                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 09a0669n.06

                                       Nos. 06-2650/07-1221                               FILED
                                                                                      Oct 2, 2009
                           UNITED STATES COURT OF APPEALS                        LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


VINCENT CARTER,                                            )
                                                           )           ON APPEAL FROM THE
        Petitioner-Appellee/Cross-Appellant,               )           UNITED STATES DISTRICT
                                                           )           COURT FOR THE EASTERN
v.                                                         )           DISTRICT OF MICHIGAN
                                                           )
HUGH WOLFENBARGER, WARDEN,                                 )                 OPINION
                                                           )
        Respondent-Appellant/Cross-Appellee.               )



BEFORE: BATCHELDER, Chief Judge, NORRIS and ROGERS, Circuit Judges.

        ALAN E. NORRIS, Circuit Judge. Warden Hugh Wolfenbarger appeals the district court’s

grant of a writ of habeas corpus, 28 U.S.C. § 2254, to Vincent Carter. A jury convicted Carter of

felony murder after a trial in a Michigan state court and he was sentenced to life in prison. However,

the district court concluded that petitioner had received ineffective assistance of counsel when his

trial attorney failed to object to the court’s denial of the jury’s request, made during deliberations,

to review a transcript of portions of the trial testimony. To remedy that perceived violation, the

district court issued a conditional writ of habeas corpus allowing the State ninety days to either

commence a retrial or release petitioner from custody. For the reasons outlined in this opinion, we

conclude that Carter is not entitled to relief, and vacate the writ.

                                                   I.

        The district court summarized the undisputed facts of this case as follows:
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                This case arises out of the homicide of Hani Naemi. On March 20, 1992,
       Nidhal Jarbo and her brother-in-law, Hani Naemi, were working at their family store,
       the Eight Mile Express, in Detroit Michigan. Petitioner was a regular customer of
       the store. On that particular day, he came into the store, talked to Mr. Naemi, and
       then left. As Ms. Jarbo left the store to go to the bank, she saw Petitioner standing
       outside the store with what appeared to be a gym bag. When she returned to the store
       about fifteen or twenty minutes later, the police were present; Mr. Naemi had been
       shot. Once inside the store, Ms. Jarbo noticed that the money tray was missing from
       the store. The store safe was open when she left to go to the bank. Ms. Jarbo told
       the police that she had seen Petitioner standing outside the store. She knew
       Petitioner’s girlfriend’s name, as they both belonged to the store’s video club. Ms.
       Jarbo located the video club card with Petitioner’s name and address on it and gave
       it to the police.

               The police discovered that Petitioner was on parole at the time of the incident,
       that he was the last person Ms. Jarbo saw at the store before she went to the bank,
       and thus Petitioner became a suspect. Petitioner was taken into custody and
       questioned. However, because there was insufficient evidence to charge him with
       the crime, he was released. Shortly thereafter, Petitioner was imprisoned on an
       unrelated parole violation–his parole was revoked based upon his arrest as a suspect
       in the Naemi murder, despite the charges being dismissed. He was sent to the
       Muskegon Correctional Facility.

               While imprisoned in the Muskegon Correctional Facility, Petitioner shared
       a cell with Norman Mackin (“Mackin”). It is alleged that Mackin, in an effort to
       obtain an early release, claimed that he was assaulted by several prisoners while
       housed with Petitioner in the same room. Mackin testified at trial that Petitioner
       divulged to him his role in an unsolved Detroit murder. Shortly afterwards, Mackin
       was roughed up by other prisoners.

               Despite the statements made by Mackin to the police, Petitioner was granted
       parole from prison and remained free for approximately three years before he was
       arrested and charged in the instant case. It was the details provided by Mackin that
       eventually allowed the police to allegedly tie Petitioner to the murder of Mr. Naemi.

               Trial in this case began on September 9, 1996. At trial, the prosecution
       presented eighteen witnesses, photographs, and a diagram of the location of the store,
       as well as a technician’s report.

               Jury deliberations began on September 11, 1996. About fifteen minutes after
       the jury began to deliberate, the trial court received a note requesting the testimony

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         of Officer Collins, Lieutenants Rice and Presley, and Norman Mackin. Officer
         Collins, Lieutenants Rice and Presley, and Norman Mackin were the key witnesses
         in the case. The trial court’s response to the attorneys was as follows:

                   Now, obviously what I will do when they come back is I will sit them
                   down in the jury box and respond, as to Dale Collins’ testimony,
                   Mackin’s testimony, Presley’s testimony and Rice’s testimony, as I
                   indicated in the beginning, they are to rely on their collective
                   memories, there’s no testimony they can read from.

         Neither the prosecution nor defense counsel had an objection to what the trial court
         was going to tell the jury.[1]

                 It is undisputed that there were no eyewitnesses presented by the prosecution
         specifically identifying Petitioner as the perpetrator of the crime. The only evidence
         which remotely linked Petitioner to this crime was the testimony of Mackin, whose
         criminal history spanned over forty years and who claimed that Petitioner had
         confessed the crime to him. In exchange for his testimony, Mackin sought numerous
         favors, from State Police officials, the Wayne County Sheriff Department, and the
         Wayne County Prosecutor’s Office, ranging from immediate release from prison,
         special good-time reduction from his sentence, placement in the federal prison
         system, granting of a new trial for the conviction he was serving, and early parole.
         Mackin died in or about June 2000.

Carter v. Wolfenbarger, No. 04-CV-74564, 2006 WL 3446205, at *1-*2 (E.C. Mich. Nov. 27, 2006).
(footnote omitted).

         1
          The trial judge further informed counsel of her intention to instruct the jury that “the transcripts are not typed
and will not be typed for some weeks and months to come. They must rely on their collective memories.” People v.
Carter, 612 N.W .2d 144, 148 (Mich. 2000). She then asked counsel, “Any input, any–anything else?” Carter’s attorney
replied, “Satisfaction with that part of it, Judge.” Id.

         Ultimately, the court gave the jury the following instruction:

                 W ith regard to the [request for trial transcripts of witness testimony], one of the things the
         court explained to you in the beginning, that the transcripts will not be typed for some weeks and
         months way into the future and you must listen very carefully because you must rely on your collective
         memories to resolve any issues with regard to that.

                 So that is the court’s response to your question. You now may return to the jury room and
         resume your deliberations.

Id. (footnote omitted).

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        The jury convicted Carter of felony murder, armed robbery (which was later vacated), and

possession of a firearm. He was sentenced to life imprisonment without parole on the murder

charge, and two years on the felony firearm charge. The district court went on to describe the

subsequent procedural history of this case:

               Petitioner appealed his convictions to the Michigan Court of Appeals raising
       three issues: (1) ineffective assistance of counsel; (2) insufficient evidence; and (3)
       abuse of discretion by the trial court in denying the jury’s request for testimonial
       transcripts of four key trial witnesses.

               While his appeal was pending, on May 16, 1997, Petitioner filed a pro per
       motion for a new trial and/or evidentiary hearing with the trial court on the basis of
       ineffective assistance of trial counsel. After holding an evidentiary hearing on that
       motion, the trial court found that Petitioner’s claim was without merit and denied the
       motion.

              Meanwhile, Petitioner filed with the Michigan Court of Appeals a motion to
       remand for the purpose of filing a motion for a new trial on the basis of newly
       discovered evidence. On June 29, 1998, the Court of Appeals denied that motion.

               On December 18, 1998, the Michigan Court of Appeals, in a unanimous
       decision, reversed and remanded Petitioner’s convictions to the trial court for a new
       trial. The Court of Appeals did not find that Petitioner’s due process rights were
       violated because he was denied the effective assistance of counsel or that there was
       insufficient evidence to sustain his convictions. Rather, it found that the trial court
       abused its discretion, in violation of M.C.R. 6.414(H), in denying the jury’s request
       for testimonial transcripts of four key trial witnesses, specifically that of Norman
       Mackin, the inmate who resided with Petitioner while he was being held at the
       Muskegon Correctional Facility as a result of a parole violation.

Id. at *2-*3.(citation omitted).

       The State appealed that decision to the Michigan Supreme Court, which reversed and

reinstated Carter’s original sentence. People v. Carter, 612 N.W.2d 144 (Mich. 2000). The

prosecution conceded, and the Michigan Supreme Court agreed, that the trial court’s jury instructions


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Carter v. Wolfenbarger

violated MCR 6.414(H).2 Id. at 148. The Court nonetheless reinstated Carter’s sentence because

“[Carter] waived the issue when defense counsel expressed satisfaction with the trial court’s refusal

of the jury’s request and its subsequent instruction to the jury.” Id. The majority explained:

                When asked by the trial court in the present case for a response to its
         proposed instructions, defense counsel expressed satisfaction with the trial court’s
         decision to explain that the transcripts were not available and that the jury must rely
         on its collective memory. Because defense counsel approved the trial court’s
         response, defendant has waived this issue on appeal.

                     ....

         . . . Defense counsel in the present case did not fail to object. Rather, counsel
         expressly approved the trial court’s response and subsequent instruction. This
         constitutes a waiver that extinguishes any error. Thus, this case does not concern
         unpreserved error where no timely objection was made.

Id. at 149-50 (footnote omitted). Justice Cavanagh dissented, arguing that this error “cannot be

waived.” The majority responded, acknowledging that a defendant does have certain rights that

counsel may not waive without his express public consent. Id. at 150. However:

         A defendant does not have a right to have a jury rehear testimony. Rather, the
         decision whether to allow the jury to rehear testimony is discretionary and rests with
         the trial court. In our opinion, the decision whether to oppose the trial court’s refusal
         of the jury’s request for testimony is akin to an evidentiary decision. Because
         counsel has full authority to manage the conduct of the trial and to decide matters of
         trial strategy, we conclude that in this instance, waiver could be effected by the action

         2
             That rule provides as follows:

         If, after beginning deliberation, the jury requests a review of certain testimony or evidence, the court
         must exercise its discretion to ensure fairness and to refuse unreasonable requests, but it may not
         refuse a reasonable request. The court may order the jury to deliberate further without the requested
         review, so long as the possibility of having the testimony or evidence reviewed at a later time is not
         foreclosed.

MCR 6.414(H) (subsequently redesignated subsection (J)). Neither party questions whether the trial court violated this
rule, and so we will assume, without deciding, that it did.

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Carter v. Wolfenbarger

       of defense counsel.

Id. at 151 (citations and footnote omitted). This was the last reasoned state court opinion on the

waiver issue.

       Thereafter Carter filed a motion for post-conviction relief in the trial court. In that motion

he raised several issues, two of which are relevant here: ineffective assistance of trial counsel for

failing to object to the trial judge’s violation of MCR 6.414(H), and ineffective assistance of

appellate counsel for failing to raise that issue on direct appeal. Beginning with the ineffective

assistance of trial counsel claim, the court looked to Strickland v. Washington, 466 U.S. 668 (1984),

and rejected the claim in these terms:

       [D]efendant has not rebutted the presumption of effective assistance of counsel. The
       issues of ineffective assistance of counsel complained of by Defendant seem to be
       part of purposeful trial strategy, rather than counsel mistakes. This Court will not
       second-guess the strategies of trial counsel.

People v. Carter, No. 96-002619, at 10 ( Mich. 3d Cir. Ct. Crim. Div., May 21, 2002). The court

also addressed Carter’s appellate ineffective assistance claim. It pointed out that “appellate counsel

need not raise all possible claims of error on appeal,” restated the Strickland standard, and summarily

concluded “[d]efendant has not met this burden. On the basis of Defendant’s assertions, this Court

will not second-guess the strategies appellate counsel employed.” Id. at 12, 13.

       Finally, Carter filed an application for leave to appeal that decision in the Michigan Court

of Appeals and the Michigan Supreme Court, but both were denied.

       On November 16, 2004, Carter filed his petition for a writ of habeas corpus, and amended

the petition on April 27, 2005, asserting a total of eight grounds for relief. Before us now are three


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Carter v. Wolfenbarger

of those claims, all of which arise from the trial court’s violation of MCR 6.414(H): (1) trial court’s

error was not subject to waiver by counsel; (2) trial counsel was ineffective for failing to object to

the trial court’s error; and (3) appellate counsel was ineffective for failing to argue on appeal that

Carter’s trial counsel was ineffective for failing to object. The district court extensively discussed

the first issue, but did not grant relief on that basis. However, the court agreed with Carter on both

of his latter two claims, and granted his petition.3

                                                           II.

         We review a district court’s grant of habeas relief de novo. Hereford v. Warren, 536 F.3d

523, 527 (6th Cir. 2008). Carter filed his petition after the enactment of the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, and so its

provisions govern. Hawkins v. Coyle, 547 F.3d 540, 545 (6th Cir. 2008). That statute requires us

to look to the last reasoned state court decision on the issue, including state post-conviction review.

Joseph v. Coyle, 469 F.3d 441, 450 (6th Cir. 2006) (reviewing a post-conviction opinion). We

accord great deference to the state court determination, and may grant relief only if the state

adjudication “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 was

based on an “unreasonable determination of the facts.” 28 U.S.C. § 2254(d). “Clearly established

Federal law” refers only to the holdings of Supreme Court decisions extant at the time the state court



         3
           Carter proceeded pro se in the district court, and when the government appealed that court’s decision, he filed
a cross-appeal in which he sought to challenge the district court’s failure to grant him relief on the additional grounds
raised in his appeal. Now represented by counsel, he has withdrawn his cross-appeal.

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Carter v. Wolfenbarger

ruled on the issue. Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003) (citation omitted).

                                                   III.

                                                   A.

        Although the district court did not reach the question of whether trial counsel could have

waived his objection to the refusal to supply the jury with the transcripts it requested, this purely

legal issue was fully briefed below and in this court. Carter relies on United States v. Olano, 507

U.S. 725 (1993), for the proposition that his counsel could not have waived his objection to the trial

court’s refusal to provide transcripts to the jury. He argues that, while there is no constitutional right

to have a jury revisit testimony, the trial court’s ruling infringed upon his general due process right

to have a tribunal follow its own rules.

        The Michigan Supreme Court, the last state court to issue a reasoned opinion on this issue,

acknowledged that under Olano and other Supreme Court precedents, a defendant has certain rights

that are not subject to waiver. Carter, 612 N.W.2d at 150. But the Court went on to determine that

Carter’s counsel had the authority to waive MCR 6.414(H) without consulting Carter. Carter, 612

N.W.2d at 151. In our view this conclusion is perfectly consistent with Olano. That case does not

provide any guidance as to which rights are subject to waiver and which are not. Rather, we read

it for the proposition that certain rights may be waived. See Olano, 507 U.S. at 733. The Michigan




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Carter v. Wolfenbarger

Supreme Court’s decision was therefore not contrary to or an unreasonable application of that

decision.4

         Nor does the Michigan Supreme Court’s decision run afoul of any other United States

Supreme Court precedent. In New York v. Hill, 528 U.S. 110 (2000), the Supreme Court noted that

it has, “in the context of a broad array of constitutional and statutory provisions, articulated a general

rule that presumes the availability of waiver,” even when that waiver involves “the most basic rights

of criminal defendants.” Id. at 114 (quotations omitted). There are, of course, “certain fundamental

rights” which are not subject to waiver by counsel, such as the right to counsel and the right not to

plead guilty. Id. (citing Johnson v. Zerbst, 304 U.S. 458, 464-65 (1938), and Brookhart v. Janis, 384

U.S. 1, 7-8 (1966)). But “the lawyer has–and must have–full authority to manage the conduct of the

trial . . . . Thus, decisions by counsel are generally given effect as to what arguments to pursue, what

evidentiary objections to raise, and what agreements to conclude regarding the admission of

evidence.” Id. at 115 (citations and quotations omitted). The Michigan Supreme Court looked to

Hill for guidance, and determined that “the decision whether to oppose the trial court’s refusal of the

jury’s request for testimony is akin to an evidentiary decision,” and therefore fell under counsel’s

“authority to manage the conduct of the trial and to decide matters of trial strategy.” Carter, 612

N.W.2d at 151. Carter has not explained how this is contrary to or an unreasonable application of

Hill, and we conclude that it is not. The decision whether to object in this instance did not involve

         4
            Carter also suggests that relief is warranted because the Michigan Supreme Court distinguished between rights
and rules, Carter, 612 N.W .2d at 151, and the United States Supreme Court draws no such distinction. However, we
find Carter’s argument on this point irrelevant; the Michigan Supreme Court’s decision hinged on its conclusion that the
error at issue here was waivable by counsel, id. at 151, so Carter’s emphasis on the distinction (or lack thereof) between
a rule and a right is misplaced.

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Carter v. Wolfenbarger

Carter’s fundamental rights. It was one of many minor tactical decisions counsel faced during trial,

precisely the sort of decision that counsel had the “full authority” to make, as is clear under Hill. We

therefore leave undisturbed the Michigan Supreme Court’s determination that Carter’s counsel could

and did waive the error at issue here.

                                                          B.

         As noted above, Carter asserts that he received ineffective assistance of counsel at two

different stages of state court proceedings: at his trial (“trial IAC”) and on direct appeal (“appellate

IAC”). Although each of these claims represents a separate ground for relief, both ultimately

depend on the strength of the trial IAC claim. This is because the appellate IAC claim is based

entirely on appellate counsel’s failure to raise the trial IAC claim. It is well established that appellate

counsel is not ineffective for failing to raise every nonfrivolous argument. Jones v. Barnes, 463 U.S.

745, 751 (1983). Rather, “[i]f there is a reasonable probability that [the defendant] would have

prevailed on appeal had the claim been raised, we can then consider whether the claim’s merit was

so compelling that appellate counsel’s failure to raise it amounted to ineffective assistance of

appellate counsel.” Valentine v. United States, 488 F.3d 325, 338 (6th Cir. 2007) (quoting

McFarland v. Yukins, 356 F.3d 688, 700 (6th Cir. 2004)) (alterations in original). In short, as goes

Carter’s trial IAC claim, so goes his appellate IAC claim.5



         5
           The State argues that Carter’s trial IAC claim is procedurally defaulted, but Carter responds that he has
established cause and prejudice, which excuses his default. Hartman v. Bagley, 492 F.3d 347, 357 (6th Cir. 2007). W e
do not reach the issue of whether Carter procedurally defaulted on his trial IAC claim because we would still be required
to reach the merits of this claim when addressing Carter’s cause and prejudice argument. Carter attempts to show cause
and prejudice through his appellate IAC claim which, as noted above, is based on an analysis of his trial IAC claim.
Therefore, we skip straight to the merits of his trial IAC claim.

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Carter v. Wolfenbarger

        We turn, then, to the trial IAC claim. The Michigan trial court, sitting in post-conviction

review, issued the last reasoned state court opinion on this issue, and it rejected Carter’s claim. That

court recited the Strickland standard, but provided only minimal analysis of that standard’s

application to this case. We have noted that a cursory analysis affects the degree of deference we

accord to a state court decision:

        Where the state court disposes of a Federal constitutional claim with little-to-no
        articulated analysis of the constitutional issue, this circuit applies a modified form of
        AEDPA deference. This modified-AEDPA standard requires that we conduct a
        careful and independent review of the record and applicable law, but we cannot
        reverse unless the state court’s decision is contrary to or an unreasonable application
        of federal law. In other words, in such cases, we must focus on the result of the state
        court’s decision, applying AEDPA deference to the result reached not the reasoning
        used.

Hawkins v. Coyle, 547 F.3d 540, 546-47 (6th Cir. 2008) (citations omitted and punctuation altered).

It is that level of deference which we apply to the state court’s resolution of Carter’s IAC claims.

        As an initial matter, neither party disputes-and therefore we do not address-the proposition

that the trial court erred in its ruling on the witness transcripts. The State argues that trial counsel’s

failure to object to this error was a strategic decision, as trial counsel realized that the jury’s review

of the testimony in question would have worked to Carter’s detriment. Carter, on the other hand,

argues that such a decision could not have been reasonable trial strategy because the requested

testimony was so beneficial to him. The question before us is whether it was contrary to, or an

unreasonable application of, clearly established Supreme Court precedent for the state trial court, on

post-conviction review, to determine that the State was correct.




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       The jury requested to see transcripts of testimony of the four most central witnesses in the

case, all of whom were offered by the prosecution: (1) Mackin, Carter’s cellmate, to whom Carter

allegedly confessed; (2) Officer Collins, the primary investigator in the Naemi murder; (3) Lt. Rice,

who supervised and coordinated the homicide squad investigating the murder; and (4) Lt. Presley,

who eventually took over that same homicide squad, and flew up to Mackin’s detention facility and

was the first to question Mackin about this case. The parties agree that the heart of this trial was

Mackin’s testimony; before he agreed to testify, the police had dropped Carter from being a suspect

for lack of evidence. So it comes as no surprise that, throughout the trial, the general thrust of the

prosecution’s case was to persuade the jury of his credibility, primarily by attempting to show that

Mackin could not have known what he knew about the murder unless Carter had told him, and Carter

could not have known the things he told Mackin unless he committed the murder. These details

included the facts that Naemi had been shot while he was in the cooler, that the convenience store

was owned by people of Arab descent, that the murder had been committed with a shotgun, and that

the murderer had waited for the other people to leave the convenience store before committing the

robbery. Secondarily, the prosecution sought to demonstrate to the jury that Mackin was not

testifying for personal gain.

       Carter’s defense, therefore, centered around casting doubt on Mackin’s credibility by arguing

that Mackin had concocted this story in an effort to obtain various favors from the police. Carter’s

theory was that Mackin first learned about the Naemi murder from files Carter kept in their cell, and

then simply provided the information that he learned from them to the police in his initial interview.

From that point on he was able to glean more and more information about the case from various

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sources along his way. These sources included Carter himself, the police who interviewed Mackin,

and even the victim’s family (with whom Mackin eventually met during the three-year period

between his initial interview with the police and Carter’s trial). To substantiate this theory, the

defense highlighted two inconsistencies in Mackin’s testimony, the first of which was the fact that,

during Mackin’s initial interview with the police, he did not tell them that the murder weapon was

a sawed-off shotgun, whereas he did testify to this fact at trial.6 The defense focused on this in order

to refute the prosecution’s argument that Mackin could not have known this fact but for Carter’s

confession. Instead, the defense urged, Mackin had only learned this fact after he came forth, during

one of his encounters with the authorities or the victim’s family.

         The second inconsistency the defense pointed to regarded the favors Mackin had requested

from the police in exchange for testifying. At trial, Mackin repeatedly testified that, all along, he

wanted little or nothing from the police except for the protection necessitated by his becoming a

witness. But Lt. Presley made clear that at the initial interview Mackin had actually made numerous

requests, including immediate release from prison.7 Obviously this not only impeached Mackin’s

credibility by showing that what he said on the stand was not entirely true, but it bolstered the

defense’s substantive argument that Mackin was motivated to make up this story in exchange for

favors from the police.



         6
             Mackin claimed he withheld this information in hopes of using it later as a bargaining chip with the police.

         7
           In exchange for testifying, Mackin ultimately received a transfer into federal custody, and a letter from the
prosecutor to the judge who had sentenced Mackin in state court, requesting “good time” credits, which, as far as we can
tell, would have reduced M ackin’s sentence by a period of several months. At the time, Mackin was serving a sentence
of eight to fifteen years.

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       But despite these points, the factual foundation in this case is ultimately too weak to support

the theory that the defense attempted to build upon it. None of the police officers presented

testimony that information about the murder could have leaked out to either Carter or anyone else

in the penal system. They repeatedly stressed the opposite, and thorough probing by the defense

revealed nothing to the contrary. Notwithstanding the dispute regarding the shotgun, the defense

made no attempt to explain the other details Mackin knew about the murder–that the shooting

occurred in a cooler, that the store owners were of Arab descent, or that the perpetrator had waited

until the store emptied before taking action. These were all things that, according to police

testimony, Mackin simply could not have known without Carter’s confession. And although

Mackin’s testimony was weakened by the two inconsistencies discussed above, defense counsel did

a thorough job of highlighting these weaknesses the first time around. Thus, the jury had an

opportunity to consider the defense’s theory, but rejected it. The question is whether the jury, upon

reviewing the requested transcripts, would have found anything that it had missed the first time

around that was particularly beneficial to petitioner. In our view it would not have found any such

testimony. The jury simply would have realized that Carter’s defense counsel had done a good job

in closing arguments by making mountains out of two testimonial molehills.

       The final problem with Carter’s theory is that its key component is Mackin’s ability to pull

off such a complex scheme, in which he managed to trick the police and perhaps the victim’s family

into revealing information regarding the Naemi murder, in order to weave a false and self-serving

story to present at trial. Throughout this process, Mackin also would have had to keep the police

convinced that he knew much more about the murder than he actually did, so that he could string

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Carter v. Wolfenbarger

them along and learn more about the murder. Having reviewed Mackin’s testimony, we believe the

jury reached the same conclusion that the state court did on post-conviction review, which is that

Mackin was simply incapable of executing such a plan. His rambling and tangential style of

answering questions, coupled with his tendency to continue speaking through objections and rulings

by the judge, gave the impression of a person who was, to say the least, a bit flighty and distracted.

This also made his testimony extremely difficult to follow, which provides a likely explanation for

the jury’s transcript request. The state trial court necessarily concluded that there was nothing buried

in this testimony that was so beneficial to Carter that counsel’s failure to object constituted

ineffective assistance. In our view, that conclusion was not an unreasonable application of clearly

established Supreme Court precedent.

       As explained above, the conclusion that Carter’s trial IAC claim is without merit also

forecloses his appellate IAC claim, because the trial IAC claim would have been rejected had

counsel raised it on direct appeal. McFarland, 356 F.3d at 700.

                                                  IV.

       We therefore reverse the decision of the district court, vacate the writ, and remand for

further proceedings.




                                                 - 15 -
