                       RECOMMENDED FOR FULL-TEXT PUBLICATION
                            Pursuant to Sixth Circuit Rule 206
                                   File Name: 09a0424p.06

               UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                 _________________


                                              X
                                               -
 THOMAS DAVIS,
                                               -
                             Petitioner-Appellee,
                                               -
                                               -
                                                   No. 09-1140
         v.
                                               ,
                                                >
                                               -
                    Respondent-Appellant. -
 RAYMOND BOOKER, Warden,
                                              N
                Appeal from the United States District Court
               for the Eastern District of Michigan at Detroit.
              No. 02-75063—Arthur J. Tarnow, District Judge.
                               Argued: November 19, 2009
                         Decided and Filed: December 15, 2009
           Before: MERRITT, GIBBONS, and McKEAGUE, Circuit Judges.

                                   _________________

                                        COUNSEL
ARGUED: Brian O. Neill, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,
Lansing, Michigan, for Appellant. Joan Ellerbusch Morgan, Sylvan Lake, Michigan, for
Appellee. ON BRIEF: Brian O. Neill, OFFICE OF THE MICHIGAN ATTORNEY
GENERAL, Lansing, Michigan, for Appellant. Joan Ellerbusch Morgan, Sylvan Lake,
Michigan, for Appellee.
                                   _________________

                                        OPINION
                                   _________________

        MERRITT, Circuit Judge. In 1998, Thomas Davis and John Wilder were in a car
attempting to purchase drugs from Troy Prewitt when one of them shot and killed Prewitt.
Davis, the habeas petitioner here, was charged with murder in Michigan state court and
convicted by a jury. The main factual question at trial was whether Davis or Wilder was the
shooter. Wilder was a key witness against Davis at trial and testified that Wilder was merely




                                             1
No. 09-1140          Davis v. Booker                                                    Page 2


driving Davis to buy drugs and had no intention of killing Prewitt. Davis claimed that their
roles were reversed.

        The main questions now before us, decided in Davis’s favor by the District Court
below, are (1) does Davis have any significant evidence that a potential, uncalled witness,
Todd Selma, would have testified that Wilder confessed to the shooting, and (2) did the
prosecutor improperly vouch for Wilder’s credibility by noting that Wilder had been charged
only as an accessory after the fact and not as an accomplice to the murder. With regard to
the first question, we find that the only significant evidence in the record showing what
Selma would have testified, if produced, is a letter that actually implicates Davis, not Wilder,
for the shooting. Hence, we conclude that it is clear from the record that Davis was not
prejudiced by his lawyers’ failures to locate and call Selma. With regard to the second
question, we conclude that the prosecutor’s statements did not constitute improper vouching
because Wilder’s charge was in the record and his personal interest in the case was obvious
to the jury.

        We, therefore, reverse the issuance of the writ of habeas corpus by the District Court.

                                          I. FACTS

        The testimony at trial showed that Wilder and Davis drove to a parking lot to
purchase drugs, with Wilder driving and Davis in the passenger seat. They attempted to buy
drugs from Derrick Glaze “on credit,” but Glaze refused. Troy Prewitt, another dealer,
entered the parking lot and also refused to sell them drugs on credit. As Prewitt stood next
to the passenger side of the vehicle, Davis grabbed the drugs. Wilder slowly drove away as
Prewitt ran alongside the car to retrieve his drugs. Davis then shot and killed Prewitt. These
facts are not in dispute except insofar as Davis claims that his role and Wilder’s were
reversed.

        The prosecution’s evidence at trial consisted primarily of testimony from Wilder and
Glaze and two other eyewitnesses, Wendell Wilson and Dean Rochelle. Credibility was an
issue with each of these witnesses. Wilder was in the car with Davis for the purpose of
buying drugs and later gave a questionable story to police. He pleaded guilty to being an
accessory after the fact and was sentenced to probation. Glaze was an admitted drug dealer
No. 09-1140           Davis v. Booker                                                    Page 3


and gave questionable testimony, including that he observed a black woman in the car. He
also did not tell police that he saw who fired the gun or that he saw Davis with a gun.
Wilson could not tell whether the driver or passenger fired or even how many people were
in the car. Rochelle was a drug dealer. During cross-examination, Rochelle admitted that,
on the day he gave a statement to police regarding this case, he also gave a statement
regarding another murder case. He also stated that the information he gave regarding the
other murder case was fabricated because he was pressured by police.

        After a trial, Davis was convicted by a jury of second-degree murder and possession
of a firearm during the commission of a felony. He was sentenced as a habitual offender to
30 to 60 years’ imprisonment for the murder conviction, to be served consecutively to two
years’ imprisonment for the felony-firearm conviction. His conviction and sentence were
affirmed on appeal.

        Davis’s initial petition for habeas corpus relief was denied for failure to exhaust his
ineffective assistance of appellate counsel claims in state court. Davis returned to federal
court after the state court denied these claims. In response to Davis’s eight habeas claims,
the District Court conducted an evidentiary hearing and ultimately granted relief on the
grounds that Davis “was deprived of his right to the effective assistance of trial and appellate
counsel and because the prosecutor committed misconduct.” Davis v. Booker, 594 F. Supp.
2d 802, 805 (E.D. Mich. 2009). In granting habeas relief, the district court specifically found
that: (1) Davis’s trial counsel was ineffective for failing to locate and interview Selma; (2)
Davis’s appellate counsel was ineffective for failing to locate and interview Selma; (3)
Davis’s trial counsel was ineffective in failing to meet privately with Davis until eight days
before trial, and so failing to learn about Selma’s allegedly critical comments; (4) Davis’s
trial counsel was ineffective for failing to request criminal histories for prosecution witnesses
and failing to impeach Wilder with evidence of a prior conviction for retail fraud; and (5)
the prosecutor engaged in misconduct by improperly vouching for Wilder’s credibility. Id.
at 805-06, 819-20.

        The central issue respecting the failure to call the witness, Todd Selma, arises
because Davis claims that he, Wilder and Selma were in jail together where Wilder
No. 09-1140         Davis v. Booker                                                       Page 4


confessed to the murder to Selma. The District Court believed that the writ of habeas corpus
must issue because of the following circumstances described in the District Court’s opinion:

                 The record shows that the information regarding Selma’s potential
        testimony was supplied to and available to counsel at least several months
        prior to trial in the form of Petitioner’s verbal statements to counsel and the
        pro se motion filed in the trial court regarding representation by Petitioner’s
        first court-appointed attorney. Yet, counsel waited until eight days prior to
        trial to try to locate this witness. He relied upon a police investigator to
        locate Selma without tapping a resource at his disposal, an investigator
        already approved by the court.
                 The Michigan Court of Appeals held that Petitioner failed to show
        that counsel was ineffective in failing to locate Selma or that Petitioner was
        prejudiced by this failure. The state court rested its conclusion on the
        absence of any testimony at the Ginther hearing that (i) Selma would have
        been available to testify, (ii) the prosecutor and police failed to use due
        diligence to locate Selma. The state court did not address counsel’s failure
        to utilize the investigator, counsel’s general obligation to investigate and
        prepare a defense, or the fact that Selma was on probation at the time trial
        counsel admitted to first hearing his name.
        ....
                In this case, an attorney acting competently, would have attempted
        to locate and interview Todd Selma when initially made aware of his
        potential testimony. In addition, an attorney acting competently would have
        discovered that the trial court had approved a private investigator and would
        have utilized that investigator to attempt to locate Selma rather than relying
        on police, and would have attempted to ascertain the identity of any
        additional potential witnesses to the shooting. The requirement that an
        attorney conduct a reasonable investigation requires that an attorney
        commence investigation far enough in advance of trial to allow for time to
        pursue leads, interview witnesses and develop a defense strategy. While
        defense counsel in this case developed a defense strategy, attempting to
        inculpate Wilder as the shooter, he failed to investigate and develop any
        facts which would have supported that theory. In addition, at the state court
        evidentiary hearing, the trial court judge noted that Selma was on probation
        through June 25, 1999. Thus, if trial counsel had undertaken prompt and
        diligent efforts, Selma could have been easily located while either
        incarcerated or serving a term of probation.
        ....
               Respondent argues that Petitioner fails to establish prejudice in
        counsel’s failure to call Selma as a witness for two reasons: because a letter
        purportedly written by Selma in 2002 incriminates Petitioner and because
No. 09-1140         Davis v. Booker                                                     Page 5


        Petitioner has presented no evidence to show how Selma would have
        testified at trial.
                 First, Petitioner has produced a copy of a March 26, 2002 letter
        purportedly written by Todd Selma to Petitioner. The substance of the letter
        is confused. Selma appears to simultaneously profess Petitioner’s innocence
        while placing blame for the shooting on someone from New York.
        Considerable testimony was presented at the evidentiary hearing to show
        that Petitioner was called “New York” by several fellow prisoners. In the
        letter, Selma admits that he does not fully remember the details of his 1998
        encounter with Wilder. The letter was written over three years after Selma’s
        contact with Wilder at the Inkster County Jail. While the letter does not
        clearly and unequivocally exculpate Petitioner neither does it, as Respondent
        alleges, clearly and unequivocally inculpate him. Instead, the letter raises
        additional questions, including whether Selma believed that he was, as
        Respondent argues, writing to Wilder rather than Petitioner, whether Selma
        thought Wilder was known as “New York;” and whether Selma would have
        been able to clarify these ambiguities had he been located prior to trial.
        These questions may have been answered had counsel undertaken a
        vigorous, effective search for Selma.

Davis v. Booker, 594 F. Supp. 2d 802, 805 (E.D. Mich. 2009).

        We present our disagreement with the District Court in the next section. We do not
take issue with the District Court on the issue of counsel’s deficient performance. Rather we
disagree on the issue of prejudice because the letter in the record from Selma indicates that
Selma’s testimony would have been extremely harmful to Davis’s case.

                                      II. ANALYSIS

     1. Ineffective Assistance of Counsel — Failing to Have Todd Selma Testify

        Several of the District Court’s findings concern the missing testimony of Todd
Selma, who allegedly heard Wilder confess to the shooting. Contrary to the decision of the
Michigan Court of Appeals, the District Court held that Davis’s trial and appellate counsel
were ineffective for failing to locate and obtain testimony from Selma. The District Court
also held that Davis’s trial counsel was ineffective for failing to meet with Davis until eight
days before trial, and so failing to learn about Selma’s supposedly vital comments until it
was too late to find Selma before the trial. All three of these findings depend upon the
assumption that Selma, had he been located, would have testified that it was Wilder and not
Davis who shot Prewitt.
No. 09-1140         Davis v. Booker                                                   Page 6


        There is evidence that both lawyers were deficient. The District Court believed that
a pro se motion filed by Davis that included Selma’s name should have made trial counsel
aware of Selma’s potential testimony several months before the trial. Although trial counsel
read the motion, he admitted that he did not learn of Selma’s existence until he met with
Davis — for the very first time — just eight days before the trial. Trial counsel then asked
the police officer in charge of the case to locate Selma but did not know what steps were
taken to locate him. Trial counsel was unaware that an investigator had been approved for
his use by the court. Because Selma was on probation, before and during the trial, he
presumably could have been located with a reasonable search.

        At the habeas evidentiary hearing, appellate counsel testified that the only effort he
made to locate Selma was to call a telephone number given to him by Davis, but he did not
receive a response. He did not provide any reason for failing to take further steps but
testified that it was his “understanding that, if called to testify at trial, Selma would have
testified that Wilder confessed to being the gunman.” Davis, 594 F. Supp. 2d at 819-20.

        Whatever the deficiencies by Davis’s attorneys for failing to locate and call Selma,
Davis must also show that, had Selma testified, the result of his trial would have been
different with a “probability sufficient to undermine the confidence in the outcome.” Avery
v. Prelesnik, 548 F.3d 434, 438 (6th Cir. 2008) (quoting Strickland v. Washington, 466 U.S.
668, 694 (1984)). Davis claims, and the District Court found, that Selma would have
testified that Wilder confessed to Selma that Wilder — not Davis — shot the victim. This
Court need not consider the impact that such an alleged confession might have had at trial
because there is no real evidence that Selma would have actually implicated Wilder and
exonerated Davis had Selma testified.

        Neither the District Court opinion nor Davis’s brief sets out what Selma actually
knew and how he knew it. From the Warden’s brief, we learn that Davis’s claim is based
on two sources. First, Davis testified at a state court evidentiary hearing that while Davis,
Wilder, and Selma were all in a lineup in 1998, Wilder confessed to Selma that Wilder killed
Troy Prewitt. Moreover, according to Davis, Selma told Davis that Selma would testify if
Wilder did not confess to police. (Resp. Br. at 19.) Second, and most importantly, Selma
wrote Davis a letter in 2002 which reflects not only his confusion about to whom he is
No. 09-1140            Davis v. Booker                                                            Page 7


writing but also his belief that a “guy from New York” was the shooter. Because Davis, as
he acknowledges in his brief, is the only person involved in the case from New York, it is
clear that Selma, if he had testified consistently with his letter, would have destroyed Davis’s
defense:

                  Dig man, sorry to hear that you got railroaded like you did, that’s . . .
         up. But dig man, I’d like to help you as much as possible, and if you’re the
         guy I then talked to in Inkster then yeah I can honestly say that no you
         didn’t shoot Troy based on my own investigation. What I’m trying to say
         is I don’t remember hearing the truth like in the affidavit as you have it. At
         present my version is pretty vague, but I do remember that some guy
         from New York is the one who shot Troy. And if I’m not mistaken, you
         were driving and he was on the passenger’s side and reached over and
         shot Troy after he refused y’all some credit.
                  I also remember the line-up, the glasses, and the guy in the county
         greens wearing the glasses. We were all in that small cell by the kitchenette
         of Inkster jail. I don’t fully recall the ride back and forth from and to the
         County jail. Dig man, I wanna help you and I’m tryin my best to remember
         as much of that day as I can, but honestly, I’m not doing too well. I don’t
         know how much time you have to correct the wrong but I’m gonna need a
         bit more. It’s coming back to me in scattered pieces.
                  I remember something about somebody putting on a dress and
         sneaking next door when the police showed up. I also remember the guy
         from New York saying that “he couldn’t admit to killin Troy but he
         would testify that you didn’t do it. That he had been to the joint once
         before and he wasn’t going back.” Oh yeah: I remember me asking him
         why did he shoot Troy and he said he didn’t know.

(Resp. Br. at 21) (emphasis added).

         The District Court noted that “[t]he substance of the letter is confused [because]
Selma appears to simultaneously profess [Davis’s] innocence while placing the blame for
the shooting on someone from New York.” Davis, 594 F. Supp. 2d at 817. Thus, the Court
found in error that although the letter does not

         clearly and unequivocally exculpate [Davis] . . . the letter raises additional
         questions, including whether Selma believed that he was, as [the Warden]
         argues, writing to Wilder rather than [Davis]; whether Selma thought Wilder
                     1
         was known as ‘New York;’ and whether Selma would have been able to

         1
           By questioning whether Davis was known as “New York” rather than whether he was from New
York, it appears that the District Court misread the letter. Moreover, the District Court acknowledged that
“[c]onsiderable testimony was presented at the evidentiary hearing to show that Petitioner was called ‘New
York’ by several fellow prisoners.” Davis, 594 F. Supp. 2d at 817.
No. 09-1140         Davis v. Booker                                                   Page 8


         clarify these ambiguities had he been located prior to trial. These
         questions may have been answered had counsel undertaken a vigorous,
         effective search for Selma.

Id.

         To the contrary, there is only way that the letter may reasonably be read: Selma
(1) believed that Davis had confessed to the shooting and (2) mistakenly thought he was
writing to Wilder instead of Davis. Although it seems unusual to write such a letter to
the wrong person, Selma expressly conveyed his uncertainty about the person with
whom he was corresponding (“if you’re the guy I talked to in Inkster . . .”). Selma is
sure about several distinct details regarding both the events surrounding the confession
and what he learned about the shooting itself, the most significant of which is that the
“guy from New York” was the shooter. Because only Davis was from New York, it is
clear that Selma thought Davis was the shooter.

         Like his trial and appellate counsel, Davis’s habeas counsel says he has also been
unable to locate or obtain a statement from Todd Selma. The District Court, having
concluded that Selma’s testimony may now be “irretrievably lost,” held that Davis need
not show prejudice for his ineffective assistance of counsel claim: “To hold that this
failure to produce evidence regarding what [Selma’s] testimony would have been
prevents a finding of prejudice would be to insulate counsel’s failure to investigate from
review.” Id. at 818. To the contrary, the letter unmistakably demonstrates that Selma’s
testimony would have served to inculpate, rather than exculpate, Davis. Davis was not
prejudiced by the failure of his attorneys to procure prejudicial testimony from Selma.

      2. Ineffective Assistance of Counsel — Failing to Impeach Derrick Glaze
                                with Prior Conviction

         The Michigan Court of Appeals held that Davis’s trial counsel was not
ineffective for failing to impeach Derrick Glaze, a key prosecution witness, with a prior
felony conviction for retail fraud. It reasoned that “[t]he marginal impact of the alleged
error fails to satisfy the prejudice prong of the test for ineffective assistance of counsel.”
Davis, 594 F. Supp. 2d at 821. The District Court found this to be an unreasonable
No. 09-1140          Davis v. Booker                                                  Page 9


application of Strickland “in the larger context of counsel’s other errors and the relative
weakness of the prosecutor’s case.” Id. The Court continued: “The prior felony
conviction, by itself, may not have persuaded the jury to return a not guilty verdict, but,
if that impeachment evidence was introduced along with testimony that there was some
evidence that Wilder, not [Davis], was the shooter, it may have been sufficient to sway
the jury.” Id. at 821-22.

        The District Court’s finding of prejudice for the failure to impeach Glaze for the
prior conviction is contingent on Selma’s exculpatory testimony. In the absence of
testimony from Selma that Wilder was the shooter, then Davis cannot show that the
impeachment would have made a difference in the outcome of his trial. Moreover,
undisclosed impeachment evidence is cumulative “when the witness has already been
sufficiently impeached at trial.” Brown v. Smith, 551 F.3d 424, 433-34 (6th Cir. 2008).
Here, Glaze’s credibility was already impeached by the facts that he (1) was a drug
dealer, and (2) made inconsistent statements to police and at a preliminary hearing.
There is no reason to believe that the “marginal impact” of a retail fraud conviction
would have significantly impacted the jury’s assessment of Glaze’s testimony, much less
its final verdict.

         3. Improper Prosecutorial Vouching of John Wilder’s Credibility

        The final basis upon which the District Court granted habeas relief was
“improper vouching” by the prosecutor for the testimony of John Wilder. Because Davis
failed to object at trial to the prosecutor’s statements, this claim is procedurally defaulted
unless Davis can show “cause and prejudice” to excuse the default. Coleman v.
Thompson, 501 U.S. 722, 750 (1991). The District Court held that ineffective assistance
of trial counsel constituted cause because the improper nature of the prosecutor’s
conduct was obvious and apparent. Davis, 594 F. Supp. 2d at 826.

        It is unclear what the District Court believed was “improper vouching.”
Prosecutorial vouching is said to occur when the prosecutor “supports the credibility of
a witness by indicating a personal belief in the witness’s credibility[,] thereby placing
the prestige of a [prosecutor’s office] behind that witness” through “comments that
No. 09-1140         Davis v. Booker                                                Page 10


imply that the prosecutor has special knowledge of facts not in front of the jury.” United
States v. Francis, 170 F.3d 546, 550 (6th Cir. 1999). That did not occur here.

        During the trial, the prosecutor told the jury that Wilder did not receive favorable
treatment for testifying against Davis: “[W]ilder got a no charge reduction. That is, he
pleaded guilty as charged to the crime of accessory after the fact because that’s what he
did.” Davis, 594 F. Supp. 2d at 833. According to the District Court, this constituted
improper vouching because “[t]he circumstances surrounding the crime in this case
certainly would have supported a second-degree murder charge [for Wilder] based upon
an aiding and abetting theory.” Id. at 826. Thus, by failing to charge Wilder initially
with a higher crime, the prosecutor “attempted [an] end run around the plea-agreement-
disclosure requirement,” concealing Wilder’s true motives for testifying and making the
“repeated reference to the ‘minimal’ benefit afforded Wilder for his testimony
improper.” Id.

        The prosecutor’s statements do not fall under the rubric of improper vouching:
the prosecutor did not indicate a personal belief of Wilder’s veracity based on special
knowledge of facts not before the jury. Rather, the District Court essentially concluded
that the prosecutor committed some other form of misconduct by undercharging Wilder
for the purpose of bolstering his credibility at Davis’s trial.

        But nothing remained undisclosed. The prosecutor charged Wilder as an
accessory because presumably he did not have proof that Wilder thought that Davis was
likely to shoot Prewitt or anyone else. In this case, Wilder’s charge was in evidence: he
testified at the very beginning of direct examination that he had pleaded guilty to being
an accessory after the fact. (Trial Transcript, Part A, 6/22/99, 162). As the Michigan
Court of Appeals wrote:

        Whether Wilder could have been charged with a more serious offense
        does not change the fact that he was only charged with being an
        accessory after the fact, to which he pleaded guilty. Therefore, the
        prosecutor’s comments that the witness did not receive a charge
        reduction were accurate, and did not deceive the jury or deny defendant
        a fair trial. . . . The witness’s interest in the matter was clear.
No. 09-1140        Davis v. Booker                                     Page 11


Id. at 825.

        Accordingly, the judgment of the District Court is reversed.
