                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 09a0218n.06
                             Filed: March 23, 2009

                                             No. 08-1407

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


MICHAEL RAEDEKE,                                           )
                                                           )         ON APPEAL FROM THE
        Petitioner-Appellant,                              )         UNITED STATES DISTRICT
                                                           )         COURT FOR THE EASTERN
v.                                                         )         DISTRICT OF MICHIGAN
                                                           )
JAN TROMBLEY, Warden,                                      )                            OPINION
                                                           )
        Respondent-Appellee.                               )



BEFORE:         KEITH, COLE, and McKEAGUE, Circuit Judges.

        COLE, Circuit Judge. Petitioner Michael Raedeke seeks a writ of habeas corpus under 28

U.S.C. §§ 2241 and 2254. Raedeke challenges his conviction for first-degree murder on several

bases, including the admission of incriminating statements in alleged violation of Miranda,

prosecutorial misconduct, juror inability to hear trial proceedings, and ineffective assistance of trial

and appellate counsel. The district court denied Raedeke’s petition. For the following reasons, we

AFFIRM.

                                        I. BACKGROUND

A.      Factual history

        Raedeke was accused of killing 87-year-old Rose Hickey by striking her in the head with a

baseball bat after breaking into her home. The facts of the crime, as adduced at trial, are set forth

in the district court’s opinion:
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             1. Key Prosecution Witnesses

              Kevin Richardson testified that Petitioner left home four times on the night
      in question. The first time Petitioner left with Justin Heiser and Eric Shann. They
      came back with two bags of golf clubs. The same three young men left a second
      time. Richardson subsequently received a telephone call from Justin Heiser, who
      stated that they had thrown a rock at a lady’s patio and set off an alarm. Petitioner,
      Justin, and Eric returned to Petitioner’s home, but Petitioner left the house a third
      time. He returned and said that the lady had grabbed his arm. He had a radio,
      television, and some beer with him, and he stated that he could not have any
      witnesses and had some business to do. He then left once more, this time
      accompanied by Justin Heiser. When Petitioner returned home, he was carrying a
      baseball bat with blood on it and a coin container. Petitioner said that he had hit the
      lady on the head two times, paused, and then hit her a few more times.

              Eric Shann admitted that he and Justin Heiser went for a walk with Petitioner
      on a Friday night in mid-October 1999. He claimed that Petitioner removed some
      golf clubs from a person’s garage and that the group took the golf clubs back to
      Petitioner’s home. The three of them went out a second time. They lost track of
      Petitioner, but heard an alarm sound. Eventually, all three of them returned to
      Petitioner’s house. Petitioner then picked up a baseball bat and stated that he had to
      take care of business. He and Justin Heiser left the house. The two of them returned
      home separately. Petitioner was carrying the bat, which had blood on it, and Justin
      was carrying a barrel of pennies. Petitioner said that he had hit the lady with the bat
      eight times and that he had never killed anyone before that night.

              Justin Heiser admitted to helping Petitioner steal two bags of golf clubs on
      a Friday night in October of 1999. He also admitted to being with Petitioner and Eric
      Shann when a burglar alarm was triggered later that night. He returned to
      Petitioner’s home and observed Petitioner leave the house a third time. When
      Petitioner came back, he stated that he had got into an old lady’s house and, as he
      was going through the house, the lady woke up, grabbed his arm, and looked at him.
      Petitioner asked for a volunteer to help him take care of some business. He said that
      he could not have any witnesses. Justin offered to help, and the two of them went to
      a house where the back patio window was broken. Petitioner had a wooden baseball
      bat and some gloves with him. Justin initially stayed outside while Petitioner went
      in the house. Justin heard some thumping noises and decided to go inside to look for
      something to steal. He walked into a bedroom and saw someone lying in a bed.
      Petitioner met him in the kitchen and gave him a barrel of coins, which he carried
      back to Petitioner’s house. Petitioner returned home with the bat and stated that he
      had never previously killed anyone. Then he cried and instructed Justin not to say

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Raedeke v. Trombley

      anything to anyone.

              Justin informed the police that Petitioner had said he hit the victim with the
      bat and that she made a moaning noise. Then he hit her a couple more times until she
      gurgled blood. He continued to hit her until she stopped moving.

              Charles (“Wes”) Heiser was Justin Heiser’s older brother. He testified that,
      mid-October 1999, Petitioner pointed out a house on Craig Street and stated that he
      broke into the house during the previous night and killed a lady who was present in
      the house. Petitioner explained to Wes that he broke a window in the house and set
      off an alarm, but later went back to the house and beat the woman to death with a ball
      bat because she woke up when he looked under the bed. Petitioner showed Heiser
      a cut on his leg, which he said that he received when he kicked in the window. He
      also showed Heiser some things that he had taken from the house.

              Petitioner informed Jered Grierson that he cut his leg on a fence. Jered
      learned about the murder from Wes Heiser, who informed him what Petitioner had
      said to him. According to Jered, who spent about two or three hours at Petitioner’s
      home on the night in question, Petitioner was drinking Tequilla [sic] and beer that
      night.

              William Harris heard about the incident from Jered Grierson. William asked
      Petitioner if he really did it and why. Petitioner then put his head down, started to
      cry, and said, “I don’t know.” Petitioner asked William for help in obtaining a bus
      ticket and, after his arrest, Petitioner wrote to William from jail. In his letters,
      Petitioner stated that he wore leather gloves and left no fingerprints, and he
      mentioned that some of his friends had “snitched” on him.

                      2. Defense Witnesses

              The defense theory was that, due to Petitioner’s history of behavioral,
      physiological, and psychological problems, as well as his use of alcohol and drugs
      on the night of the offense, he was not in control of himself and lacked the intent
      needed to be found guilty of first-degree murder and home invasion. A clinical
      psychologist testified that Petitioner was not mentally ill, nor mentally retarded, but
      that he had an “oppositional deviant disorder” or anti-social type of personality
      disorder with a possible attention deficit disorder. A physician testified that
      Petitioner was hyperactive and “mouthy” as a child and that she treated him for
      multiple allergies. Petitioner’s grandmother testified that Petitioner had problems at
      school because he lacked social skills, was “mouthy,” could not concentrate, and was
      disrespectful.

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(Joint Appendix (“JA”) 85-87.)

       When the police received information implicating Raedeke in the murder, Officer Terry Van

Keuren of the Flint, Michigan Police Department located and arrested Raedeke on a street in Flint.

On direct examination, Van Keuren testified about the nature of the arrest as follows:

       When I approached Mr. Raedeke he - - I advised him that he was under arrest. And
       I said, do you know why you are under arrest? And he started crying. And he shook
       his head and said yes. And he said, but I was doping and drinking when I did it.

(JA 167.) In the prosecutor’s closing argument, he referred to this testimony, stating to the jury: “I

don’t have to depend just on those friends of [Raedeke’s]; [Raedeke] admits to Sgt. Van Keuren that

he killed her, saying that he was drinking and doping when I did it. When he killed Rose Hickey.

That’s what Sgt. Van Keuren testified to.” (JA 266.)

B.     Procedural history

       In May 2000, following a trial in the Genesee County Circuit Court, a jury convicted Raedeke

of first-degree premeditated murder, felony murder, and first-degree home invasion. He was

sentenced to life imprisonment without the possibility of parole on both murder convictions and a

concurrent sentence of ten-to-twenty years of imprisonment on the first-degree home invasion

conviction.

       In February 2001, Raedeke appealed to the Michigan Court of Appeals raising two claims:

first, that the trial court erred in refusing to instruct the jury on manslaughter; and second, that

Raedeke’s conviction on two counts of murder and one count of home invasion violated the Double

Jeopardy Clause. The appeals court rejected the first argument, holding that the record did not

support a verdict of manslaughter, but agreed with Raedeke’s second argument and corrected his

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sentence to reflect a single conviction and sentence for first-degree murder. People v. Raedeke, No.

229128, 2002 Mich. App. LEXIS 711 (Mich. Ct. App. May 14, 2002). Raedeke filed an application

for leave to appeal the manslaughter-instruction claim, which the Michigan Supreme Court denied.

People v. Raedeke, 656 N.W.2d 525 (Mich. 2003) (Table).

       Raedeke then filed a motion for relief from judgment in the Genesee County trial court under

subchapter 6.500 of the Michigan Court Rules (“MCR”), which provides for post-appeal relief.

Raedeke raised the same claims now presented in his habeas petition. On January 31, 2004, the trial

court denied his motion on the merits in an oral opinion. People v. Raedeke, No. 99-5112-FC

(Genesee County Cir. Ct. Feb. 10, 2004). Raedeke filed an application for leave to appeal and a

motion to remand for an evidentiary hearing in the Michigan Court of Appeals, which that court

denied in a one-sentence order, stating, “The delayed application for leave to appeal is DENIED for

failure to meet the burden of establishing entitlement to relief under MCR 6.508(D).” People v.

Raedeke, No. 256349 (Mich. Ct. App. Dec. 16, 2004) (unpublished) (JA 136). Raedeke sought leave

to appeal to the Michigan Supreme Court, which also denied his request in a one-sentence order

referring to MCR 6.508(D). People v. Raedeke, 706 N.W.2d 23 (Mich. 2005).

       In December 2005, Raedeke filed a federal habeas petition in the Eastern District of

Michigan. The district court denied relief but granted a certificate of appealability on all five of

Raedeke’s claims. Raedeke v. Trombley, No. 05-60276, 2008 U.S. Dist. LEXIS 14904 (E.D. Mich.

Feb. 28, 2008) (denial of petition); Raedeke v. Trombley, No. 05-60276, 2008 U.S. Dist. LEXIS

23804 (E.D. Mich. Mar. 26, 2008) (grant of certificate of appealability). Raedeke timely appealed

to this Court.

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                                         II. ANALYSIS

A.     Procedural default

       Like the district court, rather than determine whether Raedeke’s claims have been

procedurally defaulted, we will dispose of them based on their lack of merit. See Hudson v. Jones,

351 F.3d 212, 215-16 (6th Cir. 2003) (a federal court may decide a case against a habeas petitioner

on the merits without addressing potential procedural default).

B.     Standard of review

       We review de novo the district court’s ruling on Raedeke’s habeas petition. See Murphy v.

Ohio, 551 F.3d 485, 493 (6th Cir. 2009). The standard set forth in the Antiterrorism and Effective

Death Penalty Act of 1996, (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, governs our review:

       AEDPA prohibits a federal court from granting a writ of habeas corpus to a person
       in custody pursuant to a state court judgment with respect to a claim that was
       adjudicated on the merits in state court unless the adjudication of that claim --

               (1) resulted in a decision that was contrary to, or involved an
               unreasonable application of, clearly established Federal law, as
               determined by the Supreme Court of the United States; or

               (2) 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.

Morales v. Mitchell, 507 F.3d 916, 929 (6th Cir. 2007) (quoting Moss v. Hofbauer, 286 F.3d 851,

858 (6th Cir. 2002) (quoting AEDPA, 28 U.S.C. § 2254 (d))). The phrase “clearly established”

federal law refers to “the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as

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of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000). A

decision is “contrary to” clearly established federal law if “the state court arrives at a conclusion

opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a

case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Id. at

412-13. A decision is an “unreasonable application” of clearly established federal law if a “state

court identifies the correct governing legal rule from [the Supreme] Court’s cases but unreasonably

applies it to the facts of the particular state prisoner’s case.” Id. at 407. “[A]n unreasonable

application of federal law is different from an incorrect application of federal law.” Id. at 410. We

ask, therefore, “whether the state court’s application of clearly established federal law was

objectively unreasonable.” Id. at 409.

C.     Raedeke’s statement was properly admitted and commented upon at trial

       Raedeke makes two related claims arising from his statement to Officer Van Keuren at the

time of his arrest that he was “drunk and doping when [he] did it”: (1) Raedeke claims the statement

should have been suppressed because Van Keuren did not give him Miranda warnings before asking,

“Do you know why you are under arrest?”; and (2) Raedeke claims that the prosecutor committed

misconduct when he told the jury, during closing argument, that Raedeke “admit[ted] to Sgt. Van

Keuren that he killed her, saying that he was drinking and doping when [he] did it. When he killed

Rose Hickey. That’s what Sgt. Van Keuren testified to.” (JA 266.) Raedeke argues that this

misstated Van Keuren’s testimony and, therefore, constituted improper argument of facts not in

evidence.

       1.      Admissibility of Raedeke’s statement

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       Initially, we must resolve an important factual issue. In denying Raedeke’s post-appeal

motion, the state trial judge stated that “when cross-examination was completed, the clear import to

be given to VanKuren’s [sic] testimony was that he did not interrogate the defendant, but that he

made a positive statement.” (JA 128.) The trial judge continued, finding that Van Keuren’s

testimony on cross-examination established that his utterance to Raedeke “was not a question. It was

not interrogation. It was, you are under arrest, you know what you are under arrest for. Not in the

form of a question.” (JA 128.) Raedeke has not included the transcript of Van Keuren’s cross-

examination in the joint appendix nor provided any argument to rebut the trial judge’s

characterization of the testimony, so we accept the trial judge’s finding that Van Keuren’s comment

to Raedeke was an affirmative statement not intended to elicit a response. See Jells v. Mitchell, 538

F.3d 478, 484 (6th Cir. 2008) (stating that, on habeas review, state-court findings of fact are entitled

to a presumption of correctness, which the petitioner has the burden of rebutting by clear and

convincing evidence) (citing 28 U.S.C. § 2254(e)(1)); see also United States v. McConer, 530 F.3d

484, 495-96 (6th Cir. 2008) (stating that whether interrogation occurred may be partly a factual

finding that is owed deference, particularly where the record is ambiguous). With that understanding

of the facts, we turn to whether Van Keuren’s statement to Raedeke at the time of his arrest violated

Miranda.

       Miranda warnings must be issued prior to “custodial interrogation.” Miranda v. Arizona,

384 U.S. 436, 444 (1966). “Failure to administer Miranda warnings creates a presumption of

compulsion. Consequently, unwarned statements that are otherwise voluntary within the meaning

of the Fifth Amendment must nevertheless be excluded from evidence under Miranda.” Oregon v.

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Elstad, 470 U.S. 298, 307 (1985). “Custodial interrogation” is “questioning initiated by law

enforcement officers after a person has been taken into custody or otherwise deprived of his freedom

of action in any significant way.” Miranda, 384 U.S. at 444.

               [T]he term “interrogation” under Miranda refers not only to express
       questioning, but also to any words or actions on the part of the police (other than
       those normally attendant to arrest and custody) that the police should know are
       reasonably likely to elicit an incriminating response from the suspect. The latter
       portion of this definition focuses primarily upon the perceptions of the suspect, rather
       than the intent of the police. This focus reflects the fact that the Miranda safeguards
       were designed to vest a suspect in custody with an added measure of protection
       against coercive police practices, without regard to objective proof of the underlying
       intent of the police. A practice that the police should know is reasonably likely to
       evoke an incriminating response from a suspect thus amounts to interrogation. But,
       since the police surely cannot be held accountable for the unforeseeable results of
       their words or actions, the definition of interrogation can extend only to words or
       actions on the part of police officers that they should have known were reasonably
       likely to elicit an incriminating response.

Rhode Island v. Innis, 446 U.S. 291, 301-02 (1980) (footnotes omitted). In Innis, police arrested a

robbery suspect but were unable to locate the gun they believed he had used to commit the crime.

Id. at 294-95. In the defendant’s presence, one officer said to another, “there’s a lot of handicapped

children running around in this area, and God forbid one of them might find a weapon with shells

and they might hurt themselves.” Id. The defendant then volunteered to show the officers where

he had hidden the gun. Id. at 295. The Court held that the officers’ conversation did not constitute

interrogation for a combination of reasons: there was “no express questioning,” the “entire

conversation appears to have consisted of no more than a few offhand remarks,” rather than a

“lengthy harangue in the presence of the suspect,” and the record “in no way suggest[ed] that the

officers’ remarks were designed to elicit a response.” Id. at 302-03 & n.9. The Court also noted that


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Raedeke v. Trombley

the comments were not particularly “evocative” and that there was no evidence that the officers were

aware that the suspect was “peculiarly susceptible to an appeal to his conscience concerning the

safety of handicapped children.” Id. at 302-03.

        Under the reasoning of Innis, Van Keuren’s statement to Raedeke was not interrogation

requiring prior issuance of Miranda warnings. Van Keuren’s remark to Raedeke was not an express

question, nor a “lengthy harangue,” nor particularly “evocative.” 446 U.S. at 302-03. As far as the

record shows, Van Keuren did not have reason to suspect that Raedeke would be unusually

susceptible to his remark. See id. at 302. As in Innis, the facts of this case showed that Van

Keuren’s remark was not designed to elicit a response from Raedeke. Id. at 303 n.9.

        While it might conflict with Miranda and Innis to allow police officers to ask a direct

question in the moments following a defendant’s arrest with the intention of eliciting incriminating

information, those are not the facts the trial judge found here. In this case, the state court’s decision

that Van Keuren’s statement to Raedeke was not interrogation was reasonable in light of Innis.

        2. Prosecutorial misconduct

        Raedeke claims that the following statement made by the prosecutor in his closing argument

was misconduct that deprived Raedeke of a fair trial: “[Raedeke] admits to Sgt. Van Keuren that

he killed her, saying that he was drinking and doping when I did it. When he killed Rose Hickey.

That’s what Sgt. Van Keuren testified to.” (JA 266.) This comment was not improper, and even if

it was, it would not entitle Raedeke to relief.

        “[W]hen addressing claims of prosecutorial misconduct, we first determine whether the

challenged statements were indeed improper.” Boyle v. Million, 201 F.3d 711, 717 (6th Cir. 2000).

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“Upon a finding of such impropriety, we then ‘look to see if [the improper statements] were flagrant

and warrant reversal.’” Id. (quoting United States v. Francis, 170 F.3d 546, 549 (6th Cir. 1999)).

We use a four-factor test to analyze the flagrancy of alleged instances of prosecutorial misconduct:

(1) whether the prosecutor’s statements tended to mislead the jury or prejudice the accused; (2)

whether the misconduct was isolated or extensive; (3) whether the misconduct was deliberate; and

(4) the total strength of the evidence against the accused. Id. To obtain relief, a petitioner must

establish that the prosecutor’s conduct “so infected the trial with unfairness as to make the resulting

conviction a denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). “Under

AEDPA, this bar is heightened by the deference we give to the [state court’s] determination of

[petitioner’s] prosecutorial-misconduct claims.” See Bowling v. Parker, 344 F.3d 487, 513 (6th Cir.

2003).

         The prosecutor was free to argue to the jury that Raedeke was referring to the murder of Rose

Hickey when he told Van Keuren that he had done “it.” See Bates v. Bell, 402 F.3d 635, 646 (6th

Cir. 2005) (noting that prosecutors may “forcefully assert reasonable inferences from the evidence”).

On the other hand, prosecutors may not misrepresent facts in evidence nor assert facts not admitted

into evidence. See Washington v. Hofbauer, 228 F.3d 689, 700 (6th Cir. 2000). While there is some

room for disagreement about whether the prosecutor made it sufficiently clear that he was drawing

an inference from Van Keuren’s testimony, rather than purporting to repeat the testimony verbatim,

it was reasonable for the trial court to conclude that the jurors would have understood the prosecutor

to be arguing for a reasonable inference.

         Even if we were to assume that the prosecutor improperly characterized Van Keuren’s

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testimony, this would not constitute the kind of flagrant misconduct that would entitle Raedeke to

habeas relief. Because the jurors had heard Van Keuren’s testimony themselves, the prosecutor’s

comment did not have a strong tendency to prejudice Raedeke. See Million, 201 F.3d at 717 (setting

forth factors of flagrancy analysis). Furthermore, the comment was isolated and does not seem to

have been a deliberate error, since the prosecutor appears to have been arguing for a fair inference

based on admitted testimony. Id. In addition, the overall case against Raedeke was extremely

strong. Id. Thus, Raedeke’s prosecutorial-misconduct claim fails.

D.     Jury’s ability to hear the proceedings

       Ruling on Raedeke’s post-appeal motion for relief from judgment, the trial court reviewed

the transcript citations set forth by Raedeke where the record reflected inaudible comments or

discussions of hearing difficulties and found that the asserted instances, both individually and

collectively, were not significant and did not deprive Raedeke of his due process rights. Bound as

we are by the strictures of AEDPA, we find that this determination was reasonable. See, e.g., White

v. Mitchell, 431 F.3d 517, 537 (6th Cir. 2005) (reviewing trial court’s determinations with respect

to juror bias under the AEDPA standard). A review of the inaudible comments shows that they were

minor and did not obscure substantive testimony. Moreover, the judge and both parties’ attorneys

were attentive to the jurors’ ability to hear the testimony. Raedeke has not presented a colorable

argument that the trial court’s rejection of this claim was contrary to or an unreasonable application

of clearly established federal law.

E.     Ineffective assistance of trial counsel

       Raedeke claims he received ineffective assistance of trial counsel because his lawyer did not

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object to the admission of Van Keuren’s testimony about Raedeke’s incriminating statement, the

prosecutor’s commentary on that testimony, or the alleged hearing problems during the trial.

Raedeke also claims that his trial counsel improperly conceded Raedeke’s guilt and that counsel was

deficient in choosing to present a “diminished capacity” defense despite being unable to present any

witnesses to testify that Raedeke was unable to form the requisite intent and despite the fact that the

Michigan Supreme Court later held the defense to be unavailable.

       To prevail on a claim of ineffective assistance of counsel, Raedeke must demonstrate that

his attorney’s “performance was deficient” and that “the deficient performance prejudiced the

defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). An attorney’s performance is

deficient if “counsel’s representation fell below an objective standard of reasonableness.” Id. at 688.

The petitioner must show that “counsel made errors so serious that counsel was not functioning as

the ‘counsel’ guaranteed by the Sixth Amendment.” Id. at 687. “Judicial scrutiny of counsel’s

performance must be highly deferential.” Id. at 689. To satisfy the prejudice prong, Raedeke “must

show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.” Id. at 694. “A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id.

       1. Failure to object

       Because the trial court did not err by admitting Van Keuren’s testimony about Raedeke’s

incriminating statement and allowing the prosecutor to comment on that testimony, any objection

by defense counsel would have been futile, and the failure to make futile objections cannot constitute

deficient performance. See United States v. Steverson, 230 F.3d 221, 225 (6th Cir. 2000). With

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respect to the claim that the jurors had difficulty hearing portions of the proceedings, Raedeke has

not shown that this interfered with the trial such that he was prejudiced, and furthermore, Raedeke’s

counsel was attentive to the ability of the jurors to hear the proceeding. Trial counsel’s failure to

object on the grounds of hearing difficulties did not constitute ineffective assistance.

       2. Conceding guilt

       Raedeke argues that his trial counsel, in effect, caused him to plead guilty against his will

when counsel argued to the jury, “The fact of the matter is that these boys from the neighborhood

have all pretty much come together and established a set of circumstances that would indicate

without peer venture [sic] any doubt, if they’re accepted, that Michael Raedeke performed the acts

for which he was accused.” (JA 271.) However, Raedeke’s counsel’s candid acknowledgment of

the evidence against his client did not amount to a clear concession of guilt, as counsel then

proceeded to argue that the jury should find the witnesses’ testimony not credible. Counsel’s candor

was clearly intended to boost his credibility with the jury, and under the deference owed to legal

strategy by counsel, this did not amount to deficient performance. See Florida v. Nixon, 543 U.S.

175, 192 (2004) (holding that counsel was not ineffective for attempting to impress jury with his

candor).

       3. Diminished-capacity defense

       Raedeke does not contest that the diminished-capacity defense was viable at the time of his

trial. See People v. Carpenter, 627 N.W.2d 276, 280-82 (Mich. 2001) (deciding, subsequent to

Raedeke’s trial, that the diminished-capacity defense was no longer available). Raedeke asserts that

his counsel was deficient in choosing to present a defense that was unsupported by evidence, but,

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as the district court stated, there was evidence of diminished capacity, and the strategy was not

unreasonable, though its chances of success were small. Raedeke does not offer a convincing

argument that the district court’s well-reasoned treatment of this issue was incorrect.

F.      Ineffective assistance of appellate counsel

        Raedeke’s appellate counsel raised two issues on direct appeal: (1) a double-jeopardy claim,

which succeeded but did not result in a reduction of Raedeke’s sentence; and (2) a claim based on

failure to instruct the jury on manslaughter, which was denied. Raedeke argues that the first issue

was futile, since it did not reduce Raedeke’s sentence, that the second was frivolous, and that

appellate counsel was ineffective for choosing to raise these two issues rather than those raised in

the instant habeas petition. “A criminal appellant is constitutionally entitled to the effective

assistance of counsel in his direct appeal.” Franklin v. Anderson, 434 F.3d 412, 428-29 (6th Cir.

2006). Regardless of the wisdom of pursuing the two issues that appellate counsel did raise on

appeal, the claims that Raedeke now argues should have been included all lack merit, so appellate

counsel was not ineffective for failing to raise them. See Greer v. Mitchell, 264 F.3d 663, 676 (6th

Cir. 2001) (“[B]y definition, appellate counsel cannot be ineffective for a failure to raise an issue that

lacks merit.”).

                                         V. CONCLUSION

        For the foregoing reasons, we AFFIRM the district court’s decision denying Raedeke’s

petition for a writ of habeas corpus.




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