           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                            2       Cyars v. Hofbauer                                   No. 02-2341
        ELECTRONIC CITATION: 2004 FED App. 0295P (6th Cir.)
                    File Name: 04a0295p.06                                    OF THE PROSECUTING ATTORNEY, Detroit, Michigan,
                                                                              for Appellee. ON BRIEF: N.C. Deday LaRene, LaRENE &
                                                                              KRIGER, Detroit, Michigan, for Appellant. Joseph A. Puleo,
UNITED STATES COURT OF APPEALS                                                OFFICE OF THE PROSECUTING ATTORNEY, Detroit,
                                                                              Michigan, for Appellee.
                   FOR THE SIXTH CIRCUIT
                     _________________                                          BALDOCK, J., delivered the opinion of the court, in which
                                                                              SILER, J., joined. MOORE, J. (pp. 16-19), delivered a
 AARON LEIGH CYARS ,              X                                           separate dissenting opinion.
         Petitioner-Appellant, -
                                   -                                                                  _________________
                                   -  No. 02-2341
           v.                      -                                                                      OPINION
                                    >                                                                 _________________
                                   ,
 GERALD HOFBAUER,                  -                                            BALDOCK, Circuit Judge. A Michigan jury convicted
        Respondent-Appellee. -                                                Aaron Leigh Cyars (Petitioner) on two counts of first-degree
                                  N                                           premeditated murder, Mich. Comp. Laws Ann.
      Appeal from the United States District Court                            § 750.316(1)(a), one count of assault with intent to commit
     for the Eastern District of Michigan at Detroit.                         murder, id. § 750.83, and one count of possessing a firearm
    No. 99-73103—Gerald E. Rosen, District Judge.                             during the commission of a felony, id. § 750.227b(1). The
                                                                              Michigan court of appeals affirmed. People v. Cyars, No.
                      Argued: June 11, 2004                                   176536, 1997 WL 33353409 (Mich. App. Feb. 28, 1997)
                                                                              (unpublished). The Michigan Supreme Court and United
            Decided and Filed: September 7, 2004                              States Supreme Court denied review.

     Before: SILER, MOORE, and BALDOCK, Circuit                                 Petitioner subsequently filed an application for habeas
                      Judges.*                                                corpus in the district court pursuant to 28 U.S.C. § 2254.1
                                                                              Petitioner asserted, among other things, he was denied
                        _________________                                     effective assistance of counsel because his trial counsel failed

                             COUNSEL                                              1
                                                                                    The record does not disclose whether Petitioner exhausted his state
ARGUED: N.C. Deday LaRene, LaRENE & KRIGER,                                   court post-conviction rem edies. See Mich. Ct. R. 6.500 to 6.509 . The
Detroit, Michigan, for Appellant. Joseph A. Puleo, OFFICE                     district court simply noted Petitioner filed his habeas application after
                                                                              exhausting his direc t appeals. Petitioner’s motion for a certificate of
                                                                              app ealab ility similarly states his habeas application was filed after
                                                                              “exhausting his direct appeal rights.” We need not delve into the mo rass
    *
                                                                              of procedural ba r, however, b ecause Pe titioner’s claim fails on the merits
     The Ho norable B obb y R. B aldock, Circuit Judge of the United States   even assuming he prope rly exhausted availab le state court remedies. See
Court of Appe als for the Tenth Circ uit, sitting by designation.             28 U.S.C. § 22 54(b)(2).

                                    1
No. 02-2341                          Cyars v. Hofbauer       3    4       Cyars v. Hofbauer                                   No. 02-2341

to proffer a limiting instruction on the jury’s use of              Shortly after entering the house, Lewis put Petitioner to
impeachment statements. The district court denied the             work selling drugs. Lewis told Taylor to “page” Rob and
petition. We granted a certificate of appealability, see          Lucky. Petitioner was scared of what might happen when
28 U.S.C. § 2253(c), on the limited issue of whether              they arrived. Rob and Lucky never showed, but Leatha
Petitioner was denied his Sixth Amendment right to effective      Christon arrived at the Asbury House sometime after 2:00
assistance of counsel. Applying the Antiterrorism and             a.m. Christon had arranged to engage in sexual intercourse
Effective Death Penalty Act’s highly deferential standard for     with Lewis in exchange for crack. Petitioner let Christon into
reviewing state-court decisions, see Woodford v. Visciotti,       the house and then, by himself, moved the refrigerator back
537 U.S. 19, 24 (2002) (per curiam), we affirm because the        across the front door. Lewis gave Petitioner a bag of crack
Michigan court of appeals reasonably applied the correct          to sell while he was in the bedroom with Christon.2 After
principle governing ineffective assistance of counsel claims      Lewis and Christon consummated their transaction, Petitioner
to the facts of Petitioner’s case.                                again moved the refrigerator, by himself, to let Christon out
                                                                  of the house. The record is silent as to whether Petitioner
                              I.                                  moved the refrigerator back across the front door after he let
                                                                  Christon out of the Asbury House.
  Petitioner used and dealt crack cocaine during the summer
of 1993. He sold crack primarily for two individuals, known         Nimrod Lumpkin arrived at the Asbury House around 3:00
on the streets as “Rob and Lucky” or “Batman and Robin.”          a.m. The refrigerator was not blocking the front door when
Petitioner “rolled” (i.e., distributed drugs) out of a house on   he arrived. He went straight to Taylor’s bedroom where they
Asbury Park street (Asbury House) in west Detroit. Veronica       smoked marijuana and crack. Lumpkin was not aware
Taylor resided in the Asbury House; however, Rob and Lucky        anyone else was in the house. Meanwhile, Petitioner was in
“rented” the house from Taylor to use as a “crack house.”         the house’s other bedroom selling crack out of a barred
Petitioner earned roughly $100 a day, less the cost of any        window to customers. Lewis was lying on his stomach on a
drugs used on the job, for his services.                          bed in the same room facing Petitioner. A handgun was on
                                                                  the bed next to Lewis.
   Petitioner lost $700 and a handgun Rob and Lucky fronted
him in July 1993. Rob and Lucky were not pleased. Lucky             Petitioner sold the crack for approximately $20 per “rock.”
informed Petitioner he would have to work at the Asbury           After Petitioner sold a $100 or so worth of crack, he would
House for seven days to pay for the lost money and three days     give the money to Lewis who in turn would supply him with
to pay for the handgun. Petitioner went to the Asbury House       more crack. Lewis, however, fell asleep after about an hour
around midnight on August 29, 1993 to commence work.              of work. Petitioner then got up, grabbed Lewis’s gun, and
Petitioner met Thomas Lewis on the porch. Lewis, a known          shot Lewis once in the back of the head. Shortly thereafter,
“henchman” for Rob and Lucky, supervised the activities at        Taylor yelled “what’s that?” Petitioner cracked the door to
the Asbury House. Once inside, Lewis moved a refrigerator
to block the house’s front door. The refrigerator served as a
barricade to slow law enforcement officers in the event of a          2
                                                                        Petitioner testified he was “scared” from the moment Taylor was to
raid. All of the house’s windows had bars save the window         page Rob and Lucky. The record does not disclose, however, why
in Taylor’s room.        The house’s backdoor was also            Petitioner simply did not leave the house when Lewis was with Christon.
inaccessible.                                                     In fact, Christo n testified L ewis was not doing anything to keep Petitioner
                                                                  in the house.
No. 02-2341                                    Cyars v. Hofbauer             5    6      Cyars v. Hofbauer                          No. 02-2341

Taylor’s room and said Lewis was playing with a gun.                                Petitioner claimed self-defense at trial. The State called,
Petitioner then immediately entered the room with the                             among others, James Morrison, Don Bailey, and Todd Cyars
handgun pointed at Taylor who was moving toward her                               to testify in its case-in-chief. James Morrison was
window and saying, repeatedly, “Aaron don’t do it.”                               Petitioner’s friend. During the homicide investigation, and at
Petitioner shot Taylor in the back of the head. Lumpkin,                          the preliminary hearing, Morrison made the following
however, was able to kick the gun as Petitioner turned and                        statement:
fired in his direction. The kick redirected the shot into
Lumpkin’s arm and leg. Petitioner fired again, but was out of                         [Petitioner] said, “Man, I shot Veronica [Taylor], Stormy
bullets. Petitioner left the room and exited the house through                        [Thomas Lewis] and another basehead. Man, I popped
its front door. Lumpkin never heard any appliances being                              Stormy in the head one time. I shot Veronica somewhere
moved after Petitioner left Taylor’s room.3                                           in the chest. I shot the other guy all over the place.

  Petitioner never called the police or any paramedics after                      At trial, Morrison first testified he was honest with the police
leaving the Asbury House. Instead, Petitioner visited two                         during the homicide investigation and when he testified at the
groups of friends and explained to them how he killed two                         preliminary hearing. As the State’s examination of Morrison
individuals. He showed one friend, James Morrison, the gun                        proceeded, however, his memory faded and he ultimately
and crack he took from the house. Later, Petitioner discarded                     testified “[n]one of those [statements] c[a]me out of my
the gun in a field and the crack in the sewer. The Detroit                        mouth.” (Joint App. at 260). The State impeached Morrison
Police Department arrested Petitioner. He confessed to                            with the signed statement he gave police and the preliminary
shooting Lewis, Taylor, and Lumpkin after waiving his                             hearing transcript.
Miranda rights.
                                                                                     The State also called Don Bailey, an acquaintance of
                                                                                  Petitioner. The Detroit police interviewed Bailey during the
                                                                                  homicide investigation. Bailey gave the police a signed
                                                                                  statement in which Bailey said Petitioner told him that
                                                                                  “[a]fter he shot Thomas [Lewis], he shot the other two people
    3
       Petitioner testified on his own behalf at trial. Petitioner’s version of   because they were witnesses.” (Joint App. at 118). At trial,
the events d iffered substantially from o ther evidence introduced at trial.      the State asked Bailey if he made this statement. Bailey
Petitioner testified he shot Le wis because Lewis w as going for another          denied making the statement, and then later admitted making
gun in his pants’ pocket. Other evidence at trial indicated, however, that
Lewis’s hand was near his face when he was shot. Additionally, no other           the statement, but attributed it to a person other than
weapons were found on Lewis or in the house. Petitioner also testified he         Petitioner.
could not leave out of the ho use’s front door because the refrigerator was
blocking the door. Petitioner explained that he attempted to move the                The State also called Petitioner’s brother, Todd Cyars.
refrigerator, but it got caught on the carpet. Petitioner thus b elieved his      During the homicide investigation, Todd Cyars gave a signed
only other option was to le ave through the window in Taylor’s room.              statement to the police. Todd Cyars informed the police
W hen Petitioner entered Taylor’s room , however, she had a knife and
went for a gun. Lump kin, according to Petitioner’s testimony, also had           Petitioner stated prior to the murders “he was thinking about
a gun. As noted, the police did not recover any such weapons. Petitioner          sticking up [the Asbury] house and taking the dope” and, after
nevertheless testified he shot T aylor and Lumpkin in self-defense.               the murders, stated: “I did it. I did what I said I was going to
Petitioner adm itted he thereafter left the Asbury House through its front        do[.]” (Joint App. 149, 162-63). At trial, Todd Cyars
doo r.
No. 02-2341                           Cyars v. Hofbauer        7    8        Cyars v. Hofbauer                                    No. 02-2341

admitted making the statements to the police, but denied their      observation that, if courts are to survive as an institution, they
truth and claimed they were the product of a coercive               cannot “become Penelopes, forever engaged in unravelling
custodial interrogation.                                            the webs they wove.” Jorgensen v. York Ice Mach. Corp.,
                                                                    160 F.2d 432, 435 (2d Cir. 1947). To these ends, § 2254
  After Morrison’s testimony on direct examination,                 provides in relevant part:
Petitioner’s counsel asked for a limiting instruction regarding
the State’s impeachment of Morrison. Specifically, counsel              (d) An application for a writ of habeas corpus on behalf
asked for an instruction providing that impeachment                     of a person in custody pursuant to the judgment of a State
testimony did not constitute substantive proof of the matters           court shall not be granted with respect to any claim that
asserted, but instead went to the believability of the witness.         was adjudicated on the merits in State court proceedings
The trial judge responded that he had never given such an               unless the adjudication of the claim –
instruction and was not going to “give it from the hips.”                 (1) resulted in a decision that was contrary to, or
(Joint App. 272). The judge instructed Petitioner’s counsel to            involved an unreasonable application of, clearly
prepare an instruction and, afterwards, he would be glad to               established Federal law, as determined by the
look at the proposed instruction and give it at an appropriate            Supreme Court of the United States[.]
time. Petitioner’s counsel never renewed his request for a
limiting instruction, nor provided the judge a proposed             28 U.S.C. § 2254(d)(1).
instruction. The court consequently never instructed the jury
on the proper use of impeachment statements. After the                 Petitioner concedes, as he must, § 2254(d)(1)’s
court’s final jury charge, Petitioner’s counsel stated “[t]he       “unreasonable application” clause governs the disposition of
Defendant . . . thinks the jury has been appropriately              his case.4 (Aplt’s Br. at 11). A federal habeas court “may
instructed.” (Joint App. at 337).                                   grant relief under the ‘unreasonable application’ clause if the
                                                                    state court correctly identifies the governing legal principle
                               II.                                  from [the Supreme Court’s] decisions but unreasonably
                                                                    applies it to the facts of the particular case.” Cone, 535 U.S.
  “The writ of habeas corpus plays a vital role in protecting       at 694. The Court has repeatedly stressed that “[i]n order for
constitutional rights.” Slack v. McDaniel, 529 U.S. 473, 483        a federal court to find a state court’s application of [its]
(2000). The Antiterrorism and Effective Death Penalty Act’s
(AEDPA) highly deferential standard for evaluating state-
court rulings, however, severely circumscribes a federal                 4
                                                                          AEDPA governs the habeas application Petitioner filed in 199 9. See
court’s ability to grant the writ. Lindh v. Murphy, 521 U.S.        Garceau, 538 U.S. at 207 (ho lding “an app lication filed after AE DP A’s
320, 333 n.7 (1997). Congress enacted AEDPA “[i]n the               effective date should be reviewed under AEDPA[.]”). AEDPA’s
interest of finality[,]” Miller-El v. Cockrell, 537 U.S. 322, 326   “contrary to” clause is inap posite because, as Petitioner admits, the
(2003), “to reduce delays in the execution of state and federal     Michigan court applied the correct governing law in rejec ting his
                                                                    ineffective assistance of co unsel claim. Cyars, 19 97 W L 33353409, at *4
criminal sentences,” Woodford v. Garceau, 538 U.S. 202,             (citing People v. Pickens, 521 N.W . 2d 797, 815 (Mich. 1994 ) (adopting
206 (2003), “to prevent federal habeas ‘retrials[,]’ and to         the Supreme Co urt’s two-pronged test enunciated in Strickland v.
ensure that state-court convictions are given effect to the         Washington, 466 U.S. 668 (1984) for analyzing ineffective assistance of
extent possible under law.” Bell v. Cone, 535 U.S. 685, 693         counsel claims)). Furthermore, the Strickland analysis for evaluating
(2002). AEDPA is thus premised on Judge Learned Hand’s              ineffective assistance claims is “clearly established.” Wick line v. M itchell,
                                                                    319 F.3d 813, 819 (6th Cir. 2003).
No. 02-2341                           Cyars v. Hofbauer       9    10    Cyars v. Hofbauer                            No. 02-2341

precedent ‘unreasonable,’ the state court’s decision must have                                    A.
been more than incorrect or erroneous.” Wiggins v. Smith,
539 U.S. 510, –, 123 S. Ct. 2527, 2535 (2003). Instead, the           The Sixth Amendment provides a criminal defendant with
state court’s application of clearly established law must be       the right to effective assistance of counsel because of the
“objectively unreasonable.” Id.                                    effect the right has on a defendant’s ability to receive a fair
                                                                   trial. Mickens v. Taylor, 535 U.S. 162, 166 (2002). “The
  A federal habeas court, therefore, may not grant the writ        benchmark for judging any claim of ineffectiveness must be
simply because, in its independent review of the legal             whether counsel’s conduct so undermined the proper
question, it is left with a firm conviction that the state court   functioning of the adversarial process that the trial cannot be
was erroneous. Lockyer v. Andrade, 538 U.S. 63, 75 (2003).         relied on as having produced a just result.” Strickland v.
Quite the opposite, as the Court recently clarified, “the range    Washington, 466 U.S. 668, 686 (1984). Consequently,
of reasonable judgment can depend in part on the nature of         “defects in assistance that have no probable effect upon the
the relevant rule.” Yarborough v. Alvarado, – U.S. –, 124 S.       trial’s outcome do not establish a constitutional violation.”
Ct. 2140, 2149 (2004). Specifically, “[a]pplying a general         Mickens, 535 U.S. at 166. Whether a constitutional violation
standard to a specific case can demand a substantial element       occurred as a result of counsel’s assistance is determined
of judgment. As a result, evaluating whether a rule                under the familiar two-pronged Strickland test: “First, the
application was unreasonable requires considering the rule’s       defendant must show that counsel’s performance was
specificity. The more general the rule, the more leeway            deficient. . . . Second, the defendant must show that the
courts have in reaching outcomes in case by case                   deficient performance prejudiced the defense.” Strickland,
determinations.” Id. The federal habeas scheme thus vests          466 U.S. at 687. We assume without deciding Petitioner
state courts with the primary responsibility of determining        satisfied the first prong. See id. at 697 (explaining “[i]f it is
whether a particular defendant’s constitutional rights were        easier to dispose of an ineffectiveness claim on the ground of
violated; and, a federal court may only intervene in that          lack of sufficient prejudice, . . . that course should be
judgment when the state-court’s decision is objectively            followed.”).
unreasonable. Visciotti, 537 U.S. at 27.
                                                                     The issue, then, is whether the Michigan court’s rejection
                              III.                                 of Petitioner’s ineffective assistance claim was an
                                                                   unreasonable application of Strickland’s prejudice prong. To
  Petitioner argues on appeal habeas relief is appropriate         demonstrate prejudice, “[t]he defendant must show that there
because the Michigan court unreasonably applied Supreme            is a reasonable probability that, but for counsel’s
Court precedent to his ineffective assistance claim. Petitioner    unprofessional errors, the result of the proceeding would have
specifically argues the Michigan court erred in holding he did     been different. A reasonable probability is a probability
not suffer any prejudice as a result of his counsel’s failure to   sufficient to undermine confidence in the outcome.”
proffer a limiting instruction on the statements used to           Strickland, 466 U.S. at 694. AEDPA circumscribes our
impeach the State’s witnesses at trial. See Cyars, 1997 WL         review of the Michigan court’s conclusion that Petitioner did
33353409, at *4.                                                   not suffer any prejudice. Cf. Wiggins, 123 S. Ct. 2542. In
                                                                   fact, § 2254(d) “demands that [the] state-court decision[] be
                                                                   given the benefit of the doubt.” Visciotti, 537 U.S. at 24.
No. 02-2341                           Cyars v. Hofbauer      11    12   Cyars v. Hofbauer                            No. 02-2341

                              B.                                   sat patiently until Lewis fell asleep and then got up, stole his
                                                                   gun, and shot him in the back of the head. A jury could
   The Michigan court reasonably applied Strickland’s              reasonably infer Petitioner had the opportunity to take a
prejudice prong to the facts of Petitioner’s case. The court       “second look” before he executed Lewis in his sleep.
explained that “[b]ecause the weight and strength of the
untainted evidence presented in this case overwhelmingly             A reasonable jury, moreover, could have easily rejected
supports defendant’s convictions, and because the error is         Petitioner’s theory that he was unable to leave the Asbury
relatively innocuous (indeed, it was not error for the prior       House after killing Lewis because a refrigerator, which he had
inconsistent statements to be put before the jury, only that the   twice moved himself that evening, was blocking the front
jury could not consider those statements as substantive            door. In fact, the evidence demonstrated the refrigerator was
evidence), we conclude that defendant was not prejudiced in        not even blocking the front door after Petitioner shot Lewis.
this regard.” Cyars, 1997 WL 33353409, at *3 (emphasis             A reasonable jury thus could infer that instead of simply
added). We agree. The State had the burden of proving              leaving the Asbury House after killing Lewis, Petitioner took
Petitioner’s intentional killing of the victims was deliberate     a “second look” and elected to enter Taylor’s room. Upon
and premeditated. People v. Coddington, 470 N.W. 2d 478,           entering Taylor’s room, Petitioner shot her in the back of the
487 (Mich. App. 1991). “Premeditation and deliberation may         head as she pleaded with him not to kill her. A reasonable
be inferred from the facts and circumstances established on        jury could thus infer Petitioner had the opportunity to take a
the record.” Id. Circumstantial evidence demonstrating             “third look” before shooting Taylor. Petitioner then turned on
premeditation includes, but is not limited to (1) the prior        Lumpkin who likely would have also been killed but for the
relationship of the parties, (2) defendant’s actions before the    fact Petitioner ran out of ammunition. Petitioner then left the
killing, (3) the circumstances, including the wound’s location,    house through its front door; the very door Petitioner claimed
of the killing, and (4) defendant’s conduct after the killing.     prevented him from exiting the house in the first instance.
Id.; see also People v. Anderson, 531 N.W. 2d 780, 786
(Mich. App. 1995). “Premeditation and deliberation require            After the murders, Petitioner did not call the police to
sufficient time to allow the defendant to take a second look.”     inform them he had escaped from a near-death hostage
Id.                                                                situation. Instead, he told various friends about the killing
                                                                   and showed off the murder weapon and drugs he looted from
  The record overwhelmingly supports the jury’s first degree       the house. Petitioner thereafter discarded the murder weapon
murder verdicts, as the Michigan court held, even without          and drugs in a manner sufficient to prevent authorities from
considering the statements used to impeach Morrison, Bailey,       recovering the evidence. A reasonable jury could infer guilt
and Todd Cyars. A reasonable jury could infer Petitioner           from such evidence.
knew, from past experience, nefarious activities would be
afoot during his visit to the crack house on August 29, 1993.        In sum, circumstantial evidence before, during, and after
The jury could also infer Petitioner formulated a plan to kill     the murder supported the jury’s verdict that Petitioner
Lewis as he distributed drugs from the house’s backroom            intentionally killed Lewis and Taylor with deliberation and
window. Indeed, Petitioner’s claim that he was scared of Rob       premeditation. Indeed, the Michigan court of appeals, a
and Lucky’s arrival at the Asbury House was undermined by          United States magistrate judge, and the district court have so
the fact he could have left the house while Lewis was with         found. Furthermore, we denied Petitioner a certificate of
Christon, but instead opted to stay and sell drugs. Petitioner     appealability on the claim he was denied due process of law
No. 02-2341                          Cyars v. Hofbauer      13    14       Cyars v. Hofbauer                                 No. 02-2341

because insufficient evidence of premeditation existed to         App. 2001) (explaining evidence of motive is not necessary
support his first degree murder convictions. That certificate     to sustain a first-degree murder conviction).5
of appealability denial means reasonable jurists could not find
the district court’s assessment of the claim debatable or            In short, Petitioner failed to carry his heightened AEDPA
wrong. See 28 U.S.C. § 2253(c); Miller-El, 537 U.S. at 338.       burden. See Mitchell v. Esparza, – U.S. –, 124 S. Ct. 7, 12
                                                                  (2003) (per curiam). He had the burden of demonstrating the
   Petitioner nevertheless argues the Michigan court              Michigan court’s decision was objectively unreasonable, not
unreasonably applied Strickland’s prejudice prong for four        that it may have applied Strickland incorrectly. See Visciotti,
reasons. First, Petitioner argues the Michigan court of           537 U.S. at 27. Petitioner cannot carry his burden because the
appeals incorrectly applied Strickland. This argument is          Michigan court’s conclusion that Petitioner did not suffer any
irrelevant under AEDPA. See Wiggins, 123 S. Ct. at 2535.          prejudice is reasonable in light of the overwhelming
Second, Petitioner argues the Michigan court misapprehended       circumstantial evidence of his guilt. No reasonable
the scope of the evidence a limiting instruction would have       probability exists that but for counsel’s failure to proffer a
affected and actually relied on the “tainted evidence” to         limiting instruction on the proper use of impeachment
affirm his conviction. The overwhelming circumstantial            statements the result of the trial would have been different.
evidence of Petitioner’s guilt and the jury’s rejection of his    See Strickland, 466 U.S. at 696, 700 (explaining trial errors
claim of self-defense, however, is the death-knell of this        are less likely to affect a verdict with “overwhelming record
argument. See also Cyars, 1997 WL 33353409, at *3.                support”). As the Court recently explained, state courts have
                                                                  more leeway in reaching a particular outcome when they
   Third, Petitioner argues the Michigan court erroneously        apply general rules of law. Alvarado, 124 S. Ct. at 2149. The
held he did not suffer any prejudice because the jury was         Strickland test, by its nature, is general and not subject to
instructed only to consider the “sworn testimony of               mechanical application. Strickland, 466 U.S. at 696;
witnesses,” which necessarily excludes statements the State       Kimmelman v. Morrison, 477 U.S. 365, 395 (1986) (Powell,
used to impeach witnesses. This argument runs afoul of the        J., concurring). We therefore must defer to the Michigan
well-established presumption jurors follow their instructions.    court’s reasonable conclusion that Petitioner did not suffer
See Penry v. Johnson, 532 U.S. 782, 799 (2001). Fourth,           any prejudice as a result of his counsel’s failure to proffer a
Petitioner complains no evidence existed showing he planned       limiting instruction on the proper use of impeachment
to commit any crime against the victims, or that he had a         statements. The adversarial process clearly provided
“motive” for the killings, and some evidence corroborated his     Petitioner with a fair trial. That is all the Sixth Amendment
trial testimony. Petitioner’s final argument is flawed because    demands.
evidence of “planning” and “motive” are not necessary to
sustain a first-degree murder conviction under Michigan law.
See Coddington, 470 N.W. 2d at 487 (finding a “brief”
passage of time sufficient for the defendant to take a “second
look”); People v. Herndon, 633 N.W. 2d 376, 404 (Mich.                 5
                                                                        W e agree with Petitioner that some evidence corroborated his trial
                                                                  testimony. W e also a gree w ith counsel’s contention at oral argument that
                                                                  the impeachment statements were the only “direct evidence” of
                                                                  premeditation. These arguments are also irrelevant, however, because
                                                                  premeditation may be inferred from facts and circumstances established
                                                                  in the record. Coddington, 470 N.W.2d at 487.
No. 02-2341                         Cyars v. Hofbauer     15    16   Cyars v. Hofbauer                            No. 02-2341

  The Michigan court “considered the proper factors and                              ________________
reached a reasonable conclusion.” Alvarado, 124 S. Ct. at
2152. “That being the case, we may not set aside its decision                            DISSENT
on habeas review.” Esparza, 124 S. Ct. at 12.                                        ________________
  AFFIRMED.                                                       KAREN NELSON MOORE, Circuit Judge, dissenting.
                                                                Because I believe Aaron Cyars’s counsel’s failure to secure
                                                                a limiting instruction on the appropriate use of prior
                                                                inconsistent statements constitutes ineffective assistance of
                                                                counsel under Strickland v. Washington, 466 U.S. 668 (1984),
                                                                and that a contrary view is unreasonable, I respectfully
                                                                dissent.
                                                                   At trial, the prosecution called three key witnesses, James
                                                                Morrison (“Morrison”), Don Bailey (“Bailey”), and Todd
                                                                Cyars (“Todd”), to demonstrate that Cyars acted with
                                                                premeditation and deliberation when he committed the
                                                                murders. When each witness did not produce any valuable
                                                                evidence on direct examination, the prosecution proceeded to
                                                                use unsworn statements allegedly made to police after the
                                                                murders. These statements contained highly damaging
                                                                comments that Cyars purportedly made to the witnesses
                                                                regarding his plan to steal drugs from Taylor’s house and his
                                                                admission after the fact that he had completed his plan. When
                                                                confronted with the police statements, each of the three
                                                                witnesses denied having made the statements or denied the
                                                                truth of the statements. Because the police statements were
                                                                introduced solely to impeach the witnesses, they could not be
                                                                considered as substantive evidence.
                                                                   Cyars’s trial counsel sought a limiting instruction from the
                                                                trial judge permitting the use of the police statements of
                                                                Morrison only for impeachment purposes. Because the judge
                                                                had never given that kind of instruction before, he asked
                                                                Cyars’s counsel to draft a proposed instruction that he could
                                                                consider before issuing such an instruction. However,
                                                                Cyars’s trial counsel failed to present any limiting instruction
                                                                and never again renewed his request. As a result, the jury was
                                                                never instructed on the proper use of the prior inconsistent
No. 02-2341                           Cyars v. Hofbauer       17    18    Cyars v. Hofbauer                            No. 02-2341

statements, and was therefore permitted to give whatever              Defendant has not shown that the prior inconsistent
weight it wished to the prior inconsistent police statements.         statements of the witnesses, properly limited with an
These statements were the most damaging evidence of                   instruction, could have proved his theory of self-defense
premeditation.                                                        or disproved the elements of the offenses. Because the
                                                                      weight and strength of the untainted evidence presented
  The Michigan Court of Appeals relied on the contents of             in this case overwhelmingly supports defendant’s
these police statements when that court upheld the sufficiency        convictions, and because the error is relatively innocuous
of the evidence to support Cyars’s conviction for first-degree        (indeed, it was not error for the prior inconsistent
murder. Specifically, it stated:                                      statements to be put before the jury, only that the jury
                                                                      could not consider those statements as substantive
  There was evidence that before the shooting, defendant              evidence), we conclude that defendant was not
  told two of the prosecution’s witnesses that he intended            prejudiced in this regard.
  to take drugs from one of the decedents’ homes in order
  to repay a debt owed to drug dealers for whom defendant           J.A. at 15-16.
  worked. There was also evidence that sometime after
  the shooting, defendant told those same witnesses that he           In this appeal, the question for this court is whether Cyars
  had completed what he earlier planned to do.                      has shown ineffective assistance of counsel warranting the
                                                                    grant of habeas relief. We apply the analysis of Strickland,
Joint Appendix (“J.A.”) at 13. The Magistrate Judge found           466 U.S. at 694, with its two prongs, deficient performance
that the only source for these conclusions of the Michigan          and prejudice. First, Cyars must demonstrate that his trial
Court of Appeals was the unsworn police statements of               counsel’s failure to request the limiting instruction constituted
Morrison and Todd. Thus, the Michigan Court of Appeals              “deficient performance.” Then, he must prove that he
made substantive use of the very evidence that the jury should      suffered prejudice as a result of the deficient performance of
have been instructed to use only for impeachment purposes.          counsel. Under this latter prong, Cyars must show that “there
This demonstrates both that there was little evidence of            is a reasonable probability that, but for counsel’s
premeditation, and that even judges, let alone juries, are likely   unprofessional errors, the result of the proceeding would have
to be confused without proper instructions.                         been different.” Caver v. Straub, 349 F.3d 340, 347-48 (6th
                                                                    Cir. 2003) (quoting Strickland, 466 U.S. at 694).
  The Michigan Court of Appeals, despite its mistake of
using the prior inconsistent statements for substantive               The majority of this court assumes that Cyars has shown
purposes when evaluating the sufficiency of the evidence, did       deficient performance of counsel. It is without doubt that that
nonetheless recognize as black-letter law the principle that        prong has been satisfied. Turning to the second prong, the
“Prior inconsistent statements not ‘given under oath subject        majority concludes that the Michigan Court of Appeals’
to the penalty of perjury’ are hearsay and would only be            opinion is a reasonable application of the prejudice prong of
admissible for impeachment purposes, not as substantive             Strickland. This conclusion is unreasonable where the
evidence.” J.A. at 14-15. Nonetheless, the Michigan Court           Michigan Court of Appeals itself has misused the very
of Appeals determined that there was no showing of                  evidence that can only be used for impeachment purposes,
prejudice. Specifically, that court wrote:                          and where there is slim other evidence to support a finding of
                                                                    premeditation. Moreover, the Michigan Court of Appeals
No. 02-2341                          Cyars v. Hofbauer      19

completely misstated and misapplied the law when it required
Cyars, in order to demonstrate prejudice under Strickland, to
show that “the prior inconsistent statements of the witnesses,
properly limited with an instruction, could have proved his
theory of self-defense or disproved the elements of the
offenses.” J.A. at 15.
   For these reasons, and as thoroughly and ably articulated by
Magistrate Judge Steven Pepe in his exhaustive Report and
Recommendation, a conditional writ of habeas corpus should
issue.
  I respectfully dissent.
