                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 17a0337n.06

                                                 Case No. 15-1813

                                UNITED STATES COURT OF APPEALS
                                     FOR THE SIXTH CIRCUIT
                                                                                                         FILED
                                                                                                 Jun 15, 2017
MANUEL SHEARD, IV,                                              )                            DEBORAH S. HUNT, Clerk
                                                                )
         Petitioner-Appellant,                                  )
                                                                )         ON APPEAL FROM THE UNITED
v.                                                              )         STATES DISTRICT COURT FOR
                                                                )         THE EASTERN DISTRICT OF
PAUL KLEE,                                                      )         MICHIGAN
                                                                )
         Respondent-Appellee.                                   )
                                                                )         OPINION
                                                                )


BEFORE: MERRITT, GILMAN, and DONALD, Circuit Judges.

         BERNICE BOUIE DONALD, Circuit Judge. Petitioner Manuel Sheard appeals the

district court’s dismissal of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

For the reasons that follow, we AFFIRM the district court’s denial of habeas relief.

                                                          I.

         A.       Factual Background

         Sheard’s conviction arose from allegations that he sexually assaulted his daughter, N.S.,1

when she was between the ages of six and nine. The Michigan Court of Appeals, on direct

appeal, summarized the facts as follows:



1
 The victim, a minor at the time of the events in question and at trial, has been referred to by her initials in the state
court and the district court below. We likewise identify her only by her initials.
Case No. 15-1813, Sheard v Klee


       [Sheard’s] charges arise from evidence that he sexually assaulted his daughter,
       who was nine at the time of his trial. She testified that the incidents began in
       August 2007 and continued until June 2009. She gave compelling testimony
       about the nature and extent of the abuse and stated that the abuse ended only after
       she told her aunt about it. There was also expert medical testimony that the child
       had injuries to her genital area including a healed scar on the perineum, which had
       been sutured in a previous medical visit, as well as a transection of the hymen,
       which had not completely healed. The physician testified that, although the
       transected hymen could be the result of a single penetration, it was “more of a
       sign of potentially repeated penetration.” This is because there was “no healing of
       that area. It left it in two pieces that never joined together.”

       Defendant’s theory of the case was that his daughter’s physical injuries were
       caused by a bicycle accident and that her allegations of abuse were inconsistent
       and contrived.

       After hearing the evidence, the jury found defendant guilty on all four counts.

People v. Sheard, No. 299084, 2011 WL 4952329, at *1 (Mich. Ct. App. Oct. 18, 2011).

       B.      Prosecutor’s Conduct at Trial

       At trial, the prosecutor repeatedly referenced Sheard’s marital infidelity. Beginning with

his opening statement on the first day of trial, the prosecutor raised the issue, stating: “What

you’re also going to hear is that the defendant, while married to Monique Sheard, who is the

mother of [N.S.], biological mother and father, married; during the course of that marriage

relationship Mr. Sheard takes up with a Sarah Hale and has a child to [sic] her.” (R. 6-7, PageID

# 220–21.) Defense counsel at this point asked to approach the bench, and after a bench

conference that was not made part of the record, the prosecutor continued, reemphasizing: “And

you will hear that Manuel Sheard, the defendant, took up with Sarah Hale and had a child to [sic]

her.” (Id. at 221.)

       The prosecutor’s references to Sheard’s extramarital affair continued throughout the

witness examination portion of the trial. During his direct examination of the victim, N.S., the

prosecutor asked her whether she knew Sarah Hale, who she was, and whether Sarah had a baby

with N.S.’s father. Again with Tonia Lozano, Sheard’s sister, the prosecutor inquired into the

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nature of Sheard’s relationship with Hale, asking whether Sheard was still married to N.S.’s

mother, Monique Sheard, when he had a child with Sarah Hale. During his direct examination of

Monique Sheard, the prosecutor again brought up Sheard’s relationship with Sarah Hale, asking

questions like: “And during the time that you have been married to Manuel Sheard is that when

Sarah conceived their joint child?” “So while you are married to the defendant he has a baby

with Sarah?” “You feel stressed about the fact that he is seeing another lady?” (R. 6-8, PageID #

280.)

        On cross examination of Sheard, the prosecutor again drew attention to Sheard’s

relationship with Hale in the following exchange:

        Q: Now, when you got up here, you took an oath to tell the truth right?
        A: Yes, sir.
        Q: That’s like a vow?
        A: Yeah.
        Q: Correct?
        A: Correct.
        Q: And if you had ridden your daughter from behind and gone into her butt as she
        said, you would tell the jury that, would you?
        A: Yes, I would.
        Q: And if you had penetrated her repeatedly with your penis into her vagina, you
        would tell this jury that?
        A: I would have pled guilty off the bat, sir, if that would have been the case.
        Q: And if you would have put your penis in her mouth and ejaculated or put your
        penis in her mouth and pulled it out and ejaculated, you would tell the jury that?
        A: They would have known that because I would have pled guilty.
        Q: Now, you’re married to Monique?
        A: Yeah.
        Q: And you took an oath to her too, didn’t you?
        A: Before I took the oath I started having an affair, my mistake.
        Q: You took an oath to Monique as your wife?
        A: Yes, I did.
        Q: And while you are married to her, having taken an oath to her, you’re having
        an affair with Sarah?
        A: Yeah, with Sarah, but not my eight year old daughter.
        Q: And at some point you’ve made promises or made oaths to Sarah?
        ...
        Q: All right. But you’re making promises to Sarah, she’s writing you letters
        saying love, your wifey, so you’ve talked to her about possibly marrying her?

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        ...
        Q: So the oath to Monique doesn’t mean a lot, does it?
        ...
        Q: And the oath to Sarah doesn’t mean a lot either, does it?
        ...
        Q: So if the oath suits you, it’s a good oath, and as soon as it doesn’t suit you,
        doesn’t mean anything, doesn’t bind you?

(R. 6-9, PageID # 349–50.)

        During his closing argument, the prosecutor continued his references to Sheard’s

extramarital affair, stating:

        He takes an oath before he testifies. Swears to tell the truth, the whole truth and
        nothing but the truth. And then tells you, why, if I had repeatedly put my penis in
        her mouth, members of the jury, I would tell you that. Do you believe that?
        Members of the jury, if I repeatedly put my penis in her vagina, I would tell you
        that. Do you believe that? Members of the jury, if I repeatedly rode her from the
        back and put my penis in her anus, I would tell you that. Do you believe that?

        We know how important his oaths are. He marries Monique and takes an oath to
        love, honor, cherish, whatever the wedding vows were. And what does he do
        with his oath to Monique, the mother of his two children? Why, he picks up a
        girlfriend. So while Monique is out earning money to support the family, he’s
        home grilling, drinking, with his girlfriend Sarah on the front porch. That’s how
        much his oath is worth to Monique, a woman he’s lived with and is married to
        and has children with. Does he know you? And we know how much his oath is
        worth because he has Sarah [] and he promises her, I’m gonna marry you. Is he
        divorced? Has he filed for divorce? Does he do anything but father a child with
        Sarah?

        ...

        What’s the cost to confessing to something that’s not at issue? There’s no
        cost. . . . He wants you to believe what he’s telling you. Whether he had an affair
        and lied to Sarah about his intentions is important as to whether he can be
        believed. Whether he lied to Monique while he’s married to her is important to
        you in the context of whether he can be believed. If he’s lying with the women he
        sleeps with, if he’s lying with the women he has babies with, if he confesses to
        things that have no costs, is there a cost in this case? There sure is. Four counts
        of criminal sexual conduct first degree.

(Id. at PageID # 357, 359.) Although less damaging, as it was made after Sheard had been

convicted and outside the presence of the jury, the prosecutor carried his “theory of the case”


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through to Sheard’s sentencing, stating: “This defendant was married when this happened. This

defendant had a girlfriend when this happened.          He fathered children to both of them.

Apparently, his sexual appetites were such that when neither of the adult females were around,

his daughter, from six, to seven, to eight, became the focus of his sexual appetites.” (R. 6-11,

PageID # 398–99.)

          C.     Procedural Background

          Following a three-day trial and only a few hours of deliberation, the jury convicted

Sheard of four counts of first-degree criminal sexual conduct against his daughter, N.S. At

sentencing, the district court sentenced Sheard to twenty-five to fifty years for each count, with

the sentences to run consecutively to each other, resulting in a total sentence of 100–200 years in

prison.

          Sheard appealed his conviction and sentence to the Michigan Court of Appeals, arguing,

among other things, that the prosecutor committed misconduct by introducing improper character

evidence, namely that he had an extramarital affair, and that his defense counsel was ineffective

for failing to object to this misconduct. Sheard, 2011 WL 4952329, at *1. The court of appeals

agreed that the prosecutor’s conduct was improper and that counsel had rendered deficient

performance, concluding that “it is plain that the prosecutor’s efforts to elicit testimony about

defendant’s affair and his comments on the affair were improper. Moreover, given the limited

circumstances under which such evidence would be admissible, it was plain error for the trial

court to permit the testimony and comments.” Id. at *2. However, the court held that Sheard

was not entitled to a new trial because “[g]iven the overwhelming weight” of the evidence

against him, he could not show prejudice from the misconduct or the deficient performance. Id.

at *3. Sheard filed an application for permission to appeal to the Michigan Supreme Court,



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which was denied. People v. Sheard, 810 N.W.2d 576 (Mich. 2012) (table). Sheard did not

appeal to the United States Supreme Court or seek state collateral relief.

       In 2013, Sheard filed a petition for federal habeas relief in the United States District

Court for the Eastern District of Michigan. Sheard’s habeas petition raised several claims;

relevant to this appeal are his claims for prosecutorial misconduct and ineffective assistance of

counsel. The district court held that the state court of appeals’ decision that the prosecutor’s

misconduct was harmless error and that counsel’s failure to object to the misconduct did not

prejudice Sheard was not an unreasonable application of clearly established law. Sheard v. Klee,

No. 13-CV-11681, 2015 WL 3634104, at *5–6 (E.D. Mich. June 9, 2015). The district court,

however, granted a certificate of appealability on Sheard’s prosecutorial misconduct claim and

related ineffective assistance of counsel claim. Id. at *8. Sheard now appeals.

                                                II.

       In habeas proceedings, we review a district court’s legal conclusions “de novo and its

findings of fact for clear error.” Akins v. Easterling, 648 F.3d 380, 385 (6th Cir. 2011) (quoting

Braxton v. Gansheimer, 561 F.3d 453, 457 (6th Cir. 2009)). Sheard’s petition is also governed

by the Antiterrorism and Effective Death Penalty Act (“AEDPA”) because the petition was filed

after AEDPA’s effective date. See id. (citing Lindh v. Murphy, 521 U.S. 320, 326–27 (1997)).

       Under AEDPA, a federal court may not grant a writ of habeas corpus on a claim that has

been adjudicated on the merits by a state court unless the state court’s adjudication of that claim:

       (1) resulted in a decision that was contrary to, or involved an unreasonable
       application of, clearly established Federal law, as determined by the Supreme
       Court of the United States; or (2) resulted in a decision that was based on an
       unreasonable determination of the facts in light of the evidence presented in the
       State court proceeding.

28 U.S.C. § 2254(d). Under the first prong of § 2254(d), a state court decision is contrary to

clearly established federal law if the state court “arrives at a conclusion opposite to that reached
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by [the Supreme Court] on a question of law or if the state court decides a case differently than

[the Supreme Court] has on a set of materially indistinguishable facts.” Williams v. Taylor, 529

U.S. 362, 413 (2000). “Under the ‘unreasonable application’ clause, a federal habeas court may

grant the writ if the state court identifies the correct governing legal principle from [the Supreme

Court’s] decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id.

       Importantly, “a federal habeas court may not issue the writ simply because that court

concludes in its independent judgment that the relevant state-court decision applied clearly

established federal law erroneously or incorrectly.” Renico v. Lett, 559 U.S. 766, 773 (2010)

(quoting Williams, 529 U.S. at 411).           “Rather, that application must be ‘objectively

unreasonable.’” Id. (citations omitted). “A state court’s determination that a claim lacks merit

precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness

of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (citations omitted).

“AEDPA thus imposes a ‘highly deferential standard for evaluating state-court rulings,’ and

‘demands that state-court decisions be given the benefit of the doubt.’” Lett, 559 U.S. at 773

(internal citations omitted).

       A.      Prosecutorial Misconduct

       Respondent first argues that Sheard’s prosecutorial-misconduct claim is procedurally

defaulted and may not be reviewed absent a showing of cause and prejudice. Sheard does not

dispute this, but asserts that his claim of ineffective assistance of counsel supplies the requisite

grounds to excuse this default. The Supreme Court has held that “in certain circumstances

counsel’s ineffectiveness in failing properly to preserve the claim for review” will suffice to

establish cause. Edwards v. Carpenter, 529 U.S. 446, 451 (2000). “Not just any deficiency in

counsel’s performance will do, however; the assistance must have been so ineffective as to



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violate the Federal Constitution.” Id. Here, the strength of Sheard’s ineffective assistance claim

relies on the merits of his prosecutorial-misconduct claim; as such, the analyses merge so that it

is more beneficial to first address the merits of Sheard’s prosecutorial-misconduct claim. See,

e.g., Washington v. Hofbauer, 228 F.3d 689, 698 (6th Cir. 2000) (addressing first the

prosecutorial-misconduct claim because the petitioner’s “claim of Strickland ineffectiveness

hinge[d] on whether the prosecutor’s misconduct was plain enough for a minimally competent

counsel to have objected.”).2

         We turn to the merits of Sheard’s prosecutorial-misconduct claim. The district court and

state court of appeals both concluded that the prosecutor’s commentary and emphasis on

Sheard’s extramarital affair and resulting bad character were improper. Respondent does not

dispute this finding, nor can he. Like its federal counterpart, the Michigan Rules of Evidence

provide that, subject to certain enumerated exceptions, none of which apply here, “[e]vidence of

a person’s character or a trait of character is not admissible for the purpose of proving action in

conformity therewith on a particular occasion.” Mich. R. Evid. 404(a); see also Fed. R. Evid.

404(a) (same). In this case, the prosecutor’s case strategy relied very heavily on tying Sheard’s

marital infidelity to his ability to be truthful. The state court of appeals aptly summarized the

nature of this misconduct:

         These statements show that the prosecutor argued that people who violate their
         oaths are liars and, because [Sheard] violated his marital oath, he too must be a
         liar. That is, the prosecutor emphatically asserted that [Sheard’s] marital
         infidelity was proof that he had a bad character—a propensity to lie—and acted in
         conformity with that character by committing perjury at trial.



2
  Because we ultimately conclude that Sheard’s prosecutorial-misconduct claim lacks merit, we need not directly
rule on the State’s procedural-default defense. See Johnson v. Lee, 132 S. Ct. 1802, 1806 (2016) (per curiam) (citing
Lambrix v. Singletary, 520 U.S. 518, 525 (1997) (noting that “the procedural-bar issue [need not] invariably be
resolved first” and that, if another basis for denial “were easily resolvable against the petitioner,” the non-procedural
basis may be invoked instead in order to avoid “issues of state [procedural] law.”)).

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Sheard, 2011 WL 4952329, at *2. It is clear that the prosecutor’s continuous use of Sheard’s

affair with Sarah Hale to imply bad character and an inability to be truthful contravenes the rules

of evidence and was improper.

        This finding of impropriety, however, does not resolve the issue. We must still address

the question of whether the prosecutor’s misconduct was harmless. In other words, whether the

prosecutor’s introduction of the improper character evidence “had substantial and injurious effect

or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)

(quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). Although Brecht is a pre-

AEDPA case, the Supreme Court has subsequently held that the Brecht test “subsumes” the

AEDPA requirements such that a formal application of both tests is unnecessary. Fry v. Pliler,

551 U.S. 112, 120 (2007). Thus, the law in this Circuit is that “Brecht is always the test, and

there is no reason to ask both whether the state court ‘unreasonably’ applied Chapman[3] under

the AEDPA and, further, whether the constitutional error had a ‘substantial and injurious’ effect

on the jury’s verdict.” Ruelas v. Wolfenbarger, 580 F.3d 403, 412 (6th Cir. 2009). This,

however, does not render the state court’s harmless-error determination irrelevant.                      As the

Supreme Court has most recently clarified, “a prisoner who seeks federal habeas corpus relief

must satisfy Brecht, and if the state court adjudicated his claim on the merits, the Brecht test

subsumes the limitations imposed by AEDPA.” Davis v. Ayala, 135 S. Ct. 2187, 2199 (2015).

        To succeed on his prosecutorial-misconduct claim, Sheard must show that he was

“actually prejudiced” by the prosecutor’s comments, “a standard that he necessarily cannot

satisfy if a fairminded jurist could agree with the [Michigan Court of Appeals’] decision that this



3
 In Chapman v. California, the Supreme held that some constitutional errors can, consistent with the Constitution,
be deemed harmless, but only where the court can conclude that “it was harmless beyond a reasonable doubt.” 386
U.S. 18, 22, 24 (1967).

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Case No. 15-1813, Sheard v Klee


[conduct] met the Chapman standard of harmlessness.” Id. In concluding that the prosecutor’s

reference to Sheard’s marital infidelity was harmless, the state court noted that

       [Sheard’s] daughter presented very compelling testimony about repeated sexual
       abuse. Further, there was medical testimony that the injuries to her vagina were
       consistent with having been repeatedly penetrated. Expert witnesses also opined
       that the injuries were not consistent with a bicycle injury, as [Sheard] would have
       the jury believe. Given the overwhelming weight of the testimony and physical
       evidence, we conclude that the prosecutor’s misconduct—although quite serious
       and completely unnecessary given the proofs—did not prejudice [Sheard]. And,
       for that reason, it did not amount to plain error warranting a new trial.

Sheard, 2011 WL 4952329, at * 3. This conclusion is not entirely unreasonable.

       Relying on Darden v. Wainwright, 477 U.S. 168, 181–82 (1986), Sheard argues that the

prosecutor’s statements amounted to a manipulation of the evidence against him and was not

invited by, or in response to, Sheard’s defense. Therefore, Sheard argues, the prosecutor’s

actions were “substantial and injurious” and cannot be considered harmless error. Sheard further

argues that the remaining evidence against him was not overwhelming and his trial hinged on the

jury’s perception of the credibility of him and the victim, N.S.

       At trial, the jury heard testimony from the victim, N.S. She testified concerning the first

incident, stating that her father raped her in the bed by putting “his private in [her] private.” (R.

6-7, PageID # 226.) N.S. further testified that on this day, she started bleeding and that it was a

lot of blood that “started gushing out [of her] back area.” (Id. at PageID # 227.) According to

N.S., when she arrived at the hospital, she told the doctors that she had fallen off her bicycle by

accident because her dad told her to. When asked how many times her father put his penis inside

her vagina, N.S. testified that it was more than five times. N.S. further testified that her father

put his penis inside her butt, and that this happened fewer than five times. She also testified that

her father put his penis in her mouth more than one time but fewer than five times. According to




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N.S., when her father put his penis in her mouth, “white stuff” came out, and he would either

take his penis out of her mouth and it would go on the floor, or he would leave it in her mouth.

        On cross examination, defense counsel elicited testimony concerning N.S.’s prior

recantations. In response, N.S. testified that she told her mother that she lied about her father

raping her because she was scared. Defense counsel also questioned N.S. about other perceived

inconsistencies in her testimony and asked her whether the only reason for telling her aunt Tonia

that her father had raped her was so that she could spend all her time with her aunt. Defense

counsel further inquired into a letter written by N.S. stating that none of this actually happened.

N.S. responded that she said that she was lying only because she did not want her father to go to

jail.

        The jury also heard medical testimony concerning N.S. Dr. Lori Wylie testified to

examining N.S. when N.S. came into the emergency room with what she had reported as a

bicycle straddle injury. According to Dr. Wylie, while N.S. was experiencing vaginal bleeding,

there was no external bruising that would have been consistent with a traumatic injury.

Additionally, there was a tear that almost went through the hymen. Ultimately, Dr. Wylie

refused to form an opinion as to the cause of N.S.’s vaginal laceration; however, she noted that

bicycle injuries typically leave more bruising and swelling than was present in N.S.’s case. In

addition, the jury heard testimony from Dr. Michelle McLean, who testified to interviewing N.S.

on the night she was brought in following her disclosure. According to Dr. McLean, N.S. had

informed her that her privates hurt, and upon examination, Dr. McLean noted marked redness

and irritation in N.S.’s private area. Dr. Harry Fredrick also testified that there was a complete

transection of N.S.’s hymen that never healed. According to Dr. Fredrick, the fact that the

hymen was completely cut in two and had not healed since the initially-reported 2007 bicycle



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injury was a sign of potentially repeated penetration.        On cross examination, Dr. Fredrick

admitted that there could be an injury that would cause the hymen to completely cut in two, but

he testified that such injuries are rare and are not usually bicycle accidents.

       Sheard testified in his own defense, stating that he never touched his daughter in a

manner that would be considered inappropriate. Sheard testified that on the day of the alleged

bicycle accident, he was watching both of his kids while they were riding their bikes. He

testified that he went inside briefly to grab a beer when he heard screaming. According to

Sheard, when he went outside he saw N.S. at the bottom of the stairs off the seat of her bicycle,

but with her legs clinched around its frame. Sheard testified that N.S. told him that she did not

stop in time when she was going up to the porch on her bicycle and slid off the chair and hit the

bicycle bar. Sheard stated that he then carried her into the house and laid her down on the bed

and went back outside. According to Sheard, he heard N.S. screaming again and went back in.

N.S. was complaining of pain, and when he pulled her pants down, he noticed a spot of blood. It

was at this time that Sheard took her to the hospital.

       Based on this evidence, the jury convicted Sheard on all four counts. The weight of the

evidence against Sheard, even if not overwhelming, was certainly compelling.            Given the

pervasive nature of the prosecutor’s improper comments, we could easily conclude that these

comments had some effect on the jury’s verdict. That, however, is not the standard with which

we must decide the issue. Rather, the standard is whether the prosecutor’s comments had a

“substantial and injurious” effect on the jury’s verdict. Brecht, 507 U.S. at 638. This question is

much more difficult to answer, and is complicated by our restraints under AEDPA. “[E]ven if

reasonable minds reviewing the record might disagree about the” prejudicial effect of the

prosecutor’s comments, “on habeas review that does not suffice to supersede” the state court’s



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determination of harmlessness. Ayala, 135 S. Ct. at 2201 (internal citations and alterations

omitted).

       Sheard relies heavily on our decision in Washington v. Hofbauer, where we granted

habeas relief based on the prosecutor making similar impermissible “bad character” commentary.

228 F.3d at 700. We note, however, that an important procedural difference between this case

and Washington precludes us from reaching a similar result. In Washington, the state court of

appeals refused to address the merits of the petitioner’s prosecutorial-misconduct claim, finding

that petitioner’s counsel had failed to object to the allegedly improper remarks. Id. at 697. That

is not the case here. The Michigan Court of Appeals reviewed Sheard’s claim on the merits, and

under AEDPA, we may not disturb that decision if “fairminded jurists could disagree” as to the

correctness of this decision. Harrington, 562 U.S. at 101. Considering the evidence presented to

the jury at trial, it was reasonable for the state court to conclude that the weight of the evidence

against Sheard rendered the prosecutor’s misconduct harmless. As a result, the district court

properly denied Sheard relief on this ground.

       B.      Ineffective Assistance of Counsel

       We turn next to Sheard’s claim that his trial counsel was ineffective for failing to object

to the prosecutor’s improper and continuous reference to his extramarital affair. A petitioner

alleging ineffective assistance of counsel must make two showings: (1) “that counsel made errors

so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the

Sixth Amendment”; and (2) “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).

On habeas review, however, we must also consider the state court’s adjudication of the claim and

examine whether, under § 2254(d), the state court’s determination was unreasonable. Williams,



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529 U.S. at 412.      “The standards created by Strickland and § 2254(d) are both ‘highly

deferential,’ and when the two apply in tandem, review is ‘doubly’ so.” Harrington, 562 U.S. at

105 (internal citations omitted). At this stage, “[t]he pivotal question is whether the state court’s

application of the Strickland standard was unreasonable. This is different from asking whether

defense counsel’s performance fell below Strickland’s standard.” Id. at 101.

       As with Sheard’s prosecutorial-misconduct claim, the state court of appeals concluded

that Sheard’s trial counsel rendered deficient performance. Particularly, the state court noted that

“to the extent that defendant’s trial counsel failed to object to [the prosecutor’s] misconduct, the

failure to object fell below an objective standard of reasonableness under prevailing norms.”

Sheard, 2011 WL 4952329, at *2. Respondent does not challenge this finding and, again, it

would be difficult to do so. Other than a brief interruption during the prosecutor’s opening

statement and a resulting bench conference, which counsel failed to place on the record, trial

counsel did not make any objection to the prosecutor’s improper statements. Trial counsel’s

silence with every mention of Sheard’s “character” as it related to his beginning an affair with

Sarah Hale, and worse, as it related to his ability to be truthful as a witness evidenced an

ignorance of the law more than it did any trial strategy. See Washington, 228 F.3d at 704 (noting

that counsel’s failure to object to improper character evidence arose from incompetence and

ignorance of the law where counsel failed to understand that evidence of the defendant’s

character was admissible for some uses and not others).

       Under Strickland, however, “[a]n error by counsel, even if professionally unreasonable,

does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on

the judgment.” 466 U.S. at 691. The state court held that its finding of harmlessness stemming

from the prosecutorial misconduct precluded a finding that, but for Sheard’s counsel’s failure to



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object to the misconduct, there was a reasonable probability that the outcome would have been

different. Sheard, 2011 WL 4952329, at *3. We may not disturb this finding “so long as

‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Harrington,

562 U.S. at 101. The state court’s decision that the prosecutor’s misconduct did not have a

substantial and injurious effect on the outcome of Sheard’s trial was not unreasonable and is

detrimental to Sheard’s ability to show prejudice stemming from his trial counsel’s deficient

performance. As such, the state court’s finding that Sheard failed to show prejudice was not

unreasonable under Strickland, and the district court properly denied habeas relief on this claim.

                                               III.

       The state court’s adjudication of Sheard’s claim on the merits did not result in an

unreasonable application of clearly established law under AEDPA. We AFFIRM.




                                              - 15 -
Case No. 15-1813, Sheard v Klee


       MERRITT, Circuit Judge, dissenting. I agree with our Court’s opinion that there was

gross ineffective assistance of counsel here. The state courts and the district court below

recognized the failure of counsel to represent his client, a failure that seems to have led directly

to what turns out to be a life sentence. I disagree, however, that we should overlook the error. I

would issue the writ and let the state retry the defendant in a trial in which he has decent counsel

and the opportunity to receive a more humane sentence. Our criminal justice system should not

allow a man to be condemned to life imprisonment when he has been so egregiously deprived of

counsel.




                                               - 16 -
