                      NOT RECOMMENDED FOR PUBLICATION
                              File Name: 14a0635n.06
                                                                                    FILED
                                         No. 12-2402                           Aug 14, 2014
                                                                           DEBORAH S. HUNT, Clerk
                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

GREGORY LEE BERRY,                                     )
                                                       )
       Petitioner-Appellant,                           )
                                                       )      ON APPEAL FROM THE
v.                                                     )      UNITED STATES DISTRICT
                                                       )      COURT FOR THE EASTERN
GARY J. CAPELLO,                                       )      DISTRICT OF MICHIGAN
                                                       )
       Respondent-Appellee.                            )      OPINION
                                                       )
                                                       )



       BEFORE:        MERRITT, BOGGS, and STRANCH, Circuit Judges.

       STRANCH, Circuit Judge. Gregory Lee Berry, a Michigan inmate, appeals the district

court’s denial of his habeas corpus petition brought under 28 U.S.C. § 2254. A jury convicted

Berry of aiding and abetting first-degree felony murder, assault with intent to rob while armed,

and possession of a firearm during the commission of a felony. Because the state courts’ rulings

on Berry’s claims are not contrary to, or involve an unreasonable application of Supreme Court

law, we AFFIRM.

                        I. FACTS AND PROCEDURAL HISTORY

       In the early morning of September 5, 2003, Octavio Hernandez was pumping gas into his

car at a Mobil gas station located in southwest Detroit. Hernandez was standing at pump nine

near the street, fifty to sixty feet away from the convenience store where Jimmy Hamood was

working alone.

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       Berry and his young accomplice, Antonio Hamilton, were riding around the area in a

stolen burgundy Chrysler. Berry pulled into the gas station, stopped behind Hernandez’s car,

handed Hamilton a .25-caliber semi-automatic firearm, and told Hamilton to rob the man at the

gas pump.

       With the gun at his side, Hamilton approached Hernandez and demanded money, but

Hernandez did not comply. Hamilton raised the gun, pointed it at Hernandez’s head at close

range and demanded money a second time. When Hernandez again did not comply, Hamilton

pulled the trigger. The bullet struck Hernandez in the right forehead, killing him. Hamilton did

not try to steal anything from Hernandez. As he spun around, Berry was backing up the Chrysler

to make a quick getaway. Hamilton jumped into the car, and the two men fled the scene.

Hamilton handed the gun back to Berry. Hamilton testified at Berry’s trial that he did not intend

to kill Hernandez when he walked up to him, and although Berry knew Hamilton intended to rob

Hernandez, Berry did not know Hernandez would be shot.

       Shortly after Hernandez’s murder, Berry and Hamilton disposed of the Chrysler and stole

a Lincoln. Berry drove to a different gas station where he intended to commit a robbery. He

stepped out of the car with the gun in his coat pocket and walked up to a man who was paying

for gas at the service window. Berry spoke to him briefly, but he did not show the gun or ask for

money. Instead, he returned to the car where Hamilton was waiting, but the car would not start.

The men left the car at the gas station and walked to a house on Vaughn Street where Hamilton

was staying.

       A few hours later, a resident of the house, Shaquita Mack, overheard Hamilton and Berry

conversing about a shooting at a gas station in southwest Detroit. Berry told Hamilton that “he

didn’t have to shoot that guy,” and Hamilton said “he had to because the guy got cocky.” Berry


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asked why Hamilton did not get any money. Hamilton replied that he did not have time because

he did not want to get caught. Berry assured Hamilton that “they had rolled off so they wouldn’t

get the license plate.” After Berry left the house, Mack asked Hamilton why he did it. Hamilton

answered that he did not know; the gun was Berry’s, and the robbery had gone bad.

       The next day, Mack confided in her mother about the involvement of Berry and Hamilton

in the shooting. Kathy Carthron overheard the conversation and called the police.

       Shortly thereafter, Detroit police took Hamilton into custody. He waived his Miranda

rights and provided a lengthy written statement. Berry was later arrested in Tennessee and

returned to Michigan for trial. Hamilton pled guilty to second-degree murder and felony firearm

possession and agreed to testify against Berry as part of his plea agreement with the State.

       Berry retained attorney Evan Callanan to represent him. Because Callanan was also

facing criminal charges, the trial court appointed Joel Dorf to serve as co-counsel. Dorf handled

the pretrial work, but Callanan appeared in court on the first day of trial, and Berry told the judge

that he wanted Callanan to represent him. The court permitted Callanan to try the case with Dorf

serving as co-counsel. Dorf agreed that he would not question the witnesses as long as Callanan

was present. Callanan handled nearly all aspects of the trial proceedings.

       The jury convicted Berry of first-degree felony murder, assault with intent to rob while

armed, and possession of a firearm during the commission of a felony.             Berry discharged

Callanan and proceeded with only Dorf’s assistance. A motion for a new trial was denied. The

court sentenced Berry as a fourth habitual offender to serve life in prison without parole on the

felony-murder conviction. The court also imposed a concurrent term of fifteen to twenty-five

years of imprisonment on the conviction for assault with intent to rob while armed and a

consecutive two-year sentence of imprisonment on the firearm conviction.


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       John D. Roach, Jr., handled Berry’s direct appeal, raising four issues: (1) whether the

prosecutor violated Berry’s Fifth Amendment rights by commenting during rebuttal closing

argument on Berry’s failure to testify; (2) whether the trial court violated Berry’s due process

rights by admitting the hearsay testimony of Kathy Carthron; (3) whether the trial court abused

its discretion by allowing the jury to hear testimony about the robbery that Berry attempted after

Hernandez was murdered; and (4) whether Callanan rendered ineffective assistance when he left

the courtroom during the prosecutor’s rebuttal closing argument, fell asleep during the court’s

reading of the jury instructions, and failed to obtain jail records that would have shown Hamilton

testified falsely when he told the jury that Berry assaulted him in jail when, in fact, Hamilton had

assaulted Berry. The Michigan Court of Appeals denied the appeal in a reasoned opinion,

People v. Berry, No. 259431, 2006 WL 2085042 (Mich. Ct. App. July 27, 2006) (unpublished

per curiam), and the Michigan Supreme Court denied leave to appeal.              People v. Berry,

727 N.W.2d 583 (Mich. 2007).

       In a motion for relief from judgment filed by present counsel under MCR 6.508(D),

Berry raised four issues: (1) his double jeopardy rights were violated when he was convicted and

sentenced for both felony murder and assault with intent to rob while armed; (2) a jury

instruction improperly allowed the jury to infer aiding and abetting murder from mere

participation in the underlying felony offense; (3) the evidence was insufficient to sustain the

convictions; and (4) Berry was denied the effective assistance of counsel at trial and on appeal.

As to the latter claim, Berry argued that Dorf failed to object on double jeopardy grounds to the

separate sentence for assault with intent to rob while armed; Callanan and Dorf failed to object to

the aiding and abetting jury instruction; Callanan and Dorf deficiently cross-examined Hamilton;

Dorf failed to object to Carthron’s hearsay testimony, the prosecutor’s misconduct in rebuttal


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closing argument, and Callanan’s sleeping during trial; and Roach failed to challenge on direct

appeal the separate sentence for assault with intent to rob while armed, the aiding and abetting

instruction, the sufficiency of the evidence, and Dorf’s trial performance.

       The trial court denied the motion for relief from judgment in a reasoned decision. The

Michigan Court of Appeals denied a motion to remand for an evidentiary hearing and denied a

delayed application to appeal because Berry failed to establish an entitlement to relief under

MCR 6.508(D). The Michigan Supreme Court denied leave to appeal “because the defendant

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

v. Berry, 771 N.W.2d 766 (Mich. 2009). That court also denied a motion to remand for an

evidentiary hearing. Id.

       Berry then filed a petition for a writ of habeas corpus in federal court, raising all of the

issues that were asserted on direct appeal and in the motion for relief from judgment. In its

answer to the petition, the State asserted that Berry’s procedural default barred the court from

considering the merits of the double jeopardy, jury instruction, and sufficiency-of-the-evidence

arguments. The district court proceeded to the merits of each claim, see Hudson v. Jones,

351 F.3d 212, 215 (6th Cir. 2003), and denied habeas relief. We have jurisdiction of Berry’s

appeal under 28 U.S.C. § 1291.

                                 II. STANDARD OF REVIEW

       In a § 2254 habeas proceeding, we review the district court’s legal conclusions de novo,

applying the standards set forth in the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”). See Moore v. Berghuis, 700 F.3d 882, 886 (6th Cir. 2012). We may grant a habeas

petition on a claim that was adjudicated on the merits in state court if the adjudication of the

claim “resulted in a decision that was contrary to, or involved an unreasonable application of,


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clearly established Federal law, as determined by the Supreme Court of the United States” or

“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

decision amounts to an unreasonable application of clearly established federal law if the court

accurately identifies the governing legal rule but applies it in an unreasonable manner to the facts

of the case before it. Moore, 700 F.3d at 886. Berry must show that the state court’s ruling on a

claim “was so lacking in justification that there was an error well understood and comprehended

in existing law beyond any possibility of fairminded disagreement.” Harrington v. Richter,

131 S. Ct. 770, 786–87 (2011).

                                         III. ANALYSIS

       We begin with the four claims addressed on the merits by the Michigan Court of Appeals

in Berry’s direct appeal. We then turn to the claims Berry raised in his motion for relief from

judgment.

A. Claims raised on direct appeal

       1. Prosecutor’s alleged comment on defendant’s failure to testify

       Berry first contends that the prosecutor improperly commented during rebuttal closing

argument on his failure to testify at trial, thereby violating his Fifth Amendment right against

self-incrimination. See Griffin v. California, 380 U.S. 609 (1965). Our review of the trial record

leads us to conclude that no constitutional violation occurred.           The trial court simply

misunderstood the prosecutor’s argument and unnecessarily interjected a warning not to

comment on Berry’s right to silence. After the trial court realized its own error and permitted

argument to proceed, the prosecutor emphasized to the jury that Berry had “an absolute right to

say I am not guilty,” that the “Constitution provides every defendant with the presumption of


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innocence,” and that “the burden of proving him guilty is right here at the prosecution table. I

accept that responsibility.”

       We “should not lightly infer that a prosecutor intends an ambiguous remark to have its

most damaging meaning or that a jury . . . will draw that meaning from the plethora of less

damaging interpretations.” Donnelly v. DeChristoforo, 416 U.S. 637, 647 (1974). The Michigan

Court of Appeals determined that the prosecutor did not improperly comment on Berry’s right

not to testify. Instead, that court concluded that the prosecutor, during rebuttal closing argument

and in response to defense counsel’s closing argument, simply asserted a lack of personal interest

in the outcome of the case and explained to the jury that the trial proceeding logically resulted

from Berry’s exercise of his constitutional rights. Because the decision of the Michigan Court of

Appeals was not an unreasonable application of Supreme Court precedent or an unreasonable

determination of the facts, we agree with the district court that this claim lacks merit. See

Moore, 700 F.3d at 886.

       2. Admission of hearsay testimony

       Berry next argues that the state trial court violated his confrontation rights under the Sixth

and Fourteenth Amendments by admitting into evidence the testimony of Kathy Carthron even

though his trial counsel objected to the testimony as double hearsay. Carthron was a difficult

witness for the prosecutor and defense counsel to control. Despite questions crafted to avoid

hearsay testimony, Carthron volunteered on direct examination that she learned from Shaquita

Mack’s conversation with her mother that Berry told Hamilton to shoot Hernandez. On cross-

examination, Carthron retreated from this testimony, conceding she told the police only that

Berry told Hamilton to rob Hernandez and gave him the gun to do so. Hamilton confirmed for




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the jury that Berry gave him the gun and told him to rob Hernandez, but he denied Berry told

him to shoot Hernandez.

       The State contends that Berry’s Confrontation Clause claim is procedurally defaulted

because Berry raised only a state-law hearsay issue in state court. On direct appeal, however,

Berry argued that the admission of Carthron’s hearsay testimony violated his due process right to

a fundamentally fair trial and cited two Supreme Court cases analyzing the admission of hearsay

testimony under the Confrontation Clause of the Sixth Amendment, as applicable to the states

through the Fourteenth Amendment. Idaho v. Wright, 497 U.S. 805 (1990); California v. Green,

399 U.S. 149 (1970). We assume that Berry sufficiently raised the constitutional dimension of

his claim in state court and proceed to the merits.

       The Michigan Court of Appeals did not opine on the constitutional aspect of Berry’s

claim. Instead, the court accepted the State’s concession that admission of Carthron’s hearsay

testimony was error under Michigan law but held that the error was harmless because the

testimony was not outcome determinative. Berry, No. 259431, 2006 WL 2085042, at *1–2. The

district court ruled that Berry’s confrontation claim lacks merit, and we agree.

       The Confrontation Clause bars the admission of out-of-court testimonial statements made

by an unavailable witness when those statements are offered to prove the truth of the matter

asserted and when the defendant did not have a previous opportunity to cross-examine the

witness. Crawford v. Washington, 541 U.S. 36, 53–54 (2004); United States v. Boyd, 640 F.3d

657, 665 (6th Cir. 2011). “It is the testimonial character of the statement that separates it from

other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to

the Confrontation Clause.”     Davis v. Washington, 547 U.S. 813, 821 (2006).           Testimonial

statements are “directed at establishing the facts of a past crime, in order to identify (or provide


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evidence to convict) the perpetrator.” Id. at 826. In deciding whether a statement is testimonial,

the court asks “whether the declarant intends to bear testimony against the accused. That intent,

in turn, may be determined by querying whether a reasonable person in the declarant’s position

would anticipate [her] statement being used against the accused in investigating and prosecuting

the crime.” United States v. Cromer, 389 F.3d 662, 675 (6th Cir. 2004). If a statement is not

testimonial, confrontation principles do not apply. See Whorton v. Bockting, 549 U.S. 406, 420

(2007); United States v. Johnson, 581 F.3d 320, 325 (6th Cir. 2009).

       None of the challenged hearsay statements were testimonial. The statements Berry and

Hamilton made to each other at the house on Vaughn Street shortly after Hernandez’s murder

arose during their private discussion of the crimes they had committed. Neither of them intended

to bear testimony against the other at the time the statements were made. See, e.g., Crawford,

541 U.S. at 51; Davis, 547 U.S. at 825. Similarly, Shaquita Mack did not intend to bear

testimony against Berry when she confided in her mother about the shooting.            See Boyd,

640 F.3d at 665 (“statements made to friends and acquaintances are non-testimonial”). Carthron

candidly admitted that she decided, on her own, to call the police after she overheard the Macks’

conversation.

       Not only were the challenged statements non-testimonial, but Hamilton, Mack, and

Carthron testified at trial and were subject to Berry’s cross-examination. Thus, they were not

unavailable witnesses. The district court correctly ruled that Berry has not shown how his

confrontation rights were implicated by Carthron’s testimony.

       Even if we assume that the admission of Carthron’s testimony amounted to error, the

admission of that evidence did not have a “substantial and injurious effect or influence in

determining the jury’s verdict.” Fry v. Pliler, 551 U.S. 112, 116 (2007); accord Brecht v.


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Abrahamson, 507 U.S. 619, 637 (1993); Doan v. Carter, 548 F.3d 449, 459 (6th Cir. 2008). The

Michigan Court of Appeals so held when it determined that Carthron’s testimony was

inconsistent with other trial evidence and that the other evidence alone was sufficient for the jury

to find that Berry aided and abetted Hamilton in the robbery leading to Hernandez’s murder.

Berry, 2006 WL 2085042, at *2. Berry has not established that the outcome of his trial would

have been different if Carthron’s testimony had not been admitted. Berry is not entitled to

habeas relief on this ground, as the district court properly held.

       3. Admission of evidence of a subsequent bad act

       Berry next argues that the trial court erred in allowing the prosecution to present evidence

concerning a second attempted robbery at a gas station minutes after Hernandez was killed. The

Michigan Court of Appeals affirmed the admission of the evidence as part of the res gestae of

the charged offenses. Berry, 2006 WL 2085042, at *2. Berry’s “conduct after the shooting was

part of a continuous time sequence and displayed the same single intent and goal—to obtain

money—as the attempted robbery of Hernandez. Therefore, that conduct is part of the same

criminal episode or transaction that included Hernandez’s murder.” Id. In addition, the court

held, the evidence was admissible under Rule 404(b) for the purpose of showing Berry’s intent at

the time Hamilton attempted to rob Hernandez, and the evidence was not unduly prejudicial. Id.

Berry’s “subsequent attempt to rob someone at another gas station in a similar manner as

Hamilton’s failed robbery of Hernandez has a tendency to make it more probable than not that

[Berry] was involved in the attempted robbery of Hernandez and in the manner Hamilton

described.” Id. Berry’s defense theory at trial was that he sent Hamilton into the convenience

store to buy cigarettes and that Hamilton alone decided to rob Hernandez. The Michigan Court

of Appeals determined that the evidence of Berry’s attempt to rob another individual at another


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gas station shortly after Hernandez’s death made the defense theory “less probable than the

prosecutor’s theory that [Berry] aided and abetted Hamilton.” Id.

       Like the district court, we hold that the state appellate court’s decision was not contrary

to, nor did it involve an unreasonable application of, Supreme Court precedent. The admission

of this “other acts” evidence was not so fundamentally unfair as to violate the Due Process

Clause. See Dowling v. United States, 493 U.S. 342, 352–53 (1990). “There is no clearly

established Supreme Court precedent which holds that a state violates due process by permitting

propensity evidence in the form of other bad acts evidence.” Bugh v. Mitchell, 329 F.3d 496,

512–13 (6th Cir. 2003). Because admission of evidence about the subsequent attempted robbery

did not constitute constitutional error, habeas relief is not warranted on this claim.

       4. Ineffective assistance of trial counsel (Callanan only)

       The next issue concerns whether retained attorney Callanan rendered ineffective

assistance during Berry’s trial. Berry contends that Callanan left the courtroom during the

prosecutor’s rebuttal closing argument, slept during jury instructions, and failed to obtain jail

records to show Hamilton lied when he told the jury that Berry assaulted him in jail when, in

fact, Hamilton assaulted Berry.

       The standard of review applicable to Berry’s ineffective assistance claim is “doubly

deferential.” Burt v. Titlow, 134 S. Ct. 10, 13 (2013). Berry must demonstrate both that

Callanan’s representation “fell below an objective standard of reasonableness” as measured by

“prevailing professional norms” and that Berry suffered prejudice as a result. See Strickland v.

Washington, 466 U.S. 668, 667–88, 692 (1984). We “must indulge a strong presumption that

counsel’s conduct [fell] within the wide range of reasonable professional assistance.” Id. at 689.

AEDPA then requires a second layer of deference: We ask only whether the Michigan Court of


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Appeals acted reasonably when it determined that Callanan’s performance was adequate and not

prejudicial to Berry. See Burt, 134 S. Ct. at 18; Abby v. Howe, 742 F.3d 221, 226 (6th Cir.

2014).

         The record shows that Callanan left the courtroom very briefly at the beginning of the

prosecutor’s rebuttal closing argument.       Shortly thereafter, the trial court admonished the

prosecutor not to comment on Berry’s right not to testify, but as we have explained, the trial

court’s intervention in the closing argument was mistaken and unnecessary. Upon returning to

the courtroom, Callanan made two other objections during the prosecutor’s rebuttal argument.

Throughout closing argument, co-counsel Dorf was present in the courtroom to represent Berry.

See Berry, 2006 WL 2085042, at *3.

         The claim that Callanan fell asleep during trial was first raised in a new trial motion. At

the motion hearing, the trial court stated that many trial lawyers close their eyes during trial, and

while the court noticed Callanan’s head was down and his eyes were closed, “it didn’t seem that

he was no more [than] just sitting there with his eyes closed. He wasn’t leaning either way or

doing anything else.” R. 6-11 Page ID 431.

         The familiar standards of Strickland, as adopted in Michigan cases, guided the Michigan

Court of Appeals’s decision on these ineffective assistance issues.          See Berry, 2006 WL

2085042, at *3 (citing People v. Toma, 613 N.W.2d 694, 703–04 (Mich. 2000) (using Strickland

standard for ineffective assistance of counsel); People v. Rodgers, 645 N.W.2d 294, 301 (Mich.

Ct. App. 2001) (same)).       The appellate court ruled that Berry could not show Strickland

prejudice arising from Callanan’s conduct because Dorf was present in the courtroom at all

times; Dorf raised a concern about the court’s reading of the jury instructions, and the court




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addressed that concern; and Dorf moved for a mistrial based on the prosecutor’s comments in

rebuttal closing argument that Callanan had missed.

       With regard to obtaining jail records for cross-examination, the Michigan Court of

Appeals reasoned that an attorney’s decision about what evidence to present is a matter of trial

strategy and that the failure to present evidence constitutes ineffective assistance only when it

deprives a defendant of a substantial defense—that is, one that might have made a difference in

the trial outcome. Berry, 2006 WL 2085042, at *4 (citing People v. Dixon, 688 N.W.2d 308

(Mich. Ct. App. 2004); People v. Rockey, 601 N.W.2d 887 (Mich. Ct. App. 1999); People v.

Kelly, 465 N.W.2d 569 (Mich. Ct. App. 1990)).         The appellate court noted that Hamilton

admitted to the jury that he spent time in segregation as a result of the jail altercation. Berry,

2006 WL 2085042, at *4. In addition, another inmate testified that Hamilton admitted initiating

the fight by striking Berry in the mouth. Id. Accordingly, the jury heard evidence that Hamilton

started the fight, contrary to Hamilton’s testimony that he did not initiate the altercation. Id.

Based on this, the appellate court determined that Berry could not establish he was deprived of a

substantial defense by Callanan’s failure to cross-examine Hamilton with jail records proving

Hamilton started the fight. Id.

       Under AEDPA, Strickland claims are difficult to establish, not only because of

Strickland’s own “high bar,” but also because of the highly deferential standard of § 2254(d).

Cauthern v. Colson, 736 F.3d 465, 482 (6th Cir. 2013). The question to be answered on federal

habeas is “not whether counsel’s actions were reasonable” but “whether there is any reasonable

argument that counsel satisfied Strickland’s deferential standard.” Id. (quoting Harrington v.

Richter, 131 S. Ct. 770, 787–88 (2011)). The Michigan Court of Appeals determined that Berry

failed to meet Strickland’s high bar to show Callanan’s ineffective assistance, and “establishing


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that a state court’s application of Strickland was unreasonable under § 2254(d) is all the more

difficult.” Richter, 131 S. Ct. at 787–88. Berry has not met that standard here, and habeas relief

is not warranted.

B. Claims raised in the motion for relief from judgment

       Turning now to the claims Berry first raised in a motion for relief from judgment, we take

up the State’s argument that some of the claims are procedurally defaulted and that Berry has not

shown cause and prejudice or a fundamental miscarriage of justice to excuse his default. See

Mich. Ct. R. 6.508(D)(3). According to the State, we may not reach the merits of the claims

concerning double jeopardy, the aiding-and-abetting jury instruction, sufficiency of the evidence,

and additional claims of ineffective assistance of trial counsel.

       1. Procedural default

       On appeal from the denial of the motion for relief from judgment, the Michigan Court of

Appeals and the Michigan Supreme Court each denied relief in brief form orders finding that

Berry failed to meet the burden of establishing entitlement to relief under MCR 6.508(D).

Because the form orders “are ambiguous as to whether they refer to procedural default or denial

of relief on the merits, the orders are unexplained.” See Guilmette v. Howes, 624 F.3d 286, 291

(6th Cir. 2010) (en banc). We therefore “look to the last reasoned state court opinion to

determine the basis for the state court’s rejection of” Berry’s claims. See id. The last reasoned

state court opinion was issued by the trial court when it denied Berry’s motion for relief from

judgment.

       We cannot agree with the State that the trial court’s opinion relied solely on procedural

default. See Mich. Ct. R. 6.508(D)(3). The trial court first addressed on the merits the claims

asserting a double jeopardy violation, an improper aiding-and-abetting jury instruction, and


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insufficient evidence. The court then turned to the claims of ineffective assistance of counsel,

denying some on the merits and some on procedural grounds.

       Because the state trial court did not decide Berry’s motion for relief from judgment solely

on procedural default, “there is no state enforcement of a procedural rule in this case to which the

federal courts can defer.” Guilmette, 624 F.3d at 292. Thus, we do “not disregard Michigan’s

interest in the enforcement of its procedural rules” by considering the merits of Berry’s claims.

Id.; accord Peoples v. Lafler, 734 F.3d 503, 511–12 (6th Cir. 2013). The district court took a

similar path when it dispensed with the more complicated procedural default question and

considered the merits of Berry’s claims. See Lambrix v. Singletary, 520 U.S. 518, 525 (1997)

(“[w]e do not mean to suggest that the procedural-bar issue must invariably be resolved first;

only that it ordinarily should be”); Hudson v. Jones, 351 F.3d 212, 215 (6th Cir. 2003).

Consequently, we will also address the merits of the claims.

       2. Double jeopardy and ineffective assistance for failing to object

       Relying on People v. Wilder, 308 N.W.2d 112, 116 (Mich. 1981), Berry contends that his

conviction and sentencing for both felony murder and the underlying predicate offense violated

his right to be free from multiple punishment under the Double Jeopardy Clause. He further

argues that his trial and appellate attorneys were ineffective because they failed to raise the

double jeopardy issue before sentencing and on direct appeal.

       Michigan law on this subject changed while Berry’s post-conviction litigation was

pending. In People v. Ream, 750 N.W.2d 536, 547 (Mich. 2008), the Michigan Supreme Court

overruled Wilder and held that a defendant can be convicted and sentenced for both felony

murder and the underlying predicate offense. Berry did not argue below, nor does he argue in

this appeal, that application of Ream to his case violates the Due Process Clause. See Metrish v.


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Lancaster, 133 S. Ct. 1781, 1787–88 (2013); O’Neal v. Bagley, 743 F.3d 1010, 1018 (6th Cir.

2013).

         In assessing ineffective assistance claims, we may not consider any objection that “would

be ‘wholly meritless under current governing law, even if the objection might have been

considered meritorious at the time of its omission.’” Abby, 742 F.3d at 228 (quoting Lockhart v.

Fretwell, 506 U.S. 364, 374 (1993) (O’Connor, J., concurring)); see also Evans v. Hudson,

575 F.3d 560, 566 (6th Cir. 2009); Desai v. Booker, 538 F.3d 424, 428 (6th Cir. 2008). Because

Berry could not assert a double jeopardy claim under current Michigan law, we “may not

consider the effect of such now-void objections” in determining whether Berry was prejudiced

by the performance of his trial and appellate counsel. Abby, 742 F.3d at 228. These claims do

not provide grounds for habeas relief.

         3. Jury instruction on aiding and abetting

         Berry next argues that the trial court erroneously instructed the jury it could infer Berry

aided and abetted the homicide by participating in the underlying assault. “A challenge to a jury

instruction is not to be viewed in ‘artificial isolation,’ but rather must be considered within the

context of the overall instructions and trial record as a whole.” Hanna v. Ishee, 694 F.3d 596,

620–21 (6th Cir. 2012) (quoting Estelle v. McGuire, 502 U.S. 62, 72 (1991)). To obtain habeas

relief, Berry must show that the instruction “by itself so infected the entire trial that the resulting

conviction violates due process.” McGuire, 502 U.S. at 72 (quoting Cupp v. Naughten, 414 U.S.

141, 147 (1973)).

         Berry has not met that high standard here. The single challenged sentence, when read in

the context of the jury instructions as a whole, did not so infect the entire trial that Berry’s

conviction violated due process. See McGuire, 502 U.S. at 72; Hanna, 694 F.3d at 620–21.


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       The trial court instructed the jury on the elements of the offenses, on aiding and abetting,

and on the intent that the prosecution had to prove in order to convict Berry of felony murder and

assault with intent to rob while armed. The court informed the jury that, to aid and abet another

in committing a crime, the defendant must willfully associate himself with the criminal venture

and willfully participate in it as something he wishes to bring about; in other words, he must

willfully seek by some act to make the criminal venture succeed. The court further explained

that an act is done willfully if it is done voluntarily and intentionally and with the specific intent

to do something the law forbids. The court listed the elements of aiding and abetting and

instructed the jury to decide whether Berry intended to help another person commit the crimes or

whether his help, advice, or encouragement actually did help, advise, or encourage the crimes.

The trial court also instructed the jury that, to convict Berry as an aider and abettor, the jury was

required to find beyond a reasonable doubt that Berry had the specific intent to commit the

crimes himself or that he participated in the crimes knowing that Hamilton had the specific

intent. The instructions were clear that Berry’s mere presence at the scene of the crimes was not

enough to prove that he assisted in committing them.

       The sentence Berry challenges was read by the court in the course of explaining the kinds

of acts that can constitute aiding and abetting, not in discussing specific intent. The court stated:

               Now, the defendant is guilty of aiding and abetting felony murder if the
       defendant performed acts or gave encouragement that assisted the commission of
       a killing of a human being, and it was done with the intent to kill, to do great
       bodily harm, or to create a high risk of death or great bodily harm with knowledge
       that death or great bodily harm was the probable result while committing or
       attempting to commit or assisting in the commission of the predicate felony, here
       assault with intent to commit robbery.
               Aiding and abetting describes all forms of assistance rendered to the
       perpetrator of a crime. All words or deeds that might support, encourage, or
       incite the commission of a crime. A jury may infer that the defendant aided and
       abetted the killing by participating in the underlying offense.


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Berry v. Capello

R. 6-14 at 965 (emphasis added). The court followed this instruction with a discussion of malice

and a recitation of the elements of first-degree felony murder and the predicate offense of assault

with intent to rob while armed.

       Reading the court’s jury instructions on aiding and abetting in context and as a whole, the

jury was properly informed of the legal principles governing their deliberations, and as we

explain further below, the prosecution’s evidence was sufficient to sustain Berry’s convictions

under those instructions.    The state court’s decision that the disputed sentence in the jury

instructions did not violate Berry’s right to a fair trial was not contrary to, nor did it involve an

unreasonable application of, controlling Supreme Court law. See Richter, 131 S. Ct. at 786–87;

McGuire, 502 U.S. at 72

       4. Sufficiency of the evidence

       The next issue concerns whether the evidence presented to the jury was sufficient to

convict Berry of aiding and abetting felony murder. He denies the evidence demonstrated he

possessed the requisite mental state for murder or that he knew Hamilton intended to commit

murder. Berry relies on Hamilton’s testimony that he did not intend to kill Hernandez when the

attempted robbery began and that he shot Hernandez only because he was nervous, he had not

handled a gun before, and Hernandez refused to cooperate with his demands.

       “[T]he Due Process Clause protects the accused against conviction except upon proof

beyond a reasonable doubt of every fact necessary to constitute the crime with which he is

charged.” In re Winship, 397 U.S. 358, 364 (1970). Viewing the evidence in the light most

favorable to the prosecution, we ask whether “any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,

319 (1979); accord Brown v. Palmer, 441 F.3d 347, 351 (6th Cir. 2006). This standard “must be


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Berry v. Capello

applied with explicit reference to the substantive elements of the criminal offense as defined by

state law.” Jackson, 443 U.S. at 324 n.16.

       Michigan law provides that the elements of first-degree felony murder are: (1) the killing

of a human being; (2) with the intent to kill, to do great bodily harm, or to create a very high risk

of death or great bodily harm with knowledge that death or great bodily harm will be the

probable result (i.e., malice); (3) while committing, attempting to commit, or assisting in the

commission of an enumerated felony. People v. Carines, 597 N.W.2d 130, 136 (Mich. 1999).

“The facts and circumstances of the killing may give rise to an inference of malice,” and “[a]

jury may infer malice from the evidence that the defendant intentionally set in motion a force

likely to cause death or great bodily harm.” Id. “Malice may also be inferred from the use of a

deadly weapon.” Id.

       Michigan law further provides that aiding and abetting encompasses all forms of

assistance given to the perpetrator of the crime, including all words or deeds that might support,

encourage, or incite the commission of the crime. Id. at 135. To convict on an aiding and

abetting theory, the prosecution must prove beyond a reasonable doubt that (1) the crime charged

was committed by the defendant or some other person; (2) the defendant performed acts or gave

encouragement to assist the commission of the crime; and (3) the defendant intended the

commission of the crime or had knowledge that the principal intended its commission at the time

he gave aid and encouragement. Id. The jury is permitted to infer an aider and abettor’s state of

mind from all of the facts and circumstances. Id. Factors that the jury may consider include a

close association between the defendant and the principal, the defendant’s participation in

planning or executing the crime, and evidence of flight after the crime. Id.




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Berry v. Capello

       The state court determined that the prosecution met its burden to produce evidence

sufficient for “any rational trier of fact” to find “the essential elements of the crime beyond a

reasonable doubt.” Jackson, 443 U.S. at 319. Viewed in the light most favorable to the

prosecution, the evidence showed Berry instigated the attempted robbery of Hernandez by

parking the stolen Chrysler behind Hernandez’s car, handing Hamilton a loaded semi-automatic

handgun, and directing him to rob Hernandez. After Hamilton shot Hernandez, Berry drove the

vehicle to flee the scene, again took control of the gun, and drove to another gas station in a

different stolen car, where he attempted a second armed robbery. The jury could properly infer

Berry’s malice from the evidence showing he introduced the use of a deadly weapon and

intentionally set in motion a force likely to cause death or great bodily harm. See Carines,

597 N.W.2d at 136.      Considering Berry’s leadership role, his active participation, and his

evidence of flight from the scene after Hernandez was shot, the jury could infer that Berry

possessed the necessary intent to willfully and wantonly create a very high risk of death or great

bodily harm with knowledge that death or great bodily harm was the probable result. See id. at

135–36. Under Michigan law, the jury could find Berry guilty of aiding and abetting felony

murder under this standard because there was proof that Berry intended the commission of the

crimes or Berry knew that Hamilton intended the commission of the crimes, even if there was no

proof that Berry or Hamilton possessed the specific intent to kill. Id.

       Finally, to the extent the evidence conflicted, a reviewing court on habeas “faced with a

record of historical facts that supports conflicting inferences must presume—even if it does not

affirmatively appear in the record—that the trier of fact resolved any such conflicts in favor of

the prosecution, and must defer to that resolution.” McDaniel v. Brown, 558 U.S. 120, 133

(2010) (quoting Jackson, 443 U.S. at 326). The state court’s ruling that sufficient evidence


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Berry v. Capello

supported Berry’s conviction for aiding and abetting felony murder was not contrary to, or an

unreasonable application of, clearly established Supreme Court law. See Richter, 131 S. Ct. at

786–87; Jackson, 443 U.S. at 319; Carines, 597 N.W.2d at 136.

       The Supreme Court’s recent decision in Rosemond v. United States, 134 S. Ct. 1240

(2014), does not alter our analysis. There the Court held that “[a]n active participant in a drug

transaction has the intent needed to aid and abet a § 924(c) violation when he knows that one of

his confederates will carry a gun” and also held that the aiding-and-abetting conviction “requires

not just an act facilitating one or another element, but also a state of mind extending to the entire

crime.” Id. at 1248–49. “[T]he intent must go to the specific and entire crime charged”; so, for

example, in Rosemond, to the full scope of a § 924(c) violation––predicate drug crime plus gun

use. Id. at 1248. The Court explained that, “[t]o aid and abet a crime, a defendant must not just

‘in some sort associate himself with the venture,’ but also ‘participate in it as in something that

he wishes to bring about’ and ‘seek by his action to make it succeed.’” Id. (quoting Nye &

Nissen v. United States, 336 U.S. 613, 619 (1949)).

       The Supreme Court did not state whether the principles explained in Rosemond apply

retroactively to convictions that are final under state law. Even assuming without deciding that

Rosemond applies here, the trial evidence supported the jury’s determination that Berry

possessed a state of mind extending to the entire crime, including the necessary intent to aid and

abet felony murder and to aid and abet assault with intent to rob while armed. Habeas relief is

not warranted on this claim.

       5. Ineffective assistance of Callanan, Dorf, and Roach

       The final issues concern whether Berry’s attorneys rendered ineffective assistance. We

again apply the “doubly deferential” standards of § 2254(d) and Strickland. See Cauthern,


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Berry v. Capello

736 F.3d at 482. The point is not whether counsel’s actions were reasonable, but whether there

is any reasonable argument that counsel satisfied Strickland’s standard. See id. And as the

district court pointed out, Berry is not entitled to an evidentiary hearing on any of his ineffective

assistance claims because the federal courts may consider only the record that was before the

state court when it adjudicated the claims on the merits. See Cullen v. Pinholster, 131 S. Ct.

1388, 1398 (2011).

       Berry cannot prevail on the remaining ineffective assistance claims because the

underlying issues lack merit.     See Moore v. Mitchell, 708 F.3d 760, 777 (6th Cir. 2013).

Callanan, Dorf, and Roach were not ineffective for failing to challenge the aiding-and-abetting

jury instruction because that instruction did not permit the jury to infer aiding and abetting

murder from mere participation in the underlying felony offense. Dorf was not ineffective for

failing to obtain jail records to cross-examine Hamilton because Callanan handled Hamilton’s

cross-examination and also produced defense witness testimony to demonstrate Hamilton lied

about who started the jail assault. Jail records were not necessary. Dorf was not ineffective for

failing to object to Carthron’s testimony because Callanan made the objection. And because the

prosecutor did not improperly comment during closing argument on Berry’s right to silence,

Dorf was not deficient for failing to challenge the prosecutor’s remarks.

       The other ineffective assistance claims are also without merit. We defer to the state

court’s finding that Callanan was not asleep during trial; therefore, Dorf was not deficient for

failing to bring this matter to the court’s attention. Finally, Berry argues that appellate attorney

Roach should have challenged the sufficiency of the evidence on direct appeal, but that claim

would not have been successful in light of the trial record, and appellate attorneys are not

required to raise all claims desired by a defendant “if counsel, as a matter of professional


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Berry v. Capello

judgment, decides not to present those points.” Jones v. Barnes, 463 U.S. 745, 751 (1983);

accord Caver v. Straub, 349 F.3d 340, 344 (6th Cir. 2003). Berry argues that Roach should have

challenged the effectiveness of Dorf’s performance, but Dorf made appropriate pretrial motions,

he was available throughout trial, he raised an issue about the jury instructions, he filed and

argued the new trial motion, and he handled the sentencing hearing.        The record fails to

demonstrate that Roach could have successfully attacked Dorf’s performance at any point in the

trial proceedings. See id. We are unpersuaded that the state court’s decisions on these issues

were “so lacking in justification that there was an error well understood and comprehended in

existing law beyond any possibility of fairminded disagreement.” See Richter, 131 S. Ct. at 786–

87.

                                      IV. CONCLUSION

       For the reasons stated, Berry’s claims fail on the merits, and we deny federal habeas

relief. We affirm the judgment of the district court.




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