        RECOMMENDED FOR FULL-TEXT PUBLICATION
             Pursuant to Sixth Circuit Rule 206            2       Hicks v. Straub                            No. 03-1124
    ELECTRONIC CITATION: 2004 FED App. 0248P (6th Cir.)
                File Name: 04a0248p.06                       KENNEDY, J., delivered the opinion of the court, in which
                                                           COOK, J., joined. ROGERS, J. (p. 35), delivered a separate
                                                           concurring opinion.
UNITED STATES COURT OF APPEALS
                                                                                _________________
              FOR THE SIXTH CIRCUIT
                _________________                                                   OPINION
                                                                                _________________
 MICHAEL HICKS,                   X
                                                              KENNEDY, Circuit Judge. The district court conditionally
          Petitioner-Appellee, -                           granted the petition for a writ of habeas corpus under 28
                                   -
                                   -  No. 03-1124          U.S.C. § 2254 of Petitioner Michael Hicks, a Michigan
           v.                      -                       prisoner, on his claim that his Sixth Amendment right to
                                    >                      confrontation was violated at his first-degree murder trial
                                   ,                       when the prosecutor, during his opening statement, advised
 DENNIS M. STRAUB, Warden,         -
       Respondent-Appellant. -                             the jury that petitioner had confessed to the murder to a fellow
                                                           jail inmate and, yet, subsequently failed, despite a good faith
                                  N                        effort, to produce that inmate as a witness.1 The district court
      Appeal from the United States District Court         found that the procedural default doctrine did not bar the
     for the Eastern District of Michigan at Detroit.      review of petitioner’s Confrontation Clause claim.
    No. 01-70951—Arthur J. Tarnow, District Judge.         Specifically, the court held that (1) petitioner had “fairly
                                                           presented” his Confrontation Clause claim to the state courts
                Argued: March 18, 2004                     on direct review; (2) to the extent that the state courts on
                                                           direct review would have found that petitioner procedurally
           Decided and Filed: July 29, 2004                defaulted his Confrontation Clause claim as a result of trial
                                                           counsel’s failure to object to the underlying violation at trial,
   Before: KENNEDY, ROGERS, and COOK, Circuit              the ineffective assistance of trial counsel would have excused
                    Judges.                                any such default; and, (3) petitioner had not procedurally
                                                           defaulted his Confrontation Clause claim before the state
                  _________________                        courts on collateral review because the state procedural
                                                           ground upon which the state courts denied petitioner leave to
                       COUNSEL                             appeal was inadequate to bar federal habeas review.
ARGUED: Brad H. Beaver, OFFICE OF THE ATTORNEY               In reaching the merits of petitioner’s Confrontation Clause
GENERAL, Lansing, Michigan, for Appellant. Carole M.       Claim, the district court found that the prosecutor’s opening
Stanyar, Detroit, Michigan, for Appellee. ON BRIEF: Brad
H. Beaver, OFFICE OF THE ATTORNEY GENERAL,
Lansing, Michigan, for Appellant. Carole M. Stanyar,           1
Detroit, Michigan, for Appellee.                                The court granted the petition unless the State of Michigan
                                                           scheduled a new trial for petitioner within ninety days.

                            1
No. 03-1124                               Hicks v. Straub      3    4      Hicks v. Straub                             No. 03-1124

statement comment concerning petitioner’s alleged confession                           A. Pre-Trial and Trial
violated petitioner’s right to confrontation, and that this
violation was not harmless error. The district court further          On July 25, 1993, petitioner was arrested and charged with
found, pursuant to § 2254(d), that the prior state-court denial     the first-degree murder of Shawn Stalworth, who had been
of petitioner’s Confrontation Clause claim on the merits was        shot to death earlier that day as he was leaving his house in
an unreasonable application of the pertinent, clearly-              Battle Creek, Michigan. Following his arrest, petitioner was
established Supreme Court precedent.                                confined in a local jail, where he allegedly confessed to
                                                                    another inmate, Lorenzo Brand (“Brand”), that he had
   Respondent Dennis Straub appeals this grant of the writ of       committed the murder. Brand testified to this confession at
habeas corpus on the following grounds: (1) the district court      petitioner’s preliminary hearing. At petitioner’s jury trial, the
erred in reaching the merits of petitioner’s claim because          prosecutor, during his opening statement, stated, in pertinent
petitioner procedurally defaulted his claim by failing to raise     part:
it on direct review and because trial counsel’s failure to object
did not constitute ineffective assistance of counsel that would         Defendant was arrested. He was charged. He was
excuse this default; (2) the district court violated 28 U.S.C.          arraigned. He was taken to the City of Battle Creek
§ 2254(e)(2) when it held an evidentiary hearing on                     lockup, not the county jail, but the lockup pending
petitioner’s claim of ineffective assistance of trial counsel           transfer, moving him over here. While he was there[,]
because petitioner had failed to develop the factual basis              there was another person in the lockup. He goes, hey,
underlying that claim in the state courts; and (3) assuming             my mom just saw you on a videotape . . . . He said my
that the district court had the authority to reach the merits of        mom told me she just saw a person and they accused him
petitioner’s Confrontation Clause claim, it erred in granting           of homicide. You kill that man? What did he say? Yep,
relief because the prosecutor’s remark did not violate                  yep.
petitioner’s right to confrontation under the relevant, clearly-
established Supreme Court precedent.                                At the close of the state’s case, the prosecutor informed the
                                                                    court that the state would not call Brand as a witness because
  For the reasons explained below, we REVERSE the district          it had been unable to locate him. The prosecutor admitted
court’s grant of a writ of habeas corpus to petitioner under 28     that he did not believe that the state’s efforts to locate Brand
U.S.C. § 2254.                                                      met with the due diligence required under Michigan case law
                                                                    for the admission of preliminary examination testimony. The
                   I. Procedural History                            trial court agreed and declined to admit the testimony.
                                                                    Despite the prosecutor’s failure to produce Brand, defense
  Adjudication of respondent’s present appeal requires an           counsel neither objected to nor requested a mistrial based
understanding of the complex procedural history that bears          upon the prosecutor’s opening statement relaying that
upon that appeal in the state courts.                               confession. Further, defense counsel never mentioned the
                                                                    prosecutor’s statement regarding petitioner’s alleged
                                                                    confession in his opening statement, which he had reserved
                                                                    until the close of the prosecution’s case. Neither defense
                                                                    counsel nor the prosecutor mentioned the alleged confession
                                                                    in closing arguments.
No. 03-1124                                   Hicks v. Straub         5    6          Hicks v. Straub                              No. 03-1124

  The trial court gave the jury the customary instruction that                        including arguing matters not in evidence, such as
“[t]he lawyers’ statements and arguments are not evidence,”                           defendant’s supposed admission to committing the
and further instructed:                                                               murder, and by repetitively cross-examining
                                                                                      defendant on the irrelevant matter of his being a
  Lorenzo Brand is a missing witness whose appearance                                 marijuana dealer.
  was the responsibility of the [p]rosecution. You may
  infer that the witness’ testimony would have not been                     II.       Because of defense counsel’s failures[,] . . .
  favorable to the [p]rosecution’s case.                                              [defendant] was denied his rights to the effective
                                                                                      assistance of counsel, to present an effective defense,
However, because the prosecutor’s opening statement never                             and to a fair trial.
named the jail inmate to whom petitioner allegedly confessed,
and because no mention was ever made before the jury that                  Petitioner only asserted that these instances of prosecutorial
Brand was that inmate, the jury had no knowledge with which                misconduct violated defendant’s rights to due process and a
to tie the trial court’s “Brand” instruction to the prosecutor’s           fair trial; he never argued that this misconduct also violated
opening statement regarding the alleged confession.2                       his Sixth Amendment right to confrontation. During his
Moreover, immediately after this instruction, the district court           appeals in the state courts, petitioner argued that no curative
gave an instruction as to when the jury could properly                     instruction could have remedied the prejudice to defendant.
consider an unrelated out-of-court statement made by                       During the direct appeal, no one mentioned that the curative
petitioner that had been admitted into evidence.                           instruction that identified Brand was referring to the jail
                                                                           inmate in the prosecutor’s opening statement to whom
  The jury convicted petitioner of first-degree murder and                 petitioner allegedly confessed. Since trial counsel never
possession of a firearm during the commission of a felony.                 objected to this alleged prosecutorial misconduct, petitioner
The trial court sentenced petitioner to life imprisonment                  argued that this failure to object resulted in the requisite
without parole on the murder conviction and to two years’                  manifest injustice which rendered any such objection
imprisonment on the felony-firearm conviction.                             unnecessary, and, alternatively, that the failure amounted to
                                                                           an ineffective assistance of counsel. Thus, petitioner’s
                         B. Direct Review                                  independent claim of ineffective assistance of counsel rested,
                                                                           in part, upon this failure by trial counsel.3
  Petitioner filed an appeal as of right in the Michigan Court
of Appeals. Petitioner presented, among others, the following                Petitioner filed a motion to remand the case to the trial
two claims:                                                                court for an evidentiary hearing on his claim of ineffective
  I.       Defendant . . . was denied a fair trial by the
           prosecutor’s numerous instances of misconduct,                         3
                                                                                 Petitioner also argued that trial counsel rendered ineffective
                                                                           assistance when he failed to impeach a witness with testimony from his
       2
                                                                           preliminary examination; to make app ropriate motions, both before and
     The only plausible way for the jury to make the necessary             during trial; to cross-examine a witness concerning her in-court
connection would have been to compare the list of witnesses mentioned      identification of defendant with her prior stateme nt that she could not
during the voir dire with the actual witnesses called. W hether the jury   identify the perpetrator; and to pre pare petitioner’s alibi defense
made that connection is unknown.                                           adequately.
No. 03-1124                               Hicks v. Straub       7    8            Hicks v. Straub                               No. 03-1124

assistance of trial counsel. The Michigan Court of Appeals           claims that he had presented to the Michigan Court of
affirmed petitioner’s conviction and sentence. People v.             Appeals. Petitioner also filed a motion to remand the case to
Hicks, No. 171833 (Mich. Ct. App. Nov. 8, 1996). As to the           the trial court for an evidentiary hearing on his ineffective-
first claim, the court found that trial counsel, by failing to       assistance-of-trial-counsel claim. On November 7, 1997, the
object to the alleged instances of prosecutorial misconduct at       Michigan Supreme Court denied petitioner leave to appeal
trial, had failed to preserve this claim for review absent a         and denied the motion for remand on the ground that it was
miscarriage of justice. Id. Noting that only a miscarriage of        “not persuaded that [it should review] the questions
justice would excuse this failure, the court further found that      presented.” People v. Hicks, 456 Mich. 884 (Mich. 1997).
there was “no manifest injustice in the prosecutor’s comment
during his opening statement that defendant allegedly                                      C. State Collateral Review
confessed to the crime to a fellow inmate, even though the
prosecution later failed to produce that witness.” Id. The             On January 29, 1999, petitioner filed a motion for relief
court reasoned that the trial judge’s instruction to the jury that   from judgment in the trial court, pursuant to M.C.R. 6.500.4
it “could assume that the witness the prosecution was unable         The record indicates that petitioner made the following two
to produce would have testified unfavorably to the                   claims, among others, in that motion:
prosecution, and that . . . [it was] not to consider defendant’s
alleged out-of-court admission as evidence of his guilt”                 I.       [Petitioner was] denied his constitutional right to
remedied any potential prejudice that may have resulted from                      confront witnesses against him when the prosecutor
this comment.                                                                     advised the jury during opening statement that
                                                                                  defendant had confessed to the murder, where the
   After noting that the defendant failed to properly preserve                    prosecutor without even the pretense of due
the issue, the court of appeals nonetheless decided to address                    diligence failed thereafter to produce the witness to
the merits of his ineffective assistance of trial counsel claim,                  the alleged confession, where defense counsel never
and found that he “failed to overcome the presumption that he                     responded to the issue of the “confession” in any
was afforded effective assistance of counsel.”                Id.                 way, and where the trial court’s instructions failed
Specifically, the court held that “in each instance, the action
[that] defendant suggests that counsel should have taken[]
would have either been futile, or a matter of strategy that th[e]             4
                                                                           Petitioner had previously filed–on January 26, 1999–a writ of
[c]ourt is unwilling to second-guess on appeal.” The                 habeas corpus under 28 U.S.C. § 2254. Conceding that his petition
Michigan Court of Appeals denied petitioner’s motion to              contained unexhausted claims, petitioner explained that he had filed the
remand on the ground that petitioner “failed to identify an          petition to avoid a perceived violation of the applicable statute of
                                                                     limitations. Petitioner stated that he wanted to pursue state collateral
issue sought to be reviewed on appeal and demonstrate by             review so as to exhaust these claims as well as to raise claims based upon
affidavit or an offer of proof regarding the facts to be             a denial of his right to confrontation and upon a denial of his right to the
established at a hearing,” as M.C.R. 7.211(c)(1)(a)(ii)              effective assistance of counsel. The district court dismissed the petition
requires. People v. Hicks, No. 171833 (Mich. Ct. App. Dec.           without prejudice on Sep tember 2 9, 199 9, pursuant to the p arties’
6, 1995).                                                            stipulation that 28 U.S.C. § 2 244 (d)(1 )’s one-year statute of limitations
                                                                     would be tolled during the pendency of state collateral review, and that
                                                                     any re-filed § 2254 petition would not constitute a “successive
  Petitioner then filed a delayed application for leave to
                                                                     petition” under 28 U.S.C. § 2244(b)(2). Hicks v. Straub, No. 99-
appeal to the Michigan Supreme Court, presenting the same            70299 (E.D. Mich. September 29, 1999).
No. 03-1124                                     Hicks v. Straub          9    10       Hicks v. Straub                                    No. 03-1124

        utterly to remedy the enormous prejudice to the                       petitioner argued that, although his Confrontation Clause and
        defendant.                                                            Due Process Clause claims are grounded on the same factual
                                                                              predicate, they are legally distinct. Therefore, he argued the
  II. [Petitioner was] deprived of the effective assistance                   Michigan Court of Appeals decided only the latter, but not the
      of counsel when trial counsel failed to object or                       former claim.6 Petitioner further argued that the ineffective
      move for mistrial based upon an obvious deprivation                     assistance of appellate counsel had prevented him from
      of the right to confront witnesses following the                        presenting his Confrontation Clause claim to the court of
      prosecutor’s unsupported statement to the jury that                     appeals. He asserted that both trial counsel and appellate
      the defendant had confessed, and where appellate                        counsel were ineffective for failing to identify and to raise the
      counsel failed to frame the issue properly as the                       Confrontation Clause claim at trial and on direct review,
      deprivation of the right to confront witnesses in                       respectively.
      violation of the Sixth Amendment.
                                                                                 The trial court noted that the Michigan Court of Appeals
  In support of his claims, petitioner argued, for the first time,            had held that trial counsel was not ineffective. Nevertheless,
that the trial court’s jury instruction on Brand was incapable                it stated that, “[b]ecause this is a first degree murder
of curing the prosecutor’s statement to the jury that petitioner              conviction and a felony firearm conviction, . . . [it was]
had confessed to a jail inmate because that statement never                   willing to address the underlying substance of the motion.”
disclosed the name of that jail inmate while the court’s                      The court stated that, because defendant testified that he had
instruction only referenced Brand by name, not by his role as                 an alibi defense and completely denied having anything to do
the jail inmate to whom petitioner allegedly confessed.                       with the murder, the defense “clearly contradicted the
Petitioner further argued that, had Brand testified, defense                  [p]rosecutor’s opening statement [that defendant had
counsel would have had substantial evidence with which to                     confessed].” The trial court then noted that it had instructed
impeach his testimony.                                                        the jury that the lawyers’ arguments and statements are not
                                                                              evidence and that the jury’s decision must be based upon only
  In an order dated March 16, 2000, the state trial court                     evidence. The court concluded that, “technically,” there is no
denied petitioner’s motion for relief from judgment. People                   “confrontation issue” because, absent the prosecutor’s
v. Hicks, No. 93-2188FC (Calhoun County Circuit Court                         statement, “there was no evidence brought into play against
March 16, 2000). The court outlined its reasons for that                      the defendant.” While reading onto the record the Michigan
denial at a hearing on March 6, 2000.5 During that hearing,                   Court of Appeals’ opinion denying petitioner’s ineffective-

    5
      During an earlier hearing, at which only the prosecutor appeared, the
prosecutor argued that the Michigan Court of Appeals had decided all of            add ressed , so that motion is denied.
the claims in petitioner’s motion for relief from judgment. The trial judge
then stated:                                                                  Petitioner’s counsel failed to attend this hearing due to a scheduling error.
                                                                               The state co urt re-scheduled the hearing on p etitioner’s motion for
    That’s what I tho ught. I read the Court of Appeals opinion               March 6 , 200 0, at which hea ring bo th counsel were pre sent.
    again, the ineffective assistance, the alleged prosecutorial                   6
    misco nduc t, the comments made in the opening statement that                   Presumably in response to this contention, the prosecutor argued
    were never followed up about the jail compatriot claiming the             that petitioner should not be permitted to prese nt an arg ument that is
    [d]efendant made statements. In any event all of these have been          simply worded differently.
No. 03-1124                                       Hicks v. Straub         11     12     Hicks v. Straub                           No. 03-1124

assistance-of-counsel claim, the trial court underscored the                       I.   The trial court was clearly erroneous in rejecting
following excerpt as the most important in its view:                                    defendant[]’s claim that he was denied his
                                                                                        constitutional right to confront witnesses against him
  [T]he record provides no support for [d]efense’s                                      when the prosecutor advised the jury during opening
  proposition that counsel’s failure to object to the                                   statement that defendant had confessed to the
  admission of evidence, his failure to request a pretrial                              murder, where the prosecutor without even the
  lineup, his failure to extensively cross-examine an                                   pretense of due diligence failed thereafter to produce
  eyewitness, or his presentation of the [d]efendant’s                                  the witness to the alleged confession, where defense
  defense fell below the objective standard of                                          counsel never responded to the issue of the
  reasonableness. We find that defendant has failed to                                  “confession” in any way, and where the trial court’s
  overcome the presumption that he was afforded effective                               instructions failed utterly to remedy the enormous
  assistance of counsel.                                                                prejudice to the defendant.
Based upon this excerpt, the trial court concluded that                            II. The trial court was clearly erroneous in rejecting
petitioner had not presented a “specific discrete allegation of                        defendant[]’s claim that he was deprived of the
ineffective assistance.” Rather, according to the trial court,                         effective assistance of counsel when trial counsel
petitioner’s allegation “was wide-ranging” and involved a                              failed to object or move for mistrial based upon an
“number of different areas . . . to demonstrate ineffective                            obvious deprivation of the right to confront
assistance.” As a result, the trial court also agreed with the                         witnesses following the prosecutor’s unsupported
court of appeals that trial counsel’s assistance was not                               statement to the jury that the defendant had
ineffective, reasoning that defendant had posited an alibi                             confessed, and where appellate counsel failed to
defense before the jury, and that the court had instructed the                         frame the issue properly as the deprivation of the
jury that lawyers’ statements are not evidence. The court then                         right to confront witnesses in violation of the Sixth
denied petitioner’s motion.7                                                           Amendment.
   Petitioner filed a delayed application for leave to appeal the                The Michigan Court of Appeals denied petitioner leave to
trial court’s denial of his motion for relief from judgment in                   appeal on the ground that petitioner had failed “to meet the
the Michigan Court of Appeals, presenting these claims:                          burden of establishing entitlement to relief under M.C.R.
                                                                                 6.508.” People v. Hicks, No. 226074 (Mich. Ct. App.
                                                                                 Aug. 11, 2000).
                                                                                   Petitioner then filed a delayed application for leave to
    7                                                                            appeal in the Michigan Supreme Court, presenting the same
       W e note that the Michigan Court of Appeals’ decision, on direct          claims that he had presented to the Michigan Court of
review, necessarily addressed only petitioner’s claim of ineffective
assistance of trial counsel. We further note that, while the trial court, in
                                                                                 Appeals. The Michigan Supreme Court denied petitioner
denying petitioner’s post-conviction motion, did no t expre ssly articulate      leave to appeal, ruling that petitioner had failed “to meet the
its reasoning for the denial of petitioner’s claim tha t appellate counsel was   burden of establishing entitlement to relief under M.C.R.
ineffective for failing to raise a Confrontation Clause challenge on direct      6.508(D).” People v. Hicks, 463 Mich. 978 (Mich. Feb. 26,
review, such a holding implicitly follows from its express finding that trial    2001).
counsel was not ineffective for failing to raise such a challenge at trial.
No. 03-1124                                   Hicks v. Straub       13    14    Hicks v. Straub                              No. 03-1124

 D. Federal Collateral Review Before the District Court                         1. Procedural Default Consideration on State
                                                                                             Collateral Review
  On March 9, 2001, petitioner filed a petition for a writ of
habeas corpus under 28 U.S.C. § 2254. Petitioner presented                  On state collateral review, the Michigan Supreme Court
the following claims as grounds for relief:                               denied petitioner leave to appeal the trial court’s denial of his
                                                                          motion for relief from judgment on the ground that petitioner
  I.       Petitioner was denied his constitutional right to              failed “to meet the burden of establishing entitlement to relief
           confront witnesses against him when the prosecutor             under M.C.R. 6.508(D).” People v. Hicks, 463 Mich. 978
           advised the jury during opening statement that                 (Mich. Feb. 26, 2001). In so holding, the state court did not
           petitioner had confessed to the murder, where the              specify whether it was relying upon a particular subsection of
           prosecutor without even the pretense of due                    M.C.R. 6.508(D). Before the district court, petitioner and
           diligence failed thereafter to produce the witness to          respondent argued about whether the Michigan Supreme
           the alleged confession, where defense counsel never            Court’s denial rested upon an adequate and independent state
           responded to the issue of the ‘confession’ in any              procedural law and, in particular, about whether it relied upon
           way, and where the court’s instruction failed utterly          subsection (3) of M.C.R. 6.508(D). M.C.R. 6.508(D)(3)
           to remedy the enormous prejudice to the petitioner.            provides:
  II. Petitioner was deprived of the effective assistance of                The court may not grant relief to the defendant if the
      counsel when trial counsel failed to object or move                   motion . . . alleges grounds for relief, other than
      for mistrial based upon an obvious deprivation of the                 jurisdictional defects, which could have been raised on
      right to confront witnesses following the                             appeal from the conviction and sentence or in a prior
      prosecutor’s unsupported statement to the jury that                   motion under this subchapter [of post-appeal relief],
      the petitioner had confessed, and where appellate                     unless the defendant demonstrates (a) good cause for
      counsel failed to frame this issue properly as the                    failure to raise such grounds on appeal or in the prior
      deprivation of the right to confront witnesses in                     [post-appeal] motion, and (b) actual prejudice from the
      violation of the Sixth Amendment.                                     alleged irregularities that support the claim for relief.
On October 15, 2002, the district court conducted an                        Respondent argued that, in denying petitioner relief under
evidentiary hearing in which it found trial counsel was                   M.C.R. § 6.508(D), the Michigan Supreme Court implicitly
ineffective, and conditionally granted petitioner a writ of               relied upon subsection (3). Respondent argued that
habeas corpus on petitioner’s Confrontation Clause claim.8                subsection (3) applied because, although petitioner had
                                                                          presented the factual predicate for his Confrontation Clause
                                                                          claim to the Michigan courts on direct review by virtue of his
                                                                          prosecutorial misconduct claim, he had not presented the legal
                                                                          argument for that claim until state collateral review.
                                                                          Petitioner concedes that he did not expressly present his
       8
                                                                          Confrontation Clause claim on direct review. However,
     The district court determined that habeas corpus relief was not      petitioner does argue that he “fairly presented” his
warranted for his claims based on a witness’ in-court identification of   Confrontation Clause claim to the Michigan Court of Appeals
him.
No. 03-1124                                     Hicks v. Straub       15     16     Hicks v. Straub                                      No. 03-1124

on direct review based solely on his presentation of the                       against the defendant in a prior appeal or proceeding
factual predicate. Accordingly, petitioner argues that there                   under this subchapter [of post-appeal relief], unless the
was no basis for procedural default under M.C.R.                               defendant establishes that a retroactive change in the law
6.508(D)(3). Alternatively, petitioner argued that appellate                   has undermined the prior decision;
counsel’s failure to raise the Confrontation Clause claim on
direct review constituted ineffective assistance so as to excuse             In so holding, the district court reasoned that, although
such default. In support, petitioner claimed that appellate                  “[p]etitioner could have presented his Confrontation Clause
counsel buried the Confrontation Clause issue, the “most                     claim in a clearer manner,” he “fairly presented [it] to the
significant constitutional deprivation in th[e] case,” in a                  Michigan state courts on direct review.” Id. at 706. The
“garden-variety prosecutorial misconduct claim,” and that, to                district court underscored that petitioner, in his brief to the
the extent that his Confrontation Clause claim is meritorious,               Michigan Court of Appeals, argued that the prosecutor
such ineffective assistance sufficiently prejudiced him.                     engaged in misconduct by relaying in his opening statement
Respondent countered that petitioner’s appellate counsel did                 petitioner’s alleged confession to the murder and then
not render ineffective assistance by framing the underlying                  subsequently failing, because of a lack of due diligence, to
factual predicate as a prosecutorial misconduct claim – the                  produce that inmate as a witness at trial. Id. Relying upon
“normal” and “accepted” legal theory – rather than as a                      McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000), the
Confrontation Clause claim – an “unusual” and “creative”                     district court concluded that the facts underlying the
legal theory. Petitioner also asserted that the Michigan                     “prosecutorial misconduct claim . . . [that petitioner
Supreme Court’s “arbitrary and ambiguous” form order                         presented] in his state court briefs were ‘well within the
denying him leave to appeal his post-conviction motion for                   mainstream of constitutional law’ [on the Confrontation
relief from judgment did not constitute an adequate state                    Clause] such that the Michigan state courts should have
procedural ground.                                                           recognized and addressed the Confrontation Clause issue.”
                                                                             Id. In further support, the district court posited that petitioner
  The district court held that the Michigan Supreme Court, in                had expressly presented his Confrontation Clause claim, as
denying petitioner leave to appeal his motion for relief from                such, on state collateral review, and that the Michigan trial
judgment under M.C.R. 6.508(D), relied upon subsection (2),                  court, on such review, had agreed with the prosecutor that
not (3).9 Hicks v. Straub, 239 F. Supp. 2d 697, 706-07 (E.D.                 petitioner’s motion for relief from judgment only presented
Mich. 2003). M.C.R. 6.508(D)(2) provides:                                    claims that he had previously presented to the state courts on
                                                                             direct review.10 Id. According to the district court, because
  The court may not grant relief to the defendant if the
  motion . . . alleges grounds for relief which were decided
                                                                                  10
                                                                                    Resp ondent’s brief states that “[t]he trial court, perceiving no
                                                                             difference in the claim from what had been presented during [p]etitioner’s
    9
     Petitioner asserted that because the Michigan courts had not decided    appeal of right, denied the m otion on the ground that [p]etitioner co uld
his Confrontation Clause claim on direct review, the Michigan Supreme        not collaterally attack his conviction on grounds already presented in a
Court, on co llateral review, could not have relied upon M.C.R.              prior appeal.” Thus, both the district court and respo ndent seem to
6.508(D)(2) in denying petitioner lea ve to appe al his mo tion for relief   contend that the trial court’s denial of petitioner’s motion for relief from
from judgment. Th us, petitioner conceded – albeit implicitly – that the     judgment rested on this ground . W hile the prosecutor made this argument
Michigan Supreme Court denied him such leave pursuant to M.C.R.              before the trial court in the initial ex parte hearing, and while portions of
6.508(D )(3).                                                                the subse quent hearing, on March 6, 2000 , reveal that the trial court
No. 03-1124                                       Hicks v. Straub        17     18     Hicks v. Straub                                      No. 03-1124

petitioner fairly presented his Confrontation Clause claim to                   petitioner had procedurally defaulted his prosecutorial
the Michigan courts on direct review, the courts, not                           misconduct claim by failing to object at trial to its underlying
petitioner, bear the blame for their failure to recognize and to                factual predicate – the prosecutor’s opening statement
rule upon that claim. Id. The district court found that the                     relaying petitioner’s purported confession. Respondent
state courts’ failure to recognize and to address petitioner’s                  further argued that trial counsel’s failure to object to this
fairly-presented Confrontation Clause claim in denying                          alleged Confrontation Clause violation did not constitute
petitioner relief on direct review constituted a constructive                   ineffective assistance of counsel so as to excuse any such
denial of that claim for purposes of M.C.R. 6.508(D)(2). Id.                    default. Respondent asserted that petitioner’s trial counsel
at 707. After finding that the Michigan Supreme Court                           chose not to object or move for a mistrial when the state
denied petitioner leave to appeal under M.C.R. 6.508(D)(2),                     failed to produce Brand as a matter of trial strategy.
the court held that this state procedural law is inadequate to                  Specifically, respondent maintained that the failure of Brand
bar federal habeas review because it is “simply a rule of res                   to appear was a fortunate turn of events because Brand’s
judicata barring a defendant from re[-]litigating claims in a                   testimony would only have strengthened the prosecution’s
motion for relief from judgment which were decided                              case. Moreover, according to respondent, had trial counsel
adversely to him in a prior state court decision.”11 Id. Thus,                  objected and received a mistrial, there would have been the
the district court found that petitioner had not procedurally                   risk that the government, at the re-trial, would have been able
defaulted his Confrontation Clause claim on state collateral                    to produce Brand as a witness.
review. Id.
                                                                                  The district court held that, in case the Michigan Court of
 2. Procedural Default Consideration on Direct Review                           Appeals, on direct review, found petitioner’s Confrontation
                                                                                Clause claim procedurally defaulted due to his trial counsel’s
  Before the district court, respondent argued that, to the                     failure to object to that underlying violation at trial,12 that
extent petitioner fairly presented his Confrontation Clause                     failure constituted ineffective assistance and, thus, excused
claim to the state courts on direct review by virtue of                         any such procedural default. After conducting an evidentiary
presenting the factual basis underlying his prosecutorial                       hearing on the matter, the district court agreed with petitioner
misconduct claim, petitioner, nevertheless, procedurally                        that trial counsel’s assistance was objectively unreasonable
defaulted that claim. As respondent pointed out, the                            for the following reasons: 1) it should have been obvious to
Michigan Court of Appeals, on direct review, found that

                                                                                     12
examined the Michigan Court of Appeals’ decision, the trial court,                     On direct review, the M ichigan Court of Ap pea ls held that
at that subsequent hearing, expressly considered the merits of                  petitioner had failed to p reserve his prosecutorial misconduct claim based
petitioner’s claims. In its order denying petitioner’s motion for               upon the prosecutor’s opening statement on the ground that petitioner had
                                                                                failed to object to this statement at trial, and that, because the jury
relief from judgment, the trial court adopted its reasoning at the              instructions remedied any prejudice resulting from this statement, no
subsequent hearing as the basis for that denial.                                manifest injustice existed to excuse this failure. T hus, as respondent aptly
    11
                                                                                argued, to the exte nt that petitioner had raised his Confrontation C lause
       In so holding, the district court relied upon Ceja v. Stewart, 97 F.3d   claim on direct review by virtue of presenting the sam e facts underlying
1246, 1253 (9th Cir. 1996), which held that a state court’s application of      his prosecutorial misconduct claim, the Michigan Court of App eals’
the rule of res judiciata is not an adequate proce dural bar to foreclose       procedural-de fault ruling would apply with equal force to that claim as
federal habeas relief.                                                          well.
No. 03-1124                                    Hicks v. Straub        19    20    Hicks v. Straub                               No. 03-1124

him that the prosecutor’s failure to produce Brand at trial                 to address it, a federal court must conduct an independent
violated petitioner’s right to confrontation; 2) he had no                  review of that state court’s decision under 28 U.S.C.
strategic reason not to object to this Confrontation Clause                 § 2254(d). Id. at 707. The court reasoned that such a denial
violation; 3) his purported reason for failing to object–that he            constituted an adjudication on the merits – albeit without any
did not want the prosecution to produce Brand as a witness at               reasoning – for purposes of triggering § 2254(d). Id.
any re-trial–was “unreasonable” and “wholly unsupported by
the record” due to the availability of substantial impeachment                 In reviewing petitioner’s Confrontation Clause Claim, the
material against Brand;13 and 4) he did not even obtain an                  district court found that the prosecutor’s opening statement
adequate curative instruction because the instruction that the              relaying petitioner’s purported confession violated
trial court gave did not reference Brand as the jail inmate to              petitioner’s right to confrontation, and that this violation was
whom petitioner allegedly confessed. Id. at 712-13. The                     not harmless error. Id. at 711. The district court further
district court found that, because the prosecutor’s unsupported             found, pursuant to § 2254(d), that the prior state-court denial
opening statement violated petitioner’s right to confront the               of petitioner’s Confrontation Clause claim on the merits was
witnesses against him, trial counsel’s deficient representation             an unreasonable application of the pertinent, clearly-
sufficiently prejudiced petitioner. Id. Pursuant to 28 U.S.C.               established Supreme Court precedent. Id. at 712; see
§ 2254(d), the district court further found that the prior-state            generally Pointer v. Texas, 380 U.S. 400, 403 (1965), Bruton
court adjudication denying petitioner’s ineffective-assistance-             v. United States, 391 U.S. 123 (1968), and Frazier v. Cupp,
of-trial-counsel claim on the merits constituted an                         394 U.S. 731 (1969). Consequently, the district court
unreasonable application of Strickland v. Washington, 466                   conditionally granted petitioner’s application for a writ of
U.S. 668 (1984), the pertinent, clearly-established Supreme                 habeas corpus under 28 U.S.C. § 2254 on his Confrontation
Court precedent. Id. Thus, the district court found the                     Clause claim. Id. at 714.
procedural default doctrine did not bar its review of
petitioner’s Confrontation Clause claim on the merits. Id.                                           II. Analysis

                3. Adjudication on the Merits                                 The provisions of the Antiterrorism and Effective Death
                                                                            Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214
  Relying upon Harris v. Stoval, 212 F.3d 940 (6th Cir.                     (“ADEPA”), apply to petitioner’s habeas petition, which
2000), the district court held that, where, as here, the                    petitioner filed after the effective date of the act. “In a habeas
petitioner fairly presented his federal constitutional claim of             corpus proceeding, we review de novo a district court’s legal
a violation of the confrontation clause to the state courts on              conclusions and its factual findings for clear error.” Lott v.
direct review, and those courts, in denying that claim, failed              Coyle, 261 F.3d 594, 606 (6th Cir. 2001). We review de novo
                                                                            a district court’s determinations regarding a habeas
                                                                            petitioner’s procedural default of any of his claims. Id. We
    13                                                                      review de novo a district court’s determinations concerning a
       According to petitioner, such impeachment evidence includes
Bra nd’s admissions that he anticipated that the prosecutor “m ight” help
                                                                            habeas petitioner’s ineffective-assistance-of-counsel claim, a
him out with charges that he was facing at the time, that the alleged       mixed question of law and fact. Id.
confession occurred within feet of a large sign warning that everything
was being recorded , and the implausible nature of petitioner having
confessed to a complete stranger at the very beginning of their
conversation.
No. 03-1124                              Hicks v. Straub     21    22     Hicks v. Straub                                       No. 03-1124

                   A. Procedural Default                           Cir. 2000). If, pursuant to these standards, a petitioner
                                                                   procedurally defaulted his federal claim in state court, the
   Subject to two exceptions, 28 U.S.C. § 2254(b)(1)(A)            petitioner must demonstrate either: 1) cause for his failure to
prohibits a federal court from granting “[a]n application for a    comply with the state procedural rule and actual prejudice
writ of habeas corpus on behalf of a person in custody             flowing from the violation of federal law alleged in his claim,
pursuant to the judgment of a [s]tate court ... unless . . . the   or 2) that a lack of federal habeas review of the claim’s merits
applicant has exhausted the remedies available in the courts       “will result in a fundamental miscarriage of justice.”
of the [s]tate.” 28 U.S.C. § 2254(c) provides that an applicant    Coleman, 501 U.S. at 750; see Murray v. Carrier, 477 U.S.
has exhausted the remedies available in state courts only if he    478, 496 (1986) (specifying that a ‘fundamental miscarriage
no longer has the right to raise the question presented by any     of justice’ will result “where a constitutional violation has
available procedure under state law. The procedural default        probably resulted in the conviction of one who is actually
doctrine applies to bar a federal court’s review of a state        innocent”).
prisoner’s federal claim where that prisoner failed to give the
state courts a “full and fair” opportunity to resolve that                                    1. Direct Review
claim–as the exhaustion doctrine requires–and the prisoner
cannot cure that failure because state-court remedies are no         We find that, contrary to the district court’s conclusion,
longer available. See O’Sullivan v. Boerckel, 526 U.S. 838,        petitioner procedurally defaulted his Confrontation Clause
848 (1999) (holding that the procedural default doctrine           claim by failing to fairly present it to the Michigan courts on
preserves the integrity of the exhaustion doctrine, which “a       direct review.14 A petitioner must fairly present to the state
prisoner could evade . . . by ‘letting the time run’ on state
remedies”); Coleman v. Thompson, 501 U.S. 722, 732 (1991)
(holding that a “habeas petitioner who has defaulted his                14
                                                                           The district court and petitioner make much of the fact that
federal claims in state court meets the technical requirements     respo ndent, in an ex parte hearing before the Michigan trial court on
for exhaustion . . . [because] there are no state remedies any     petitioner’s motion for relief from judgment, argued that petitioner had
longer ‘available’ to him,” and, thus, that the procedural         presented his Confrontation Clause claim to the state courts on direct
default doctrine prevents a habeas petitioner from                 review, and that the state courts had decided that issue. In his brief here,
circumventing the policy underlying the exhaustion doctrine).      petitioner contends that the doctrine of judicial estopp el should op erate to
                                                                   bar respondent from now asserting that petitioner had not fairly presented
                                                                   his Co nfrontation Clause claim to the state co urts on direct review.
  In deciding whether a petitioner procedurally defaulted a              Howeve r, as discussed below, the supreme court denied petitioner
federal claim in state court, we must determine whether:           leave to appeal under M .C.R. 6.508(D)(3) on the ground that petitioner
1) the petitioner failed to comply with an applicable state        had improperly failed to raise his Confrontation Clause claim on direct
procedural rule; 2) the last state court rendering judgment on     review. Alterna tively, to the extent that p etitioner suggests that
the claim at issue, in fact, enforced the applicable state         respo ndent’s prior inconsistent po sition was “successful” because the state
                                                                   trial court had relied upon it in denying petitioner’s motion, the actual
procedural rule so as to bar that claim; and 3) the state          order denying that motion does not support such a claim. Attached to that
procedural default is an adequate and independent state            order is not the transcript from the ex parte hearing, but the transcript
ground properly foreclosing federal habeas review of the           from the subsequent hearing, in which the trial court expressly stated that
petitioner’s federal claim at issue. Seymour v. Walker, 224        it would address the claim’s merits. Moreo ver, petitioner’s brief concedes
F.3d 542, 554-55 (citing Maupin v. Smith, 785 F.2d 135, 138        that the trial court did not find a procedural default, but rather addressed
                                                                   the merits of his Confrontation Clause claim.
(6th Cir. 1986)); Simpson v. Jones, 238 F.3d 399, 406 (6th               In any even t, we note that, in his habeas petition–and on state
No. 03-1124                                       Hicks v. Straub         23     24   Hicks v. Straub                             No. 03-1124

courts either the substance of or the substantial equivalent of                  pertinent] constitutional law.” McMeans, 228 F.3d at 681
the federal claim that he is presenting to a federal habeas                      (holding that “[g]eneral allegations of the denial of rights to
court. A petitioner fairly presents a federal habeas claim to                    a ‘fair trial’ and ‘due process’ do not ‘fairly present’ claims
the state courts only if he “asserted both the factual and legal                 that specific constitutional rights were violated.”) However,
basis for his claim.” McMeans, 228 F.3d at 681. See also                         a petitioner need not cite “book and verse on the federal
Picard v. Connor, 404 U.S. 270, 276, 277-78 (1971) (holding                      constitution.” Picard, 404 U.S. at 278 (quotation marks and
that petitioner’s challenge to the legality of the indictment                    citations omitted).
was neither the “substantial equivalent” of nor entailed the
same “ultimate question for disposition” as his equal                              Because his prosecutorial misconduct and Confrontation
protection claim even though it relied upon the same factual                     Clause claims rest upon the same factual predicate, petitioner,
basis, and, thus, that the state courts had no sua sponte duty                   by presenting his prosecutorial misconduct claim on direct
to consider whether that factual basis resulted in a equal                       review, also presented the factual basis underlying his
protection violation). As this Court has previously explained,                   Confrontation Clause claim. Thus, the issue is whether
the exhaustion doctrine requires the petitioner to present “the                  petitioner, on direct review, presented either the substance of
same claim under the same theory” to the state courts before                     or the substantial equivalent of the legal basis for his
raising it on federal habeas review. Pillette v. Foltz, 824 F.2d                 Confrontation Clause claim. We find that he did not.
494, 497 (6th Cir. 1987). In determining whether a petitioner
“fairly presented” a federal constitutional claim to the state                     Petitioner referenced the underlying factual predicate
courts, we consider whether: 1) the petitioner phrased the                       neither in terms relating to legal precedent on the
federal claim in terms of the pertinent constitutional law or in                 Confrontation Clause nor in terms of a specific violation of
terms sufficiently particular to allege a denial of the specific                 his right to confrontation. See Newton v. Million, 349 F.3d
constitutional right in question; 2) the petitioner relied upon                  873, 877 (6th Cir. 2003) (holding that petitioner fairly
federal cases employing the constitutional analysis in                           presented his federal claim to the state courts where he
question; 3) the petitioner relied upon state cases employing                    phrased his claim in terms of the specific denial of a
the federal constitutional analysis in question; or 4) the                       constitutional right–his right to due process of law under the
petitioner alleged “facts well within the mainstream of [the                     Fifth and Fourteenth Amendments–and alleged the underlying
                                                                                 facts upon which that claim was based even though he cited
                                                                                 no cases employing federal constitutional analysis). Notably,
collateral review–petitioner conceded that he ha d not raised his
                                                                                 petitioner never mentioned the terms confrontation or cross-
Confrontation Clause claim on direct review–that it was “distinct from the       examination. Rather, petitioner argued only that the
general prosecutorial misco nduc t claim that” petitioner brought on direct      prosecutor’s opening statement amounted to the “argu[ing]
review. In fact, petitioner made this contention so as to persuade the trial     facts not in evidence,” and that this instance of prosecutorial
court that the state courts had not previously decid ed this claim and to        misconduct violated his constitutional right to a fair trial.
prompt the trial court to address its merits. Moreo ver, petitioner also
conceded to the district court, regarding his prior § 2254 p etition, that the
Confrontation Clause claim that it presented had not been exhausted on
                                                                                   In addressing the underlying factual foundation in his state
direct review. Indeed, this representation prompted the parties to enter         court briefs, petitioner did not rely upon any federal legal
into a stipulation to dismiss that petition so that petitioner could exhaust     precedent analyzing a claim under the Confrontation Clause,
that claim. T hus, petitioner’s co ntention that the eq uities compe l us to     and only one case upon which he relied discussed the
app ly the doctrine of judicial estopp el against respo ndent is not we ll-
taken.
No. 03-1124                                         Hicks v. Straub          25     26    Hicks v. Straub                              No. 03-1124

Confrontation Clause.15 Petitioner’s single reference to one                        considered a habeas petitioner’s claim that the prosecutor’s
case discussing the Confrontation Clause–where that case,                           conduct violated his right to confrontation. Id. at 734. In that
unlike here, involved the admission into evidence of                                case, the prosecutor, during his opening statement,
transcripts of the former witnesses’ incriminating                                  summarized the anticipated testimony of Rawls, a witness
testimony–is insufficient to fairly present a Confrontation                         who had pleaded guilty to the same offense for which the
Clause claim based upon the prosecutor’s opening statement,                         petitioner was being tried. Id. at 733. The summary “took
which is not evidence. See McMeans, 228 F.3d at 682                                 only a few minutes to recite and was sandwiched between a
(holding that, even though isolated state cases upon which                          summary of [the] petitioner’s own confession and a
petitioner relied contained “a few brief references to the                          description of the circumstantial evidence [that] the [s]tate
Confrontation Clause,” petitioner had not “fairly presented”                        would introduce.” Id. Thus, the prosecutor did not
his Confrontation Clause claim to the state courts on direct                        emphasize that summary in any particular way. Id.
review because, during that review process, petitioner focused                      Although, “[a]t one point[,] the prosecutor referred to a paper
entirely on the state’s rape shield law, failed to cite any                         that he was holding in his hands to refresh his memory about
federal precedent, and simply argued that the trial judge’s                         something Rawls had said, . . . he did not explicitly tell the
restriction of his cross-examination denied him a “fair trial”                      jury that this paper was Rawls’ confession, nor did he purport
and “due process”).                                                                 to read directly from it.” Id. at 734. Yet, the state conceded
                                                                                    that “the jury might fairly have believed that the prosecutor
  While the district court found that the factual predicate that                    was referring to Rawls’ statement.” Id. Later, the prosecutor
petitioner presented on direct review fell “well within the                         called Rawls to the stand. Id. However, the trial court soon
mainstream of” Confrontation Clause precedent, we disagree.                         dismissed Rawls from the stand after Rawls informed the
Frazier v. Cupp, 394 U.S. 731 (1969), best illustrates why we                       court that he would invoke his privilege against self-
arrive at this conclusion. In Frazier, the Supreme Court                            incrimination as to every question concerning the events at
                                                                                    issue. Id.
     15
        Petitioner cited Peo ple v. Dye, 427 N.W .2d 5 01 (Mich. 19 88), in            Relying upon Bruton v. United States, 391 U.S. 123 (1968),
arguing that the prosec utor’s “belated attempt to produce . . . Brand was          and Douglas v. Alabama, 380 U.S. 415 (1965), in which the
hardly a sign of good faith” and, thus, that the prosecutor was “unable to          Supreme Court found Confrontation Clause violations, the
show due diligence in order to use . . . [Brand’s preliminary] examination          petitioner in Frazier argued before the Supreme Court that
testimony.” In Dye, the Michigan Supreme C ourt addressed the substance
of and purpose behind the Confrontation Clause; the court held, however,            “this series of events placed the substance of Rawls’
that a “transcript of prior testimony may[,] nevertheless[,] b e offered in         statement before the jury in a way that ‘may well have been
evidence upon a showing that the witness is unavailable and that the                the equivalent in the jury’s mind of testimony,’ and the
testimony bears satisfactory indicia of reliability.” 427 N.W.2d at 504-05          statement ‘added substantial, perhaps even critical, weight to
(relying upon M .C.L. § 768.26, which permits the prosecution to use a              the [g]overnment’s case in a form not subject to cross-
prior witness’ testimony from a preliminary examination, a deposition, or
a former trial where the prosecution cannot produce that witness at trial).         examination.’” Id. (internal citations omitted). However, the
As part of his duty to e stablish the witness’ unavailability, the M ichigan        Supreme Court distinguished petitioner’s case from Bruton as
Supreme Court held that the prosecutor, at the defendant’s re-trial, had not        follows: “[U]nlike the situation in Bruton, the jury was not
used due diligence in attempting to produce three witnesses who had                 being asked to perform the mental gymnastics of considering
testified against the defendant at his first trial and, thus, that transcripts of   an incriminating statement against only one of two defendants
those witnesses’ statements in the first trial were inadm issible. Id. at 506-
511 .                                                                               in a joint trial.” Id. Here, unlike Bruton, but like Frazier, the
No. 03-1124                             Hicks v. Straub     27    28    Hicks v. Straub                                 No. 03-1124

jury was not required, via the admission into evidence of a co-   none was requested.”) The Court reasoned that it is not
defendant’s confession inculpating petitioner, to consider that   remarkable “to assume that the jury will ordinarily be able to
incrimination against only that co-defendant.                     limit its consideration to the evidence introduced during
                                                                  trial.” Id. at 736. The Court also emphasized, however, that,
  The Frazier Court also distinguished Douglas as follows:        “[a]t least where the anticipated, and unproduced, evidence is
                                                                  not touted to the jury as a crucial part of the prosecution’s
  In Douglas, the prosecutor called the defendant’s               case, ‘it is hard . . . to imagine that the . . . minds of the jurors
  coconspirator to the stand and read his alleged confession      would be so influenced by such incidental statements during
  to him; the coconspirator was required to assert his            this long trial that they would not appraise the evidence
  privilege against self-incrimination repeatedly as the          objectively and dispassionately.’” Id. (citations omitted). The
  prosecutor asked him to confirm or deny each statement.         court held that nothing that occurred during the prosecution’s
  The Court found that this procedure placed powerfully           opening statement would warrant relief under the
  incriminating evidence before the jury in a manner which        Confrontation Clause. Id. at 736-37 (also finding that the
  effectively denied the right of cross-examination. Here,        prosecutor’s good faith in expecting the witness to testify,
  Rawls was on the stand for a very short time and only a         while not controlling as to a deprivation of the petitioner’s
  paraphrase of the statement was placed before the jury.         right of confrontation, precludes any finding of prosecutorial
  This was done not during the trial, while the person            misconduct).
  making the statement was on the stand, but in an opening
  statement. In addition, the jury was told that the opening         Here, as in Frazier, the prosecutor neither emphasized his
  statement should not be considered as evidence.                 reference to petitioner’s alleged confession in any way nor
  Certainly the impact of the procedure used here was             “touted” that confession as a crucial part of its case to the
  much less damaging than was the case in Douglas.                jury. The opening statement’s reference to petitioner’s
                                                                  purported confession lasted less than a minute. The reference
Id. at 735 (italics added). Here, unlike in both Douglas and      was “sandwiched” between summaries of the evidence that
Frazier, the relevant witness, Brand, was not a co-conspirator    the government intended to produce, such as witnesses’
who had inculpated petitioner while confessing to the crime.      testimony identifying petitioner and showing that he knew the
In addition, unlike in both Douglas and Frazier, the              victim. Moreover, unlike in Frazier, the prosecutor did not
prosecutor did not call Brand to the stand, and, thus, did not,   appear to summarize Brand’s preliminary examination
by his questions, read either Brand’s entire preliminary          testimony in his statement, but, rather, referred to the
examination testimony nor portions of it into the record.         purported confession generally. While the Supreme Court
Clearly then, unlike in Douglas, Brand did not give credence      cautioned in Frazier that “[i]t may be that some remarks
to those questions by consistently asserting his Fifth            included in an opening or closing statement could be so
Amendment privilege.                                              prejudicial that a finding of error, or even constitutional error,
                                                                  would be unavoidable,” id. at 736, a comparison of the facts
    The Frazier Court concluded that the limiting instruction     in this case to those in Frazier reveal that this is not such a
that the jury was not to regard counsels’ statements as           case. The facts of petitioner’s case here are even less
evidence was sufficient to protect the petitioner’s               damaging than those in Frazier where the Supreme Court
constitutional rights. Id. 734-36 (noting that, while “[a] more   found no Confrontation Clause violation. Thus, as Frazier
specific limiting instruction might have been desirable, . . .    illustrates, the principle that petitioner claims his factual
No. 03-1124                             Hicks v. Straub     29    30     Hicks v. Straub                                     No. 03-1124

predicate invokes – “that a jury may not be told of a             review, respectively. As discussed above, the state trial court
defendant’s confession [during the prosecutor’s opening           denied petitioner’s motion for relief from judgment. People
statement] unless the witness to that alleged confession is       v. Hicks, No. 93-2188FC (Calhoun County Circuit Court
subject to cross-examination”– does not fall “well within the     March 16, 2000). Both the Michigan Court of Appeals and
mainstream of” Confrontation Clause precedent.                    the Michigan Supreme Court denied petitioner leave to appeal
                                                                  the trial court’s denial of his motion for relief from judgment
   Petitioner contends that his prosecutorial misconduct claim    on the ground that petitioner failed “to meet the burden of
necessarily encompassed the “more serious” Confrontation          establishing entitlement to relief under M.C.R. 6.508(D).”
Clause violation.        However, petitioner’s prosecutorial      People v. Hicks, 463 Mich. 978 (Mich. Feb. 26, 2001).
misconduct and Confrontation Clause claim involve distinct
legal analyses. See Frazier, 394 U.S. at 736-737 (holding that      The district court held that petitioner failed to comply with
a prosecutor’s good or bad faith in expecting a witness to        only M.C.R. 6.508(D)(2) based upon its previous finding that
testify is not controlling in determining whether a defendant’s   petitioner had fairly presented his Confrontation Clause claim
right of confrontation, was violated, but finding that, because   to the state courts on direct review and, thus, that the state
of the prosecutor’s good faith there, no prosecutorial            courts had decided that claim against petitioner. Since we
misconduct claim could lie). Were we to hold that petitioner      have concluded, as discussed above, that petitioner did not
fairly presented his Confrontation Clause claim to the state      fairly present his Confrontation Clause claim to the state
courts on direct review, state courts would be compelled to       courts on direct review, we conclude that petitioner failed to
consider sua sponte all possible federal legal claims that a      comply with M.C.R. 6.508(D)(3) when he did not raise his
petitioner’s factual allegations might arguably support. The      Confrontation Clause claim on direct review.16
principle of comity underlying the exhaustion doctrine does
not permit us to force state courts to do so.                       In denying petitioner leave to appeal his motion for relief
                                                                  from judgment under M.C.R. 6.508(D), the Michigan
  Because petitioner did not fairly present his Confrontation     Supreme Court, the last state court rendering judgment on
Clause claim to the Michigan courts on direct review, the         petitioner’s Confrontation Clause claim, actually enforced
state courts, on such review, could not have actually enforced    M.C.R. 6.508(D)(3) against petitioner so as to bar its review
any applicable state procedural rule against that claim. See      of that claim. As Simpson v. Jones, 238 F.3d 399, 407-08
Seymour, 224 F.3d at 554-55. We now turn to whether the           (6th Cir. 2000), makes clear, the Michigan Supreme Court’s
state courts enforced such a rule against his Confrontation       general invocation of M.C.R. 6.508(D) in denying such leave
Clause claim on state collateral review.                          constitutes an adequate, implicit invocation of the specific
                                                                  procedural bar of whichever subsection of M.C.R. 6.508(D)
                2. State Collateral Review                        applies. See Burroughs v. Makowski, 282 F.3d 410, 413-14
  In a motion for relief from judgment under M.C.R. 6.500,
petitioner submitted to the state trial court on collateral            16
                                                                          Because the state trial court, on collateral review, denied
review his Confrontation Clause claim along with his claims       petitioner’s Confrontation Clause claim on the merits, petitio ner also
of ineffective assistance of trial and appellate counsel          failed to comply with M.C.R. 6.508(D )(2). Yet, by finding that petitioner
surrounding their failure to identify and to raise the            procedurally defaulted his Confrontation Clause claim under M.C.R.
Confrontation Clause issue, as such, at trial and on direct       6.508(D )(3), we need not and do not decide whether petitioner also d id so
                                                                  unde r subse ction (2 ).
No. 03-1124                              Hicks v. Straub     31    32     Hicks v. Straub                                      No. 03-1124

(6th Cir. 2002) (applying Simpson). Because M.C.R.                 reasonable probability that, but for counsel’s deficient
6.508(D)(3) was both firmly established and regularly              performance, the proceeding’s result would have been
followed at the time of petitioner’s right to direct appeal, it    different. Strickland, 466 U.S. at 687-88, 694.
constitutes an adequate and independent state procedural
ground properly foreclosing federal habeas review of his             Here, petitioner has failed to establish that his appellate
Confrontation Clause claim. See Friedman v. Smith, No. 02-         counsel’s failure to raise a Confrontation Clause claim on
1255, 2003 WL 22976586, at * 7 (6th Cir. Dec. 5, 2003)             direct review constituted ineffective assistance under
(finding that M.C.R. 6.508(D)(3), which the Michigan               Strickland so as to serve as cause to excuse his procedural
legislature promulgated in 1989, has been regularly followed       default of that claim. Even assuming arguendo that appellate
since 1990). We find, therefore, that petitioner procedurally      counsel’s failure to raise a Confrontation Clause claim on
defaulted his Confrontation Clause claim on state collateral       direct review was objectively unreasonable so as to constitute
review.                                                            deficient performance,17 petitioner has failed to demonstrate
                                                                   that this failure actually prejudiced him. Appellate counsel’s
   Even though petitioner procedurally defaulted his               failure to raise the Confrontation Clause claim on direct
Confrontation Clause claim in state court, he may,                 review could only have prejudiced petitioner if there were a
nevertheless, obtain federal habeas review of the claim if he      reasonable probability that counsel’s pursuit of that claim
demonstrates either: 1) cause for his failure to comply with       would have resulted in a successful appeal. McFarland v.
the state procedural rule and actual prejudice flowing from the
violation of federal law alleged in his claim, or 2) that a lack
of federal habeas review of the claim’s merits “will result in          17
a fundamental miscarriage of justice.” Coleman, 501 U.S. at                Petitioner did not procedurally default his claim of ineffective
750. Petitioner, pursuing the former route only, contends that     assistance of appellate counsel. State collateral review was the first
                                                                   opp ortunity that petitioner had to raise this claim. In denying petitioner’s
his appellate counsel’s failure to raise his Confrontation         motio n for relief from judgm ent, the state trial court decided petitioner’s
Clause claim on direct review constituted ineffective              ineffective-assistance-of-appellate-counsel claim against p etitioner–albeit
assistance of counsel in violation of the Sixth Amendment          without any reasoning. Thus, when the Michigan Supreme Court denied
and, thus, serves as the requisite cause to excuse his             petitioner leave to appeal this denial under M.C.R. 6.508(D), it was
procedural default under M.C.R. 6.508(D)(3). As to the             implicitly invoking only subsection (2) with respe ct to pe titioner’s
prejudice component, petitioner contends that the                  ineffective-assistance-of-appellate-counsel claim.
                                                                        However, as the district court correctly found, M.C.R. 6.508(D)(2)
Confrontation Clause violation alleged in his claim was            does not co nstitute a state procedural gro und that is adequate to bar
meritorious and would have constituted reversible error.           federal habe as review. 28 U.S.C. § 2254(b)(1) prohibits a federal court
                                                                   from granting habea s relief to a state prisoner on a federal claim unless
   Attorney error that rises to the level of ineffective           that prisoner has exhausted all availab le remedies in state cour t with
assistance of counsel in violation of the Sixth Amendment          respect to that claim. Thus, a fed eral co urt may not justly find that a
                                                                   prisoner procedurally defaulted his federal claim simply b y virtue of
may constitute cause for a procedural default. Murray, 477         receiving an adverse judgment on that claim while attempting to exhaust
U.S. at 488-89. To establish that counsel’s assistance was         it in state court. Such a d octrinal Catch-22 would effectively foreclose
ineffective, the petitioner must demonstrate that: 1) counsel’s    federal habe as relief. Ind eed, state priso ners cannot p ursue p ost-
performance was deficient in that it “fell below an objective      conviction relief in federal court for fed eral claims for w hich the state
standard of reasonableness”; and 2) this deficient                 court alread y granted such relief. In addition, as § 2254(d) illustrates,
                                                                   AEDPA contemplates federal habeas review following an adverse state-
performance actually prejudiced him in that there is a             court adjudication on the merits of a state prisoner’s federal claim.
No. 03-1124                                     Hicks v. Straub       33     34     Hicks v. Straub                                      No. 03-1124

Yukins, 356 F.3d 688, 699 (6th Cir. 2004); see Williams v.                   claim on direct review cannot serve as cause for petitioner’s
Taylor, 529 U.S. 362, 392-93 (2000) (holding that, where                     procedural default of that claim.19
counsel’s ineffective assistance did not deprive the petitioner
“of any substantive or procedural right to which the law                       For the preceding reasons, we REVERSE the district
entitled him,” the petitioner cannot satisfy Strickland’s                    court’s grant of a writ of habeas corpus to petitioner and
“prejudice” component).                                                      remand to the district court with instruction to dismiss the
                                                                             petition for the writ.
  Petitioner contends that there is a reasonable probability
that, but for appellate counsel’s failure to raise a
Confrontation Clause claim on direct review, that claim
would have prevailed and resulted in a reversal of his
conviction. In support, he relies upon Frazier v. Cupp, 394
U.S. 731 (1969), Bruton v. United States, 391 U.S. 123
(1968), Douglas v. Alabama, 380 U.S. 415 (1965), and
Pointer v. Texas, 380 U.S. 400, 407-08 (1965) (holding that
the admission into evidence at the petitioner’s trial of a
witness’ preliminary examination testimony inculpating the
petitioner violated his right of confrontation where that
witness did not testify at trial and where the petitioner did not
have a “complete and adequate opportunity to cross-examine”
that witness through counsel at the preliminary
examination).18 However, as discussed above, this case
materially differs from Bruton, Douglas, and Pointer.
Petitioner’s reliance on Frazier is misplaced because the
prosecutorial conduct in the present case is even less
objectionable than in Frazier. Thus, petitioner has failed to
demonstrate that there is a reasonable probability that, but for
appellate counsel’s failure to raise a Confrontation Clause
claim on direct review, that claim would have prevailed and
resulted in a reversal of his conviction. Consequently,
appellate counsel’s failure to raise a Confrontation Clause



                                                                                  19
    18
                                                                                    Petitioner has also failed to show the req uisite prejudice to ex cuse
        W e examine the merits of petitioner’s Co nfrontation Clause claim   his procedural de fault of his Confro ntation C lause claim. Because he has
only to determine if appellate counsel was unconstitutionally ineffective    not established a C onfro ntation C lause vio lation in the first instance,
for failing to raise it on direct review. See McFarland, 356 F.3d at 701     petitioner, thus, cannot establish that he suffered actual prejudice flowing
n.3.                                                                         from such a violation.
No. 03-1124                             Hicks v. Straub     35

                    _________________
                     CONCURRENCE
                    _________________
  ROGERS, J., concurring. I concur in the result and in
much of the majority’s opinion. It is not sufficiently clear to
me, however, that on collateral review the Michigan Supreme
Court relied upon MCR 6.508(D)(3), where such an inference
relies entirely upon our after-the-fact determination that
(D)(3) rather than (D)(2) was the appropriate provision to rely
upon. In Burroughs, in contrast, it was “undisputed that
Burroughs failed to properly present his arguments for state
appellate review.” 282 F.3d. at 413. However, for the
reasons given in the majority’s discussion of Douglas,
Burton, and Frazier, petitioner has not adequately shown a
violation of the Confrontation Clause under applicable
Supreme Court precedents.
