                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 20a0272n.06

                                        Case No. 19-1437

                           UNITED STATES COURT OF APPEALS
                                                                                        FILED
                                FOR THE SIXTH CIRCUIT                             May 14, 2020
                                                                              DEBORAH S. HUNT, Clerk

JOHN OLIVER WOOTEN,                                    )
                                                       )        ON APPEAL FROM THE
       Petitioner-Appellant,                           )        UNITED STATES DISTRICT
                                                       )        COURT FOR THE EASTERN
v.                                                     )        DISTRICT OF MICHIGAN
                                                       )
PATRICK WARREN, Warden,                                )
                                                       )                            OPINION
       Respondent-Appellee.                            )




BEFORE: GIBBONS, McKEAGUE, and WHITE, Circuit Judges.

       McKEAGUE, Circuit Judge. On August 5, 2011, John Wooten shot two people outside

a gentlemen’s club in Detroit, killing one of them. He claims he shot them in self-defense. Wooten

was charged with murder and assault with intent to commit murder. He was tried twice on those

charges. His first trial ended in a mistrial after the prosecution asked a police officer a question

that the court deemed improper. But the court did not bar reprosecution. Wooten was then

convicted at the second trial.

       After the state appellate courts affirmed his convictions, Wooten petitioned for a writ of

habeas corpus. He argued that (a) having a second trial violated his Double Jeopardy rights, and

(b) there was constitutionally insufficient evidence at his second trial. The district court denied

Wooten’s petition. We AFFIRM.
Case No. 19-1437, Wooten v. Warren


                                       I. BACKGROUND

       On August 5, 2011, a little before 2:00 AM, John Wooten shot and killed Alfonso Thomas

outside the Pretty Woman Lounge in Detroit, Michigan. He also shot Omar Madison in the back,

although Madison lived to tell about it. Wooten fled the scene and threw his weapon—a .357

revolver—into the bushes. Although a warrant for his arrest was issued in August, Wooten was

not arrested until December 2011, four months after the shooting. The prosecution and Wooten

offered different versions of what exactly happened on August 5. According to the prosecution,

Wooten was making threatening statements in the bar that night and tried to bring a gun inside;

after the bar manager threw him out, Wooten turned around and shot two people. According to

Wooten, he was acting in self-defense—returning fire after Thomas shot at him. Wooten was tried

twice. The first trial ended with a mistrial, the second with a conviction.

       A. First Trial

       Wooten was originally charged with first- and second-degree murder, assault with intent

to commit murder, and two firearms charges. His first trial was in July 2012. It ended in a mistrial

before the prosecution could rest its case. Before the mistrial motion, the prosecution had relied in

large part on two eyewitnesses. The first was Omar Madison, the Pretty Woman bar manager

Wooten had shot in the back. The second was Anthony Gary, the bar promoter whose gun the other

victim, Alfonso Thomas, had grabbed shortly before the shooting. Both testified that Wooten was

the one who shot Thomas. Both also testified that nobody else fired a shot that night.

       The prosecution’s case suffered two major blows. First, the prosecution was prohibited

from asking Madison about a prior incident involving Wooten that could have helped prove

premeditation or intent.




                                                -2-
Case No. 19-1437, Wooten v. Warren


       Second, the prosecution was prohibited from going into a different line of questioning on

Fifth Amendment grounds. The prosecution had called the homicide investigator in charge of the

case. By this point, Wooten’s lawyer had been asking questions about the gun that Thomas was

holding when the shooting occurred—presumably to help build Wooten’s self-defense argument.

So the prosecutor asked the investigator whether Wooten had ever come forward to explain to the

police that he had acted in self-defense. Wooten’s lawyer objected, on grounds that the question

violated his client’s Fifth Amendment rights, and the court sustained the objection. The parties

then convened for a sidebar discussion, which does not appear in the trial record.

       Later, a similar question from the prosecutor led to a mistrial. On redirect examination of

the homicide investigator, after extensive discussion of the second gun, the prosecutor asked the

following question: “In this case would you have enjoyed talking to the defendant?” Wooten’s

lawyer objected, the court sustained, and the parties held a sidebar conference.

       The judge scolded the prosecutor for discussing Wooten’s failure to come forward to the

police. The judge had told the prosecutor at the earlier sidebar conference that he could not go into

this line of inquiry. The prosecution claimed that the question was in response to the questions

about the second gun.

       Wooten moved for a mistrial. Defense counsel argued that the case should be dismissed

with prejudice, which would bar a retrial. He contended that the prosecutor’s question was an

intentional act of prosecutorial misconduct, citing Oregon v. Kennedy, 456 U.S. 667 (1982). The

prosecutor argued in opposition.

       The judge granted the mistrial. In doing so, the judge talked at length on several topics.

First, the judge flatly rejected the prosecution’s substantive arguments that the question was

proper. Next, the judge went on to discuss the state of the prosecution’s case. The case against



                                                -3-
Case No. 19-1437, Wooten v. Warren


Wooten was going poorly, in his opinion, particularly on the first-degree murder charge. In fact,

the judge said, if Wooten had moved for a directed verdict on the first-degree murder charge, that

motion would have been granted.

       However, the judge did not find that the prosecutor intended to provoke a mistrial. The

judge stated:

       Sometimes when we wind up getting involved in the give and take of a trial, the
       heat of combat overwhelms our rational decision making processes, and I think that
       may very well have been the situation today.

       The judge acknowledged that his ruling benefited the prosecution. But he “hope[d] and

pray[ed] that that’s not what the reasoning was of the prosecution to have done what it did. I’m

giving him the benefit of the doubt.” The parties then scheduled the new trial.

       B. Second Trial

       The second trial was held in November 2012. At the beginning of the trial, Wooten’s

lawyer moved to reconsider the issue of whether the retrial should be barred, specifically

mentioning that he was seeking to preserve his rights for appeal. But the court denied the motion

and continued with the trial.

       The prosecution’s key witness was Omar Madison, the bar manager and shooting victim.

He testified to two incidents: the shooting and an earlier incident involving Wooten at the Pretty

Woman. In the earlier incident, according to Madison, a few weeks before the shooting, Wooten

threw something in the bar. It hit Madison, although Madison acknowledged that Wooten said he

had not intended to hit him. Still, Madison told Wooten he had to go, and he had the bouncer escort

Wooten out. As soon as Wooten got outside the door, he started shooting up in the air. (Madison

was inside when this happened and the door was closed, so he didn’t actually see Wooten shoot.)




                                               -4-
Case No. 19-1437, Wooten v. Warren


       Later that night, Wooten pulled up in front of Madison in the parking lot. He confronted

Madison and asked if they had a problem. According to Madison, he could see that Wooten was

holding a revolver. The two talked their issues over and then went their separate ways. Madison

did not report the incident to the police.

       On August 5, 2011, the night of the shooting, Madison testified that he had heard Wooten

and his friend “C” inside the bar making what Madison perceived as threatening comments—

things like “We run this bar. I stick this bar up.”

       Madison said that Wooten and C left the bar for a little while, and when they came back,

they refused to be searched, even though it was bar policy to search everyone for weapons before

entry. Madison approached them, reached for Wooten, and felt Wooten’s gun in his front

waistband (a revolver). Madison told Wooten that he could not bring the gun into the bar, at which

point Wooten became obnoxious. Wooten then seemed to reach for his gun, so Madison grabbed

him and held the gun. C then grabbed Madison to try to pull him off Wooten, and Anthony Gary

(the promoter) in turn grabbed C.

       Madison testified that the four of them eventually made their way outside the bar. After a

little while, Madison said to Alfonso Thomas: “Boo [Thomas’s nickname], you got him. I’ll be

letting him go. I’m about to let him go.” Thomas had with him a .380 semiautomatic handgun,

which Madison later learned was Anthony Gary’s gun. Madison wanted to make sure that Thomas

could deter Wooten from firing the revolver and hurting somebody.

       According to Madison, he let Wooten go, and Wooten started to take a couple of steps

away. Madison turned to go back in the bar. Then Wooten started shooting, and he hit Madison

from behind. Madison was able to turn and see Wooten shoot Thomas. He never saw Thomas

shoot at Wooten.



                                                 -5-
Case No. 19-1437, Wooten v. Warren


       The prosecution offered several other eyewitnesses, who testified to Wooten’s shooting at

Madison and Thomas. The prosecution also offered evidence to rebut the claim that a second gun

was fired that night—that is, that Thomas fired at Wooten, prompting him to return fire in self-

defense. Investigating officers testified that they found no evidence that a second gun was fired.

Anthony Gary, who owned the gun in question, testified that he examined the gun later that night

and found that it was still fully loaded.

       Wooten also testified in his own defense. He started with the incident a few weeks before

the shooting. Apparently, he had thrown his hands up in the air and a drink had slipped out,

accidentally hitting Madison. Madison approached him, and Wooten explained that he had not

meant to hit him. Not wanting an altercation, Wooten claimed he left of his own accord. Once he

walked outside the bar, Wooten heard gunshots go off—but they weren’t fired by him, because at

that time he didn’t have his gun.

       Next, the night of the shooting. Wooten testified that he had his gun with him that night—

a .357 revolver—because it was a rough neighborhood. But when he first entered the bar, the

bouncer let him in with his gun. Later in the night, Wooten left the bar to go smoke weed and

returned after about half an hour. When he went to go back in the bar, the bouncer gestured at

Madison, who was right behind them counting the proceeds from that night. Wooten took this

gesture to mean that the bouncer could not let him into the bar with the gun while the boss was

watching, so the two made some small talk to wait until Madison was not paying attention.

       Wooten said he was already heading out the door when Madison grabbed him from behind,

lifting him up. Wooten heard Madison say “Pull your gun. Pull your gun. Get ready. Are you

ready?” Wooten testified that he heard the safety of a gun click and, after Madison released him,

saw Thomas with a gun pointed at him. And then, according to Wooten, Thomas fired at him. So



                                              -6-
Case No. 19-1437, Wooten v. Warren


Wooten pulled out his gun and returned fire. He realized he hit Thomas, so he got scared and took

off running. Wooten hid in an alley and threw his gun in the bushes. He did not talk to the police,

because he had contacted some lawyers who had told him not to say anything to the police until

he had retained a lawyer.

       C. Verdict, Direct Appeal, and Proceedings in the District Court

       The jury convicted Wooten of second-degree murder, assault with intent to commit murder,

and two firearms offenses. On direct appeal, Wooten argued that (1) the court should have barred

the second trial on Double Jeopardy grounds, (2) there was insufficient evidence at the second

trial, and (3) the prosecutor committed misconduct at closing argument. The Michigan Court of

Appeals affirmed on all grounds. The Michigan Supreme Court denied leave to appeal, after

hearing oral argument.

       In January 2017, Wooten filed a pro se petition for a writ of habeas corpus in the Eastern

District of Michigan. He raised the same three issues as he did in his direct appeal. The district

court then appointed counsel, and counsel filed a supplemental brief addressing the claims. The

district court denied the petition and issued a certificate of appealability only on the Double

Jeopardy claim. This court then expanded the COA to include Wooten’s sufficiency argument.

                                         II. ANALYSIS

       A. Standard of Review

       This court reviews the district court’s legal conclusions de novo and its factual findings for

clear error. Davis v. Lafler, 658 F.3d 525, 530 (6th Cir. 2011) (en banc). The district court applies

the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Under AEDPA, a district

court can grant a petition for a writ of habeas corpus only if the state-court adjudication resulted

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



                                                -7-
Case No. 19-1437, Wooten v. Warren


Federal law, as determined by the Supreme Court of the United States” or if the decision “was

based on an unreasonable determination of the facts in light of the evidence presented in the State

court proceeding.” 28 U.S.C. § 2254(d). Before analyzing the merits, we first address Wooten’s

arguments that AEDPA deference does not apply in his case.

       B. Does AEDPA Deference Apply?

       1. Plain-Error Review and AEDPA Deference

       Wooten first argues that the state court should not receive AEDPA deference because it

erroneously analyzed the Double Jeopardy issue under a plain-error standard of review. AEDPA

deference applies only when the state court decided the issue “on the merits.” 28 U.S.C. § 2254(d).

Under Sixth Circuit precedent, AEDPA deference “applies to a state court’s plain-error analysis if

it ‘conducts any reasoned elaboration of an issue under federal law.’” Stewart v. Trierweiler, 867

F.3d 633, 638 (6th Cir. 2017) (quoting Fleming v. Metrish, 556 F.3d 520, 531 (6th Cir. 2009)).

But Wooten argues that this rule applies only to cases where the state court properly applied plain-

error review. And here, Wooten claims, the court applied plain-error review only because it

incorrectly held that Wooten had failed to preserve the Double Jeopardy issue in the trial court.

       We conclude that AEDPA deference applies. Under Fleming, we apply deference to the

state court’s plain-error merits analysis even if the court’s underlying procedural reasoning is

incorrect. 556 F.3d at 532. In Fleming, the state court applied plain-error review because it found

that the claim had been procedurally defaulted. See id. We disagreed with the state court’s

procedural-default reasoning, but we applied AEDPA deference anyway. Id. Citing principles of

comity, finality, and federalism, we explained that “[t]he state court’s substantive reasoning does

not simply vanish along with its erroneous procedural-default determination. Nor does AEDPA.”

Id.



                                               -8-
Case No. 19-1437, Wooten v. Warren


       Here, the state court held that Wooten had not preserved his Double Jeopardy argument.

The district court concluded that this preservation ruling was incorrect, and on appeal the state is

no longer arguing that Wooten failed to preserve his claim. But the state appellate court examined

the merits anyway, and it even determined that there was no constitutional error—“[t]his is not a

case where the state court simply assumed, without deciding, that there was a constitutional error

and then proceeded to determine that the error was not plain.” Id. Under Fleming, AEDPA

deference applies to this adjudication.

       2. Did the State Court Adjudicate the Double-Jeopardy Issue “On the Merits”?

       Second, Wooten contends that the state court’s adjudication of the Double Jeopardy issue

was unreasonable because it did not mention every basis for finding that the prosecutor intended

to provoke a mistrial. Here, the Michigan Court of Appeals dismissed Wooten’s Double Jeopardy

argument based on its conclusion that the prosecutor’s question was constitutionally permissible.

But it did not address the secondary argument that, even if the question was proper in isolation, it

still showed the prosecutor’s intent to provoke a mistrial because the question violated a clear order

from the trial court. However, we find that it did not need to do so in order to receive AEDPA

deference.

       Again, for AEDPA deference to apply, the state court must have adjudicated the federal

claim “on the merits.” 28 U.S.C. § 2254(d). When a federal claim has been presented to a state

court, there is a rebuttable presumption that the state court adjudicated the claim on the merits.

Johnson v. Williams, 568 U.S. 289, 292–93 (2013); Harrington v. Richter, 562 U.S. 86, 99 (2011).

The presumption applies “when a state-court opinion addresses some but not all of a defendant’s

claims.” Williams, 568 U.S. at 298. The presumption can be rebutted only “when there is reason




                                                -9-
Case No. 19-1437, Wooten v. Warren


to think some other explanation for the state court’s decision is more likely.” Richter, 562 U.S. at

99–100.

        The Richter/Williams presumption applies to a state court’s opinion that decides a federal

claim but does not explicitly address every relevant fact or argument. See Lee v. Comm’r, Ala.

Dep’t of Corr., 726 F.3d 1172, 1210–12 (11th Cir. 2013). “It makes no sense to say that a state

court decision is entitled to AEDPA deference if the opinion fails to contain discussion at all of a

claim but is entitled to no deference if it contains some but less than complete discussion.” Id. at

1212.

        Here, AEDPA deference applies. Under Williams and Richter, we presume that the state

court adjudicated the federal claim on the merits. And here, the state court explicitly resolved

Wooten’s Double Jeopardy argument. The Kennedy goaded-mistrial rule involves examining all

the relevant circumstances, but that doesn’t mean the court must explicitly mention every relevant

circumstance in its opinion. See id. And Wooten has not pointed us to anything to rebut the

Richter/Williams presumption. Accordingly, AEDPA deference applies to the state court’s

decision here.

        C. Was the State Court’s Determination Contrary to or an Unreasonable Application of

           Oregon v. Kennedy?

        Under AEDPA, the court cannot grant habeas relief unless the state court’s decision was

“contrary to, or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States[.]” 28 U.S.C. § 2254(d)(1). That means

Wooten must point to the holdings—not dicta—of Supreme Court precedents in making his claim

for relief. See Ross v. Petro, 515 F.3d 653, 660 (6th Cir. 2008).




                                               - 10 -
Case No. 19-1437, Wooten v. Warren


         Wooten argues that the facts of his case establish that the prosecutor intended to provoke a

mistrial. Therefore, according to Wooten, the Michigan Court of Appeals issued a decision that

was an unreasonable application of Oregon v. Kennedy, 456 U.S. 667 (1982).1 Under Kennedy,

when a mistrial is granted on the defendant’s motion, reprosecution will be barred if the prosecutor

“intended to ‘goad’ the defendant into moving for a mistrial.” Id. at 676. The intent standard “calls

for the [trial] court to make a finding of fact.” Id. at 675. The prosecutor’s intent is inferred “from

objective facts and circumstances” of the trial. Id.

         Here, Wooten’s Kennedy-based argument turns on one question from the prosecutor to the

officer in charge of the investigation: “Would you have enjoyed talking to the defendant?” Two

issues follow from that: (1) Was the substance of the question constitutionally improper? (2) Did

the context in which the question was asked demonstrate that the prosecutor intended to provoke

a mistrial?

         With regard to the substance of the question, a key issue on direct appeal was whether

using Wooten’s prearrest silence violated his constitutional right against self-incrimination. In this

appeal, Wooten does not make any argument that, under current law, asking about Wooten’s

prearrest silence was unconstitutional. See Salinas v. Texas, 570 U.S. 178, 181 (2013) (plurality);

Abby v. Howe, 742 F.3d 221, 228 (6th Cir. 2014). Instead, he argues that the question probed

further than prearrest silence, implicating both his postarrest silence and his failure to testify at the

first trial.


1
  Wooten also argues that the “manifest necessity” standard should apply, rather than Kennedy, because he did not
consent to the mistrial. See Tinsley v. Million, 399 F.3d 796, 812 (6th Cir. 2005). But he framed his argument to the
Michigan Court of Appeals solely in terms of the standard set forth in Kennedy, arguing only that the trial court erred
in finding that the prosecutor did not intend to provoke a mistrial. Indeed, he appeared to concede that trial counsel
should have done more if he wanted to withdraw his motion for mistrial and continue with the trial: “The Defendant
should have retracted his motion for a mistrial upon hearing that [the court would have granted a motion for directed
verdict], but in good faith did not.” At oral argument, Wooten also pointed us to United States v. Dinitz, 424 U.S. 600
(1976). But that pre-Kennedy case did not even involve prosecutorial misconduct, see id. at 601–05, which is the entire
basis for Wooten’s Double Jeopardy argument here.

                                                        - 11 -
Case No. 19-1437, Wooten v. Warren


        But the Michigan Court of Appeals reasonably found that the context reveals that the

prosecutor’s question dealt only with prearrest silence. Regarding postarrest silence, the first time

the prosecutor brought up Wooten’s failure to come forward to claim self-defense, he explicitly

said, “I’m not concerned with anything after he was arrested[.]” And later, when the prosecutor

asked, “Would you have enjoyed talking to the defendant?” it was in the context of the

investigation of whether a second gun had been fired—nobody had ever mentioned anything about

what happened to Wooten after he was arrested. Regarding Wooten’s failure to testify, asking a

police officer whether she would have “enjoyed talking to the defendant” does not necessarily

implicate the defendant’s failure to testify in his defense. If Wooten were to testify in the first trial,

then the attorneys would have been the ones asking him questions—so he would not have been

“talking to” the police officer at all.

        We also consider the context of the question. Wooten argues that the prosecutor’s question

demonstrated his intent to provoke a mistrial based on the context in which it was asked—

particularly (a) the poor state of the prosecution’s case and (b) the trial court order not to go into

that line of inquiry.

        Whether a prosecutor intended to provoke a mistrial motion is a question of fact. Kennedy,

456 U.S. at 675. Even on direct appeal, these factual findings are reviewed for clear error. United

States v. Foster, 945 F.3d 470, 474 (6th Cir. 2019). The standard is even higher in the habeas

context. State court findings of fact are “presumed to be correct.” 28 U.S.C. § 2254(e)(1); see also

Wei v. Burt, No. 18-2438, 2019 WL 1531516, at *2 (6th Cir. Mar. 26, 2019) (applying Section

2254(e) presumption to a state court finding that the prosecutor did not intend to provoke a

mistrial). The petitioner can rebut that presumption, but only upon a showing of error by clear and

convincing evidence. 28 U.S.C. § 2254(e)(1). And a habeas court will not overturn a state-court



                                                  - 12 -
Case No. 19-1437, Wooten v. Warren


adjudication unless it “resulted in a decision that was based on an unreasonable determination of

the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2).

“[A] state-court factual determination is not unreasonable merely because the federal habeas court

would have reached a different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301

(2010). And special deference is given to the trial court’s credibility determinations, particularly

when made on the basis of oral (as opposed to documentary) evidence. See Bose Corp. v.

Consumers Union of U.S., Inc., 466 U.S. 485, 500 (1984).

       Here, the state trial court credited the prosecutor and believed that he did not intend to

provoke a mistrial. The court made that ruling based on its observation of a live court proceeding,

and the ruling was made very shortly after the events themselves happened. There are other factors

supporting the state court’s finding. The prosecutor argued against Wooten’s mistrial motion. See

United States v. White, 914 F.2d 747, 752 (6th Cir. 1990) (noting that the prosecutor “resisted and

apparently was surprised by the granting of the motion for a mistrial”). The mistrial motion was

based on a single improper question. See Foster, 945 F.3d at 474–75 (affirming a finding that the

prosecutor lacked intent to provoke a mistrial despite a “litany” of constitutional violations). And

the improper question came well after the original Fifth Amendment ruling. See State v. Yetman,

516 S.W.3d 33, 43 (Tex. Ct. App. 2016) (in a case where the court affirmed a finding of

prosecutorial intent to provoke a mistrial, the improper question came immediately after the court

ruled that the prosecutor’s line of argument was off-limits).

       The trial judge was the one who observed the demeanor of the lawyers and was in a much

better position to determine what the prosecutor intended in that moment. The Kennedy standard

is an “exacting” one in general. Phillips v. Court of Common Pleas, 668 F.3d 804, 811 (6th Cir.

2012). Combine that with AEDPA deference and you have an incredibly high hurdle, especially



                                               - 13 -
Case No. 19-1437, Wooten v. Warren


when it comes to credibility determinations. Wooten has not cleared that hurdle. We find that

Wooten has not established that the state court’s ruling in his case was contrary to or an

unreasonable application of Oregon v. Kennedy.

        D. Sufficiency of the Evidence

        Wooten also argues that there was constitutionally insufficient evidence to convict him.

This claim can be analyzed in two parts. First, Wooten argues that the prosecution did not meet its

burden in disproving his self-defense theory. Second, he argues that there was insufficient evidence

of his mental state to convict him of second-degree murder and assault with intent to commit

murder.

        It is difficult to prevail on sufficiency claims on habeas review. This is because there are

two layers of deference. First, there is the deferential standard articulated in Jackson v. Virginia,

443 U.S. 307 (1979). Under Jackson, we defer to the trier-of-fact’s verdict by reviewing the

evidence in the light most favorable to the prosecution and asking whether any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt. Id. at 319. Next,

“deference should be given to the Michigan Court of Appeals’ consideration of the trier-of-fact’s

verdict, as dictated by AEDPA.” Tucker v. Palmer, 541 F.3d 652, 656 (6th Cir. 2008). In other

words, “a federal habeas court must ask whether the state court decision reflected an unreasonable

application of the Jackson standard to the facts of the case.” Brian R. Means, Postconviction

Remedies § 31.2 (July 2019).

        Wooten’s sufficiency argument goes to his convictions for second-degree murder and

assault with intent to commit murder. Under Michigan law, the elements of second-degree murder

are: “(1) a death, (2) caused by an act of the defendant, (3) with malice, and (4) without justification

or excuse.” People v. Roper, 777 N.W.2d 483, 490 (Mich. Ct. App. 2009) (per curiam) (internal



                                                 - 14 -
Case No. 19-1437, Wooten v. Warren


quotation marks and citation omitted). “The elements of assault with intent to commit murder are:

(1) an assault, (2) with an actual intent to kill, (3) which, if successful, would make the killing

murder.” People v. Brown, 703 N.W.2d 230, 236 (Mich. Ct. App. 2005) (internal quotation marks,

citations, and footnote omitted). As a defense to those crimes, a defendant can claim self-defense—

that is, that he “honestly and reasonably believe[d] that the use of deadly force [was] necessary to

prevent the imminent death of or imminent great bodily harm to himself or herself[.]” Mich. Comp.

Laws § 780.972(1)(a). Once a defendant presents a prima facie case of self-defense, then the

burden of proof shifts to the prosecution to disprove the self-defense claim beyond a reasonable

doubt. See People v. Denson, 902 N.W.2d 306, 315 (Mich. 2017).

       The government argues (and the district court found) that Wooten’s self-defense argument

was not cognizable in habeas because it was based on an affirmative defense, not a substantive

element of Michigan criminal law. See People v. Reese, 815 N.W.2d 85, 101 n.76 (Mich. 2012)

(“An affirmative defense, like self-defense, ‘admits the crime but seeks to excuse or justify its

commission. It does not negate specific elements of the crime.’” (quoting People v. Dupree, 788

N.W.2d 399, 405 n.11 (Mich. 2010))). Wooten counters that, because of Michigan’s burden-

shifting framework, the prosecution must disprove self-defense as part of proving the elements of

the substantive offense. But in any event, we need not decide whether the claim is cognizable,

because we conclude that there was constitutionally sufficient evidence to find that (a) Wooten did

not act in self-defense, and (b) Wooten acted with a mental state sufficient to satisfy the elements

of both second-degree murder and assault with intent to commit murder.

       1. Self-Defense

       Wooten claims there was not enough evidence to conclude that he did not act in self-

defense. He points to evidence that the Michigan Court of Appeals allegedly “ignored.” He



                                               - 15 -
Case No. 19-1437, Wooten v. Warren


contends that the court ignored the witness admissions that Thomas had grabbed Gary’s gun off

Gary’s hip. And he contends that the court ignored evidence that Madison told Thomas to grab a

gun. Wooten also points us to evidence indicating that Gary “surreptitiously” took his gun away

from the crime scene and then didn’t tell the police about it. Finally, Wooten points us to the

bouncer’s testimony that Wooten wasn’t making any threatening gestures and that, during the

tussle, other bar patrons were yelling “We got him. We got him. We got him.” All this shows,

according to Wooten, that he fired at Thomas and Madison only because he feared for his life.

       But this was not the only possible interpretation of the events. The jury could have given

more credit to the account offered by one of the victims, Omar Madison. See O’Hara v. Brigano,

499 F.3d 492, 499–500 (6th Cir. 2007). According to Madison, Wooten and his friend were making

threatening comments while Wooten was inside the bar. Further, Madison testified that Wooten

was refusing to be searched and became obnoxious once Madison called him out for trying to bring

a gun into the bar. According to Madison, Wooten seemed to be reaching for his gun—that’s when

Madison grabbed him. And Madison said he yelled for Thomas simply so he could make sure

Wooten didn’t hurt anybody. Finally, there was testimony that Thomas was not pointing the gun

at Wooten, and Wooten took a few steps away from everyone at the bar before turning around and

shooting. Drawing on this, the jury could well have concluded that Madison was simply doing his

job as bar manager in securing an unruly customer and that Wooten did not have a reasonable fear

of imminent death or great bodily harm. Thus, there was enough evidence for a rational trier of

fact to infer that Wooten did not act in self-defense.

       2. Mental State

       Wooten also argues that he did not have a sufficient mental state to be convicted of murder

or assault with intent to commit murder. For mental state, Michigan second-degree murder requires



                                                - 16 -
Case No. 19-1437, Wooten v. Warren


a finding of malice. Roper, 777 N.W.2d at 490. “Malice is defined as the intent to kill, the intent

to cause great bodily harm, or the intent to do an act in wanton and wilful [sic] disregard of the

likelihood that the natural tendency of such behavior is to cause death or great bodily harm.” Id.

(internal quotation marks and citation omitted). In contrast, assault with intent to commit murder

requires an “actual intent to kill.” Brown, 703 N.W.2d at 236–37. On the question of actual intent

to kill, the jury

        may, and should take into consideration the nature of the defendant’s acts
        constituting the assault; the temper or disposition of mind with which they were
        apparently performed, whether the instrument and means used were naturally
        adapted to produce death, his conduct and declarations prior to, at the time, and
        after the assault, and all other circumstances calculated to throw light upon the
        intention with which the assault was made.

People v. Taylor, 375 N.W.2d 1, 8 (Mich. 1985) (per curiam) (internal quotation mark and citation

omitted).

        Here, there is enough evidence to infer both malice and an actual intent to kill. On the

malice question, Michigan juries can infer malice from the defendant’s use of a deadly weapon.

See Stewart v. Wolfenbarger, 595 F.3d 647, 658 (6th Cir. 2010) (collecting cases). Wooten

admitted he fired the gun, and he does not claim it discharged accidentally.

        On the actual intent to kill question, the jury could find that Wooten was the aggressor and

that he bore a grudge against Madison. There is testimony supporting each of the following facts:

(1) Wooten reacted angrily to being thrown out of the bar after the drink-throwing incident and

even threatened Madison with a gun; (2) Wooten and his friend were making threatening

comments on the night of the shooting even before the altercation; (3) Wooten initiated the conflict

by refusing to be searched and then reaching for his weapon; and (4) Wooten did not shoot

immediately, but instead took a few steps away from the building and then turned to shoot. In light




                                               - 17 -
Case No. 19-1437, Wooten v. Warren


of this evidence, we conclude that Wooten has not met his heavy burden in establishing his right

to habeas relief on the grounds of insufficiency of the evidence.

                                      III. CONCLUSION

       For these reasons, we AFFIRM the judgment of the district court.




                                               - 18 -
