        RECOMMENDED FOR FULL-TEXT PUBLICATION
             Pursuant to Sixth Circuit Rule 206             2    Millender v. Adams                           No. 02-1403
    ELECTRONIC CITATION: 2004 FED App. 0227P (6th Cir.)
                File Name: 04a0227p.06                      THE ATTORNEY GENERAL, HABEAS CORPUS
                                                            DIVISION, Lansing, Michigan, for Appellee.
UNITED STATES COURT OF APPEALS                                                  _________________
               FOR THE SIXTH CIRCUIT                                                OPINION
                 _________________                                              _________________

 TRENTON MILLENDER ,              X                            BOYCE F. MARTIN, JR., Circuit Judge. Mr. Trenton
                                                            Millender appeals the judgment of the district court denying
         Petitioner-Appellant, -                            his 28 U.S.C. § 2254 petition for a writ of habeas corpus.
                                   -
                                   -  No. 02-1403           This Court granted a certificate of appealability on four
           v.                      -                        issues: (1) whether Mr. Millender's trial counsel was
                                    >                       constitutionally ineffective; (2) whether the Michigan trial
                                   ,                        court's failure to instruct jurors on mistaken identity and
 STANLEY ADAMS,                    -
        Respondent-Appellee. -                              impeachment by a prior inconsistent statement denied
                                                            petitioner a fair trial; (3) whether comments the prosecutor
                                  N                         made in closing argument denied petitioner a fair trial; and (4)
      Appeal from the United States District Court          whether the cumulative effect of these alleged errors denied
     for the Eastern District of Michigan at Detroit.       petitioner a fair trial. For the reasons that follow, we affirm
    No. 99-70945—Gerald E. Rosen, District Judge.           the judgment of the district court.

                 Argued: April 29, 2004                                                   I.

            Decided and Filed: July 15, 2004                  Late in the evening in July 1994, petitioner and two other
                                                            individuals broke into a home to commit a robbery. Once
  Before: KENNEDY, MARTIN, and ROGERS, Circuit              inside the home, the three assailants brutally assaulted its
                    Judges.                                 occupants. Based on these actions, a Michigan state-court
                                                            jury convicted Mr. Millender of three counts of first-degree
                  _________________                         criminal sexual conduct, three counts of armed robbery, one
                                                            count of assault with intent to do great bodily harm, three
                       COUNSEL                              counts of felonious assault, and one count of felonious
                                                            possession of a firearm during the commission of a felony.
ARGUED: John F. Royal, Detroit, Michigan, for Appellant.    The trial court sentenced petitioner to a lengthy prison term
Laura Graves Moody, OFFICE OF THE ATTORNEY                  following this conviction.
GENERAL, HABEAS CORPUS DIVISION, Lansing,
Michigan, for Appellee. ON BRIEF: John F. Royal, Detroit,     The Michigan Court of Appeals subsequently denied two
Michigan, for Appellant. Laura Graves Moody, OFFICE OF      motions to remand and a motion for rehearing filed by
                                                            petitioner. Thereafter, in October 1996, the Michigan Court

                            1
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of Appeals affirmed his conviction. In December 1997, the              law' or that the state court decided a case differently than
Michigan Supreme Court denied petitioner’s motion for leave            the Supreme Court has on a set of materially
to appeal and, in February 1998, the Michigan Supreme Court            indistinguishable facts. Under the second category,
denied his motion for reconsideration. Petitioner then moved           involving the unreasonable application of federal law by
for an evidentiary hearing in the United States District Court.        a state court, a federal habeas court must ask whether the
The district court denied this motion without prejudice in             state court’s application of clearly established federal law
March 2000. In February 2002, the district court also denied           was objectively reasonable. If the federal court finds
petitioner's petition for a writ of habeas corpus and sua              that, viewed objectively, the state court has correctly
sponte denied him a certificate of appealability. In October           identified the governing legal principle from the Supreme
2002, this Court granted Mr. Millender's request for a                 Court's decisions but unreasonably applied that principle
certificate of appealability, and we certified four issues for         to the facts of the prisoner’s case, it may grant the writ.
review.
                                                                   Washington v. Hofbauer, 228 F.3d 689, 698 (6th Cir. 2000)
                              II.                                  (citation and internal quotations omitted). With respect to all
                                                                   four issues raised by petitioner, we find no error in the
  We review a grant or denial of a petition for writ of habeas     judgment of the district court and affirm.
corpus de novo and the factual findings of the district court
for clear error. Lott v. Coyle, 261 F.3d 594, 606 (6th Cir.                                        III.
2001). Under 28 U.S.C. § 2254, a writ of habeas corpus may
not be granted unless the state-court proceedings:                    The first issue Mr. Millender raises to support his claim for
                                                                   habeas relief is ineffective assistance of counsel. Petitioner
  (1) resulted in a decision that was contrary to, or              alleges that his attorney violated his right to effective
  involved an unreasonable application of, clearly                 representation, which is guaranteed under the Sixth
  established Federal law, as determined by the Supreme            Amendment in criminal cases. “The benchmark for judging
  Court of the United States; or                                   any claim of ineffectiveness must be whether counsel’s
                                                                   conduct so undermined the proper functioning of the
  (2) resulted in a decision that was based on an                  adversarial process that the trial cannot be relied on as having
  unreasonable determination of the facts in light of the          produced a just result.” Strickland v. Washington, 466 U.S.
  evidence presented in the State court proceedings.               668, 686 (1984). Millender advances several grounds for
                                                                   relief to support this claim, including his attorney’s failure to
28 U.S.C. § 2254(d). Section 2254(d)(1) defines two                object to the introduction of evidence, failure to object to
categories of cases in which a state prisoner may gain habeas      various in-court identifications and prosecutorial remarks,
relief. See Williams v. Taylor, 529 U.S. 362 (2000)                failure to call a rebuttal witness, and failure to make an
(O'Connor, J., concurring).                                        opening statement or request certain instructions. We review
                                                                   de novo the district court’s judgment on an ineffective-
  To gain habeas relief under the first category, involving        assistance-of-counsel claim. Hudson v. Jones, 351 F.3d 212,
  state decisions contrary to federal law, a defendant must        215 (6th Cir. 2003).
  show that the state court arrived at a conclusion opposite
  to that reached by the Supreme Court on a question of
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  In its review of the ineffective-assistance-of-counsel claim,     impermissibly suggestive. He alleges the lineup was
the district court applied the standard set out in Strickland and   suggestive because he was the tallest suspect; he alleges the
ruled that Mr. Millender’s counsel was not constitutionally         voice identification was suggestive because, according to him,
ineffective. The Strickland standard involves a two-step            his voice did not sound “in any way” like the other suspect’s
inquiry that requires a petitioner to show (1) that his trial       voices and it was conducted at the same time as the
representation was deficient, or objectively unreasonable, and      identification lineup. Petitioner also argues that his attorney
(2) that prejudice resulted from this representation.               should have objected to in-court identifications of him
Strickland, 466 U.S. at 687. “The defendant must show that          because eyewitness testimony is “extremely unreliable” yet
there is a reasonable probability that, but for counsel’s           has a profound impact on juries. Thus, according to
unprofessional errors, the result of the proceeding would have      petitioner, his attorney’s failure to file a motion to suppress
been different.” Id. at 694. Mr. Millender argues that the          this identification evidence constitutes ineffective assistance
district court erred not only in ruling that his counsel was not    of counsel because his primary defense was mistaken identity.
ineffective, but also in analyzing his claim under the
Strickland standard rather than the less stringent standard set        We hold that petitioner's attorney’s failure to file a motion
out in United States v. Cronic, 466 U.S. 648 (1984). Under          to suppress does not constitute ineffective assistance of
Cronic, prejudice is presumed, and therefore need not be            counsel. In some circumstances, discrepancies in height may
proved, if petitioner’s counsel “entirely fails to subject the      be impermissibly suggestive. See Foster v. California, 394
prosecution's case to meaningful adversarial testing[.]”            U.S. 440, 442-43 (1969). Although petitioner was taller than
Cronic, 466 U.S. at 659.                                            the other suspects used in the lineup, he was only one inch
                                                                    taller than two other suspects, all of whom were roughly the
  Throughout the trial, petitioner’s attorney was an active         same height, and all of the suspects were dressed similarly
participant: he cross-examined witnesses, made proper               and were approximately the same age. In addition, as the
objections, and presented a closing argument. This level of         Michigan Court of Appeals pointed out, the fact that only
representation does not fall below the low threshold required       three of the six victims identified petitioner in the lineup
by Cronic. Therefore, the district court did not err in its         belies his argument that it was impermissibly suggestive. As
application of the Strickland standard, and we rely on the          to the voice-identification evidence, a defense attorney
same standard in our review of this claim.                          present at the lineup made no objection to or comments about
                                                                    any discrepancy in the voices. Consequently, because there
                               A.                                   was nothing to suggest that the lineup procedure was in any
                                                                    way improper, petitioner’s counsel was not ineffective for
  Petitioner alleges that his attorney’s failure to file a motion   failing to seek a Wade hearing or failing to suppress evidence
to suppress evidence from witness and voice-identification          concerning the three victims’ identification of petitioner
police lineups and in-court identifications constitutes             during that lineup. See United States v. Carter, 355 F.3d 920,
ineffective assistance of counsel. Under United States v.           924 (6th Cir. 2004) (holding that counsel was not ineffective
Wade, 388 U.S. 218 (1967), a defendant may have the right           for failing to file motion where there was no reasonable
to a pretrial hearing to contest the validity of an out-of-court    probability that motion would be granted).
identification. Petitioner argues that his attorney should have
requested a Wade hearing to suppress the lineup                       Further, because the lineup was not impermissibly
identifications because he claims these identifications were        suggestive, petitioner’s counsel did not err in failing to object
No. 02-1403                           Millender v. Adams         7    8     Millender v. Adams                              No. 02-1403

to the in-court identification of petitioner by victims who had       and . . . will not constitute . . . a claim of ineffective assistance
failed to identify petitioner during the lineup. As recognized        of counsel.” Millender v. Adams, 187 F. Supp. 2d 852, 870
by the district court, the victims’ failure to identify the           (E.D. Mich. 2002), quoting United States v. Rodriquez-
petitioner during the lineup went to the credibility of the in-       Ramirez, 777 F.2d 454, 457 (9th Cir. 1985). We find no error
court identifications, not their admissibility. United States v.      in the district court’s determination that the attorney’s
Causey, 834 F.2d 1277, 1286 (6th Cir. 1987); People v.                decision was not objectively unreasonable, and therefore did
Barclay, 528 N.W.2d 842 (Mich. App. 1995). Consequently,              not amount to ineffective assistance of counsel. See
petitioner’s counsel was not ineffective for failing to object to     Strickland, 466 U.S. at 687-91. We affirm the judgment of
the admission of the in-court identifications.                        the district court on this issue.
                                B.                                                                    D.
   Petitioner also alleges that his attorney's failure to object to     Petitioner complains that his attorney was ineffective for
the introduction into evidence of a picture of a pair of pliers       failing to request jury instructions on mistaken identity, which
found at the crime scene, a similar pair of pliers, a handgun,        was petitioner’s only defense, and on the impeachment of
a shotgun, and photographs of the guns constitutes ineffective        witnesses by prior inconsistent statements. Even assuming
assistance of counsel. He argues that the introduction of these       that petitioner’s counsel erred in failing to request these
items, none of which were proven to be weapons used in the            instructions, however, petitioner has not demonstrated
crime, was inflammatory and prejudiced the jury against him.          prejudice because—for the reasons set forth in the district
                                                                      court’s opinion—the instruction given by the court and
   Though the sight of these items, given the violent nature of       counsel’s closing arguments put the issues squarely before the
the crime, may have been unpleasant for the jury, the                 jury. Millender, 187 F. Supp. 2d at 873-74; Weighall v.
attorney's failure to object to their admittance does not             Middle, 215 F.3d 1058, 1063 (9th Cir. 2000).
constitute ineffective assistance of counsel. Applying
Strickland, we hold that it was not objectively unreasonable                                           E.
for Mr. Millender’s attorney not to object to the admittance of
this evidence. See Strickland, 466 U.S. at 687-91. None of               Petitioner next argues that his attorney’s failure to object to
the items had petitioner’s fingerprints on them and none were         alleged prosecutorial misconduct during the prosecutor’s
found in his possession. Thus, this evidence reasonably could         closing argument constitutes ineffective assistance of counsel.
have weighed in petitoner’s favor in the jury’s determination         “On habeas review, a court's role is to determine whether
of guilt. Therefore, the judgment of the district court on the        [alleged prosecutorial misconduct] was so egregious as to
physical-evidence-admission issue is affirmed.                        render the entire trial fundamentally unfair.” Millender, 187
                                                                      F. Supp. 2d at 875, citing Serra v. Michigan Dep’t of Corr.,
                               C.                                     4 F.3d 1348, 1355-56 (6th Cir. 1993). In conducting such a
                                                                      determination, a reviewing court first decides whether the
  As another basis for his ineffective-assistance-of-counsel          alleged misconduct was improper and, if it was, then decides
claim, petitioner argues that his attorney should have made an        whether the misconduct was “so flagrant as to constitute a
opening statement. An attorney’s decision not to make an              denial of due process and warranting granting a writ.” Id. at
opening statement “is ordinarily a mere matter of trial tactics
No. 02-1403                          Millender v. Adams         9   10    Millender v. Adams                           No. 02-1403

875, citing Boyle v. Million, 201 F.3d 711, 717 (6th Cir.             We find no merit to this argument. The witness testified
2000).                                                              that he saw petitioner “the Sunday before” the crime, which
                                                                    occurred on a Monday. This is a vague statement and does
  We agree with the district court’s conclusion that the            not specify whether he meant the Sunday immediately
prosecutor’s remarks were not improper. As noted by the             preceding the crime or the Sunday from the week before.
district court:                                                     Furthermore, the movements of petitioner the day before the
                                                                    crime are not exculpatory points. “A defense counsel has no
  This was not improper argument because recounting                 obligation to call or even interview a witness whose
  these factual allegations did not only appeal to the jury’s       testimony would not have exculpated the defendant.”
  sympathies. Summarizing the nature of the crimes                  Millender, 187 F. Supp. 2d at 877, citing Marra v. Larkins,
  committed and the circumstances of their commission               111 F. Supp. 2d 575, 585 n.13 (E.D. Pa. 2000). Therefore, on
  also served to educate the jury as to why some of the             these facts, the failure to call a rebuttal witness does not
  victims were able to identify Petitioner as one of the            amount to constitutionally defective assistance of counsel
  perpetrators and some were not.              Further, by          sufficient to even reach the Strickland prejudice inquiry. For
  summarizing the totality of the crimes committed by               this reason, we affirm the district court on this issue.
  Petitioner and in his presence, the prosecutor sought to
  show that Petitioner was guilty of these crimes as either                                        G.
  a principal or an aider and abettor. To the extent that the
  prosecutor’s depiction of the crimes served to educate the           The final argument petitioner makes under his ineffective-
  jury about the difficulties faced by the victims as               assistance-of-counsel claim is that the cumulative effect of
  witnesses and about the culpability of Petitioner as either       these alleged attorney errors effectively denied him a defense.
  a principal or an aider and abettor his argument was not          Petitioner relies on the “no meaningful adversarial testing”
  improper.                                                         standard set forth in Cronic, 466 U.S. at 659, and repeats that
                                                                    his attorney failed to subject his case to any meaningful
Id. at 875.                                                         challenge. Petitioner also cites the dissent in Moss v.
                                                                    Hofbauer, 286 F.3d 851 (6th Cir. 2002), to support this claim.
                              F.
                                                                       As stated previously in this opinion, the Cronic standard is
  As another basis to support his ineffective-assistance-of-        inapplicable to petitioner’s representation because petitioner's
counsel claim, petitioner alleges that his attorney’s failure to    attorney engaged in an active defense at trial. Even under the
call a rebuttal witness amounts to constitutionally defective       Strickland standard, petitioner's argument is unpersuasive, as
representation. Petitioner argues that his attorney should have     we do not find more than one error to consider cumulatively
called a witness to establish that he was out of state the day      under this argument. For these reasons, we find no basis
before the crime occurred to rebut a witness’s testimony that       upon which to grant petitioner relief on this claim and hold
the latter witness had seen him on that day at a local hospital.    that the district court properly denied petitioner an evidentiary
The failure to call a witness to rebut this testimony, according    hearing.
to petitioner, cannot be attributed to trial strategy.
No. 02-1403                           Millender v. Adams       11    12   Millender v. Adams                          No. 02-1403

                               IV.                                                                V.
   As a second ground upon which to grant habeas relief,                As a third ground for habeas relief, Mr. Millender argues
Mr. Millender argues that the trial court erred in not sua           that his right to due process was violated by the prosecutor’s
sponte instructing the jury on mistaken identity and                 deliberate and repeated misconduct. Specifically, petitioner
impeachment by prior inconsistent statement. Petitioner              alleges that the prosecutor’s closing argument, which
alleges that the court's failure to instruct on these two points     consisted of a synopsis of the violent crime and an alleged
deprived him of his constitutional right to a fair trial.            appeal to the jurors’ sympathies, was improper. Petitioner
                                                                     also argues that the prosecutor violated the rules of evidence
   Unlike a state appellate court, federal courts reviewing          when he “falsely” stated that certain witnesses had seen the
habeas petitions do not grant relief on a jury-instruction claim     petitioner prior to the day of the crime and when he referred
simply because the instruction may have been deficient in            to guns that had been admitted into evidence but had not been
comparison to state-law models. Estelle v. McGuire, 502              specifically identified by the victims as the guns used during
U.S. 62, 72 (1991). Instead, our review is limited to                the crime. To determine whether relief on this ground is
determining whether an alleged erroneous jury instruction “so        warranted, we first consider whether the statements were
infected the entire trial that the resulting conviction violates     improper and, if they were, whether this impropriety amounts
due process.” Ibid., quoting Cupp v. Naughten, 414 U.S. 141,         to reversible error. U.S. v. Carroll, 26 F.3d 1380, 1385 (6th
147 (1973). Although our focus is generally limited to               Cir. 1994).
allegedly erroneous instructions, we find no reason to
distinguish this argument from the alleged failure to include           Petitioner cites Washington v. Hofbauer to support his
an instruction sua sponte in this case.                              claim that the prosecutor’s misconduct was improper. In
                                                                     Hofbauer, the prosecutor went far beyond the bounds of
  For the reasons stated previously in regard to petitioner’s        permitted conduct by introducing evidence of the defendant's
claim that his attorney's failure to request these instructions      unseemly character, including statements about his alleged
constituted constitutionally deficient representation, we are        abusive behavior, excessive alcohol consumption, and drug
similarly unpersuaded now. The trial court's failure to include      abuse. Hofbauer, 228 F.3d at 699-700. The petitioner’s
these instructions did not infect the trial such that petitioner’s   attorney in that case also failed to object to the misconduct.
conviction violates due process. In addition, petitioner             This Court held that the prosecutor’s statements were
procedurally defaulted on this issue and failed to establish         improper, and we reversed the district court for the failure of
cause and prejudice. Similarly, we are unpersuaded that              both the prosecutor and defense attorney to perform their
failure to consider this claim would amount to a “fundamental        respective duties. Id. at 709.
miscarriage of justice,” Coleman, 501 U.S. at 750, as the
omitted instructions would not have added any elements to              Claims of prosecutorial misconduct are reviewed
his defense, Barker v. Yukins, 199 F.3d 867, 875-76 (6th Cir.        deferentially on habeas review. Bowling .v Parker, 344 F.3d
1999), nor shifted a burden of proof, Sandstrom v. Montana,          487, 512 (6th Cir. 2003). As this court recently recognized:
442 U.S. 510, 524 (1979). Therefore, we find no basis upon
which to grant relief and affirm the district court on this issue.     To be cognizable, the misconduct must have so infected
                                                                       the trial with unfairness as to make the resulting
                                                                       conviction a denial of due process. Even if the
No. 02-1403                           Millender v. Adams       13    14   Millender v. Adams                         No. 02-1403

  prosecutor’s conduct was improper or even universally                                           VI.
  condemned, we can provide relief only if the statements
  were so flagrant as to render the entire trial                       As a final argument to support habeas relief, Mr. Millender
  fundamentally unfair.                                              argues that the cumulative effect of the alleged errors he
                                                                     presents supports granting relief. In addition to finding no
Id. (internal quotations omitted). For the reasons noted above       errors to consider cumulatively even if such a task were
in Part III.E., the prosecutor’s detailed recitation of the events   within this Court’s province, we reiterate that “[t]he Supreme
on the night of the robbery were not improper. We further            Court has not held that distinct constitutional claims can be
conclude that, even assuming that the other remarks cited by         cumulated to grant habeas relief.” Lorraine, 291 F.3d at 447.
the petitioner were improper, the statements were not so             For this reason, we affirm the judgment of the district court
flagrant as to warrant reversal.                                     on this issue.
  Flagrancy is determined by an examination of four                    In conclusion, based on the foregoing, we hereby affirm the
  factors: “1) whether the statements tended to mislead the          judgment of the district court denying habeas relief.
  jury or prejudice the defendant; 2) whether the statements
  were isolated or among a series of improper statements;
  3) whether the statements were deliberately or
  accidentally before the jury; and 4) the total strength of
  the evidence against the accused.”
Boyle, 201 F.3d at 717, quoting Carroll, 26 F.3d at 549, 550.
First, although the prosecutor’s remark that “the victims in the
house” remembered seeing the petitioner the Sunday before
the crime implies that more than one victim saw the
petitioner, the isolated slip of the tongue was unlikely to
mislead the jury. Second, although the guns in question had
not been identified by the victims as the weapons used during
the crime, the guns had been seized from petitioner’s co-
defendants and had been admitted into evidence. In any
event, it is undisputed that the guns used during the robbery
were at least similar to the guns at trial and there is no reason
to believe that the prosecutor’s remarks confused the jury. In
light of the total evidence against the petitioner, we conclude
that the isolated remarks concerning witnesses did not amount
to a denial of due process.
