             NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                        File Name: 13a1016n.06

                                           No. 12-1705

                        UNITED STATES COURT OF APPEALS
                                                                                         FILED
                                                                                   Dec 05, 2013
                             FOR THE SIXTH CIRCUIT
                                                                               DEBORAH S. HUNT, Clerk
JOHN ANTONIO POOLE,                    )
                                       )
      Petitioner-Appellant,            )                 ON APPEAL FROM THE
                                       )                 UNITED STATES DISTRICT
vs.                                    )                 COURT FOR THE EASTERN
                                       )                 DISTRICT OF MICHIGAN
DUNCAN MACLAREN,                       )
                                       )
      Respondent-Appellee.             )
______________________________________ )


Before: KEITH and SUTTON, Circuit Judges; and BLACK, District Judge*

       TIMOTHY S. BLACK, District Judge.               Petitioner-Appellant John Antonio Poole

(“Petitioner”) appeals an order of the district court denying his pro se petition for writ of habeas

corpus filed pursuant to 28 U.S.C. § 2254.

                                                 I.

       A Michigan jury convicted Petitioner of first-degree murder, being a felon in possession of

a firearm and possession of a firearm during the commission of a felony. Petitioner’s convictions

arose from the shooting death of Henry Covington, who was murdered at approximately 6:45 a.m.

on December 12, 2001, at a home Covington shared with his fiancée, Delora Lester. Months before

the murder, Lester purchased the home from Petitioner’s uncle, Harold Varner. Soon after the sale,




       *
          The Honorable Timothy S. Black, District Judge, United States District Court, Southern
District of Ohio, sitting by designation.
a dispute arose between Lester and Varner over the home. Evidence presented at trial suggested that

Covington’s relationship with Lester apparently complicated the dispute from Varner’s perspective.

       The prosecution’s case against Petitioner relied significantly on the preliminary examination

testimony of Amanda Coddington, a woman who shared a child with Varner and who managed

Varner’s properties. Coddington testified during the preliminary examination that Varner called her

at approximately 5:00 a.m. on December 12, 2001, requesting that she meet him at a gas station.

After meeting at the gas station, Coddington and Varner drove separately to pick up Petitioner, and

Coddington then drove Petitioner to the vicinity of Lester’s home while Varner followed in a

separate vehicle. Upon arriving near Lester’s home, Petitioner exited the vehicle. Fifteen minutes

later, Coddington heard four gunshots, after which, Petitioner returned to the vehicle with a gun in

his hand. While Coddington drove Petitioner away from the scene, Petitioner stated that he “shot

that nigga and killed him.” A day or two later, Varner told Coddington that he paid Petitioner $300

to kill someone, and that having Covington murdered made it easier for him to deal with Lester.

       At trial, Coddington recanted all of the foregoing testimony provided during the preliminary

examination. Instead, Coddington testified that she did not go anywhere with Petitioner on the

morning of December 12, 2001, and that she did not even see him that day. Coddington testified

at trial that she lied during the preliminary examination because Lieutenant Miguel Bruce threatened

and harassed her into giving the false testimony. Coddington testified at trial that officers told her

exactly what to say during her preliminary examination.

       The prosecution’s case against Petitioner also relied on the trial testimony of Vaudi

Higginbotham, a jailhouse informant. Higginbotham testified that he was an inmate at the Wayne

County Jail along with Varner and that, during a bible study session at the jail, Varner stated that


                                                 -2-
“he paid his nephew three hundred dollars to kill [a] guy” because Varner could not get over losing

$30,000 to $40,000 in a real estate transaction. Higginbotham also testified that Varner stated he

was unable to “sleep at night until he killed this guy or either had this guy killed” and that Varner

confessed to giving his nephew “a .357 to do’em with.”

       Evidence against Petitioner also included the testimony of Sergeant Kenneth Gardner, an

investigating officer. Sergeant Gardner testified at trial that Varner insisted on speaking with him

after being arrested in connection with Covington’s murder. According to Gardner, Varner offered

to provide information about a separate murder in exchange for leniency in the case involving

Covington’s murder. According to Gardner, Varner provided information about the separate murder

case and also stated that Petitioner confessed to shooting Covington during a telephone call a few

days after Covington was shot. Specifically, when asked whether Varner said “anything about

Tony,” Gardner testified that Varner “told [him] that Tony had told him how he had shot Mr.

Covington.”1

       The jury found Petitioner guilty of first-degree premeditated murder, being a felon-in-

possession of a firearm and possessing a firearm during the commission of a felony. Petitioner

directly appealed his conviction to the Michigan Court of Appeals arguing that the trial court denied

his Sixth Amendment right to confront witnesses when it allowed Gardner to testify about Varner’s

statements during the interview, and that trial counsel’s failure to object to Gardner’s testimony

deprived him of the effective assistance of counsel. The Michigan Court of Appeals affirmed the

convictions and the Michigan Supreme Court denied Petitioner’s application for leave to appeal.



       1
         Gardner also testified that Varner stated that Petitioner told him “that Mr. Covington was
going for a gun” at the time Petitioner shot Covington.

                                                -3-
       Petitioner subsequently moved for relief from judgment in the state trial court asserting a

number of ineffective assistance of counsel claims, including trial counsel’s purported failure to

locate and investigate certain witnesses. The witnesses trial counsel purportedly failed to investigate

included an alleged eyewitness to Covington’s murder and inmates at the Wayne County Jail who

were detained and housed alongside Varner and Higginbotham. The trial court denied Petitioner’s

motion for relief from judgment and the Michigan Court of Appeals denied Petitioner’s delayed

application for leave to appeal. The Michigan Supreme Court also denied Petitioner leave to appeal.

       Petitioner then filed his petition for a writ of habeas corpus in the district court, which the

district court denied. The district court, however, granted a certificate of appealability on the issue

of whether any error in admitting Gardner’s testimony in violation of the Confrontation Clause was

harmless and whether trial counsel was ineffective for failing to object to the admission of such

testimony. The district court also issued a certificate of appealability on the issue of whether trial

counsel was ineffective in not investigating certain witnesses.

                                                  II.

       This Court conducts a de novo review of a district court’s denial of a habeas petition. Miller

v. Colson, 694 F.3d 691, 695 (6th Cir. 2012) (citing Tolliver v. Sheets, 594 F.3d 900, 915 (6th Cir.

2010)). The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) provides that

district courts “shall entertain an application for a writ of habeas corpus in behalf of a person in

custody pursuant to the judgment of a State court only on the ground that he is in custody in

violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).

       Courts cannot grant a petition challenging claims “adjudicated on the merits in State court”

unless the state court’s adjudication “(1) resulted in a decision that was contrary to, or involved an


                                                 -4-
unreasonable application of, clearly established Federal law, as determined by the Supreme Court

of the United States; or resulted in a decision that was based on an unreasonable determination of

the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d); see

also Haskell v. Berghuis, 511 F. App’x 538, 543 (6th Cir. 2013)

        A legal principle is “clearly established” for purposes of habeas corpus review “only when

it is embodied in a holding of [the Supreme] Court.” Thaler v. Haynes, 559 U.S. 43, 47, 130 S.Ct.

1171, 175 L.Ed.2d 1003 (2010) (citations omitted). “[T]he relevant decision for purposes of

determining ‘clearly established Federal law’ is the last state court decision that adjudicated the

claim on the merits.” Miller, 694 F.3d at 696 (citation omitted).

        The “contrary to” and “unreasonable application” clauses set forth in 28 U.S.C. § 2254(d)(1)

have independent meanings. Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914

(2002). The “contrary to clause” applies when a “state court applies a rule that contradicts the

governing law set forth” by the Supreme Court of the United States or if the state court “decides a

case differently . . . on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362,

411, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). The “unreasonable application” clause applies where

“the state court correctly identifies the governing legal principle” set forth by the Supreme Court,

“but unreasonably applies it to the facts of the particular case.” Bell, 535 U.S. at 694, 122 S.Ct.

1843 (citing Williams, 529 U.S. at 407-08).

        In determining whether a state court’s decision unreasonably applied clearly established law,

federal courts must focus “on whether the state court’s application of clearly established federal law

is objectively unreasonable[.]” Id. “[A]n unreasonable application is different from an incorrect

one.” Id. (citation omitted).


                                                  -5-
                                                  III.

       In his first assignment of error, Petitioner first contends that admission of Varner’s statement

through the testimony of Sergeant Gardner violated the Confrontation Clause and that the state court

unreasonably concluded that admission of Gardner’s testimony amounted to harmless error. The

Confrontation Clause of the Sixth Amendment provides that, “[i]n all criminal prosecutions, the

accused shall enjoy the right . . . to be confronted with the witnesses against him.” This clause bars

the “admission of testimonial statements of a witness who did not appear at trial unless he was

unavailable to testify, and the defendant had a prior opportunity for cross-examination.” Crawford

v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).2

       “Confrontation Clause errors are subject to harmless-error analysis.” Vasquez v. Jones, 496

F.3d 564, 574 (6th Cir. 2007) (citing Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89

L.Ed.2d 674 (1986); Chapman v. California, 386 U.S. 18, 21-22, 87 S.Ct. 824, 17 L.Ed.2d 705

(1967)). A district court’s harmless error determination is subject to a de novo review. Jordan v.

Warden, Lebanon Corr. Inst., 675 F.3d 586, 598 (6th Cir. 2012) (citation omitted).

       Error is harmless where “it did not have a substantial and injurious effect or influence in

determining the jury’s verdict.” Matthews v. Warden, Ross Corr. Inst., 502 F. App’x 561, 563 (6th




       2
          In Respondent’s brief on appeal, Respondent argues that Varner’s statement admitted
through the testimony of Gardner does not amount to a Confrontation Clause violation because it
was not offered for the truth of the matter asserted. See Crawford, 541 U.S. at 59, n.9, 124 S.Ct.
1354 (stating that “[t]he Clause . . . does not bar the use of testimonial statements for purposes other
than establishing the truth of the matter asserted”) (citing Tennessee v. Street, 471 U.S. 409, 105
S.Ct. 2078 (1985)). At oral argument, Petitioner represented that the parties now stipulate that a
Confrontation Clause violation occurred. For purposes of this appeal, we assume without deciding
that admission of Sergeant Gardner’s testimony violated the Confrontation Clause.

                                                  -6-
Cir. 2012). To determine whether a Confrontation Clause violation was harmless, the following

factors must be considered:

       (1) the importance of the witness’ testimony in the prosecution’s case; (2) whether
       the testimony was cumulative; (3) the presence or absence of evidence corroborating
       or contradicting the testimony of the witness on material points; (4) the extent of
       cross examination otherwise permitted; and (5) the overall strength of the
       prosecution’s case.

Jensen v. Romanowski, 590 F.3d 373, 379 (6th Cir. 2009).

       Here, Gardner’s testimony was not a significant focus of the prosecution’s case against

Petitioner. Instead, Coddington’s preliminary examination testimony provided the most significant

evidence against Petitioner.    In her preliminary examination, Coddington provided detailed

testimony about how she drove Petitioner to the area of Covington’s home on the morning of

Covington’s murder, that Petitioner exited the vehicle near Covington’s home and, approximately

fifteen minutes later, Petitioner ran back to the car after four gunshots were fired. During her

preliminary examination, Coddington also provided specific testimony that Petitioner had a .357 in

his hand upon reentering the car and subsequently stated that he “shot that nigga and killed him.”

Coddington also informed the court during her preliminary examination that, a day or two after the

shooting, Varner told her that he paid Petitioner $300 to kill someone, and that having Covington

murdered made it easier to deal with Lester.

       In addition to the testimony of Coddington, the prosecution relied significantly on the

testimony of Higginbotham in its case against Petitioner. Higginbotham testified that Varner

confessed during bible study in the jailhouse that “he paid his nephew three hundred dollars to kill

[a] guy” because he let his pride get to him after losing money in a real estate deal. According to

Higginbotham, Varner stated that he could not get over losing $30,000 to $40,000 in the transaction,


                                                -7-
so he “surveyed the area for months at various times” and “couldn’t sleep at night until he killed this

guy or either had this guy killed.” Higginbotham also testified that Varner confessed to giving his

nephew “a .357 to do’em with.”

       Gardner’s testimony was merely cumulative of and corroborated by the preliminary

examination testimony of Coddington and the trial testimony of Higginbotham. That is not to say,

however, that Gardner’s testimony was of no significance in securing Petitioner’s conviction.

Nevertheless, the importance of Gardner’s testimony pales in comparison to the preliminary

examination testimony of Coddington. The prosecution’s case against Petitioner would not have

been significantly weakened in the absence of Gardner’s testimony.

      Indeed, Varner’s statement may have helped Petitioner more than it hurt him. According to

Gardner’s testimony, Varner said that Poole shot Covington because he saw Covington reach for

a gun. The prosecution’s claim, however, was that Poole shot Covington because Varner paid him

to do so. Varner’s statement may have bolstered the prosecution’s case by putting Poole at the scene

of the crime. But it undercut the case by suggesting that Poole acted in self-defense and by casting

doubt on the prosecution’s contract-killing theory of the crime.

       Petitioner points to no evidence contradicting Gardner’s testimony, though he suggests that

Coddington’s trial testimony, in which she recanted her earlier preliminary examination testimony,

contradicts her preliminary examination testimony. However, at trial, Coddington simply testified

that she did not go anywhere with Petitioner on the day of Covington’s murder. At no time did

Coddington testify that Petitioner did not, or could not have shot Covington.

       Accordingly, even assuming admission of Gardner’s testimony violated the Confrontation

Clause, in the weighing of the aforementioned factors in determining the harmfulness of any such


                                                 -8-
violation, the court concludes that admission of Gardner’s testimony was harmless error because it

did not have a substantial and injurious effect or influence in Petitioner’s conviction. Petitioner’s

asserted error in this regard is overruled.

                                                IV.

       Next, Petitioner argues that counsel’s performance prejudicially fell below an objective

standard of reasonableness when: (A) counsel failed to object to Gardner’s testimony during trial;

and (B) counsel failed to investigate potential witnesses for his defense.

       A claim of ineffective assistance of counsel first requires that Petitioner show deficient

performance by counsel by demonstrating “that ‘counsel’s representation fell below an objective

standard of reasonableness.’” Davis v. Lafler, 658 F.3d 525, 536 (6th Cir. 2011) (citing Strickland

v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Next, Petitioner must

demonstrate prejudice arising from counsel’s deficient performance “by establishing that ‘there is

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

would have been different.” Id. (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052).

                                                 A.

       Petitioner contends that counsel’s performance fell below an objective standard of

reasonableness when counsel failed to object to admission of Varner’s statements that Petitioner said

he shot Covington. The state court of appeals denied Petitioner’s arguments in this regard, finding

that counsel could not object at trial based on Crawford because Crawford was not decided at that

time. In addition, the state court of appeals concluded that allowing Gardner’s testimony in

violation of the Confrontation Clause was harmless beyond a reasonable doubt.




                                                -9-
       Assuming Petitioner can successfully show that counsel’s performance fell below an

objective standard of reasonableness, he cannot show a reasonable probability of a different result

in the absence of the purported deficiency. Again, as set forth in addressing Petitioner’ first assigned

error, Gardner’s testimony was cumulative of and corroborated by the preliminary examination

testimony of Coddington and the trial testimony of Higginbotham. In light of that other evidence,

the prosecution’s case against Petitioner would not have been significantly weakened in the absence

of Gardner’s testimony.

       Accordingly, finding no reasonable probability of a different result in the absence of

counsel’s purported deficient representation in failing to object to Gardner’s trial testimony,

Petitioner’s ineffective assistance of counsel claim in this regard is overruled.

                                                  B.

       Last, Varner argues that counsel’s failure to investigate potential witnesses amounted to

ineffective assistance of counsel. Petitioner asserts that trial counsel made no attempt to investigate

any of the inmates present during Varner’s purported confession to Higginbotham and failed to

investigate Bridgette Woodall, an alleged eyewitness to Covington’s murder.

       “[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision

that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691, 104 S.Ct. 2052.

“This duty includes the obligation to investigate all witnesses who may have information concerning

his or her client’s guilt or innocence.” Towns v. Smith, 395 F.3d 251, 258 (6th Cir. 2005) (citations

omitted). When determining counsel’s effectiveness in investigating a case, “a particular decision

not to investigate must be directly assessed for reasonableness in all the circumstances, applying a

heavy measure of deference to counsel's judgments.” Strickland, 466 U.S. at 691, 104 S.Ct. 2052.


                                                 -10-
        However, “[c]ounsel cannot be expected to investigate a defense or a witness unknown to

him.” Collins v. Berghuis, No. 1:08-cv-369, 2011 WL 4346333, *19 (W.D. Mich. Aug. 22, 2011)

(citing Bigelow v. Williams, 367 F.3d 562, 571 (6th Cir. 2004); Sones v. Bell, No. 1:07-cv-552, 2010

WL 2472760, at *12 (W.D. Mich. Apr.26, 2010)). “[T]he duty to investigate does not force defense

lawyers to scour the globe on the off chance something will turn up[.]” Rompilla v. Beard, 545 U.S.

374, 383, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) (citations omitted).

        With regard to Bridgette Woodall, Petitioner sets forth no facts showing that Ms. Woodall’s

purported knowledge concerning the murder of Covington was known to Petitioner’s counsel at

anytime before trial. In fact, Ms. Woodall’s affidavit is dated after the conclusion of trial and she

states that she never told police about the shooting. Ms. Woodall also states in her affidavit that,

until the time of her affidavit, she never wanted to get involved in the investigation because the

gunman saw her immediately after the shooting and, as a result, she feared for her life. Because Ms.

Woodall was unknown to Petitioner’s trial counsel, and because Petitioner presents no facts upon

which the court conclude Ms. Woodall could have been found by counsel prior to Petitioner’s trial,

Petitioner fails to demonstrate that counsel’s performance fell below an objective standard of

reasonableness.

        With regard to investigating statements from others in the Wayne County Jail in an effort to

discredit the testimony of Higginbotham, even assuming that the counsel’s failure to investigate

these witnesses fell below an objective standard of reasonableness, Petitioner does not establish a

reasonable probability that, but for such failure, the trial result would differ. Each affidavit from the

Wayne County Jail witnesses is dated years after Petitioner’s trial, with the earliest affidavit dated

December 29, 2004, i.e., over two years after Petitioner’s trial. Only two of these witnesses,


                                                  -11-
Antonio Laws and Brian Hamilton, represent that they would have been willing to testify on

Varner’s behalf at trial, and Hamilton was not among those persons Higginbotham stated was

present at the bible study when Varner made his statements. Its also fair to question whether these

inmates would have really been willing to offer testimony contradicting the prosecution’s evidence

while they faced trial by the prosecution in their own cases.

       Even if these inmates would have testified at trial, there is no reasonable probability that the

trial result would have differed. On cross-examination, Higginbotham’s credibility was challenged

by showing that he, in fact, offered his testimony against Varner and Petitioner solely in an effort

to gain leniency in the murder case against him. And, again, the preliminary examination testimony

of Coddington played a substantial role in the prosecution against Petitioner and the truthfulness of

that testimony was vigorously challenged at trial.

                                                 V.

       For the foregoing reasons, we affirm the district court’s denial of Petitioner’s petition for a

writ of habeas corpus.




                                                -12-
