                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0128n.06

                                           No. 09-1248                                  FILED
                                                                                    Feb 25, 2011
                          UNITED STATES COURT OF APPEALS                       LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


HEATHER ROBINSON,                                 )
                                                  )
       Petitioner-Appellant,                      )
                                                  )
v.                                                )   ON APPEAL FROM THE UNITED
                                                  )   STATES DISTRICT COURT FOR THE
SUE DAVIS, Warden,                                )   EASTERN DISTRICT OF MICHIGAN
                                                  )
       Respondent-Appellee.                       )
                                                  )

Before: SILER, CLAY, and GIBBONS, Circuit Judges.

       JULIA SMITH GIBBONS, Circuit Judge. Defendant Heather Robinson brings this appeal

seeking review of the district court’s decision denying her a writ of habeas corpus under 28 U.S.C.

§ 2254. Robinson was convicted of criminal sexual conduct in the first degree, in violation of Mich.

Comp. Laws § 750.520b(1)(a), and sentenced to twenty to forty years’ imprisonment. She brings

claims for ineffective assistance of counsel and for violations of due process. For the following

reasons, we affirm the district court’s denial of Robinson’s petition.

                                                 I.

       Robinson is the mother of D.R., a minor born in April 1993. In November 1998, Robinson

was sentenced to six months’ imprisonment after being convicted of aggravated assault. While

Robinson was imprisoned, D.R.’s grandparents, Sandra and Walter Peterman, took custody of D.R.




                                                -1-
09-1248
Robinson v. Davis

On March 7, 1999, D.R. reported to Walter Peterman that he and his mother had previously had

sexual intercourse when he was five years old. The Petermans contacted law enforcement; on April

7, 1999, an interdisciplinary team of counselors and law enforcement met to interview D.R. and

assess the allegations. D.R. repeated the allegation of sexual penetration, and persons present at the

meeting largely concluded D.R. was not fabricating the abuse allegation. Robinson was charged

with criminal sexual conduct on September 3, 1999.

       At trial, the State called D.R., who testified that while he had lived with Robinson, he had

penetrated Robinson’s vagina with his penis, touched Robinson’s vagina with his fingers, and sucked

on her vagina. He also testified that Robinson told him not to tell anyone. The State also called both

Sandra and Walter Peterman. Walter Peterman described his conversation with D.R. on March 7,

1999. Sandra Peterman also testified as to hearing D.R.’s conversation with Walter Peterman. She

said that Robinson later confided to her that she was going to attend a therapy group for perpetrators

of sexual abuse when she was released from jail, which Mrs. Peterman took as an admission of guilt.

       In addition to cross-examining each of the State’s witnesses and objecting to proffered

evidence as inadmissible under the Michigan Rules of Evidence,1 Robinson’s counsel called three

witnesses. Robinson took the stand and testified that she never abused D.R. She described

animosity between her and her mother, and testified that Sandra Peterman had told her at D.R.’s birth

that “she was going to get this baby.” Robinson testified that certain aspects of D.R.’s testimony



       1
          During the course of the trial, the prosecution tried to offer a statement by Robinson to a
therapist that she had had sex with D.R. when she was drunk. The statement, however, was ruled
privileged under Michigan evidentiary law and not admitted.

                                                 -2-
09-1248
Robinson v. Davis

were factually incorrect. Specifically, Robinson testified that she shaves her pelvic region, so D.R.’s

description of Robinson’s pelvic area as “hairy” was incorrect.

       In addition to Robinson, two other witnesses testified for the defense. Karol Ross, a

behavioral investigator focusing on diagnostics, testified about recent behavioral evidence that

children are “enormously cooperative and compliant and . . . will tell you what they perceive you

want to hear.” Ross also stated that in her opinion there was not an adequate investigation of D.R.’s

claims, because there was no evaluation of the Petermans’ possible “underlying agendas,” nor was

there any forensic interview done immediately after D.R. reported the abuse. The crux of Ross’s

testimony was that children were susceptible to the suggestions of the interviewees and that the

persons who had investigated D.R.’s allegations had not sufficiently assessed the reliability of D.R.’s

testimony. The defense also called Mary Kay Neumann, a social worker for the Oakland County’s

prosecutor’s office, and questioned her about the adequacy of the government’s investigation into

D.R.’s allegations.

       After approximately a day-and-a-half of deliberations, a jury convicted Robinson of criminal

sexual conduct in the first degree. Robinson filed an appeal of right, raising claims that included

ineffective assistance of counsel and prosecutorial misconduct. In response to the claims of

ineffective assistance of counsel, the trial court held an evidentiary hearing to determine the

adequacy of counsel, as required by state law.2


       2
         Michigan generally requires a hearing when such claims are raised. People v. Ginther, 212
N.W.2d 922, 925 (Mich. 1973) (“A defendant who wishes to advance claims that depend on matters
not of record can properly be required to seek at the trial court level an evidentiary hearing for the
purpose of establishing his claims with evidence as a precondition to invoking the processes of the

                                                  -3-
09-1248
Robinson v. Davis

        At that hearing, Robinson’s trial counsel discussed his trial strategy, which emphasized the

propensity of children to fabricate claims when improperly influenced by others. Trial counsel was

also asked about certain tactical decisions with respect to witnesses. For instance, counsel was asked

why he opted not to call Dr. Catherine Okla, a clinical psychologist who had been consulted in

preparation for this case. Trial counsel explained that Okla’s testimony would have been largely the

same as Ross’s testimony, and certain evidentiary hurdles faced during Ross’s direct examination

would have been the same for Okla.3 Counsel, however, testified that he had considered the issue

in detail and concluded that he “would simply be playing the same theme again with Doctor Okla

in a conclusory way.” Robinson’s new attorney also asked trial counsel about his decision not to call

Mark Fecteau as a fact witness at trial. Trial counsel explained that there was “hostility between”

Fecteau and Robinson, which made the prospect of calling him a “pretty risky business.”

        The Michigan Court of Appeals affirmed Robinson’s conviction in May 2003. First, the

appellate court found no problem with the witnesses that trial counsel chose. “Defense counsel’s

decisions with respect to the witnesses who were called and the evidence that was presented were

matters of trial strategy, which this Court will not second-guess.” People v. Robinson, No. 230187,

2003 WL 21205841, at *3 (Mich. Ct. App. May 22, 2003) (unpublished). The court was satisfied



appellate courts except in the rare case . . . .”).
        3
         The central evidentiary issue was the trial judge’s ruling that Ross could not discuss specific
details of notes and reports completed by D.R.’s therapist, Lou Goldman, that were based on his
interactions with D.R. before and after the abuse was reported. The trial court’s evidentiary ruling
was affirmed by the Michigan Court of Appeals. People v. Robinson, No. 230187, 2003 WL
21205841, at *2 (Mich. Ct. App. May 22, 2003) (unpublished).

                                                      -4-
09-1248
Robinson v. Davis

that trial counsel had followed a genuine trial strategy and provided sound reasons for not calling

Okla, Fecteau, or other witnesses. Id. at *3–4. Similarly, the court was not persuaded that trial

counsel was constitutionally ineffective in his handling of Ross’s testimony. Despite having had

certain lines of questions disqualified by the district court on hearsay grounds, the appellate court

concluded that “counsel was successful in presenting the core of Ross’s testimony, and we are

satisfied that a more complete discussion of the issues would not have affected the outcome of the

trial.” Id. at *3. The Michigan Court of Appeals also rejected Robinson’s claim that the prosecutor

committed misconduct in eliciting lurid testimony and in making lurid remarks. Id. at *5.

        Robinson filed for leave to appeal in the Michigan Supreme Court, but was denied in October

2003.   People v. Robinson, 671 N.W.2d 51 (Mich. 2003) (table).                 Robinson’s motion for

postconviction relief from judgment under state rules was denied by the Michigan Supreme Court

in November 2005. People v. Robinson, 707 N.W.2d 204 (Mich. 2005) (table).

        In March 2006, Robinson petitioned the United States District Court for the Eastern District

of Michigan for a writ of habeas corpus. The district court rejected all of Robinson’s claims,

concluding that trial counsel was neither ineffective in presenting his expert witness, nor in allowing

into evidence, without objection, testimony which cast Robinson in an unfavorable light. The court

found that trial counsel’s strategy to allow the jury to hear about Robinson’s past mistakes was

acceptable; in particular, counsel cogently explained his strategy to the jury in his closing arguments.

The strategy, the district court concluded, was to allow the jury to hear the information in order “to

assert that Petitioner’s parents had lost all faith in her and were predisposed to assume the worst . . . .



                                                   -5-
09-1248
Robinson v. Davis

Therefore, trial counsel argued that the Petitioner’s parents may have unintentionally encouraged

[D.R.] to come forth with sexual abuse allegations.”

       Similarly, the district court concluded that the trial counsel’s decisions about experts were

strategic and sound. As to allegations that trial counsel was unprepared for trial, the court concluded

that “the record belies Petitioner’s argument that trial counsel did not adequately prepare to present

expert testimony.” Moreover, the court found that trial counsel was able to adequately present the

substantive points of the expert’s testimony—dealing with the reliability of child testimony—despite

the fact that the trial court sustained several objections on hearsay grounds. The district court also

agreed with the trial counsel’s testimony that calling the second expert, Okla, would have been

duplicative and encountered the same hearsay problems that the first expert faced4 and concluded

that trial counsel’s decision not to call Fecteau was well-founded in the rational fear that involving

him in the case would be counterproductive given the hostility between Robinson and Fecteau.

                                                  II.

       A district court’s legal conclusions about a habeas petition are reviewed de novo. King v.

Bobby, 433 F.3d 483, 489 (6th Cir. 2006). The provisions of the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA), however, circumscribe the review performed by federal courts

examining applications for a writ of habeas corpus. Wiggins v. Smith, 539 U.S. 510, 520 (2003).

Under 28 U.S.C. § 2254(d),



       4
        The district court rejected many other claims made by Robinson, including due process
claims and a challenge to the constitutionality of the habeas standards of 28 U.S.C. § 2254.
Robinson has not pursued these claims on appeal.

                                                 -6-
09-1248
Robinson v. Davis

       an application for a writ of habeas corpus on behalf of a person in custody pursuant
       to the judgment of a State court shall not be granted with respect to any claim that
       was adjudicated on the merits in State court proceedings unless the adjudication of
       the 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.

The Supreme Court has made clear that “federal habeas courts must make as the starting point of

their analysis the state courts’ determinations,” and that “Congress intended federal judges to attend

with the utmost care to state-court decisions . . . before concluding that those proceedings were

infected by constitutional error sufficiently serious to warrant the issuance of the writ.” Williams v.

Taylor, 529 U.S. 362, 386 (2000).

                                                 III.

       All of Robinson’s claims on appeal allege ineffective assistance of counsel. An ineffective

assistance of counsel claim has two components:

       First, the defendant must show that counsel’s performance was deficient. This
       requires showing that counsel made errors so serious that counsel was not
       functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.
       Second, the defendant must show that the deficient performance prejudiced the
       defense. This requires showing that counsel’s errors were so serious as to deprive the
       defendant of a fair trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984).

                                                  A.

       Robinson first claims that “[t]rial defense counsel completely ‘fell apart’ after a series of

erroneous hearsay rulings” and that counsel’s “failure to explain” its litigation strategy to the trial

court “contributed to the court’s erroneous rulings.” The argument here is not that counsel

                                                 -7-
09-1248
Robinson v. Davis

improperly proffered evidence or failed to proffer admissible evidence, but rather that counsel did

not sufficiently convince the trial judge that its ruling on certain evidence’s admissibility was in

error. Robinson, in short, argues that the trial court was wrong as to its evidentiary issues, but it was

defense counsel’s fault that the trial court ruled incorrectly on a matter of law.

        The writ of habeas corpus cannot be granted on the grounds of erroneous application of state

law—the words of § 2254 limit the issuance of the writ to circumstances when the state court

erroneously applied “clearly established Federal law.” 28 U.S.C. § 2254 (emphasis added). Even

if the state court did incorrectly apply Michigan rules of evidence, that error provides no basis for

habeas relief. Railey v. Webb, 540 F.3d 393, 398 (6th Cir. 2008) (“[W]e do not consider on habeas

review a state court’s determination of state law.”). Robinson is therefore precluded from litigating

the question of the admissibility of certain testimony proferred by the defense’s expert, Karol Ross.




        To the extent that Robinson’s claim focuses on counsel’s failure to prevail in his evidentiary

arguments, we know of no precedent finding counsel ineffective when the judge erred despite

counsel’s urging. Moreover, counsel can hardly be ineffective for arguing unsuccessfully against

an evidentiary ruling determined to be correct on direct appeal. People v. Robinson, No. 230187,

2003 WL 21205841, at *2–3 (Mich. Ct. App. May 22, 2003) (unpublished)

                                                   B.

        Robinson’s second claim is that trial counsel failed to “effectively utilize defense experts.”

The Michigan Court of Appeals discussed this claim directly and found it unpersuasive:

                                                  -8-
09-1248
Robinson v. Davis

        Defense counsel testified at the Ginther hearing that he determined that the witnesses
        urged by defendant would not be particularly helpful or persuasive. Defense
        counsel’s decisions with respect to the witnesses who were called and the evidence
        that was presented were matters of trial strategy, which this Court will not
        second-guess.

Robinson, 2003 WL 21205841, at *3. This conclusion by the state appellate court correctly employs

the Supreme Court’s mandate that “[j]udicial scrutiny of counsel’s performance must be highly

deferential.” Strickland, 466 U.S. at 689. The Supreme Court has specifically noted the “wide

latitude counsel must have in making tactical decisions” and that it is “all too tempting for a

defendant to second-guess counsel’s assistance after conviction or adverse sentence.” Id. Because

trial counsel gave a reasonable explanation as to his reasoning and the Michigan state courts

accepted this explanation, we find Robinson is not entitled to relief under § 2254 on the basis of a

deficiency in using experts.

        Robinson claims that her trial counsel’s decisions “rested on a base of preparatory neglect”

and therefore is not entitled to the deference the courts generally afford a counsel as to his or her trial

strategy. Certainly, “[j]udicial deference to counsel is predicated on counsel’s performance of

sufficient investigation and preparation to make reasonably informed, reasonably sound judgments.”

Mayfield v. Woodford, 270 F.3d 915, 927 (9th Cir. 2001). Robinson, however, offers no evidence

that her trial counsel was unprepared. She claims there was a “dramatic difference between what

experts Ross and Okla were prepared to testify to in contrast to what was actually presented,” but

Robinson never offers any evidence that this supposed contrast was due to a lack of preparation.

                                                    C.



                                                   -9-
09-1248
Robinson v. Davis

       Robinson also argues that trial counsel’s failure to present the testimony of Mark Fecteau

amounted to ineffective assistance of counsel. The Michigan Court of Appeals addressed this claim

directly: “Counsel decided not to call Fecteau based on the hostility between Fecteau and defendant.

We will not second-guess this decision.” Robinson, 2003 WL 21205841, at *4. Because this was

a strategic decision by trial counsel, the state court’s decision was not an unreasonable application

of clearly established federal law.

       Robinson presents an affidavit signed by Fecteau claiming that Robinson’s trial counsel never

contacted him and argues that this affidavit evidences a failure to investigate by trial counsel. The

Supreme Court has clearly stated that effective assistance of counsel requires adequate investigation

into possible avenues for defenses. Williams, 529 U.S. at 391–92. Here, counsel appears to have

already known all of the substantive testimony that Fecteau could have provided. Robinson’s trial

counsel indicated at the post-trial hearing that he was aware of the information that Fecteau

possessed but reasoned that the supposed hostility between Fecteau and Robinson would make him

a poor witness. Trial counsel also indicated that it was Robinson, not he, who harbored a

“tremendous fear” of involving Fecteau. The record does not support a finding that counsel was

deficient in failing to conduct an adequate investigation.

       Moreover, even if trial counsel’s failure to investigate was a constitutionally deficient

performance, Robinson cannot show prejudice. To succeed on a Strickland claim, Robinson must

demonstrate a “reasonable probability that . . . the result of the proceeding would have been

different” had the trial counsel interviewed Fecteau. Strickland, 466 U.S. at 694. Based on

Fecteau’s affidavit, trial counsel would have learned no new substantive details about the case.

                                                -10-
09-1248
Robinson v. Davis

                                                  D.

       Robinson finally claims that trial counsel’s failure to object to either prosecutorial

misconduct or impermissible bolstering of D.R.’s testimony by the State’s expert witness amounts

to ineffective assistance of counsel. Because neither prosecutorial misconduct nor improper

bolstering occurred, Robinson’s claim is without merit.5

       As the district court noted, Robinson’s myriad prosecutorial misconduct claims fall into three

general categories: (1) presentation of prejudicial and inflammatory evidence; (2) references to facts

not in evidence; and (3) improper rebuttal closing argument. The comments pointed to in the first

category mainly come from the State’s cross-examination of Robinson. Most of the damaging facts

elicited during cross-examination had already been mentioned in the direct examination, and much

of it was relevant as to Robinson’s credibility.        The second set of comments involve the

prosecution’s reference to certain jail records not offered into evidence. As the district court noted,

however, this comment by the prosecution was based on the prosecutor’s confusion about certain

jail records; this line of questioning was quickly dropped upon realizing the mistake.

       Finally, Robinson points to words like “ridiculous,” “pathetic,” “angry,” and “liar” used in

the prosecution’s rebuttal closing to argue misconduct. In general, the government’s comments

during closing arguments are “reviewed deferentially on habeas review,” Millender v. Adams, 376

F.3d 520, 528 (6th Cir. 2004), and even without this deference, prosecutors are “entitled to wide


       5
         It is not clear whether the state court addressed this claim of ineffective assistance of
counsel specifically. However, the Michigan Court of Appeals did address the underlying issue of
prosecutorial misconduct and found no evidence of misconduct. Robinson, 2003 WL 21205841, at
*5.

                                                 -11-
09-1248
Robinson v. Davis

latitude in rebuttal argument.” United States v. Wall, 130 F.3d 739, 745 (6th Cir. 1997) (internal

quotation marks omitted). In context, none of these words was used by the prosecution in an

inappropriate manner.

       Robinson also contends that the prosecution’s expert witness Mary Kay Neumann was used

to improperly bolster D.R.’s testimony. While the prosecution is not permitted to offer any

“improper suggestions, insinuations, and, especially, assertions of personal knowledge,” Berger v.

United States, 295 U.S. 78, 88 (1935), no such action took place in this case. Again, Robinson takes

excerpts of the witness’s testimony out of context. For instance, Robinson points to Neumann’s

testimony that “there’s no other reason for this child saying this except for that it happened.” That

phrase, however, came from Neumann’s discussion of the general methodology employed by the

investigative team assembled at Care House—it is not a discussion of this case in particular and “this

child” does not refer to D.R. specifically.6

       Because there was no bolstering nor prosecutorial misconduct during Robinson’s cross-

examination, the prosecution’s rebuttal closing, or elsewhere, the failure to object to these various




       6
           Neumann’s testimony on this point reads:

       “Q.      And the [investigative team’s] goal is so that no stone is left unturned?”
       “A.      Correct. That we check every avenue so that we can make sure that we rule
                different avenues out. So that we boil it all down to what the child’s saying,
                so there’s no other reasons for this child saying this except for that it
                happened.”
       “Q.      And the goal is to get as much information as possible before charging?”
       “A.      Yes, it is. Yes, it is.”

                                                -12-
09-1248
Robinson v. Davis

comments and statements was not ineffective assistance of counsel. Therefore, Robinson is not

entitled to relief.

                                                IV.

        For the foregoing reasons, we affirm the decision of the district court. Robinson’s petition

for the writ of habeas corpus is denied.




                                                -13-
