                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 09a0576n.06

                                            No. 07-6315

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                     FILED
                                                                                  Aug 18, 2009
RODNEY MAYS,                                               )                 LEONARD GREEN, Clerk
                                                           )
         Petitioner-Appellant,                             )
                                                           )     On Appeal from the United
v.                                                         )     States District Court for the
                                                           )     Eastern District of Kentucky
LARRY CHANDLER, Warden,                                    )
                                                           )
         Respondent-Appellee.                              )
     _______________________________________               )

BEFORE:         COLE and COOK, Circuit Judges; COHN, District Judge.*

         COHN, District Judge. This is a habeas case under 28 U.S.C. § 2254. A Clay County,

Kentucky, grand jury indicted Petitioner-Appellant Rodney Mays (Appellant) and Donald Simmons

for the shooting murder of Curtis Smith. They were tried together to a jury. Appellant was

convicted as the principal actor in Smith’s death and sentenced to life imprisonment. Simmons was

convicted of accomplice liability and sentenced to twenty years in prison.

         Appellant challenges Respondent-Appellee Larry Chandler, Warden (Appellee), on the three

issues identified in Part I. The district court denied relief on all issues. As explained below, we

AFFIRM.

                                     I. ISSUES ON APPEAL

         Appellant raises three issues on appeal:



         *
       The Honorable Avern Cohn, United States District Judge for the Eastern District of
Michigan, sitting by designation.
Mays v. Chandler
No. 07-6315

       (1)     Whether the Kentucky Supreme Court’s holding on direct appeal that the trial
               court did not err in failing to conduct a Remmer1 hearing after counsel for
               Appellant informed the judge that a juror had unauthorized communication
               with Smith’s mother during trial is contrary to and/or an unreasonable
               application of clearly established federal law;

       (2)     Whether the Kentucky Court of Appeal’s holding on collateral appeal that
               Appellant was not prejudiced by his trial counsel’s failure to object to a
               detective’s testimony that he believed Simmons’s version of events over
               Appellant’s is contrary to and/or an unreasonable application of clearly
               established federal law; and

       (3)     Whether the Kentucky Supreme Court’s holding on direct appeal that the
               Appellant was not prejudiced by the prosecutor’s referring to him as a “lowlife
               coward” during closing arguments is contrary to and/or an unreasonable
               application of clearly established federal law.

               II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A.     The shooting

       The account of the shooting is adapted from the Kentucky Supreme Court’s summary,

supplemented by other parts of the record. On the evening of February 6, 1997, Appellant,

Simmons, and Smith went to Britton Branch, a remote section of Clay County, where they built a

fire and drank alcohol. Shortly thereafter, Smith was shot and killed. The police found his body the

following day and questioned Appellant and Simmons about the death. Both told the police that they

left Smith on the side of the road on the way to Britton Branch and had not seen him again.

       One year later, on February 26, 1998, while in jail for driving under the influence, Simmons

contacted the police and gave them a recorded statement of his version of what happened to Smith.

Simmons said he, Appellant, and Smith had been driving around while drinking and taking Xanax.


       1
           Remmer v. United States, 347 U.S. 227 (1954).

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No. 07-6315

They stopped at Stevie Collins’s game room. Appellant went inside while Simmons and Smith

waited in the car. Upon Appellant’s return, the three drove to a house where they knew they could

purchase more liquor and drugs. As they were walking toward the house, Appellant told Simmons

that Collins had offered to pay him $5,000 to kill Smith.2 Thereafter, the three men went to Britton

Branch. After building a fire by the road, Appellant went to the car and turned on some music.

When he returned, he stood directly behind Smith, shot him in the back of the head, and then fired

the remaining rounds from the gun into Smith’s body.

       According to Simmons, Appellant then reloaded the pistol and forced him at gunpoint to help

remove and destroy some of Smith’s clothing and throw Smith’s body over a hill. The two men then

returned to Collins’s game room where Appellant collected $5,000, gave Simmons $1,000, and told

him what he should tell the police if he was questioned.

       On April 7, 1998, the police interrogated Appellant, who gave a different version of the

events. In a recorded statement, Appellant admitted that Collins had offered to pay him $5,000 to

kill Smith. Initially Appellant agreed, and Collins gave him a gun. Appellant said he then changed

his mind, and Collins then threatened to kill him. Appellant further claimed that before the drive to

Britton Branch he told Simmons about his conversation with Collins.

       At this point the stories diverged. Appellant told the police that Simmons shot Smith, then

gave the gun to Appellant and ordered him to shoot Smith as well. Appellant denied throwing




       2
           Simmons told the police he did not believe Appellant.

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Mays v. Chandler
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Smith’s body over the hill. According to Appellant, he and Simmons returned to the game room

where Appellant collected the $5,000 and gave Simmons $2,000.

       Appellant told a different story at trial. He testified that Simmons and Smith had been

arguing throughout the night. According to Appellant, Simmons had been having an affair with

Smith’s wife and was angry at Smith for having hit her; further, Smith owed Simmons a substantial

sum of money. Appellant said that after the three arrived at Britton Branch, he went to the car to

play some music. He heard gun shots and when he returned he found Smith slumped over dead.

Simmons then forced Appellant to shoot Smith’s dead body and threatened him not to tell the police.

B.     The trial

       1.      Juror contact with Smith’s mother

       During trial, the following colloquy took place at the bench:

               [Appellant’s Counsel]: Before we get started on something else. It’s come
       to my attention that there was a conversation in the hallway between the lady you just
       spoke to [juror] and the blond headed lady and the two women in the red back there
       in the back. I believe one of them is Mr. Smith’s mother.

               [Prosecutor]: Who . . .?

               [Appellant’s Counsel]: The blond headed lady that just spoke up and the two
       ladies there dressed in red.

               By the Court: I’ll inquire into that at some point in time. Let’s proceed.

The court never addressed the issue again during trial.

       2.      Detective Hopkins’s testimony

       Detective Hopkins testified that he believed Simmons’s 1998 account of what had

happened:

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               Q: So you felt at that point, regardless of the statement he’d given you
       back February 7th [1997], you felt he was telling you the truth now, is that
       correct?

               A: That’s right.

               ....

               Q: Now, when he made the prerecorded statement to you on February
       26th, the one that led you to make the tape recorded statement, did you feel that he
       was being evasive at that point?

               A: No.

              Q: When he gave you the tape recorded statement itself, did you feel he
       was being evasive about anything?

               A: No, not really.

               ....

               Q: And you felt he was telling you the truth?

               A: I did.

Detective Hopkins then testified that he believed Appellant was not being truthful in his 1998

statement:

              Q: During the time that you actually recorded the statement, you
       continually asked Mays we just want you to be honest; we just want you to tell the
       truth. Why did you keep asking him that or telling him that.

              A: Well, just to, just to impress upon him that’s what we want, good or
       bad, you know I don’t care what it is, just tell us the truth; that’s what we deal
       with. We deal with the truth.

              Q: And when you would say this to him during those times, did you feel
       that some of the statements he was giving you were still not the truth?

               A: Sometimes.

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No. 07-6315


               Q: Okay did you feel when he was telling you he didn’t have any memory
       of what was going on, they just went out there, next thing he knows they are back
       at Stevie Collins’ pool hall that that wasn’t being truthful.

               A: Yes, I did feel that that wasn’t being truthful.

Appellant’s counsel did not object to this testimony, although he did object to related questions

on at least two occasions during the prosecutor’s examination of Detective Hopkins.

       3.      The prosecutor’s comment

       The prosecutor included the following in his closing argument:

       Ladies and gentlemen murder is crying out in this Courtroom right here today and
       tonight; it’s crying out. That’s what they did to Curtis Smith in the worst of all
       possible forms. Take money, to take a friend under the pretense of going to party
       with him and execute him. He didn’t even have a chance. What a coward! What
       cowards, what lowlife cowards; they can’t stand up and face somebody man to man.

       4.      Appellant’s motion for a new trial

       After the jury returned a guilty verdict, Appellant moved for a new trial but did not state as

a ground the court’s failure to hold a hearing on the alleged contact between a juror and Smith’s

mother as described above.

C.     The appeals

       1.      State appeals

               a.     Direct appeal

       The Supreme Court of Kentucky affirmed Appellant’s conviction on direct appeal.

Concerning the alleged juror misconduct, the state supreme court said:

              During the course of the trial, counsel for Mays approached the trial judge and
       advised that it “had come to [his] attention” that one of the jurors had been

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No. 07-6315

       conversing with two women dressed in red, one of whom was believed to be the
       victim’s mother. The trial judge responded that he would inquire into that at some
       point in time. Defense counsel did not request a hearing, an admonition, or a
       mistrial. If a party desires a ruling or some other affirmative action on the part of the
       trial judge, it is his duty to insist on a ruling and failure to do so constitutes waiver
       of the issue. Bell v. Commonwealth, Ky., 473 S.W.2d 820 (1971). It was never
       confirmed that either of the two women in red actually spoke to a juror; or, if so, that
       one of them was the victim’s mother; or, if so, that they were conversing about the
       trial.

               The trial judge admonished the jury before each recess that they were not to
       talk to anyone about the case. In the absence of any contrary evidence, jurors are
       presumed to adhere to that admonition. Tamme v. Commonwewalth, Ky. 973 S.W.2d
       13, 26 (1998), cert. denied, 525 U.S. 1153 (1999).

Concerning the prosecutor’s closing argument, the court said:

       [W]e are unpersuaded that the prosecutor’s use of the term “low life coward”
       warrants reversal for a new trial. While we have condemned prosecutorial references
       to an accused in scurrilous and degrading terms, Slaughter v. Commonwealth, Ky.,
       744 S.W.2d 407, 412 (1987), cert. denied, 490 U.S. 1113 (1989), the focus on appeal
       is on “the overall fairness of the trial.” Id. Courts have allowed references to the
       defendant as a “crazed animal,” Dean v. Commonwealth, Ky., 844 S.W.2d 417
       (1992), cert. denied, 512 U.S. 1234 (1994), a “beast,” Koonce v. Commonwealth,
       Ky., 452 S.W.2d 822 (1970), and “worse than all of the ‘criminals’ and ‘traitors’ in
       hell.” Cook v. Bordenkircher, 602 F.2d 117, 120 (6th Cir. 1979), cert. denied, 444
       U.S. 936 (1979). Recognizing the broad latitude which is afforded counsel during
       closing argument, we are unable to conclude that this isolated remark by the
       prosecutor denied Mays his right to a fair trial.

               b.      Collateral appeal

       Appellant then filed a motion to vacate in a collateral proceeding in Clay Circuit Court under

Kentucky Rule of Criminal Procedure 11.42. He argued eight claims of error, including ineffective

assistance of counsel based on the failure to request a hearing on the alleged extraneous juror

contact; appointed counsel supplemented his pro se pleadings. After an evidentiary hearing, the

circuit court denied the motion by written order without an opinion. Appellant appealed the denial

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No. 07-6315

to the Kentucky Court of Appeals on the sole issue that he was denied effective assistance of counsel

due to his trial counsel’s failure to object to Detective Hopkins’s testimony that he believed

Simmons’s version of the murder over Appellant’s.

       The Kentucky Court of Appeals found that Detective Hopkins’s testimony was inadmissible

and should have been objected to: “Generally, a witness may not vouch for the truthfulness of

another witness.” The court went on to note that after a hearing, Appellant’s trial counsel appeared

to recognize the “flagrant inadmissibility” of Detective Hopkins’s testimony and acknowledged that,

in hindsight, he should have been more aggressive in objecting to the testimony.

       However, the state appellate court reasoned that Appellant had not met the second, prejudice

prong of Strickland v. Washington, 466 U.S. 668 (1984):

                For several reasons the record demonstrates that there is not a reasonable
       probability that but for Det. Hopkins’s impermissible testimony the jury would have
       believed Mays’s version of events concerning who shot Smith or Simmons’s version.
       First, though it had been over a year since the murder and it appears that Mays and
       Simmons were no longer under active investigation for the crime, Simmons
       voluntarily came forward and gave a statement to the police in which he admitted
       being present at the time of the crime and receiving a portion of the alleged payoff
       by Collins. Simmons’s trial testimony was consistent with his police statement. He
       accounted for coming forward when he did to remorse over his involvement in the
       crime, and accounted for his delay in coming forward to his fear of Mays and Collins.

                Mays, on the other hand, did not voluntarily come forward with a statement
       to police. His April 7, 1998, statement to police was a product of Simmons’s
       confession to involvement in the crime. In his April 7, 1998, statement, Mays
       corroborated Simmons in almost all respects except concerning who did the shooting.
       Mays admitted that Collins made the proposal to him, that Collins gave him the gun
       to carry out the killing, that he received the payoff for the killing, and that he kept the
       greater share of the $5,000.00 payoff. The only significant deviations from
       Simmons’s account was that Mays changed his mind about going through with the
       killing, and that Simmons himself then, to Mays’s distress, carried out the killing.


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No. 07-6315

               Perhaps because he realized the inculpatory nature of his April 7, 1998,
      statement and its failure to account for a motive for Simmons to follow-through with
      the killing after Mays had changed his mind, at trial Mays renounced his April 7,
      1998, statement and for the first time attributed Simmons’s motive for killing Smith
      to an alleged affair between Simmons and Brenda Smith, to Simmons’s distress at
      Smith having allegedly beaten Brenda and scarred her face, and to the substantial
      drug debt Smith allegedly owed to Simmons. At trial Simmons and Brenda Smith
      both denied having engaged in an affair.

              Mays attributed his April 7, 1998, statement to police coercion. Mays alleged
      that police told him what to say in his statement, and even stopped, rewound, and
      paused the tape recorder to get the statement they wanted. According to Mays, in
      order to get him to say what they wanted, police deprived him of food and water,
      deprived him of bathroom privileges, made promises to him that he would be
      released if he gave the statement they wanted, and made threats concerning his wife
      and family. Mays further alleged that Det. Hopkins physically choked him in order
      to obtain the statement. Despite these allegations of coercion, however, we note that
      Mays does not cite us to or reference any motion to suppress the statement on the
      basis of this coercive conduct.

              Based on the foregoing, in order for the jury to have accepted Mays’s version
      of events, it would have had to have discounted that Simmons was remorseful over
      the crime; it would have had to have believed that Simmons concocted his entire
      story, which implicated a prominent Clay County businessman, concerning a murder
      for hire; it would have had to have believed that Simmons and Brenda Smith were
      having an affair and that Smith owed Simmons a substantial drug debt; it would have
      had to have believed that the affair and drug debt were a sufficient motive for
      Simmons to have killed Smith; and it would have had to have believed that the police
      coerced Mays’s April 7, 1998, statement, even to the point of physically choking him
      into making the statement.

              Because of his changing and inconsistent stories and his attempt to attribute
      his April 7, 1998, statement to egregious police coercion, Mays’s credibility was
      severely challenged even without Det. Hopkins’s improper testimony. While it is
      possible that Det. Hopkins’s testimony vouching for the credibility of Simmons over
      Mays may have swayed the jury to believe Simmons’s version of events in favor of
      Mays’s version of events, we do not believe that this possibility is a probability
      sufficient to undermine confidence in the outcome of the proceeding considering the
      totality of the evidence before the jury. As such, Mays has failed to establish
      prejudice from trial counsel’s failure to object to Det. Hopkins’s testimony
      concerning the truthfulness of the two defendants.

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No. 07-6315

Thus, the Kentucky Court of Appeals affirmed the denial of Appellant’s post-conviction challenge.

The Supreme Court of Kentucky denied discretionary review.

        2.      Petition for writ of habeas corpus

        Appellant then filed a pro se petition for writ of habeas corpus under 28 U.S.C. § 2254 in the

United States District Court for the Eastern District of Kentucky. He claimed seven errors, including

the three at issue in this appeal. A magistrate judge recommended that the district court deny

Appellant’s application for the writ and grant Appellee’s motion to dismiss. The magistrate judge

further recommended that the district court refuse a certificate of appealability on all issues except

the Remmer hearing. The court accepted the magistrate judge’s recommendations and denied

Appellant’s petition.

                        III. BASIS FOR APPELLATE JURISDICTION

        The district court exercised jurisdiction under 28 U.S.C. § 2254. This court has jurisdiction

under 28 U.S.C. § 2253(c), expanded the district court’s certificate of appealability to the three issues

identified in Part I above, and appointed counsel for Appellant.

                                           IV. ANALYSIS

A.      Standard of review

        Federal habeas review of a state court decision is governed by the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA). Dyer v. Bowlen, 465 F.3d 280, 284 (6th Cir. 2006). Under

the AEDPA, a writ of habeas corpus shall not issue on any claim that was tried on the merits in State

court proceedings, unless adjudication:



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Mays v. Chandler
No. 07-6315

       (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). This court must give deference to questions of fact, while questions of law are

reviewed de novo. § 2254(e)(1); Dyer, 465 F.3d at 284; Hodge v. Hurley, 426 F.3d 368, 375–76 (6th

Cir. 2005). Under the “contrary to” prong, this court must grant Appellant’s application for a writ

of habeas corpus if “the state court 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]

has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000).

Under the “unreasonable application” prong, this court must grant habeas relief if “the state court

identifies the correct governing legal principle from [the Supreme Court’s] decisions but

unreasonably applies that principle to facts of the prisoner’s case.” Id. Unreasonable application

includes improperly refusing to apply clearly establish federal law where circumstances demand.

Id. However, this court may not issue a writ simply because it concludes in its independent

judgment that the state court decision applied a Supreme Court case incorrectly. Price v. Vincent,

538 U.S. 634, 641 (2003). Rather, it is Appellant’s burden to show that the state court applied the

Supreme Court case in an objectively unreasonable manner. See id.

B.     The trial court’s failure to conduct a Remmer hearing

       Due process requires that a defendant in a criminal case be tried fairly by a panel of impartial,

“indifferent” jurors. Irvin v. Dowd, 366 U.S. 717, 722 (1961); United States v. Walker, 160 F.3d


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No. 07-6315

1078, 1083 (6th Cir. 1998). When a party alleges that a jury has been subjected to outside influence,

the trial court should hold a hearing with all interested parties. Remmer v. United States, 347 U.S.

227, 229–30 (1954); Walker, 160 F.3d at 1083. This court “require[s] a Remmer hearing in all cases

involving an unauthorized communication with a juror . . . from an outside source that presents a

likelihood of affecting the verdict.” United States v. Rigsby, 45 F.3d 120, 123 (6th Cir. 1995). A

trial court has a duty to investigate a credible allegation of extraneous influence “sufficiently to

assure itself that constitutional rights of the criminal defendant have not been violated.” Id. at

124–25. This duty holds even when a defendant does not expressly request a Remmer hearing at

trial. See United States v. Corrado, 227 F.3d 528, 536 (6th Cir. 2000). The trial court has discretion

in deciding the type of investigation necessary to determine juror bias but “must provide the

defendant a meaningful opportunity to prove the same.” United States v. Herndon, 156 F.3d 629,

637 (6th Cir. 1998).

        The record shows that while a concern about the juror contact was raised at trial, Mays did

not request a hearing, admonishment, or mistrial. The Kentucky Supreme Court confirmed that

Appellant did not request any action from the trial court and observed that failure to insist on a ruling

is a waiver under Kentucky law. Bell v. Kentucky, 473 S.W.2d 820, 821 (Ky. 1971). We agree with

Appellee that the Kentucky Supreme Court held that Appellant waived his right to appeal this issue

by failing to explicitly request a Remmer hearing. Moreover, we note that Appellant did not raise

the issue of counsel’s failure to request a hearing on his collateral appeal to the Kentucky Court of

Appeals, an appeal that was based on ineffective assistance of counsel.



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        Even if the Kentucky Supreme Court stopped just short of explicitly stating that Appellant

waived the issue under Kentucky law, as the magistrate judge and district court found, the facts here

are very different from those in Remmer, Herndon, and Corrado, upon which Appellant relies.

        In Remmer, a juror who later became the jury foreman reported to the trial judge that

someone tried to bribe him to return a verdict favorable to the defendant. 347 U.S. at 228. The

judge informed the prosecutor and requested an investigation by the Federal Bureau of Investigation;

together they later concluded the statement was made in jest. Id. The defendant did not learn of the

extraneous juror contact until after the jury convicted him. Id. The Supreme Court observed that

“[t]he sending of an F.B.I. agent in the midst of a trial to investigate a juror as to his conduct is

bound to impress the juror . . . unduly. A juror must feel free to exercise his functions without the

F.B.I. or anyone else looking over his shoulder.” Id. at 229. The Court went on to hold that ex parte

final action by the trial court was inappropriate “on information such as was received in this case,”

id. at 229–30, and that the trial court should have held a hearing “with all interested parties permitted

to participate,” id. at 230.

        During jury deliberations in Herndon, the jury foreman sent a note to the judge stating that

a juror believed he may have had business dealings with the defendant in the past but the juror did

not think this would affect his ability to act as a juror. 156 F.3d at 632. The trial judge replied with

a note requesting that the jury continue deliberating. Id. Defense counsel objected and asked to

interview the juror; the judge denied the request. Id. The next day defense counsel told the court

that the defendant had decided not to move for a mistrial. Id. The jury returned a guilty verdict and

the trial court denied defendant’s motion for a new trial. Id. The defendant renewed his motion for

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a new trial at a sentencing hearing. Id. at 633. The trial court permitted the defendant and a business

associate to make a record of their recollections of business dealings with the juror. Id. They said

the juror came into their bar five years earlier and tried to sell them a security system but they

declined because the system was overpriced. Id. They said the juror stayed in the bar and got drunk,

and they asked him to leave because of his belligerent conduct. Id. The court then denied the

defendant’s oral request for a new trial, partly because the court thought the earlier decision not to

move for a mistrial was a trial strategy. Id. The government argued that the trial judge provided a

Remmer hearing when it permitted the defendant and his business associate to testify. Id. at 637.

A panel of this court rejected the government’s argument and held that “[p]ermitting the defense to

make a record for appeal does not discharge the district court’s duty to investigate claims of juror

misconduct.” Id.

        In Corrado, someone approached the defendant two days before closing arguments and

offered to influence a “friend” on the jury in exchange for money. 227 F.3d at 532–33. The man

said he could guarantee a hung jury and his friend was sure he could bring two or three other jurors

along with him. Id. at 533. Defense counsel immediately informed the district court and the

government. Id. The defendant met with the individual at the behest of federal agents and tried,

unsuccessfully, to elicit the name of the juror. Id. The judge decided to ask the jury three “yes/no”

questions in open court concerning attempts to influence them and their impartiality, and allow them

to retire for fifteen minutes to “reflect.” Id. at 534. If the answer to any question was “yes,” the juror

would be instructed to send the judge a note and then be called in to answer questions from the judge

and both parties. Id. Defense counsel objected to the proposal and suggested he would move for

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a mistrial; the judge said he would not grant the motion based on the information presently known.

Id. The court proceeded with the plan and no juror sent a note to the judge. Id. The jury returned

a guilty verdict and the defendant moved for a new trial. Id. This court held that, despite the fact

that the defendant did not expressly request a Remmer hearing, the district court should have held

a hearing because it was fully aware of the nature of the claims of juror tampering and defense

counsel stated objections to the court’s three-question proposal. Id. at 536.

       Here, unlike in Remmer, Appellant was aware of the possible juror contact during trial. And

although he brought the situation to the court’s attention during trial, he did not request a hearing or

mistrial. In contrast to Herndon and Corrado, Appellant had no prior negative business dealings

with a juror or a colorable claim of jury tampering resulting in an FBI investigation—nor did he offer

any other similar claim of prejudice. Rather, Appellant’s counsel reported to the trial court that a

juror may have had contact in the hallway with someone who might have been Smith’s mother.

Such a vague allegation does not constitute a colorable claim of extraneous juror contact like those

in Remmer, Herndon, and Corrado—and Appellant’s failure to raise the issue again at trial

underscores this fact. Under these circumstances, we cannot say that the Kentucky Supreme Court

unreasonably applied clearly established United States Supreme Court precedent.

C.     The testimony of Detective Hopkins

       The Sixth Amendment guarantees a criminal defendant the right to effective assistance of

counsel. Strickland, 466 U.S. at 687; Washington v. Hofbauer, 228 F.3d 689, 702 (6th Cir. 2000).

A criminal defendant is entitled to a new trial due to ineffective assistance of counsel where (1) trial

counsel’s performance was deficient and (2) there is a reasonable probability that the deficiency

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No. 07-6315

adversely impacted the outcome of the trial. Strickland, 466 U.S. at 687, 694. “A reasonable

probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.

       There is no dispute that Appellant’s trial counsel was objectively deficient. The Kentucky

Court of Appeals determined that Detective Hopkins’s testimony was inadmissible testimony to

which Appellant’s counsel should have objected. Although Appellant meets the first prong of

Strickland, however, we cannot say that the state appellate court applied the second prong

unreasonably to the facts of this case. The state court of appeals concluded that Appellant was not

prejudiced because the jury would not have believed his testimony even in the absence of the

improper testimony by Detective Hopkins. Specifically, the appellate court pointed out that:

       (1) Simmons came forward voluntarily;

       (2) His trial testimony was the same as in his pre-trial statement to the police;

       (3) He explained his delay in coming forward as fear of Appellant and Collins; and

       (4) Appellant’s trial testimony was inconsistent with his pre-trial statement to the police.

Further, the court reasoned, in order to have accepted Appellant’s version of events, the jury would

have had to believe:

       (5) Simmons owed a drug debt to Smith;

       (6) Simmons was having an affair with Smith’s wife; and

       (7) Appellant’s first statement was the result of police coercion.

       Appellant cites several cases for the proposition that clear prejudice occurs where the key

issue is the credibility of the witnesses and there is no significant evidence. All are distinguishable

from the facts here. Hodge v. Hurley was a case of alleged rape of a three-year-old in which the

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prosecutor “repeatedly commented on the credibility of witnesses” throughout closing arguments.

426 F.3d 369, 372, 377 (6th Cir. 2005). This court noted that “the prosecutor’s opinion carries with

it the imprimatur of the Government and may induce the jury to trust the Government’s judgment

rather than its own view of the evidence.” Id. at 378 (internal quotation marks omitted) (quoting

United States v. Young, 470 U.S. 1, 18–19 (1985)). Here, it is Detective Hopkins’s opinion, not the

prosecutor’s, that is at issue. Further, the Hodge prosecutor compounded his misconduct by

“repeatedly” and “blatantly” misrepresenting the evidence. Id. at 380. No such misrepresentation

is alleged here.

       In Cooper v. Sowders, a case involving the stabbing murder of a taxi driver, a police witness

expressly stated that all of the evidence pointed to the defendant as the perpetrator; the trial judge

referred to the police witness as an “expert” in whether or not to arrest someone; and another witness

testified to his own credibility. 837 F.2d 284, 285, 287–88 (6th Cir. 1988). This court held that the

cumulative effect of the three errors resulted in a trial that was fundamentally unfair. Id. at 286. The

testimony of Detective Hopkins as to whether he believed Simmons and Appellant when they were

giving their 1998 statements, while inadmissible, was far less egregious than the point-blank

testimony—declared “expert” by the trial judge—of the detective in Cooper that “[t]he only evidence

we found that would link anyone to this crime would be Mr. Cooper.” Id. at 287.

       In Brown v. Smith, this court held that the defendant was prejudiced by his trial counsel’s

failure to investigate and obtain records related to his teenaged daughter’s counseling sessions, where

the records would have undermined her credibility as a witness in his trial for sexually molesting her

and there was no other evidence against him. 551 F.3d 424, 425 (6th Cir. 2008). Here, in contrast,

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key evidence, as elucidated by the Kentucky Court of Appeals, was introduced in addition to

Detective Hopkins’s testimony.

       Moreover, and quite significantly, in neither Hodge nor Cooper nor Brown did the defendant

give trial testimony that conflicted with his own earlier statement to police, as did Appellant.

       Appellant says that without a police detective’s repeatedly vouching for Simmons’s veracity,

there is a reasonable probability that a juror would have found Appellant guilty of the lesser offense,

as the jury was permitted to find both defendants guilty without naming one as the principal if they

could not determine who was telling the truth. Appellant ignores the existence, let alone the weight,

of the other evidence that the state appellate court highlighted: Simmons came forward voluntarily;

his trial testimony was consistent with his 1998 statement to the police; he explained his delay in

coming forward as fear of Appellant and Collins; and Appellant’s trial testimony was inconsistent

with his 1998 statement to the police.

       We agree with the magistrate judge and district court that the Kentucky Court of Appeals

identified the correct federal standard regarding prejudice and applied it reasonably in an analysis

that was “thorough, well-supported, and convincing.”

D.     The prosecutor’s comment

       The relevant question concerning the prosecutor’s referring to Appellant and Simmons as

“lowlife cowards” during closing argument is whether the comment “so infected the trial with

unfairness as to make the resulting conviction a denial of due process.” Darden v. Wainwright, 477

U.S. 168, 181 (1986) (internal quotation marks omitted) (quoting Donnelly v. DeChristoforo, 416

U.S. 637, 643 (1974)). We agree with the state and district courts that this “isolated comment” did

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not. And, even aside from the fact that “the accumulation of non-errors cannot collectively amount

to a violation of due process,” Campbell v. United States, 364 F.3d 727, 736 (6th Cir. 2004) (internal

quotation marks omitted) (quoting a magistrate judge’s report and recommendation), in light of the

evidentiary record as discussed in Part IV.C, the cumulative effect of Detective Hopkins’s testimony

and the prosecutor’s comment did not result in a trial that was fundamentally unfair to Appellant.

                                        V. CONCLUSION

       For the foregoing reasons, we affirm the district court’s denial of habeas relief to Appellant.




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        COLE, Circuit Judge, concurring. Though the trial court could have been clearer, I agree

with the majority’s conclusion that the Kentucky Supreme Court held that Appellant waived his right

to appeal this issue by failing to insist that the trial court take any further action after counsel raised

the specter of extraneous juror influence. See Scott v. Mitchell, 209 F.3d 854, 864-65 (6th Cir.

2000). Appellant does not argue that his counsel rendered ineffective assistance by failing to request

a Remmer hearing, admonishment, mistrial, new trial, or otherwise objecting to the impaneled jury.

Rather, Appellant asserts that the trial court’s failure to address the issue was a structural error, and

that no Kentucky procedural rule can relieve the trial court of its federal constitutional duty to

investigate. Because we have held that appellants waived their right to appeal a trial court’s failure

to hold a Remmer hearing by failing request a hearing, admonishment, mistrial, or new trial, I

disagree. See United States v. Perry, 438 F.3d 642, 651(6th Cir. 2006); United States v. Walker, 160

F.3d 1078, 1083-84 (6th Cir. 1998); see also United States v. Vining, 224 F. App’x. 487, 493-94 (6th

Cir. 2007); United States v. Reeves, No. 99-1248, 2000 WL 687649, at *2 (6th Cir. May 19, 2000).

It is for this reason that I believe Appellant has procedurally defaulted this claim.

        However, I write separately because I disagree with the majority’s conclusion that

Appellant’s allegation of extraneous juror contact was so vague that it did not constitute a colorable

claim requiring a Remmer hearing. In my view, had counsel preserved federal habeas review,

Appellant raised a colorable claim of extraneous juror contact requiring a Remmer hearing.

        A trial court confronted with an allegation of extraneous juror influence must conduct a

Remmer hearing. United States v. Rigsby, 45 F.3d 120, 124-25 (6th Cir. 1995). A defendant is not

automatically entitled to such a hearing, and he or she must first “raise[] a ‘colorable claim of

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No. 07-6315

extraneous influence.’” United States v. Owens, 426 F.3d 800, 805 (6th Cir. 2005) (quoting United

States v. Davis, 177 F.3d 552, 557 (6th Cir. 1999)). An “extraneous influence” is “one derived from

specific knowledge about or a relationship with either the parties or their witnesses.” Vining, 224

F. App’x. at 493 (quoting United States v. Herndon, 156 F.3d 629, 636 (6th Cir. 1998)).

       At trial, Appellant’s counsel informed the trial court:

       It’s come to my attention that there was a conversation in the hallway between the
       lady you just spoke to [juror] and the blond headed lady and the two women in the
       red back there in the back. I believe one of them is Mr. Smith’s mother.

(Joint Appendix (“JA”) 148-49.) As Appellant notes, counsel gave the trial court all the information

within his knowledge that an improper communication likely had occurred. Specifically, defense

counsel provided: (1) “the identity of the juror at issue;” (2) “a physical description of the women”

involved; (3) “an assertion that one of these women was the victim’s mother;” and (4) “the location

of the communication.” (Reply Br. of Petitioner-Appellant 7.) Moreover, counsel notified the court

of this extraneous contact immediately after it occurred. Defense counsel did what it could, it alerted

the trial court almost immediately of jurors’ possible contact with the victim’s mother. There can

be little doubt that a conversation between the victim’s mother and a juror is the type of

inappropriate communication that raises the specter of extraneous juror influence. See United States

v. Hall, 455 F.3d 508, 521-22 (5th Cir. 2006); Jones v. Kassulke, No. 95-6459, 1997 WL 664774,

*2 (6th Cir. Oct. 23, 1997); Commonwealth v. Silvia, No. 07-P-940, 2009 WL 7709, at *2 (Mass.

App. Ct. Jan. 2, 2009). This is especially true where, as was the case here, the trial occurred in a

small town where those associated with the trial were likely to know one another. Although the trial



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judge said he would inquire into the matter later, he never did so, and only the judge was in a

position to make such an inquiry.

       The majority believes, however, that Appellant should have done more. In support of its

decision that Appellant was required to provide more information to raise a colorable claim of

extraneous juror contact, the majority attempts to distinguish Appellant’s case from Remmer,

Herndon, and Corrado, where courts concluded that the trial court erred in failing to hold a Remmer

hearing.   In my view, the majority’s position is not well taken.          Notably, in each of the

aforementioned cases, someone privy to the extraneous juror communication came forward to report

the details of the encounter to the court. In United States v. Remmer, the jury foreman told the trial

judge that someone tried to bribe him to acquit the defendant. 347 U.S. 227, 228 (1954). In

Herndon, the jury foreman sent a note to the judge disclosing that he may have had prior business

dealings with the defendant. 156 F.3d at 632. In United States v. Corrado, defense counsel

informed both the prosecution and the district court that someone approached the defendant

indicating he could influence a juror. 227 F.3d 528, 532-33 (6th Cir. 2000).

       Here, no one who was privy to the conversation between the victim’s mother and a juror, and

possible two other persons, came forward. Put simply, only the trial court was in a position to gather

more information; we should not penalize Appellant for the court’s failure to develop the record

when it was the court, not the counsel, who were in a position and had a duty to inquire further.

Additionally, requiring Appellant to provide information detailing the communication, where such

information was not at his disposal, is tantamount to requiring him to prove prejudice before

obtaining a Remmer hearing. This certainly cannot be the desired rule in a situation like this one.

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Finally, to hold a defendant to such a high standard runs afoul of the trial court’s duty to ensure that

a defendant has an impartial and fair jury.

        A trial court, in its discretion, must determine what steps, if any, are required to make certain

that a jury’s impartiality has not been compromised. Rigsby, 45 F.3d at 124. Improper contact with

a juror about a matter pending before the jury is presumptively prejudicial. Remmer, 347 U.S. at

229. “When there is a credible allegation of extraneous influences, the [trial] court must investigate

sufficiently to assure itself that constitutional rights of the criminal defendant have not been

violated.” Rigsby, 45 F.3d at 124-25. In this case, there is no suggestion that trial counsel’s

assertions lacked credibility. Thus, a hearing was necessary to determine the exact nature of the

contact before the trial court could determine whether the jurors’ contact with the victim’s mother

had the potential to create a bias.

        We are not in a position to review whether the trial court properly exercised its discretion in

this case because even that court did not know the nature of the communication. Moreover, without

sufficient details about the communication, we cannot review whether the trial court’s remedy, if

any, was appropriate. See Davis, 177 F.3d at 557 (noting that without the benefit of a hearing delving

into the extent to which an extraneous comment affected the juror’s deliberations, neither the district

court nor this court has any basis for concluding that the extraneous communications were harmless).




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