                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 15a0390n.06

                                             No. 13-1831


                           UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT


                                                                                     FILED
KELLY NOBLES,                                     )                            May 29, 2015
                                                  )                        DEBORAH S. HUNT, Clerk
        Petitioner- Appellant,                    )
                                                  )
v.                                                )
                                                        ON APPEAL FROM THE UNITED
                                                  )
                                                        STATES DISTRICT COURT FOR THE
JEFFREY WOODS, Warden,                            )
                                                        EASTERN DISTRICT OF MICHIGAN
                                                  )
        Respondent- Appellee.                     )
                                                  )
                                                  )



BEFORE: DAUGHTREY, CLAY, and COOK, Circuit Judges.

        MARTHA CRAIG DAUGHTREY, Circuit Judge. Petitioner Kelly Nobles is a Michigan

state prisoner seeking federal habeas relief based on an alleged Sixth Amendment confrontation

violation that occurred during his trial for the murder of Kolby Bohannon. The state brought a

number of charges against Nobles, including first-degree murder, obstruction of justice, and

attempted subornation of perjury, asserting on the latter two charges that Nobles had attempted

to prevent Rod Jeter, an accomplice to the shooting, from testifying. Rod Jeter gave a statement

to the police identifying Nobles as the shooter but then died in an unrelated incident prior to trial.

On cross-examination, Nobles denied knowledge of this statement. In response, the prosecutor

sought to introduce Jeter’s statement as impeachment evidence; the trial court granted this

request after instructing the jury that it was not to consider the statement for its truth.
No. 13-1831
Nobles v. Woods

        In his habeas petition, Nobles alleged that admission of Jeter’s statement violated his

Sixth Amendment right to confrontation. The state sought to have the court dismiss the petition

as time-barred. After ruling that Nobles was entitled to equitable tolling and that his petition was

therefore timely, the district court denied relief but granted a certificate of appealability as to his

confrontation claim. Nobles now challenges the denial of habeas relief, and the state continues

to argue that the petition was time-barred. Because we conclude that the district court’s ruling

on the merits was correct and must be affirmed, we decline to review the district court’s ruling

on the tolling issue, concluding that it is unnecessary to the resolution of this appeal.


                      FACTUAL AND PROCEDURAL BACKGROUND


        Kolby Bohannon was killed by stray gunfire on December 31, 2000, apparently

inadvertently. The State of Michigan brought a number of charges against Kelly Nobles in

connection with the killing, including one count of first-degree murder. Nobles was also charged

with obstruction of justice and attempted subornation of perjury, based on allegations that he had

threatened and harassed Rod Jeter, an accomplice to the shooting, to provide false testimony on

the events leading up to Kolby’s murder.


        In the early morning hours of December 31, Kolby was attacked by Randall Hall and

Ladarius Edwards at the house of Rocky Bohannon, Kolby’s brother. When Rocky discovered

that his brother had been injured, he pulled a gun on the two men and ordered them off his

property. Later that morning, brothers Rocky and Kolby met with Jeter and Nobles to search for

the assailants, Hall and Edwards. The men began their search by car, with Kolby driving, Nobles

sitting in the front passenger seat, and Rocky and Jeter sitting in the back seat. The same gun

that had been in Rocky’s possession earlier that morning was located in the trunk of the car.


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Nobles v. Woods

Upon identifying Hall’s car in the parking lot of a local restaurant, the Coney Island, Kolby

drove into the lot, got out of his vehicle, and ran into the facility to confront Hall and Edwards.


        Kolby was shot while running into the restaurant. The prosecution argued that Nobles,

following Kolby into the building, began firing shots, one of which accidentally struck Kolby.

Rocky testified that after Kolby identified Hall’s car and left the car, Nobles retrieved the gun

from the trunk; that he heard shots as his brother entered the restaurant; that he then saw Nobles

holding the gun from the trunk; and that Nobles threw the gun away as he, Nobles, and Jeter

were fleeing the scene. The prosecution also presented testimony from Candace Whaley, Jeter’s

girlfriend, that Nobles had later admitted to her that he shot up the restaurant in question. In

response, the defense offered the testimony of various witnesses who attempted to establish that

Rocky was actually the shooter.


        In support of the obstruction of justice and attempted subornation charges against Nobles,

the prosecution introduced Whaley’s testimony that Nobles repeatedly instructed Jeter to say that

Rocky was the shooter; encouraged Jeter and her to leave the state until the criminal case against

Nobles ended; called Jeter a “snitch” after Jeter gave a statement to the police implicating Nobles

in the shooting; and left a threatening message on Whaley’s voicemail after Jeter returned from

out of state. Nobles denied Whaley’s testimony; he also asserted that the message was left on

Whaley’s phone after Jeter’s death and did not concern Kolby’s murder.


        Prior to his death, Jeter had provided a statement to the police identifying Nobles as the

shooter. After Nobles denied that the threatening message he left on Whaley’s voicemail was

related to Kolby’s murder, the prosecution sought to introduce Jeter’s statement. The following

exchange surrounding the admission of the statement occurred at trial:


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No. 13-1831
Nobles v. Woods

        Q: And so everything you did to Rod Jeter about telling him what to say and what
        happened at the Coney Island, calling him a snitch once he told Homicide you
        were the one who shot the gun.

        A: Roderick Jeter to my knowledge never told Homicide that I shot no gun.

                                              .....

        Q: Now, you just -- sir, you just told us that you were not aware of Mr. Jeter’s
        statement as to –
                                              .....

        Q: Mr. -- Well, Mr. Nobles, you just told us that you have no idea what Rocky --
        you just told us that you have no idea that Rod Jeter identified you as the person
        who shot at the Coney Island. Isn’t that what you just told us?

        A: Yes.

        Q: Let’s see if this refreshes your memory.

        [Defense Counsel]: Objection, your Honor, to the use of the statement in the form
        the People intend to use it.

        [Prosecutor]: Offered for impeachment, your Honor.

        The Court: All right. Ladies and gentlemen, the prosecutor wants to use the
        statement made by a witness who’s not available to testify. I already told you that
        Rod Jeter is not, but so this statement is not being offered for the truth of the
        matter asserted and you cannot use it for that purpose. Do you understand? It’s
        not used to prove the elements of any offense. It’s used to impeach the testimony
        of the Defendant only.
                                              .....

        Q: Sir, do you remember getting this as part of your discovery?

        A: Never.

        Q: Okay. So you’re not saying Mr. Pitts was ineffective?

        [Defense Counsel]: Objection, your Honor, relevance.

        Q: Okay. Do you remember reading Rod Jeter’s statement?

        A: From my knowledge Rod Jeter never made a statement. This happened on
        January 1st. He died eight months later. He has never came in and testified
        against me.

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No. 13-1831
Nobles v. Woods



        Q: But you called him a snitch because?

        A: I never called him a snitch.
                                               .....

        Q: And do you remember reading the statement of Roderick Jeter dated March the
        5th, 2001 to Lieutenant Ray Nolan of the Detroit Police Department Homicide
        Section? Question: On the day you were at the Coney Island, how did you get
        there?

        Answer: By Rod Jeter during his lifetime.

        [Defense Counsel]: Your Honor, I’ve got to object.

        [Prosecutor]: I’ll paraphrase, judge . . . . . ‘Kolby was -- Kolby was driving my
        car. I don’t have a license. We went over after Kolby sees the guys that hit him in
        the head the night before. Kolby pulled into the street and jumped out and ran
        into the Coney Island doorway. I don’t know if anyone else was – Kolby pulled
        into the street and jumped out and ran into the Coney Island doorway. Then I
        started hearing shots. Kelly was shooting. I don’t know if anyone else was
        shooting. He was shooting at the Coney Island.’ Do you remember reading that in
        Rod Jeter’s statement?

        A: Never, I never had a statement from Rod Jeter . . . . I have never, ever seen a
        statement from Roderick Jeter. He has never testified against me in a courtroom.
        At preliminary exam Roderick Jeter did not come testify against me. I don’t
        know where you got that statement from or where you probably made it up from,
        but I have never seen it.


        The prosecutor later questioned Lieutenant Raymond Nolan, to whom Jeter had given his

statement, on whether Jeter implicated Nobles in Kolby’s shooting; Nolan responded that Jeter

had. During summation, the prosecution argued to the jury that the state had introduced Jeter’s

statement and questioned Nolan to prove that Nobles “was lying when he told you I had no

reason to call [Jeter], and [Jeter] never talked to homicide.” The prosecutor also observed that

Rocky, Jeter, and Nobles “[a]ll . . . directly or indirectly tell you who shot at the Coney Island,”

and, throughout closing argument, repeated that “Jeter speaks from the grave.”




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No. 13-1831
Nobles v. Woods

        The jury returned a verdict of guilty against Nobles on the count of first-degree murder

and the related counts of assault, discharging and possessing a felony firearm, and carrying a

concealed weapon. He was found not guilty on the charges of obstruction of justice and

attempted subornation of perjury. Following his conviction, Nobles filed a motion for a new trial

in the state trial court, which was denied, and a direct appeal in the Michigan Court of Appeals,

which affirmed his conviction in an unreported decision. See People v. Nobles, No. 258353,

2006 WL 1479561 (Mich. Ct. App. May 30, 2006). The Michigan Supreme Court denied his

application for leave to appeal, and Nobles did not seek certiorari review by the United States

Supreme Court. Instead, he moved for relief from judgment in the state courts, also to no avail.


        Nobles next filed a petition for habeas relief in federal district court. The state moved for

summary judgment on the ground that it was filed outside of the one-year statute of limitations

period, but the district court denied summary judgment after determining that Nobles was

entitled to equitable tolling. Upon receipt of the state’s memorandum in opposition to Nobles’s

petition and Nobles’s reply briefing, the district court denied habeas relief and granted a

certificate of appealability limited to Nobles’s claim that the inclusion of Jeter’s statement at trial

was a violation of the Confrontation Clause.           We denied Nobles’s request to expand the

certificate of appealability.


                                           DISCUSSION

        We review the district court’s legal conclusions in a habeas proceeding de novo and its

findings of fact under the clear-error standard. Davis v. Lafler, 658 F.3d 525, 530 (6th Cir. 2011)

(en banc). Under the Antiterrorism and Effective Death Penalty Act (AEDPA), an application

for a writ of habeas corpus may be granted if the state court’s adjudication of the claim “resulted

in a decision that was contrary to, or involved an unreasonable application of, clearly established

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No. 13-1831
Nobles v. Woods

Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).

A state court unreasonably applies clearly established law if it identifies the correct governing

legal principle but unreasonably applies that principle to the facts of the case. Williams v.

Taylor, 529 U.S. 362, 384-85, 413 (2000).              “For [the] purposes of § 2254(d)(1), ‘an

unreasonable application of federal law is different from an incorrect application of federal

law.’” Harrington v. Richter, 562 U.S. 86, 101 (2011) (emphasis in original) (quoting Williams,

529 U.S. at 410). A state court’s determination that a claim lacks merit precludes federal habeas

relief so long as “fairminded jurists could disagree that the state court’s decision conflicts with

[the Supreme Court]’s precedents.” Id. at 102.


        The Confrontation Clause of the Sixth Amendment affords criminal defendants the right

to confront witnesses against them. U.S. Const. amend. VI. Under the Confrontation Clause, a

testimonial statement of a witness who does not testify at trial cannot be admitted unless the

witness is unavailable and the defendant had prior opportunity to examine the witness. Crawford

v. Washington, 541 U.S. 36, 59 (2004). “Testimonial” statements include, “at a minimum . . .[,]

prior testimony at a preliminary hearing, before a grand jury, or at a former trial . . .[ ] and police

interrogations.” Id. at 68. The Confrontation Clause, however, reaches only hearsay; it “does

not bar the use of the testimonial statements for purposes other than establishing the truth of the

matter asserted.” Id. at 59 n.9. Instead, in order to implicate the Confrontation Clause, “the

statement must be used as hearsay—in other words, it must be offered for the truth of the matter

asserted.” United States v. Pugh, 405 F.3d 390, 399 (6th Cir. 2005).


        Neither party disputes that Jeter’s statement, which was made to the police during an

interview, was testimonial in nature. However, Nobles argues that the statement, although

ostensibly admitted for the purposes of impeachment and to establish motive, was actually used

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No. 13-1831
Nobles v. Woods

as substantive evidence identifying him as the shooter. To support this argument, he points to

the prosecution’s questioning of Lieutenant Nolan on whether Jeter identified Nobles as the

shooter, and the prosecutor’s comments during closing that Jeter “indirectly” told the jury who

the shooter was and that Jeter “spoke from the grave.” He also contends that Jeter’s statement

was not properly admitted as impeachment evidence because the statement itself did not actually

contradict his claim that he was unaware that Jeter had implicated him in Kolby’s shooting.


        Nobles raised his Sixth Amendment claim for the first time in his motion for relief from

judgment in state court. On review of that motion, the trial court determined that it was

precluded from considering Nobles’s Sixth Amendment claim because it was premised upon the

contention that Jeter’s statement was hearsay, an argument that the Michigan Court of Appeals

had previously rejected in Nobles’s direct appeal. Nobles, 2006 WL 1479561, at *3. Because

the Michigan Court of Appeals and Michigan Supreme Court denied leave to appeal the trial

court’s denial of his motion for relief from judgment, the Michigan Court of Appeals on direct

appeal issued the last reasoned opinion addressing the substance of Nobles’s Sixth Amendment

Claim—i.e., whether Jeter’s statement was inadmissible hearsay or non-hearsay impeachment

material.1


        The Michigan Court of Appeals determined that the trial court did not abuse its discretion

in admitting Jeter’s statement because it found that Jeter’s identification of Nobles as the shooter

“tended to impeach and undermine defendant’s insistence that he had never called Jeter a snitch

and had no reason to have threatened Jeter, as Whaley testified defendant had done,” and

because the trial court instructed the jury to consider Jeter’s statement for impeachment purposes

1
  Nobles did claim on direct appeal to the Michigan Court of Appeals that because Jeter’s statement was hearsay, its
introduction had deprived him of a fair trial, given that it was “highly prejudicial to the defense” and that “the
prosecutor later impermissibly argued the statement as substantive evidence of guilt.”

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No. 13-1831
Nobles v. Woods

alone, not for its truth. Id. The district court agreed that the statement was non-hearsay and

admissible for impeachment purposes and, therefore, that the state court’s decision was not

contrary to or an unreasonable application of Supreme Court precedent.


        Strictly speaking, the ruling permitting introduction of Jeter’s statement for its value as

impeachment rests on shaky ground. The content of the statement read to the jury—i.e., that

Nobles was the shooter—did not contradict Nobles’s testimony that he was unaware that Jeter

had made a statement to the police regarding Kolby’s death. The prosecution’s reference to the

fact that the statement was included in Nobles’s discovery materials may have undercut Nobles’s

insistence that he did not know the statement existed, but the statement itself did not establish

that Nobles knew of it at the time he was alleged by Whaley to have called Jeter a snitch and

threatened him.


        But even if Jeter’s statement did not impeach Nobles’s testimony as a technical matter,

the admission of the statement does not appear to rise to the level of a Confrontation Clause

violation. To violate the Confrontation Clause, a testimonial statement admitted at trial must be

used as hearsay. Pugh, 405 F.3d at 399. The record here fails to show that Jeter’s statement was

offered for the truth of what Jeter asserted—i.e., Nobles was the shooter. Rather, it is clear that

the prosecution sought to introduce Jeter’s statement only for non-hearsay purposes, and only

after Nobles denied calling Jeter a snitch or having any knowledge of Jeter’s statement.

Moreover, the statement was read after the court instructed the jury that the statement was “not

being offered for the truth of the matter asserted” and that the jury “[could not] use it for that

purpose.” Jurors are “almost invariabl[y] assum[ed]” to follow their instructions, Richardson v.

Marsh, 481 U.S. 200, 206 (1987), and Nobles ultimately offers no evidence or argument to refute

this assumption.

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Nobles v. Woods

          Moreover, Lieutenant Nolan did not testify that Nobles was the shooter, only that Jeter

identified him as such; his testimony was thus consistent with the prosecution’s attempt to

establish that Nobles had a motive to attempt to prevent Jeter from testifying. It also, perhaps

superfluously, corroborated the fact that Jeter made the statement.


          The prosecutor’s comments that Jeter “spoke from the grave” similarly concerned the

impeachment value of Jeter’s statement and its role as motive evidence, not its substantive truth.

The prosecutor made comments of this nature three times.              The first was made after the

prosecutor explained that Jeter’s statement had been introduced “only because -- for

impeachment purposes. . . . to show that the Defendant was lying when he told you I had no

reason to call Rod, and Rod never talked to Homicide,” and that Lieutenant Nolan’s testimony

was intended to prove that Nobles had lied in denying that Jeter had made a statement to the

police.     The prosecutor repeated the comment in the course of arguing that Nobles had

encouraged Jeter to leave Detroit until after his case was over and had threatened Jeter after he

returned to Detroit. She made the final reference to Jeter speaking “from the grave” just before

describing the nature of the obstruction of justice and subornation charges and the evidence

against Nobles on both. No instance of the comment suggests that the prosecutor delivered it for

any purpose other than to remind the jury that Jeter had made a statement to police and that, in

doing so, he had given Nobles a reason to attempt to dissuade him from testifying.


          The prosecutor’s comment that Jeter’s statement “indirectly” identified the shooter was is

more troubling. After acknowledging that the jury might have had reservations about Rocky’s

behavior before and after Kolby’s shooting, the prosecutor stated:

          When you decide, going back to the three people left in the car, you have Rocky.
          You have Rod Jeter and you have Kelly Nobles. All three directly or indirectly
          tell you who shot at the Coney Island.

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No. 13-1831
Nobles v. Woods

In context, this comment can reasonably be interpreted as encouraging the jury to use Jeter’s

statement as evidence of who shot Kolby. When taken with the numerous other references to

Jeter’s statement that were accompanied by cautionary instructions that it was not being offered

for its truth, however, this comment alone is insufficient to establish that the admission of Jeter’s

statement violated the Confrontation Clause.


        And even if we were to determine that the prosecutor’s reference to Jeter’s statement

violated the Confrontation Clause, we would also conclude that the violation was harmless error.

McCarley v. Kelley, 759 F.3d 535, 547 (6th Cir. 2014) (holding that Confrontation Clause

violations are subject to harmless-error analysis). A Confrontation Clause violation must have a

‘“substantial and injurious effect or influence in determining the jury’s verdict”’ to merit reversal

on collateral review. Id. (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). In a review

for constitutional harmlessness, we look to the statement’s significance to the prosecution’s case,

whether it was cumulative, the presence or absence of corroborating evidence, the extent of

cross-examination otherwise permitted, and the overall strength of the prosecution’s case. Id.

Here, the factors favor a finding of harmless error. Jeter’s statement played no part in the

prosecution’s case-in-chief, and two witnesses, Rocky and Whaley, corroborated it.


        We thus conclude that the determination by the Michigan Court of Appeals that the trial

court did not abuse its discretion in admitting Jeter’s statement was neither contrary to nor an

unreasonable application of federal law. As a result, Nobles’s petition for a writ of habeas

corpus must be denied on the merits.




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Nobles v. Woods

                                       CONCLUSION

        Having determined that the district court correctly denied relief in this case for the

reasons set out above, we find it unnecessary to address the procedural question concerning

equitable tolling. We therefore AFFIRM the judgment of the district court based on its ruling on

the merits.




                                             - 12 -
