                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0605n.06

                                             No. 11-1712

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

                                                                                         FILED
WILLIE SANDERS,                                    )                                 Jun 26, 2013
                                                   )                           DEBORAH S. HUNT, Clerk
        Petitioner-Appellant,                      )
                                                   )
v.                                                 )    ON APPEAL FROM THE UNITED
                                                   )    STATES DISTRICT COURT FOR THE
CINDI S. CURTIN, Warden,                           )    EASTERN DISTRICT OF MICHIGAN
                                                   )
        Respondent-Appellee.                       )



        Before: BOGGS, ROGERS, and STRANCH, Circuit Judges.

        JANE B. STRANCH, Circuit Judge. Petitioner Willie Sanders was charged with the first-

degree murder of Clarence McFerrin. Following a bench trial, Sanders was found guilty and

sentenced to life in prison without the possibility of parole. His original trial counsel filed a motion

for new trial, claiming that the conviction was against the great weight of the evidence and that

newly discovered evidence warranted a new trial. The trial court denied the motion, and newly

appointed counsel appealed. The Michigan Court of Appeals affirmed, and the Michigan Supreme

Court denied leave to appeal. In 2003, a different attorney filed a motion for relief from judgment,

raising a number of claims, including allegations that the prosecution suppressed a police report

prepared during trial that contained exculpatory evidence; that a witness’s in-court identification of

Sanders at the preliminary examination was unnecessarily suggestive; and that Sanders received



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ineffective assistance of counsel at trial and on direct appeal. The state trial court denied relief and

the state appellate courts denied leave to appeal. Sanders then sought habeas corpus relief in federal

district court, raising the same issues as those raised in his motion for relief from judgment. The

district court denied relief, but granted a certificate of appealability on the above-referenced issues.

This appeal followed. For the following reasons, we AFFIRM the judgment of the district court.

                                     FACTUAL BACKGROUND

I.      State Court Proceedings

        On January 8, 1997, two shootings occurred in Kalamazoo, Michigan. Around 10:00 p.m.,

Edward Patterson was shot by James Camble.1 Clarence McFerrin was killed approximately an hour

later in the same vicinity. The previous day, Jeffery Fry had been assaulted, and Camble was

implicated as the perpetrator. These incidents were allegedly the result of feuding between two rival

gangs—one based in Chicago, of which Sanders, James Camble, Ronald Wymes, Antoinne Riley,

and Michael Lemon were members, and one based in Kalamazoo, of which the victim McFerrin,

Jeffery Fry, Troy Elliot, Edward Patterson, and Darlynzo Brown2 were members. Initially, Michael

Lemon was a suspect in the McFerrin shooting because he was an associate of James Camble and

matched the general description of the shooter. Although authorities made contact with him early

on in the investigation, Lemon purportedly left for Chicago and did not return to Kalamazoo.




        1
       Camble’s last name is spelled “Campbell” at certain points in the trial transcript. His street
name, “Little Wolf,” is also used.
        2
            His name is spelled “Darlynnzo” at certain points.

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       An unnamed witness stated that Antoinne Riley, an associate of Lemon and Camble, was

seen entering a light blue Buick in the vicinity of the shooting several hours earlier. Officer

testimony indicated that Sanders was pulled over several days later in a light blue Buick. Because

he had no license and gave a false name to the police, Sanders was arrested for obstruction by

disguise and for outstanding traffic warrants and subsequently became a suspect in the McFerrin

shooting. At that point, no one had identified Lemon as the perpetrator; additionally, the people who

later suggested that Lemon might be the shooter were not present when the shooting occurred.

       Darlynzo Brown testified that on the evening of the shooting, McFerrin was driving a car in

which he and Troy Elliot were passengers—Brown was in the front seat and Elliot in the back.

McFerrin stopped at Brown’s house on Woodbury Street so that Brown could retrieve something

from inside. Brown passed his aunt, Thelma Fry, on the way into the house. As he returned to the

car, a man approached him and inquired about drugs; the man followed Brown as he reentered the

car and also asked McFerrin about drugs. The perpetrator then fired shots into the car, killing

McFerrin. Brown testified that he saw James Camble nearby, but that he was not the shooter.

Brown claimed that he initially identified someone other than Sanders as the shooter in a

photographic lineup because he wanted to seek revenge against Sanders himself.

       Troy Elliot’s recollection of the shooting largely tracked that of Brown, and he also claimed

to have purposefully identified someone other than Sanders so that he could avenge McFerrin’s death

himself; however, following police confiscation of his firearm, Elliot informed the authorities that

Sanders was responsible for the shooting.



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        Jeffery Fry testified that he saw Sanders sitting on a fence before the shooting and that he also

saw him in the area after the shooting; however, Fry did not witness the shooting. He also claimed

that he informed the police that someone else was the shooter because he wished to kill Sanders

himself.

        Thelma Fry—Darlynzo Brown’s and Jeffery Fry’s aunt—testified that she witnessed the

shooting from her porch. She previously identified Sanders and another individual as resembling

the shooter in a photographic lineup and also identified Sanders at a preliminary examination. She

identified Sanders as the shooter at trial.

        Monique Camble, James Camble’s sister, testified that Sanders stayed at her house the night

of the shooting and that several individuals from the Chicago group came and went that night.

Although Sanders was also in and out during the course of the evening, Monique claimed that he

never left with James Camble, Antoinne Riley, and Michael Lemon.

        Detective Steven Ouding testified that photographic lineups were conducted with pictures

of Sanders, Camble, and Lemon. Camble was identified as Patterson’s shooter. Although Darlynzo

Brown stated that Lemon resembled McFerrin’s shooter, Brown did not positively identify Lemon

as the shooter. There were plans to conduct a live lineup—which would have included Sanders—for

Thelma Fry, Jeffery Fry, Darlynzo Brown, and Troy Elliot to view, but it did not occur. Instead, the

four witnesses were each shown a photographic lineup. Detective Greggory Hatter stated that

Thelma Fry was the only person to indicate that Sanders’s photo resembled the suspect, although she

ultimately did not make a positive identification. Everyone except Brown indicated that the

individual in photograph 4 resembled the shooter, but none of them were sure that he was the

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shooter. The person in photograph 4, however, was incarcerated at the time of the shooting.

Because the witnesses had focused on this person, Detective Hatter suspected that they were not

being truthful. Darlynzo Brown spoke subsequently with the detective and indicated that he had lied,

and that Sanders was the actual shooter. Elliot likewise recanted his previous identification and

implicated Sanders.

       After Sanders was charged with the murder, he gave conflicting statements to the police. In

the first statement, he denied being at Monique Camble’s house on the night of the shooting and did

not mention that Lemon was the shooter. In the second, he claimed that he was at Monique’s house

and that Lemon, Riley, and James Camble came over, at which time Lemon bragged about shooting

McFerrin.

       The defense proceeded on the theory that someone else—namely, Michael Lemon—was

responsible for McFerrin’s murder. Monique Camble’s ex-boyfriend, Rosco Manns (who was also

Michael Lemon’s cousin), testified that he was with Sanders at Monique’s house on the night of the

shooting. He claimed that Lemon, Riley, and James Camble came to the house; that Lemon claimed

he had shot someone; and that Lemon wrapped the gun in a bag in order to bury it. On cross-

examination, Manns denied telling police that Sanders was with the other three men when they

arrived at Camble’s house.

       Lee Logan stated that he was on a porch a few doors down from where the shooting took

place and that Sanders was not the shooter.

       Tamica Cohen, the mother of one of McFerrin’s children, testified that although she did not

witness the shooting, she saw James Camble and a short man running through an alley off Woodbury

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Street toward a house in which women named Noonie and Tara lived. She claimed that they entered

a small red car and drove away. She testified that the man with Camble was not Sanders.

       The trial court ultimately found Sanders guilty and imposed a mandatory life sentence.

Sanders’s trial counsel filed a motion for new trial, contending (1) that the conviction was against

the great weight of the evidence and (2) that newly discovered evidence undermined the conviction.

The newly discovered evidence consisted of testimony by James Camble at a hearing on the motion.

He claimed that he had lied to police when he said he was not at the scene of the shooting and that

he was actually 50 feet away and saw the back of the shooter, who was not Sanders. Camble

declined to identify the actual perpetrator, however, and invoked the Fifth Amendment multiple

times. The motion was denied by the trial court, which found Camble’s testimony to be “inherently

unreliable” based on his untruthfulness during the original investigation and his close relationship

with Sanders. See People v. Sanders, No. 207546, 2001 WL 1547916, at *1-2 (Mich. Ct. App. Nov.

30, 2001) (per curiam). The court also found ample evidentiary support for the conviction.

       Sanders, through new counsel, raised the same issues on direct appeal. The Michigan Court

of Appeals affirmed the trial court’s decision, and the Michigan Supreme Court denied leave to

appeal. See Sanders, 2001 WL 1547916, leave to appeal denied by People v. Sanders, 650 N.W.2d

338 (Mich. 2002).

       Sanders then filed a motion for relief from judgment, contending that: (1) he was denied his

right to a fair trial based on the prosecutor’s failure to timely disclose Brady material or,

alternatively, that the prosecutor’s failure to provide the defense with a police report in a timely

manner resulted in a violation of his due process rights; (2) his trial counsel was ineffective for

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making several outcome-determinative errors; (3) Thelma Fry’s in-court identification during the

preliminary examination was unnecessarily suggestive and violated his due process rights; (4) he was

denied effective assistance of appellate counsel on direct appeal where his counsel failed to raise

“dead bang winners” and properly develop the two issues presented; (5) the trial court abused its

discretion in failing to consider his polygraph results, which violated his due process rights; and (6)

his right to a fair trial was violated based on prosecutorial misconduct.

       The court held several hearings on the issue of whether a September 9, 1997 report prepared

by Detective Hatter was turned over to Sanders’s original trial counsel. Sanders’s new counsel

claimed that the report was not included in the materials he received from Sanders’s appellate

counsel (who received the materials from Sanders’s original trial counsel) and that the report was

not discovered until July 2003. The report indicated that on September 5, 1997, which was the

second day of trial, Detective Hatter was contacted by an anonymous caller claiming that Monique

Camble knew who the real shooter was and that she overheard her brother, James Camble, planning

the murder in the basement. The caller claimed that James Camble, Antoinne Riley, and Lemon

tested the murder weapon in Monique’s yard; that Lemon was the shooter; and that Sanders was not

at the scene. The caller further alleged that Lemon disposed of the gun used in the shooting in

Chicago. The caller also claimed that “Noonie” told her that Riley, Camble, and Lemon came to her

house, which she shared with someone named Tera, after the shooting. She alleged that “Noonie

and/or Tera” told the victim’s wife, Tericita McFerrin, that Sanders was the shooter because they did

not want to implicate the other three men. The caller also claimed that Tera informed Sheila

Mitchell that Riley, Lemon, and Camble were responsible for the shooting and came to the house

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of Tera and Noonie afterward. She alleged that Lemon went to Vanita Stegal’s3 house with the gun.

The caller further claimed that Tericita McFerrin paid witnesses to implicate Sanders and that

Lemon’s and Riley’s girlfriends knew the truth.

       Although the anonymous caller was never identified, Detective Hatter attempted to follow

up on the information. On September 8, Detective Hatter interviewed Lemon’s girlfriend, Vanita

Stegal, who confirmed that she was with Lemon on the night of the shooting, but stated that he did

not admit his involvement. Hatter could not locate Tera, and although he concluded that “Noonie”

was Qualisqua Franklin, she could not be located. The victim’s wife denied being contacted by a

Tera or Noonie regarding the shooting and further denied paying anyone to identify Sanders as the

shooter.

       Sanders’s original trial counsel stated that he did not receive the report and did not remember

discussing it with the prosecutor. He alleged that if he had received it, he would have requested an

adjournment and performed further investigation. Sanders’s appellate counsel testified that he

received the case file from trial counsel. When asked whether he saw the report at the time the file

was turned over, he replied “I’m going to say probably not.” Appellate counsel no longer had the

file, claiming that he gave it to Sanders in 2001 or 2002.

       The prosecutor claimed that all police reports were forwarded to Sanders’s trial counsel, and

that she placed “a uniquely colored piece of paper in the file indicating what had been sent.” The

file contained a sheet indicating that all reports up to September 12, 1997, had been turned over to



       3
           This person is referred to at some points in the report as “Banita.”

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defense counsel. The prosecutor also remembered speaking with defense counsel about the

anonymous call prior to giving him the report. Defense counsel informed the prosecutor that he did

not need any additional time because he had a witness, Rosco Manns, who would testify to the

matters raised by the anonymous source.

       The prosecution also sought to establish through a computer “diary” that it turned over the

report to defense counsel. Sanders’s counsel objected to the diary’s entry and requested to have an

expert examine the file in order to determine when the entry was made; the prosecutor objected to

this request. The trial court stated that it would not consider this evidence and no examination was

performed.4

       The trial court denied Sanders’s motion for relief from judgment, finding that “it [was] more

probable than not that defense counsel had a copy of the report.” Even if the report had not been

turned over, the trial court found that there would have been no prejudice because the important

information contained in the report—that Lemon was the shooter—was not new and had been

covered by testimony at trial. Based on these rulings, the court held that Sanders’s ineffective-

assistance claims were rendered moot. The court also found Sanders’s claim that Thelma Fry’s in-

court identification was unduly suggestive to be without merit, as she, along with the other witnesses

implicating Sanders, testified consistently with their out-of-court identifications and were subject




       4
        Although an order is not included in the record, the court concluded at the hearing on
Sanders’s motion to permit authentication of the computer diary that it would rule the diary
inadmissible based on the security concerns cited by the prosecution. The prosecutor and Sanders’s
counsel then agreed to draft an order together.

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to cross-examination. The trial court also rejected Sanders’s arguments regarding favorable

polygraph evidence and prosecutorial misconduct.

       Both the Michigan Court of Appeals and the Michigan Supreme Court denied Sanders’s

application for leave to appeal because he “failed to meet the burden of establishing entitlement to

relief under MCR 6.508(D).” People v. Sanders, 755 N.W.2d 629 (Mich. 2008).

II.    Federal Habeas Proceedings

       Sanders filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. As to

Sanders’s Brady claim, the district court concluded that the state court reasonably chose not to credit

trial counsel’s testimony because he admitted that he did not recall receiving some other reports from

the prosecutor and because the prosecutor testified that trial counsel stated that he would not ask for

an adjournment.

       Even assuming the report was not disclosed, the district court concluded that the state court’s

prejudice determination was not unreasonable, noting that the only allegation not addressed during

trial was that the victim’s wife paid witnesses to implicate Sanders. The district court reasoned that

she would have simply denied the allegation if asked at trial, as nothing in the record suggested that

she would have testified differently. Moreover, the district court noted that defense counsel had

cross-examined witnesses at trial extensively about their identification of Sanders so as to raise

questions about whether they falsely identified him as the shooter.

       As to Sanders’s allegation that the delay in the report’s disclosure amounted to bad-faith

destruction of potentially exculpatory evidence, the district court noted that the state court’s ruling

that the report was turned over undermined the factual basis for this claim. Although Sanders

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requested an evidentiary hearing on the claim in order to examine the prosecutor’s computerized

diary, the district court found this request to be foreclosed by Cullen v. Pinholster, 131 S. Ct. 1388,

1389 (2011).

        The district court held that the trial court reasonably determined that Sanders’s due process

rights were not violated by Thelma Fry’s in-court identification at the preliminary examination on

the following bases: (1) Fry had an adequate opportunity to observe the suspect at the time of the

crime; (2) her account was detailed enough to demonstrate that she was paying attention to the

shooter; (3) her description was not inconsistent with Sanders’s actual appearance; (4) she never

indicated that she was certain about her identification at the lineup, but stated at trial that she was

100% sure Sanders was the shooter (the only factor the district court found to favor Sanders); and

(5) there was a minimal time lapse between the crime and the preliminary examination.

        As to Sanders’s ineffective assistance claims, the district court first determined that Sanders’s

trial counsel was not ineffective for failing to further investigate the allegations in the report because

he presented a defense based on that information and brought it out on cross-examination. As to the

claim that trial counsel was ineffective for failing to challenge Thelma Fry’s in-court identification,

the district court found that the decision to challenge the testimony at trial—where the judge was the

fact-finder—rather than through a pretrial motion, was a reasonable tactical decision. The district

court also rejected Sanders’s claim that his trial counsel was deficient for failing to argue that the

eyewitness identification was unreliable because there was a discrepancy between the witnesses’

physical descriptions of him and his actual appearance, as trial counsel cross-examined witnesses

on this subject. Likewise, the district court rejected Sanders’s claim that his trial counsel performed

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deficiently for failing to rebut testimony that Sanders refused to participate in a corporeal lineup

because counsel successfully convinced the trial court not to consider this fact.

        On Sanders’s final claim—ineffective assistance of appellate counsel on direct appeal—the

district court concluded that the state court did not unreasonably determine that the issues raised in

the motion for relief from judgment were not “clearly stronger” than those asserted on direct appeal.

As to Sanders’s assertion that appellate counsel “inadequately presented” the two issues raised on

direct appeal, the district court held that Sanders failed to explain how a different presentation would

have rendered a different result.

                                              ANALYSIS

I.      Standard of Review

        Under the Antiterrorism and Effective Death Penalty Act (AEDPA), habeas relief may not

be granted on a state claim adjudicated on the merits unless the state court’s decision

        (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). A state court’s determination is contrary to clearly established federal law if

it “arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or

if the state court decides a case differently than [the Supreme Court] on a set of materially

indistinguishable facts.” Lovins v. Parker, 712 F.3d 283, 294 (6th Cir. 2013) (alteration in original)

(internal quotation marks omitted). An unreasonable application of Supreme Court precedent also

occurs “if ‘the state court identifies the correct governing legal principle . . . but unreasonably applies

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th[e] principle to the facts of the . . . case.’” Id. (quoting Williams v. Taylor, 529 U.S. 362, 413

(2000)).

         If a petitioner’s claim arises under subsection (d)(2), the state court’s factual findings “are

presumed to be correct unless they are rebutted by clear and convincing evidence.” Fleming v.

Metrish, 556 F.3d 520, 525 (6th Cir. 2009). “[I]t is not enough for the petitioner to show some

unreasonable determination of fact; rather, the petitioner must show that the resulting state court

decision was ‘based on’ that unreasonable determination.” Rice v. White, 660 F.3d 242, 250 (6th Cir.

2011).

         We review the legal basis for the district court’s decision de novo, while its factual findings

are reviewed under the clear error standard. Harris v. Haeberlin, 526 F.3d 903, 909 (6th Cir. 2008).

II.      Discussion

         A.     Failure to turn over report

                i.      Brady claim

         Pursuant to Brady v. Maryland, 373 U.S. 83, 87 (1963), a defendant’s due process rights are

violated if the government suppresses exculpatory evidence material to either guilt or punishment.

Montgomery v. Bobby, 654 F.3d 668, 678 (6th Cir. 2011) (en banc). In order to establish a Brady

violation, a defendant must show that: (1) the evidence is favorable, either because it is exculpatory

or because it can be used for impeachment; (2) the government either willfully or inadvertently

suppressed the evidence; and (3) the defendant was prejudiced as a result. Strickler v. Greene, 527

U.S. 263, 281-82 (1999). Prejudice is established when the government’s failure to disclose is “so

serious that there is a reasonable probability that the suppressed evidence would have produced a

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different verdict.” Id. at 281. “A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Davis v. Lafler, 658 F.3d 525, 536 (6th Cir. 2011) (en banc) (internal

quotation marks omitted).

        The evidence contained in the report is undoubtedly favorable, as it suggested that Michael

Lemon was McFerrin’s shooter and raised questions regarding the credibility of the witnesses who

implicated Sanders. The main point of contention is the state court’s determination that the evidence

was not suppressed. Sanders argues that the trial court’s determination that the prosecution delivered

the report to his trial counsel was unreasonable because counsel was aggressive and would have

asked for an adjournment had the report been disclosed.

        The trial transcript does reflect that Sanders’s trial counsel engaged in vigorous cross-

examination and was a strong advocate for his client. However, this was not the only information

the trial court considered when deciding whether the report had been suppressed. The prosecutor

testified that her office’s color-coded system showed that the report was disclosed. She also

described her discussion with Sanders’s counsel about the anonymous caller and his witness who

would address the issue. Her memory of the events was clearer, and Sanders’s trial counsel did not

remember receiving other police reports and admitted losing some documents related to the case.

The court also pointed out that Sanders’s counsel had been seen at trial with a large number of

documents on the defense table, but that the file forwarded to appellate counsel was small enough

to fit in a standard-sized envelope. Based on this testimony and information, it was not unreasonable

for the state court to determine that the report had been disclosed. Moreover, testimony elicited from

Detective Hatter at trial bolsters the state court’s decision, as it suggests that the report, or at least

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the information in it, had been shared with Sanders’s trial counsel. The following exchanged

occurred between the prosecutor and Detective Hatter.

       Q:     All right. Now, . . . when did you stop the investigation?
       A:     Honestly, it hasn’t stopped. It’s been ongoing even through this trial.
       Q:     And, why do you say that?
       A:     ‘Cuz we’ve gotten calls from anonymous individuals, one anonymous
       individual up until the week that we were last in session, regarding this case.
       Q:     And, have you followed those calls up?
       A:     I’ve attempted to, yes.
       Q:     All right. And, to those people who are willing to give you names have you
       been able to get any information . . . that the shooter was anyone but Mr. Sanders?
       A:     No.

Sanders’s allegation that his trial counsel’s silence on the record is probative cuts against him

here—if he had been unaware of the anonymous calls during the course of trial, surely he would have

objected. The fact that he did not do so is telling.

       Although our analysis could end here, we will also address Sanders’s alternative argument

that, assuming suppression, he was prejudiced. He contends that he suffered prejudice because the

State’s case against him was very weak, pointing out that the four witnesses implicating him lacked

credibility; some expressed a desire to avenge McFerrin’s death on any member of the Chicago

group; and no physical evidence connected him to the crime. There is no doubt that this case is

problematic. The witnesses’ testimony—the basis of the guilt determination—was fraught with

issues of credibility and consistency. However, review under § 2254(d) “is a guard against extreme

malfunctions in the state criminal justice systems, not a substitute for ordinary error correction

through appeal.” Campbell v. Bradshaw, 674 F.3d 578, 586 (6th Cir. 2012) (internal quotation

marks omitted). While we might have come to a different conclusion if evaluating this case on direct


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appeal, we may not grant relief on habeas review unless “the state court’s ruling . . . was so lacking

in justification that there was an error well understood and comprehended in existing law beyond any

possibility for fairminded disagreement.” Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011).

Trial counsel engaged in intensive cross-examination in order to bring the credibility matters to the

forefront. The state court, which served as the trier of fact, discussed in detail its evaluation of these

witnesses’ credibility. Ultimately, however, the state trial court found their testimony persuasive

enough on the points that mattered—what occurred and the identity of the shooter—to rely upon it

in finding Sanders guilty. We cannot say that “there was no reasonable basis” for the state court to

find that Sanders was not prejudiced by the alleged suppression of the report because the credibility

issues with the witnesses’ testimony were adequately explored at trial.

        Moreover, the most helpful part of the report—the allegation that Michael Lemon was the

shooter—was the defense used by trial counsel and was developed during cross-examination of the

State’s witnesses and on direct examination of the defense’s own witnesses. It is difficult to say that

“the withheld evidence ‘would . . . have permitted the development of alternate theories or different

lines of argument.’” Apanovitch v. Bobby, 648 F.3d 434, 440 (6th Cir. 2011) (quoting Brooks v.

Tennessee, 626 F.3d 878, 894 (6th Cir. 2010)). Even assuming suppression, it is unlikely that

duplicative presentation of this evidence “would have produced a different verdict.” Strickler, 527

U.S. at 281.

        Of course, Sanders contends that his trial counsel should have been given the opportunity to

further explore the only allegation in the report not brought out at trial—that McFerrin’s wife was

paying witnesses to implicate Sanders. Although Sanders complains that Detective Hatter “did little

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No. 11-1712

to investigate the information in the report,” one thing that the detective was able to do was interview

Tericita McFerrin, who explicitly stated that she had not paid witnesses to testify in a particular way.

The value of this evidence, therefore, “would have been minimal at best,” Apanovitch, 648 F.3d at

440, as there is nothing to indicate that she would have testified any differently on the stand.

                ii.     Bad faith destruction claim

        Alternatively, Sanders claims that the failure to disclose the report “resulted in the destruction

of evidence due to the passage of time,” amounting to a due process violation. A defendant suffers

a denial of due process if the state, in bad faith, “fail[s] to preserve potentially useful evidence” and

the defendant demonstrates “an inability to obtain comparable evidence by other reasonably available

means.” United States v. Wright, 260 F.3d 568, 571 (6th Cir. 2001).

        Sanders’s claim is hampered by the state court’s finding, under its Brady analysis, that the

report was disclosed. He argues, however, that the prosecution’s refusal to let him examine the

county’s computer is suspect and that an evidentiary hearing could confirm the existence of

prosecutorial bad faith. The district court denied his request for an evidentiary hearing, finding that

because the state court’s decision on the Brady claim was not unreasonable, its review was limited

to the record that was before the state court pursuant to Pinholster. There, the Supreme Court held

that “evidence introduced in federal court has no bearing on § 2254(d)(1) review. If a claim has been

adjudicated on the merits by a state court, a federal habeas petitioner must overcome the limitation

of § 2254(d)(1) on the record that was before [the] state court.” 131 S. Ct. at 1400. Sanders

contends that review of this claim is not cabined by the constraints of § 2254(d) because he diligently



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pursued it in state court and was foreclosed from fully developing it by the state court’s evidentiary

ruling.5

           Where Pinholster’s limitations are inapplicable, a federal court can appropriately consider

evidence outside the state-court record. For instance, when a federal court determines that a state

court’s decision was unreasonable, and hence not subject to AEDPA deference, consideration of new

evidence not presented in state court is appropriate. See, e.g., Mosley v. Atchison, 689 F.3d 838, 853

n.1 (7th Cir. 2012) (“Pinholster did not instruct lower courts to ignore [new] evidence after

determining that a state court’s denial of relief was erroneous under the strict standards of §

2254(d)(1).”); Johnson v. Finn, 665 F.3d 1063, 1069 (9th Cir. 2011) (holding that because a state-

court decision “did not qualify for deference . . . , it was both lawful and necessary . . . to conduct

an evidentiary hearing” on petitioner’s claim).6 An evidentiary hearing may also be appropriate

when the state court has rejected a claim on procedural, as opposed to merit-based, grounds. See,

e.g., McClellan v. Rapelje, 703 F.3d 344, 351 (6th Cir. 2013) (“Pinholster only applies to limit

consideration of additional evidence when the state court has previously decided the same merits



           5
         In the context of his ineffective assistance of counsel claim, Sanders argues that Pinholster
is inapplicable to claims alleging unreasonable factual determinations under § 2254(d)(2). Although
Pinholster specifically addressed subsection (d)(1), subsection (d)(2), by its terms, also requires a
federal court to limit its review to the record that was before the state court. See 28 U.S.C. §
2254(d)(2) (providing that habeas relief “shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless the adjudication of the claim . . . 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” (emphasis added)).
           6
        The Pinholster majority did not decide “whether a district court may ever choose to hold an
evidentiary hearing before it determines that § 2254(d) has been satisfied.” 131 S. Ct. at 1411 n.20.

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No. 11-1712

issue later presented to the federal court.”); see also Pinholster, 131 S. Ct. at 1417 n.5 (Sotomayor,

J., dissenting) (“Of course, § 2254(d)(1) only applies when a state court has adjudicated a claim on

the merits.”). What is less clear is the gray area resulting from Pinholster, which is conceptually

illustrated by Sanders’s argument. As this court recently observed, Pinholster

       suggested . . . that the prohibition on new evidence might not always apply, using as
       an example the hypothetical defendant who diligently pursues her claim through the
       state courts, but nevertheless presents a “new claim” in federal court because the
       court orders the production of evidence previously made unavailable during state
       court proceedings. The Supreme Court, however, has thus far declined to decide
       where to draw the line between new claims and claims adjudicated on the merits.

Seaman v. Washington, No. 10-2477, 2012 WL 5870126, at *3 (6th Cir. Nov. 21, 2012) (citations

and internal quotation marks omitted).

       Whatever the uncertainties created by Pinholster as to this question, this is not the case in

which to decide it. Accord Hanna v. Ishee, 694 F.3d 596, 609-10 (6th Cir. 2012) (noting

“Pinholster’s distinction between unexhausted claims and so-called ‘new claims,’” which “neither

this Court nor the Supreme Court has yet had occasion to develop,” but declining to do so “because

disposition of this issue is not required to deny relief on Petitioner’s claim”). The claim regarding

the computer “diary” is not new, but is a part of Sanders’s claim that the report was not turned over.

The district court found reasonable the state court’s conclusion that the report was turned over, thus

eviscerating the foundation of any bad-faith claim. Because Sanders has failed to demonstrate “that

the adjudication of his claim based on the state-court record resulted in a decision ‘contrary to’ or

‘involv[ing] an unreasonable application’ of federal law, a writ of habeas corpus ‘shall not be

granted’ and our analysis is at an end.” Pinholster, 131 S. Ct. at 1411 n.20 (citation omitted).


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        B.      Suggestive in-court identification

        Sanders contends that Thelma Fry’s identification at the preliminary examination was

unnecessarily suggestive and resulted in a violation of his due process rights. In order to determine

whether a defendant’s due process rights have been violated based on an identification procedure,

a court asks: (1) “whether the identification was unnecessarily suggestive” and, if so, (2) “whether

the evidence was nevertheless reliable despite the impermissible suggestiveness of the identification

procedure.” Haliym v. Mitchell, 492 F.3d 680, 704 (6th Cir. 2007). The second inquiry considers

the following factors:

        (1) the witness’ opportunity to view the suspect; (2) the witness’ degree of attention;
        (3) the accuracy of the witness’ prior description of the criminal; (4) the level of
        certainty demonstrated by the witness at the time of the identification; and (5) the
        time between the crime and the identification.

Id. These factors are weighed against “the corrupting effect of the suggestive identification itself.”

Manson v. Brathwaite, 432 U.S. 98, 114 (1977).

        Sanders disagrees with the district court’s rejection of his claim, but other than noting facts

favorable to him, he does not explain how a different analysis demonstrates the unreasonableness

of the state court’s decision. And in contrast to the assertion in Sanders’s brief, Fry’s identification

of Sanders at the preliminary examination was not the first time she noted his resemblance to the

shooter. Fry indicated during the lineup that Sanders looked like the shooter, although she ultimately

did not make a positive identification. Under similar circumstances, we have held that a petitioner’s

due process rights were not violated. In Owens v. Foltz, 797 F.2d 294 (6th Cir. 1986), neither of the

victims positively identified the petitioner—who was suspected of robbing their home—at a lineup,


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No. 11-1712

although they “separately told the officer in charge of the lineup that they were ‘pretty sure’ and

‘75% sure’ that [the petitioner] was one of the robbers.” Id. at 295. At the preliminary examination,

the victims identified the petitioner as one of the robbers, although he and his co-defendant were the

only black men in the room and were seated at the defendants’ table. Id. This court found that “[t]he

identification procedure was not so suggestive as to rise to the level of a constitutional violation”

based, in part, upon the fact that “[t]he basis of [their] identification was thoroughly examined by

defense counsel at the time of trial.” Id. at 296. Here, not only did the judge—the trier of fact in this

instance—understand the circumstances surrounding Fry’s identification, defense counsel cross-

examined Fry on the lack of certainty in her various identifications. Under this set of facts, we agree

with the district court’s conclusion that the state court did not unreasonably apply Supreme Court

precedent in determining that Sanders’s due process rights were not violated by Fry’s in-court

identification.

        Sanders contends, however, that Fry “recanted” her testimony in her post-trial affidavit,

offering this as evidence of the suggestive nature of her identification. In this affidavit, Fry

explained that it was night when she witnessed the shooting; the suspect was 15 to 20 feet away; she

did not get a good look at his face; got a better look at his “body shape and posture”; and “would

have been better able to make an identification in a physical line up than in a photo line up.” She

further stated that “at the time of this shooting and trial, I was on drugs and living on the run. . . . I

believe all this stress added to the possibility that I made a mistake in identifying Sanders. I believe

it is very possible that I identified the wrong person.”



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       Fry’s allegations that she was on drugs and under stress at the time of the shooting and at trial

are troubling and cast greater doubt on the reliability of her testimony. Her statements, however, do

not amount to an outright recantation. Moreover, they are not inconsistent with Fry’s previous

testimony, during which she claimed that she was more familiar with the physical characteristics of

the shooter. And as previously noted, cross-examination highlighted the uncertainties of Fry’s

previous identifications.

       Even discounting Fry’s testimony, there were three other witnesses implicating Sanders,

including two that were in the car when the victim was shot. If we assume that Fry’s testimony

violated due process principles, its admission would be evaluated under harmless-error analysis. See,

e.g., United States v. Wade, 388 U.S. 218, 242 (1967). The state court’s reliance on other witnesses’

testimony implicating Sanders would have provided an alternate basis for the guilty verdict. Because

“‘fairminded jurists could disagree’ on the correctness of the state court’s decision,” Harrington, 131

S. Ct. at 786 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)), the district court did not

err in declining to grant the writ on this claim.

       C.      Ineffective assistance of trial counsel

       In order to establish ineffective assistance of counsel, a defendant must demonstrate (1) that

counsel’s performance was deficient; and (2) that he or she was prejudiced by this performance.

Strickland v. Washington, 466 U.S. 668, 687 (1984). “The first prong requires showing that counsel

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

by the Sixth Amendment.” Kinnard v. United States, 313 F.3d 933, 935 (6th Cir. 2002). “Prejudice”

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

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Sanders v. Curtin,
No. 11-1712

the proceeding would have been different.” United States v. Taylor, 489 F. App’x 34, 41 (6th Cir.

2012) (internal quotation marks omitted). In other words, a court should look to whether the

seriousness of counsel’s errors deprived the defendant of a fair trial. Kinnard, 313 F.3d at 935. A

court is free to “dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,”

as opposed to first determining whether counsel’s performance was deficient. Strickland, 466 U.S.

at 697.

          The state court determined that Sanders’s ineffective-assistance claims were rendered moot

by its ruling on the Brady issue that Sanders could not demonstrate prejudice. In effect, this was a

merits determination of these claims. See Harrington, 131 S. Ct. at 784-85 (allowing federal courts

to presume that a state court claim is adjudicated on the merits absent “any indication or state-law

procedural principles to the contrary”).

                 i.      Failure to investigate information contained in the report

          Sanders argues that if trial counsel received the report, his performance was deficient for

failing to investigate the allegations contained in it and that this prejudiced him because the

prosecution’s case was very weak. As the district court held, the state court’s rejection of this claim

was not unreasonable. Trial counsel presented a defense based on the most probative information

contained in the report—that Michael Lemon was responsible for the murder. Counsel questioned

Detective Hatter regarding his investigation into Lemon’s possible involvement. Monique Camble

testified that Sanders stayed at her house the night of the murder and that, while he was in and out

of the house during the course of the evening, he never left with James Camble, Antoinne Riley, or

Michael Lemon. Rosco Manns testified that he was with Sanders at Monique Camble’s house on

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Sanders v. Curtin,
No. 11-1712

the night of the shooting and that Lemon claimed responsibility. Lee Logan stated that he was on

a porch a few doors down from where the shooting took place and that Sanders was not the shooter.

Tamica Cohen, the mother of one of McFerrin’s children, testified that although she did not witness

the shooting, she saw James Camble and a short man who was not Sanders running through an alley

toward a house in which women named Noonie and Tara lived. It is true that there was no

questioning about whether McFerrin’s widow paid witnesses to implicate Sanders but, during the

investigation of the report, she denied the claim. This evidence, therefore, has little, if any, value

in the context of our analysis, which requires that counsel’s mistakes or failures prejudice the

petitioner. More importantly, trial counsel was able, through extensive cross-examination, to

sufficiently highlight the credibility problems of those witnesses who implicated Sanders as the

perpetrator at trial. Because trial counsel brought out the vast majority of the information contained

in the report during cross-examination, even assuming that he was deficient for failing to investigate

matters further, it cannot be said that “there was no reasonable basis” for the state court’s rejection

of this claim. Pinholster, 131 S. Ct. at 1402 (internal quotation marks omitted).

                ii.     Failure to challenge Thelma Fry’s in-court identification

        Sanders contends that his trial counsel was ineffective because he failed to challenge the

constitutionality of Thelma Fry’s in-court identification. However, this was a bench trial, and as the

State points out, there is no authority holding that challenging a witness’s identification of a suspect

at trial, rather than in a preliminary motion, constitutes deficient performance. Cases reach the

opposite conclusion. See, e.g., Brown v. Lafler, No. 09-10852, 2010 WL 5148498, at *9 (E.D. Mich.

Dec. 14, 2010) (“The decision to attack the credibility of the victim’s identification of Petitioner

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Sanders v. Curtin,
No. 11-1712

through the examination of witnesses at trial, rather than by filing a pre-trial motion to challenge the

suggestiveness of the identification procedure, was a reasonable trial strategy. This is true especially

in view of the fact that the trial was to the bench, before a judge as fact-finder . . . .”). And as

discussed previously, Sanders’s trial counsel thoroughly cross-examined Fry at trial, fully exploring

her identification of Sanders at the preliminary examination. Therefore, Sanders is not entitled to

relief on this claim.

                iii.    Failure to impeach witnesses’ trial identification of Sanders

        Sanders contends that trial counsel was ineffective for failing to question witnesses about a

discrepancy between the physical description of Sanders in a police report and his actual physical

characteristics. The police report stated that the suspect was between 5'10" and 6' and weighed

approximately 170 pounds. Sanders notes that he was 5'8" and weighed 135 pounds at the time of

his arrest. As the State points out, the description in the police report was not attributable to any

particular individual, and it is unclear how it could have been used to impeach the witnesses’

testimony. More importantly, however, trial counsel cross-examined witnesses about Sanders’s

appearance. Trial counsel’s failure to question each witness regarding the particulars of the

description in the police report as compared to Sanders’s actual physical characteristics did not “fall

below an objective standard of reasonableness,” Miller v. Straub, 299 F.3d 570, 578 (6th Cir. 2002),

nor can we say that it prejudiced Sanders.7


        7
        Sanders also argues that trial counsel was ineffective for failing to use a statement made by
Darlynzo Brown prior to the preliminary examination to impeach him. Trial counsel recorded the
answer on a piece of paper, lost it before trial, and then found it later. This statement was apparently
inconsistent with Brown’s trial testimony. However, as noted by the State, Brown was impeached

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Sanders v. Curtin,
No. 11-1712

                 iv.    Failure to call lineup attorney as a witness

       Although Sanders contends that trial counsel’s performance was deficient for failing to call

the attorney representing Sanders at the lineup so that counsel could explain that he—not

Sanders—called the lineup off, he concedes that the trial court stated it would not consider the

reasons for the lineup’s cancellation. After obtaining a favorable ruling by the trial court, there

would have been no reason for trial counsel to go further and actually call the attorney as a witness.

Sanders cannot establish either deficient performance or prejudice under these circumstances.

       D.        Ineffective assistance of appellate counsel

       A criminal defendant has a right to effective assistance of counsel in connection with his or

her direct appeal. Monzo v. Edwards, 281 F.3d 568, 579 (6th Cir. 2002). Appellate counsel need

not raise every non-frivolous claim on direct appeal, however. Id. The Supreme Court has stated

that “winnowing out weaker arguments on appeal . . . is the hallmark of effective appellate

advocacy.” Smith v. Murray, 477 U.S. 527, 536 (1986) (internal quotation marks omitted).

“Generally, only when ignored issues are clearly stronger than those presented, will the presumption

of effective assistance of counsel be overcome.” Monzo, 281 F.3d at 579 (internal quotation marks

omitted). As with Sanders’s ineffective assistance of trial counsel claims, his ineffective assistance

of appellate counsel claims were rejected based on the state trial court’s rulings on other issues.

Again, we may presume that these claims were adjudicated on the merits. See Harrington, 131 S.

Ct. at 784-85.


by counsel with other prior statements conflicting with his testimony at trial; it is unclear how
counsel’s failure to utilize this additional statement prejudiced Sanders.

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Sanders v. Curtin,
No. 11-1712

                 i.      Failure to raise habeas issues on direct appeal

          Sanders argues that two issues—the prosecution’s alleged failure to disclose the police report

and Thelma Fry’s in-court identification of Sanders at the preliminary examination—which were not

raised by appellate counsel on direct appeal, require a finding of ineffective assistance.

          As to the disclosure-related issues, Sanders’s main claims assume that the prosecution did

not disclose the report. It is difficult to imagine how his appellate counsel could have been deficient

for failing to raise these issues, as he received the case file from trial counsel and would have

assumed that it was complete. Moreover, based on the information contained in the report, which

was largely duplicative of the evidence presented at trial, it does not appear that the Brady and bad-

faith destruction claims were “clearly stronger than those presented” on appeal. Monzo, 281 F.3d

at 579.

          If we review Thelma Fry’s in-court identification of Sanders and the related issues involving

trial counsel’s impeachment of witnesses for ineffective assistance, it is not clear that these claims

would have fared better than the general challenge to the sufficiency of the evidence, where the

reviewing courts were asked to analyze the evidence as a whole. The validity of Fry’s identification,

as well as that of the other witnesses, was obviously challenged by trial counsel through cross-

examination, and the reviewing state court would have evaluated these aspects of the record in the

course of its sufficiency review. As with the disclosure issue, this issue is not clearly stronger than

those which were raised.




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Sanders v. Curtin,
No. 11-1712

               ii.     Failure to adequately brief issues raised on direct appeal

       The Michigan Court of Appeals rejected Sanders’s claims on direct appeal (1) because James

Camble’s testimony was not newly discovered evidence; and (2) based on the strength of the

prosecution’s case. See generally Sanders, 2001 WL 1547916. Other than a disagreement with the

state court’s ruling and conclusory statements regarding appellate counsel’s performance, Sanders

does not demonstrate any way in which a different presentation of his claims would have altered the

state court’s decision such that his appellate counsel’s performance could be judged deficient and

Sanders prejudiced. The state court’s decision to reject this claim was not unreasonable, and we

therefore agree with the district court’s conclusion that modification of appellate counsel’s strategy

could not have changed the record on which the state court made its decision.

                                          CONCLUSION

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




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