, a

defendant must still prove that the deficiency resulted in significant prejudice to the defense. “The

defendant must show that there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome,” though a defendant need not prove

by a preponderance of the evidence that the result would have been different. Id. at 694. Further,

in determining whether prejudice has resulted from counsel’s errors, a court “must consider the

totality of the evidence before the jury. . . . [A] verdict or conclusion only weakly supported by the

record is more likely to have been affected by errors than one with overwhelming record support.”

Id. at 695. In making this determination as to prejudice, we examine the combined effect of all acts

of counsel found to be constitutionally deficient, in light of the totality of the evidence in the case.

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See, e.g., Blackburn v. Foltz, 828 F.2d 1177, 1186 (6th Cir. 1987). With these standards in mind,

we turn to Mackey’s allegations of trial counsel ineffectiveness.

       First, Mackey contends that Luskin’s decision to call Whitmore, Mackey’s girlfriend, as a

witness constituted ineffective assistance because her testimony allowed the prosecution to introduce

damaging evidence, including Mackey’s past threats to Whitmore’s former employer, that would

not otherwise have been presented to the jury. Mackey likens this to a case where a defendant’s trial

counsel had failed to investigate adequately the testimony of his only expert witness, whose

testimony turned out to be fundamentally opposed to the defense’s sole defense. See Combs v.

Coyle, 205 F.3d 269, 288 (6th Cir. 2000) (finding ineffective assistance in such a case).

       Here, however, the decision to call Whitmore as a witness on direct examination, whatever

the consequences, was not constitutionally unreasonable. Since Whitmore was one of only two

surviving witnesses to the shooting, and since she was the object of Smith’s comment in the lounge,

Luskin could reasonably have used her testimony to provide additional context to Mackey’s

testimony or his self-defense theory. In particular, Whitmore described Smith as having spoken first

outside the bar, whereas Wright, the only other witness to the shooting, said Mackey spoke first.

This alone was sufficient reason to call Whitmore as a witness. It is not inconceivable that Luskin

was worried about what would have happened if the prosecution had called Whitmore as a witness

or that, perhaps, Luskin believed Whitmore’s testimony would show that Mackey cared about

Whitmore’s well-being and was thus a caring man. Regardless of Luskin’s actual reasoning, the

existence of so many reasonable trial strategies for calling Whitmore, in conjunction with the




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presumption that counsel acted constitutionally, renders this decision constitutionally sound. See,

e.g., Miller v. Francis, 269 F.3d 609, 615-16 (6th Cir. 2001).

        Next, Mackey argues Luskin was deficient in failing to request a limiting instruction as to

certain testimony, regarding Mackey’s prior bad acts, that was supposed to have been used only to

impeach Whitmore. The evidence at issue consisted of Whitmore’s testimony on cross-examination

regarding previous times Mackey had encouraged her to lie to protect him and previous occasions

on which Mackey had been violent both towards Whitmore and towards men who had shown an

interest in her. The record does not contain any requests by counsel for such an instruction, but the

record does reflect that Luskin did object to the prosecution’s cross-examination of Whitmore on

these subjects, asking for it to be “limited,” though it is not clear whether this request was to limit

the scope of the cross-examination or to issue a limiting instruction to the jury. The trial judge

allowed the cross-examination to continue, explicitly stating that he was admitting the evidence only

under Ohio R. Evid. 404(A)(3). The trial judge did not issue any limiting instruction, though he did

warn the parties that he would rule on the scope of the examination on a “case by case, question by

question basis.” While Luskin did object occasionally during the rest of Whitmore’s cross-

examination, he did not raise the issue of a limiting instruction at any other time before the end of

the trial.

        At Mackey’s habeas hearing in the district court, the magistrate judge, whose findings the

district court adopted, concluded that since this evidence was admitted, and since Luskin had

objected to its admission, there was no prejudice resulting from counsel’s failure to request a

limiting instruction. As a result, the district court did not determine whether or not this failure

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constituted error. This decision might have been appropriate had the failure to request a limiting

instruction been the only error Mackey alleges. See, e.g., Strickland, 466 U.S. at 697 (“If it is easier

to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course

should be followed.”). But the Strickland test requires that prejudice be evaluated in light of the

cumulative effect of all constitutionally infirm actions by counsel. See, e.g., Strickland, 466 U.S.

at 690 (requiring consideration of counsel’s actions “in light of all of the circumstances”); id. at 695

(noting that the question to be answered in cases such as this is whether, “absent the errors, the

factfinder would have had a reasonable doubt respecting guilt”(emphasis added)).

        Taking the unaffected findings as a given, and taking due account of the effect of the
        errors on the remaining findings, a court making the prejudice inquiry must ask if the
        defendant has met the burden of showing that the decision reached would reasonably
        likely have been different absent the errors.

Id. at 696; cf. Kyles v. Whitley, 514 U.S. 419, 434, 436 (1995) (considering cumulative effect of

errors in another context in which the Strickland standard for prejudice (though not the Strickland

test for ineffective assistance) had been applied). As a result, and since we find other such errors

below, we must determine whether Luskin’s failure to request a limiting instruction was in fact

constitutional error before we reach the issue of prejudice.

        Both the Ohio courts and this Circuit have previously held that the failure to request a

limiting instruction with regard to some important piece of evidence can constitute constitutionally

ineffective assistance of counsel if the failure falls outside of an objective standard of professionally

reasonable conduct. See, e.g., White v. McAninch, 235 F.3d 988, 998 (6th Cir. 2000); State v.

Lascola, 61 Ohio App. 3d 228, 238-39 (Ohio Ct. App. 1988). Thus, we must determine whether a



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decision not to request an instruction limiting the jury’s use of this testimony to determining

Whitmore’s credibility was professionally unreasonable.

       The State argues that this decision was not unreasonable because Luskin would never have

been granted a limiting instruction, since the state appellate court found that the evidence was

properly admitted under Ohio R. Evid. 404(B). While it is true that counsel cannot be held

ineffective for failing to object to evidence that was properly admitted, see, e.g., United States v.

Neeley, 189 F.3d 670, 684 (7th Cir. 1999), this was not the case here. The state appellate court,

acting on an abuse of discretion standard, under the incorrect presumption that the evidence had in

fact been admitted directly against Mackey under Ohio R. Evid. 404(B), found that the evidence

was properly introduced against Mackey, and thus that no prejudice had resulted from the lack of

a limiting instruction. But that court’s incorrect assumption as to the grounds on which the evidence

was admitted vitiates its entire decision on this point. The evidence was not admitted under Ohio

R. Evid. 404(B), the State did not attempt to admit it on such grounds at trial, and the defense never

had an opportunity to object or appeal on these grounds, since Rule 404(B) had never even been

mentioned (directly or by inference) at trial. It is possible that the trial judge would have denied a

motion to admit this evidence on 404(B) grounds; indeed, he explicitly limited the grounds on which

he was admitting it to uses under Rule 404(A)(3). J.A. 251-52, 322-23. Cf. United States v.

DeGeratto, 876 F.2d 576, 584 (7th Cir. 1989) (noting that the use of prior bad acts evidence for the

purposes of attacking the character of a witness “is limited by the rule, and is to be considered by

the jury only for certain purposes. A limiting instruction should ordinarily and routinely be given




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at the time the evidence is admitted, and again at the close of the case.”). As a result, Luskin might

very well have been successful had he requested a limiting instruction.

        In addition, there is no reasonable trial strategy to support Luskin’s failure to request such

an instruction here. While it is true that an attorney may frequently choose to forego a limiting

instruction as to prior bad acts to avoid focusing the jury’s attention any further on the acts, here the

jury’s attention was already highly focused on the acts at issue. The prosecution’s cross-

examination of Whitmore with regard to prior bad acts takes up over sixteen pages of transcript (not

including the 50 pages of voir dire testimony on these points, or the fact that the jury already knew

Luskin had objected to the evidence’s admission) covering at least three different incidents. No

reasonable attorney, especially in a case this close, could possibly have believed he would be further

focusing the jury’s attention on this testimony by requesting a limiting instruction. Further, the

evidence at issue clearly was significant to Mackey’s case; the prosecution’s theory of the shooting

was that it did not result from self-defense, but instead from Mackey being upset at Smith for

harassing his girlfriend. Thus, evidence that he had previously harmed those harassing his girlfriend

could obviously have influenced the jury as to whether or not Mackey shot first, the only fact at

issue in the case. Luskin should have been aware of this; any professionally competent lawyer

would have done what he could to limit the admission and then use of such testimony. As a result,

Luskin was ineffective in not doing so.

        The vast majority of courts hearing ineffective assistance claims based on failure to request

a limiting instruction have determined that no prejudice resulted from counsel’s failures. See, e.g.,

Mitzel v. Tate, 267 F.3d 524, 538 (6th Cir. 2001). However, as noted above, any prejudice resulting

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from this error must be considered in combination with other errors, if any. See, e.g., Strickland,

466 U.S. at 695-96. Therefore, we discuss prejudice below only after considering each of Mackey’s

additional allegations of counsel’s ineffectiveness.

        Mackey next asserts that Luskin ought to have objected to the introduction of evidence that

he maintained an “arsenal” of guns at his home. While Luskin did object to the prosecutor’s

statement that Mackey was someone who enjoyed “getting out his AK-47 and blowing the shit out

of the woods,” Luskin did not object to the prosecution’s lengthy inquiries into the capabilities of

each of the four weapons (other than the murder weapon) found in Mackey’s house, nor did he

object to the prosecutor’s statement on closing that Mackey could have “conducted a little mini-war”

with the police at his house using the many guns found there. The state appellate court found that

these two oversights were constitutionally infirm, but concluded that no prejudice resulted from

either. State v. Mackey, No. 75300, 1999 WL 1129589, at 13-15 (Ohio Ct. App. Dec. 9, 1999). We

agree that no appropriate trial strategy would warrant a defense attorney’s standing by idly while

such evidence was introduced, and that the lack of an objection as to this evidence was sufficient

error to meet the first prong of the Strickland test. In contrast to the state appellate court’s opinion,

however, and in accord with the clear precedent of Strickland, we will evaluate the cumulative

effect of all of Luskin’s errors below instead of considering each individually. See, e.g., Strickland,

466 U.S. at 695-96.

        Mackey further claims that Luskin should have objected to the prosecution’s introduction

of Whitmore’s extrajudicial acts and statements that were used to prove “guilt by association.” First

he complains about Whitmore’s friend’s testimony regarding a statement Whitmore made during

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Mackey v. Russell

her phone call to the lounge after the shooting (“He pulled a gun out on me too.”). But the record

reflects that Luskin did object to the use of the statement, at least with regard to its link to Mackey.

In addition, this statement was arguably being properly used to show Whitmore’s state of mind at

the time of the telephone call. It thus did not constitute objectionable error. Mackey also claims

Luskin should have objected to testimony that Whitmore attempted to harass witnesses prior to trial.

As for the “harassment,” the only relevant testimony on point related to several phone calls and an

“unfriendly, irritating” conversation where Whitmore “made references” to the testimony the

witness was going to give. This, without any details of a specific request regarding testimony, does

not rise to the level of witness harassment or other improper actions whose mention to a jury would

be objectionable. Hence, there was no error in Luskin’s failure to object to the evidence about

which Mackey complains here.

        Mackey also claims Luskin should have objected to the prosecution’s closing argument that

Smith was “legally permitted to carry his service handgun into the bar.” The state appellate court

found that Luskin could have objected here, but that it was instead reasonable trial strategy not to

object at that moment, since objections can disrupt the flow of a closing statement and are often

considered technical and bothersome by a jury. The state court noted that an attorney might

reasonably think it would be more appropriate to counter such claims in the defense closing. This

Luskin did, noting to the jury that there was “absolutely no evidence” Smith was permitted to carry

a firearm into the bar and that the prosecution had “failed” in its attempt to prove otherwise. As

noted above, we are not permitted to second-guess reasonable trial strategies, and this is undoubtedly

one such strategy. Also, even were this not a reasonable trial strategy, it is unlikely that this highly

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collateral issue would have had any effect, cumulative or otherwise, on the jury’s decision as to who

shot first. The lack of an objection as to this statement was therefore not error under the first prong

of Strickland, nor could it have any effect on our evaluation of the second prong.

       Finally, Mackey argues that his lawyer erred in not objecting to the prosecution’s repeated

references to Mackey’s post-arrest silence. It is indisputable that such references violate the

standard in Doyle. In addition, the repetitive nature of these statements, occurring during cross-

examination of the defendant as well as closing argument, make them less susceptible to being cured

in the defendant’s closing. There is no reason why an attorney would not want to object to such

questions during the cross-examination of a defendant. The district court merely noted that Luskin

addressed these issues on closing, but did not determine whether or not failure to object to the

prosecution’s reference to Mackey’s silence during both cross-examination and closing argument

was error.

       In addition, the state appellate court ignored this issue in its first opinion (though it had

properly been raised) and, in its second opinion, merely resolved the issue by saying no prejudice

had resulted. State v. Mackey, No. 75300, 1999 WL 1129589, at *11-12 (Ohio Ct. App. Dec. 9,

1999). We find that Luskin’s failure to object to the obvious Doyle violations was an error. No

reasonable trial strategy could have Luskin sit by idly on cross-examination while the defendant

testified repeatedly that he had not come forth with his story for five months after being arrested,

especially when the way the jury viewed Mackey’s testimony was so central to determination of the

only fact at issue in the case. This was clear error, under the first prong of Strickland. We thus

move to determining if the cumulative errors of Mackey’s counsel were prejudicial to his case.

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       We cannot grant a writ of habeas corpus on an ineffective assistance of counsel claim

without a finding that the state appellate court’s application of this Strickland standard was “contrary

to, or involved an unreasonable application of, clearly established law as determined by the Supreme

Court of the United States.” 28 U.S.C. § 2254(b); see also Williams v. Taylor, 529 U.S. 362 (2000).

In considering whether or not a state court has acted contrary to clearly established Supreme Court

law, we look only to the holdings of the Supreme Court, and not to the dicta. Williams, 529 U.S.

at 405-07. In contrast, a state court can be said to have unreasonably applied Supreme Court law

“if the state court identifies the correct governing principle from the Court’s decisions but

unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413. Here, the clear

mandate of Strickland and several other Supreme Court cases is that the effect of all of counsel’s

errors is to be considered in toto, against the backdrop of the totality of the evidence in the case.

See, e.g., Strickland, 466 U.S. at 690, 695-96; Williams, 529 U.S. at 395-96, 398-99 (considering

cumulatively multiple errors of counsel in finding prejudice in light of the “entire . . . record,

viewed as a whole”); Kyles, 514 U.S. at 434, 436. In the instant case, the state appellate court, while

finding several errors in Luskin’s actions, considered the prejudicial effect of each alone. Since it

did not consider the cumulative effect of these errors upon the jury’s verdict, its decision was not

merely in error, but was contrary to clearly established Supreme Court law. See Williams, 529 U.S.

at 395-96, 398-99. As a result, if the cumulative effect of these errors resulted in prejudice to

Mackey, he is entitled to the writ, notwithstanding the decisions of the state courts in this case.

       As noted above, Luskin was ineffective by not requesting a limiting instruction as to

Mackey’s prior bad acts, by not objecting to the lengthy testimony as to the number of guns in

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Mackey v. Russell

Mackey’s house and their capabilities, and by not objecting to the prosecution’s mention of

Mackey’s post-arrest silence. Therefore, we must determine if there is “a reasonable probability

that, but for [these three] errors, the result of the proceeding would have been different.” Strickland,

466 U.S. at 694. As always, we note that a defendant is entitled to a “fair trial but not a perfect one,

for there are no perfect trials.” McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 553

(1984). In the vast majority of cases, where there is significant evidence supporting the conviction,

the type of errors at issue here would be unlikely to affect the jury’s verdict. Here, however, the

paucity of evidence against Mackey was striking. The only issue in the case was who drew his

weapon first, Mackey or Smith. There were no witnesses who had a line of sight that would have

allowed them to answer this question. There was no forensic evidence to indicate who drew first,

other than Smith’s intoxication. Mackey and Whitmore did flee from the scene, but each testified

they did so because they were scared. The only evidence the jury could use to answer the “who

drew first” question was thus Mackey’s testimony that he shot in self-defense. The jury had to make

a decision: either Mackey was credible, and thus innocent, or he was not believable, and thus guilty.

        However, prior to Mackey’s testimony, Luskin’s errors led to the jury being improperly

informed that Mackey was a gun-loving man who maintained an “arsenal” of deadly weapons at

home, who had previously been violent towards those who had harassed or expressed an interest in

his girlfriend, and who was silent as to his explanation for why he shot a police officer for five

months prior to trial before suddenly claiming self-defense. This easily could have affected their

determination as to Mackey’s credibility. See, e.g., Strickland, 466 U.S. at 696 (“[A] verdict or

conclusion only weakly supported by the record is more likely to have been affected by errors than

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Mackey v. Russell

one with overwhelming record support.”); United States v. Rapanos, 115 F.3d 367, 371 (6th Cir.

1997) (“It is the opinion of the Court, after viewing the entirety of the trial, that a reasonable jury

could have rendered either verdict. . . . In such a situation, an unchecked prejudicial comment may

indeed have tipped the scales in favor of conviction.”). Luskin’s closing statement might have

remedied some of the effect of the Doyle violations. However, by then, the cumulative damage the

three errors could have inflicted upon the jury’s determination as to Mackey’s credibility was severe.

Since this credibility determination was so central to the outcome of this case, given the lack of any

physical or testimonial evidence (other than Mackey’s) regarding who drew first, the effects of

Luskin’s errors were magnified. We thus find that the impact of counsel’s ineffectiveness was

sufficient to cast doubt on the jury’s decision as to Mackey’s credibility, and thus to the trial’s

eventual outcome.1

       It should be noted that cases such as this one, where there are no witnesses and no physical

evidence that would cast any light upon the central question in the case, are rare. The vast majority

of the time, errors such as those made here by Luskin would be insufficient to vacate a verdict on

direct appeal, never mind via a writ of habeas corpus. But where a case is as close as Mackey’s was,

with so little evidence, the teaching of Strickland, that counsel’s effectiveness must be evaluated in



       1
         The dissent references Mackey’s flight and pre-arrest silence as more evidence that he,
rather than Smith, shot first. But both of these factors depend directly upon the jury’s view of
Mackey’s testimony that he and Whitmore fled from the scene and avoided the police for several
hours because they were scared. Had the jury believed this explanation, these factors would not
have weighed against Mackey. As we have noted, this entire case rests on a determination of
Mackey’s credibility. But because his attorney’s errors significantly undermined this credibility,
we disagree with the dissent that these factors render Mackey’s attorney’s errors non-prejudicial.

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Mackey v. Russell

light of the “totality of the evidence,” means that we, along with state appellate courts, must

scrutinize more closely than usual the cumulative effects of errors such as those made here. This

scrutiny today leads us to find that Luskin’s errors sufficiently prejudiced Mackey’s case such that

a new trial is warranted.

                                                III.



       For the preceding reasons, we REVERSE the judgment of the district court and REMAND

Mackey’s case with instructions to issue a conditional writ of habeas corpus, giving the State of

Ohio 180 days within which to retry Mackey or release him from state custody.




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        JULIA SMITH GIBBONS, Circuit Judge, dissenting. I agree with the majority’s

resolution of the issues discussed in Parts II.A and B of the majority opinion. And while I agree

with the majority that Maurice Mackey’s attorney was deficient when he failed to request a limiting

instruction with respect to Stephanie Whitmore’s testimony about Mackey’s prior bad acts, failed

to object to prejudicial testimony about Mackey’s gun ownership, and failed to object to statements

about Mackey’s post-arrest silence, I do not believe that Mackey was prejudiced by the cumulative

effect of his attorney’s errors. I therefore dissent.

        To succeed on an ineffective assistance of counsel claim, a defendant must show that his

counsel’s performance was deficient and that it prejudiced his defense. Strickland v. Washington,

466 U.S. 668, 687 (1984). A counsel’s performance was deficient if it was objectively unreasonable

under the circumstances. Id. at 688. It was prejudicial if “there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at

694. For the purpose of ineffective assistance claims, “[a] reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id. In order to grant a habeas petition, the state

court’s application of Strickland must be objectively unreasonable or contrary to clearly established

Supreme Court law. See 28 U.S.C. § 2254(d).

        The majority concludes that the state court’s decision was contrary to clearly established

Supreme Court law because the state court did not consider the prejudicial impact of counsel’s errors

as a group but rather evaluated prejudice with respect to each of the errors alone. Strickland’s exact

language requires the defendant to show that, “but for counsel’s unprofessional errors, the result of

the proceeding would have been different.” 466 U.S. at 694 (emphasis added). While Strickland

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Mackey v. Russell

does speak in terms of the prejudicial impact of the “errors,” it does not explicitly state that the

prejudice analysis should be conducted in light of the errors considered as a group. Because

AEDPA requires that Supreme Court law be “clearly established,” it is not entirely obvious that the

state court acted in an objectively unreasonable way by not deducing from Strickland the purported

requirement that an attorney’s errors should be combined to consider whether a defendant was

prejudiced.

       I also do not believe that Mackey has established that “there is a reasonable probability that

. . . the result of the proceeding would have been different” absent his attorney’s mistakes. Id.

While there was not an overwhelming amount of evidence available in this case, there was enough

evidence presented that was unaffected by counsel’s errors for the jury to properly evaluate

Mackey’s self-defense claim. For example, several people testified as to the events that occurred

that night outside of the Office Lounge. Mackey testified at trial that the victim Smith pulled his

gun first. Whitmore, Mackey’s girlfriend, testified that she saw the victim Smith pull a gun and

point it at her stomach. She also testified that she could not see Mackey at this time, but heard him

fire two shots. Evidence was also presented that Smith died clutching his gun in his hand. Finally,

as noted in the Ohio appellate court opinion, both Smith and Wright were shot by Mackey. The

bullet hit Wright as he was running away from the scene and trying to reenter the Office Lounge;

the jury could have found this fact inconsistent with Mackey’s claim that he was defending himself

against Smith.

       In addition, Mackey’s behavior after the shooting was inconsistent with his theory of self-

defense. Mackey and his girlfriend fled the scene and drove home. When the police arrived at the

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No. 02-4237
Mackey v. Russell

home in the early morning hours after the shooting, neither answered the door. They did not

surrender to the police until several hours after they knew that the police were looking for them.

With these undisputed facts before it, the jury could have discounted Mackey’s claim of self-defense

claim as incompatible with his actions after the shooting. See Long v. Smith, 663 F.2d 18, 22 (6th

Cir. 1981) (“Ordinarily, a person who commits an act in self-defense does not flee from the law after

committing his act.”); State v. Taylor, 676 N.E.2d 82, 94 (Ohio 1997) (quoting State v. Eaton, 249

N.E.2d 897, 898 (Ohio 1969)) (“Flight from justice . . . may be indicative of a consciousness of

guilt.”).

        Mackey’s flight from the police also allowed the prosecution the opportunity to permissibly

refer to his post-shooting, pre-arrest silence. See Jenkins v. Anderson, 447 U.S. 231, 240 (1980)

(“We hold that impeachment by use of prearrest silence does not violate the Fourteenth

Amendment.”); see also State v. Sabbah, 468 N.E.2d 718, 719 (Ohio Ct. App. 1982) (“[W]here there

has been a substantial period of pre-arrest silence, then impeachment by reference to such silence

is permissible . . . .”). While the prosecution’s comments about Mackey’s failure to tell the police

after his arrest that he acted in self-defense were likely improper under Doyle v. Ohio, 426 U.S. 610,

619 (1976), the prosecution’s references to his pre-arrest silence were proper and allowed the jury

to consider his self-defense claim in the context of his failure to talk to the police right after the

incident at the Office Lounge.

        In my view, there was enough evidence before the jury that was not tainted by counsel’s

errors for the jury to decide that Mackey did not act in self-defense and was guilty of murder and

attempted murder. While Strickland counsels that “a verdict or conclusion only weakly supported

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Mackey v. Russell

by the record is more likely to have been affected by errors than one with overwhelming record

support,” 466 U.S. at 696, this was not such a weakly supported case such that there is a reasonable

probability that counsel’s errors tipped the balance between a guilty and a not guilty verdict. Rather,

the evidence that Mackey shot two people, shot Wright as he was turning to run back into the Office

Lounge, fled the scene, and refused to talk to the police after they arrived at his home strongly

suggests that his self-defense claim was not credible.

       Given this evidence, I do not believe that Mackey has established that “there is a reasonable

probability that . . . the result of the proceeding would have been different” absent his attorney’s

mistakes. Id. at 694. For this reason, I would affirm the district court’s decision denying Mackey’s

petition for a writ of habeas corpus.




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