                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 12a0991n.06

                                           No. 10-1617
                                                                                         FILED
                            UNITED STATES COURT OF APPEALS                           Sep 07, 2012
                                 FOR THE SIXTH CIRCUIT                         DEBORAH S. HUNT, Clerk


EDWARD SHAIEB,                                           )
                                                         )        ON APPEAL FROM THE
        Petitioner-Appellant,                            )        UNITED STATES DISTRICT
                                                         )        COURT FOR THE WESTERN
        v.                                               )        DISTRICT OF MICHIGAN
                                                         )
MARY BURGHUIS, Warden,                                   )                 OPINION
                                                         )
        Respondent-Appellee.                             )




BEFORE: COLE and BOGGS, Circuit Judges; and OLIVER, Chief District Judge.*

        SOLOMON OLIVER, JR., Chief District Judge. Petitioner-Appellant, Edward Shaieb,

appeals the denial of his Petition for Habeas Corpus pursuant to 28 U.S.C. § 2254, by the United

States District Court for the Western District of Michigan. For the following reasons, we AFFIRM

the decision of the district court.

                     I. BACKGROUND AND PROCEDURAL HISTORY

                                      A. Factual Background

        This case arises from allegations made by two young girls, Mariana and Nicole, concerning

incidents that occurred at Petitioner’s home while they were on “sleep-overs” with Petitioner’s

daughter, Lindsey. Mariana testified that she was sexually assaulted by Petitioner on two occasions.


        *
         The Honorable Solomon Oliver, Jr., United States Chief District Judge for the Northern
District of Ohio, sitting by designation.
She stated that the first incident with Petitioner occurred on October 15, 1993. Petitioner walked

into the bedroom where she and Petitioner’s daughter, Lindsey, were sleeping, pulled down the

bedspread and sheet covering Mariana, reached under Mariana’s boxers and underwear, and placed

his hand on her buttocks. Mariana testified that Petitioner “kind [of] just rubbed [her] butt a little

bit” until she flinched, and Petitioner left the room. The second incident occurred in the spring of

1994. Petitioner entered the room where Mariana and Lindsey were sleeping and touched Mariana’s

chest under her T-shirt, placing his hands on her breasts and rubbing them; he then moved his hand

down Mariana’s underwear and boxers, putting his finger completely into her vagina. Petitioner ran

out of the room when Mariana stirred.

       Nicole testified that the two occasions on which she was assaulted by Petitioner occurred

between October 1993 and February 1994. She indicated that on the first occasion she woke up

when Petitioner entered the bedroom she was sharing with Lindsey. Petitioner walked over to her

side of the bed and started caressing her buttocks underneath the sheet and bedspread with which she

was covered. Nicole testified that when she pretended to wake up, Petitioner walked out of the

room. She testified further that approximately one month later, she was assaulted in a similar manner

by Petitioner. Both Mariana and Nicole indicated that Petitioner’s daughter, Lindsey, did not wake

up during any of the four incidents.

       In addition to the victims, the prosecution called Detective Linda Deprez (“Detective

Deprez”), a detective in the Sterling Heights Police Department assigned to the youth division, as

well as several other witnesses, to testify. On March 9, 1998, she was assigned to the case against

Petitioner. Thereafter, she conducted interviews with Mariana and Nicole. On March 23, 1998,

Detective Deprez went to Petitioner’s home. However, Petitioner was not home at that time, but his


                                                  2
wife, Mrs. Shaieb, and his daughter, Lindsey, were. Detective Deprez began to give Mrs. Shaieb an

overview of the alleged sexual assaults committed by Petitioner against Mariana and Nicole. After

about 10-15 minutes, Petitioner arrived. Detective Deprez advised Petitioner that allegations of

inappropriate sexual behavior had been made against him. Petitioner denied the allegations. Before

leaving, Detective Deprez asked Petitioner if he would come to the police station to make a

statement so that the police could continue with their investigation. Petitioner seemed to indicate

that he would by responding that he wanted to clear things up. However, Detective Deprez did not

hear from Petitioner, Mrs. Shaieb, or Lindsey, after that meeting. Later, she learned through

Petitioner’s lawyer that he would not be in for an interview.

       At trial, Petitioner called his wife, Mrs. Shaieb, to testify. She sought to refute the dates of

the incidents alleged by Mariana and Nicole. Mrs. Shaieb provided receipts in an effort to

demonstrate that she and Petitioner went out Christmas shopping and to dinner on the night of the

first incident alleged by Mariana. Mrs. Shaieb asserted that Mariana could not have slept over with

Lindsey that night since Mrs. Shaieb does not allow Lindsey to have sleep-overs if she is not home.

In addition, because Mariana and Nicole had mentioned that Lindsey’s room was in the process of

being redecorated when they were attacked, Mrs. Shaieb provided receipts associated with the

redecorating to show that it did not take place in 1994 during the time of the alleged attacks, but in

March and April of 1995.

                                      B. Procedural History

       Petitioner was charged with one count of first-degree criminal sexual conduct (“CSC”)

involving a victim under thirteen, Mich. Comp. Laws § 750.520b(1)(a), and one count of second-

degree CSC involving a victim under thirteen, Mich. Comp. Laws § 750.520c(1)(a), for his alleged


                                                  3
sexual assault of Mariana. Petitioner was charged with two counts of second-degree CSC involving

a victim under thirteen, Mich. Comp. Laws § 750.520c(1)(a), for his alleged sexual assault of Nicole.

On December 8, 2000, a jury found Petitioner guilty of each of the counts. On January 18, 2001,

Petitioner was sentenced to concurrent prison terms of nine to twenty years for the first-degree CSC

conviction and five to fifteen years for each of the second-degree CSC convictions. On August 22,

2001, because of a recalculation of the guidelines, Petitioner was resentenced to concurrent prison

terms of eight to twenty years for the first-degree CSC conviction and five to fifteen years for each

of the second-degree CSC convictions. On September 9, 2003, the Michigan Court of Appeals

affirmed Petitioner’s convictions and sentences. On June 10, 2004, the Michigan Supreme Court

denied Petitioner’s application for leave to appeal. On November 15, 2004, the United States

Supreme Court denied his petition for writ of certiorari.

        On November 7, 2005, Petitioner filed a petition for writ of habeas corpus in the United

States District Court for the Western District of Michigan. The case was referred to a magistrate

judge. However, on March 7, 2006, the district court stayed the habeas corpus proceedings to allow

Petitioner to present his unexhausted claims in the state courts. On April 23, 2007, Petitioner filed

a motion to lift his stay, reopen the case, and amend his habeas petition. On May 4, 2007, the

magistrate judge granted Petitioner’s request to lift the stay and reopen the case, and granted in part

and denied in part his request to amend his petition. On August 3, 2009, the magistrate judge issued

a Report and Recommendation (“R&R”), recommending that the petition be denied. On March 31,

2010, the district court adopted the magistrate judge’s R&R, and entered an order denying the

petition in its entirety. However, the district court granted Petitioner a certificate of appealability.

Petitioner filed a timely notice of appeal on April 22, 2010. On May 5, 2010, this court remanded


                                                   4
the case to the district court for the limited purpose of specifying which issues were certified for

appeal. Of the eight grounds raised by Petitioner, the district court certified the following four issues

for appeal:

        (1)     Whether the prosecutor violated Petitioner’s Fourteenth Amendment rights
                by improperly commenting on Petitioner’s . . . post-arrest silence, including
                his decision not to testify at trial?

        (2)     Whether Petitioner was denied the effective assistance of trial counsel
                because counsel failed to argue that [Mariana] was thirteen years old at the
                time of the alleged crime?

        (3)     Whether Petitioner was denied the effective assistance of trial and appellate
                counsel because they failed to move for a new trial when the great weight of
                the evidence showed that [Mariana] was thirteen years old at the time of the
                alleged crime?

        (4)     Whether Petitioner was denied the effective assistance of trial and appellate
                counsel because they failed to sufficiently argue a Fourteenth Amendment
                violation when the prosecutor used Petitioner’s silence, after his arrest and
                receiving Miranda warnings, as evidence in trial?

                                  II. STANDARD OF REVIEW

        This court reviews the district court’s decision denying a habeas petition de novo. Martin

v. Overton, 391 F.3d 710, 712 (6th Cir. 2004). The Antiterrorism and Effective Death Penalty Act

of 1996 (“AEDPA”), 28 U.S.C. § 2254(d), governs review of the state court’s decision from which

the habeas petition arises. The AEDPA states that:

        (d) An application for a writ of habeas corpus on behalf of a person in custody
        pursuant to the judgment of a State court shall not be granted with respect to any
        claim that was adjudicated on the merits in State court proceedings unless the
        adjudication of the claim--

                (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



                                                   5
               (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). Thus, a federal court may grant a writ of habeas corpus in two instances: first,

if a state court renders a decision that is contrary to federal law clearly established by the Supreme

Court; or second, if the state decision utilizes the governing federal law but applies the law in an

unreasonable manner. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). In the second instance, the

state court’s application of federal law must be “objectively unreasonable,” not just incorrect. Id. at

409-411. The clause “contrary to” permits a federal court to grant a habeas corpus petition if “the

state court arrives at a conclusion opposite to that reached by this 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.” Id. at 412-13. The clause “unreasonable application” permits a federal

court to grant a habeas corpus petition if “the state court identifies the correct governing legal

principle from [the Supreme] Court’s decisions but unreasonably applies that principle to the facts

of the prisoner’s case.” Id. at 413. The “unreasonable application” analysis is an objective inquiry

and thus prohibits a federal court from issuing a writ based on its independent conclusion that the

state court’s application was erroneous or incorrect. Id. The state court’s application of federal law

must be unreasonable. The clause “clearly established Federal law” alludes “to the holdings, as

opposed to the dicta, of [the Supreme] Court’s decisions as of the time of the relevant state-court

decision.” Id. at 412.

       Factual findings made by the state court “shall be presumed to be correct. The applicant shall

have the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28

U.S.C. § 2254(e)(1).



                                                  6
                                   III. LAW AND ANALYSIS

                                   A. Prosecutorial Misconduct

                                        1. Petitioner’s Claim

       Petitioner argues that his Fourteenth Amendment rights were violated because at trial, the

prosecutor improperly commented on his post-arrest, post-Miranda1 silence, including his decision

not to testify at trial. Petitioner alleges that the prosecutor engaged in this misconduct in several

ways. First, the prosecutor elicited testimony from Detective Deprez that Petitioner, his wife, Mrs.

Shaieb, and his daughter, Lindsey, never contacted her for an interview. Second, the prosecutor

asked Lindsey and Mrs. Shaieb why they had not come into the station to talk with the detective.

Lastly, the prosecutor engaged in misconduct in her closing argument when she essentially argued

that Petitioner’s failure to meet with the police was substantive evidence of his guilt. Petitioner also

contends that the prosecutor improperly argued that Petitioner’s wife and daughter could have shared

their opinions regarding the accusations and the motivations of the victims, but did not do so in the

two-and-a-half years in which the case was pending.

                                      2. Prosecutor’s Conduct

       During the prosecution’s case-in-chief, the prosecutor elicited the following testimony from

Detective Deprez regarding her discussion with Petitioner at his house on March 23, 1998:

                 Q: Did you say anything else to him?

                 A: I asked him if he’d come to the police station to make any type of a
                 statement and we could continue with our investigation, the investigation
                 tools that we have. And again, I left my business card and – with him and he
                 said he wanted to stay [sic], he wanted to clear things up.



       1
           Miranda v. Arizona, 384 U.S. 436 (1966).

                                               7
               Q: He said he wanted to clear things up to you?

               A: Yes, he did.

               Q: And that was March 23rd of 1998?

               A: Yes.

               Q: Did you hear from him after that?

               A: No.

               Q: Did you hear from [Mrs.] Shaieb after that?

               A: No.

               Q: Did you hear from Lindsey . . . after that?

               A: No.

               Q: Did you have an opportunity to speak to any of those people after that
                  initial time that you were at the house?

               A: No.

               Q: Why is that?

               A: They refused to come for an interview.

Petitioner’s counsel did not object to these questions. On cross-examination, Petitioner’s counsel

elicited the following testimony from Detective Deprez:

               Q: All right. Are you suggesting for the moment that the fact he didn’t come
               into your police department and be interviewed is noncooperative?

               A: To a certain extent, because when I was at the house, he said he would and
               then he changed his mind.

                                           ***




                                             8
              Q: As a matter of fact, the way you learned he changed his mind is because
              some lawyer by the name of Steve Rabaut personally contacted you and told
              you he won’t [be] in for an interview, right?

              A: Correct.

On cross-examination, the prosecutor elicited the following testimony from Mrs. Shaieb:

              Q: Didn’t Detective Deprez give you a card and have you – tell you to contact
              her?

              A: Yes, she gave me a card and said feel free to call her at any time.

              Q: Did you ever do that?

              A: I wanted to.

              Q: No.

              A: I wanted to.

              Q: No. Is the answer –

              A: No, I didn’t.

              Q: Did you ever have Lindsey do that?

              A: No. We were advised not to do that.

              Q: Thank you ma’am. By your attorney?

              A: Yes.

The prosecutor elicited the following testimony from Lindsey regarding her failure to contact the

police department:

              Q: [T]his case has been pending for almost two and a half years, right?

              A: Correct.




                                            9
               Q: Did you [] think that you should call the Sterling Heights Police
               Department or the Macomb prosecutor’s office to talk to them about this
               case?

               A: No.

               Q: Never?

               A: Never.

In her closing argument, the prosecutor reiterated the failure of Petitioner, his wife, and his daughter

to meet with Detective Deprez although Petitioner had initially indicated that he would do so. The

prosecutor stated the following in her closing argument:

       The detective also tells you that [Petitioner] came into the house while she was there,
       and she indicated to him, you know, “This is why I’m here. I’d like to sit down and
       I’d like to meet with you.” And at that time he seemed like he wanted to sit and meet
       with her, and she gave the card to at least one of them, if not both of them, saying
       [“]this is my card with my number on it, please contact me,” and that was back on
       March 23rd of 1998 and here we are today and that card has never been used, not by
       Lindsey . . ., not by [Mrs.] Shaieb, not by [Petitioner].

       And if [Petitioner] has an attorney and wants to communicate through his attorney,
       and that’s what happened within days, the attorney contacted the detective and said,
       “I represent [Petitioner],” at that point we are on notice that police officers,
       prosecutors, any contact that’s to be made to [Petitioner] is through his attorney.

       However, and, you know, argument will be made, “Well, no, I’m the attorney for
       [Petitioner], not for [Mrs.] Shaieb or Lindsey . . . .” So they certainly could have
       come forward and said, “[w]e want to give this --” we certainly appreciate them
       coming here yesterday at the eleventh hour and say [sic], “These girls have always
       had problems and they are easily led and that’s why this has happened.” That’s very
       nice that they share that with us today. I wish they had shared that with the detective
       in the two and a half years that the case has been pending.

       And certainly if [Petitioner] had an attorney representing him, he could have certainly
       had that attorney with him and come into the police station and met with the
       detective. That never happened.




                                                  10
Petitioner’s trial counsel immediately objected to the prosecutor’s statements on Fifth Amendment

grounds. The jury was removed and the parties argued the objection. The trial court sustained the

objection, lectured the prosecutor, and offered to provide the jury with an instruction at the end of

the trial, regarding Petitioner’s right to remain silent.

        After closing arguments and outside the presence of the jury, Petitioner’s trial counsel moved

for a mistrial on the ground that the prosecutor had violated Petitioner’s Fifth Amendment right to

remain silent. The trial court denied Petitioner’s motion, but provided the jury with the following

curative instruction during the jury instructions:

        You are not to consider the fact that [Petitioner], [Petitioner’s] wife or [Petitioner’s]
        daughter failed to contact the police or prosecutor’s office after Detective Deprez’
        initial investigation. [Petitioner] and his family have an absolute right not to do
        anything with regard to the People’s investigation.

Petitioner’s trial counsel did not object to this instruction.

        About two weeks after the jury rendered its guilty verdict, Petitioner’s trial counsel brought

a second motion for a mistrial, asserting the same Fifth Amendment argument he previously raised.

Petitioner’s trial counsel argued there was no way to cure such a big error by the prosecution. His

trial counsel asserted that “between the fifth amendment violation and the shift of the burden of

proof, under no circumstances was there not a miscarriage of justice in this trial.” The trial court

denied Petitioner’s motion, stating the following:

        I disagree with you because I can differentiate the two situations. We have one
        situation where they failed to respond, where a curative instruction was given that he
        had no responsibility to respond and even add the fact that neither did his daughter
        or his wife. Had she gone up during close [sic] arguments and made a comment to
        the effect that he sat there, he didn't do anything, he didn't get up to testify, he didn't
        say anything, he didn't tell us his side of the story, that I would find to be
        prosecutorial misconduct.



                                                    11
       I gave a curative instruction. I feel that that curative instruction was sufficient enough
       to inform the jury that he did not have to do anything, and that he should not be held
       responsible. I am satisfied in my find [sic] that [the] curative instruction was
       significant enough to place in that jury's mind the fact that he didn't have to do any
       [sic]. Had she got up there and started badgering him about not testifying, that would
       be different and that's where I'm drawing the line. So your motion is denied.

                                   3. Michigan Court of Appeals

       In reviewing this issue, the Michigan Court of Appeals rejected Petitioner’s claim for the

following reasons:

       We also find that the reference to defendant's silence from the time of his arrest until
       trial did not violate defendant's Fifth Amendment right against self-incrimination. FN
       4 Contrary to defendant's argument, People v. Bobo, 390 Mich. 355, 359 (1973), does
       not require a different result. Our Supreme Court has severely limited Bobo, stating
       that Bobo is “viable only to the extent that it precluded ‘impeachment for and
       comment on silence at the time of arrest in the face of accusation.” ’ Hackett, supra
       at 215 n 6, quoting People v. Collier, 426 Mich. 23, 39 (1986); People v. Cetlinski,
       435 Mich. 742, 759 (1990) (“[I]n light of both pre- and post-Bobo decisions of the
       United States Supreme Court, it is clear that the Fifth Amendment rationale no longer
       supports the Bobo rationale.”). Additionally, the Court has said that Bobo is
       coextensive with federal precedent, and the Michigan constitution is consistent with
       federal Fifth Amendment and Fourteenth Amendment jurisprudence. Schollaert,
       supra at 162, citing People v. Sutton (After Remand), 436 Mich. 575, 579 (1990);
       People v. McReavy, 436 Mich. 197, 201 (1990); and Cetlinski, supra at 759.

               FN 4. The record does not indicate when [Petitioner] was arrested or for what
               length of time he was in custody. We refer to the time of his arrest, however,
               in light of its importance to our analysis. Hackett, supra.

       *4 Although defendant's right to remain silent in the face of accusation arises under
       the Fifth Amendment, the prohibition on use of defendant's silence after arrest and
       receiving Miranda FN5 warnings FN6 arises out of the due process clause of the
       Fourteenth Amendment. FN7 See McReavy, supra at 218 & n 21, citing Doyle v.
       Ohio, 426 U.S. 610 (1976) (stating that “it would be fundamentally unfair and a
       violation of due process” to inform a defendant that he has a right to remain silent
       and then use his silence against him at trial); and Wainwright v. Greenfield, 474 U.S.
       2[8]4 (1986) (stating that use of post-arrest, post-Miranda silence as substantive
       evidence of sanity violates due process). Defendant briefly mentions that the
       prosecutor's argument also violated Doyle, but does not request relief on this basis.
       Additionally, defendant did not raise an objection on due process grounds in the trial


                                                  12
          court. An objection on one ground does not preserve an appeal on another ground.
          City of Westland v. Okopski, 208 Mich.App 66, 72-73 (1994). Defendant has not
          cited any viable authority that supports his contention that use of his post-arrest
          silence also violates the Fifth Amendment. A party may not leave it to this Court to
          search for authority to support its position. People v. Harlan (On Remand), ____
          Mich.App ____ (Docket No. 237281, issued 8/14/03) slip op at 1-2, citing People v.
          Watson, 245 Mich.App 572, 587 (2001).

                 FN 5. Miranda v. Arizona, 384 U.S. 436; 86 S Ct 1602; L. Ed. 2d 694 (1966).

                 FN 6. Despite that the record does not address whether or when [Petitioner]
                 received Miranda warnings, in the absence of any assertion from [Petitioner]
                 to the contrary, we assume for purposes of this analysis that [Petitioner]
                 properly received Miranda warnings upon his arrest.

                 FN 7. Although the issue whether use of post-arrest post-Miranda silence
                 also violates the Fifth Amendment right against self-incrimination was
                 presented to the United States Supreme Court in Doyle, the Court did not
                 address the issue. Doyle, supra at 616, 626 (Stevens, J., dissenting). The
                 Court in Wainwright, in its analysis of substantive use of post-arrest silence,
                 specifically noted that Doyle did not rest on a Fifth Amendment analysis,
                 unlike Griffin. Wainright, supra at 291 n7. See also Dennis, supra at 573.

          In any event, we would find that the trial court did not abuse its discretion by denying
          defendant's motion for a mistrial. The trial court properly concluded that its
          instruction to the jury cured any error by the prosecution. Unless there is an “
          ‘overwhelming probability’ that the jury will be unable to follow the court's
          instructions ... and a strong likelihood that the effect of the evidence would be
          ‘devastating’ to the defendant ...,” we presume that the jury complied with the trial
          court's curative instruction. Dennis, supra at 581, quoting Greer v. Miller, 483 U.S.
          756, 767 n 8 (1987) (citations omitted). Because defendant's post-arrest silence was
          “at most ‘insolubly ambiguous,” ’ Greer, supra at 767 n 8, quoting Doyle, supra at
          617, the effect of defendant's post-arrest silence was not devastating. Accordingly,
          the trial court reasonably concluded that its instruction cured any error and that
          declaring a mistrial was not necessary. Dennis, supra at 582.

People v. Shaieb, Nos. 232957, 236729, 2003 WL 22092593, at *3-4 (Mich. Ct. App. Sept. 9,

2003).2



          2
       Petitioner confirmed in his brief supporting his habeas petition in the district court that the
Michigan Court of Appeals’s assumption, that he received Miranda warnings, was correct.

                                                    13
                                          4. District Court

        In the R&R, the magistrate judge applied a de novo standard, finding there was no due

process violation. The magistrate judge found the prosecutor’s reference to Petitioner’s post-arrest,

post-Miranda invocation of his right to remain silent did not violate Doyle v. Ohio, 426 U.S. 610

(1976). The magistrate judge found that since Petitioner did not testify, he was unlike the petitioner

in Doyle, a defendant who had provided an exculpatory story for the first time at trial. Therefore, the

prosecutor’s remarks were not an attempt to impeach Petitioner’s trial testimony, as was the case in

Doyle. The magistrate judge then found that the trial court followed the due process safeguards set

forth by the Supreme Court in Greer v. Miller, 483 U.S. 756 (1987), since the trial court listened to

the objection arising out of the prosecutor’s closing arguments outside the presence of the jury, no

further arguments were allowed regarding Petitioner’s silence, and the trial court provided the jury

with a curative instruction. In addition, the trial court instructed the jury during preliminary

instructions and final instructions that closing arguments were not evidence and the jury must follow

the law that the court gives it.

        The magistrate judge found that even if a Doyle violation occurred, it was harmless. The

magistrate judge found that the curative instruction remedied any possible prejudice and there was

no reason to believe that the jury was unable to follow this instruction. Further, the magistrate judge

concluded that the evidence against Petitioner was strong and the prosecutor’s comments “did

nothing to undermine the strength of that evidence.” Therefore, the magistrate judge concluded, the

misconduct did not result in prejudice to Petitioner or deprive him of due process and thus, he was

not entitled to habeas relief.




                                                  14
        In adopting the R&R, the district court found none of Petitioner’s objections to be persuasive.

Specifically, the district court disagreed with Petitioner’s assertion that the curative instruction was

generic. The district court found the instruction “was tailored to specific statements made by the

prosecutor, and went beyond what was necessary to cure the prosecutor’s reference to Petitioner’s

post-Miranda silence.”

                                             5. Analysis

                                         a. Level of Review

        Respondent argues that Petitioner’s claim is procedurally defaulted because the Michigan

Court of Appeals ruled that this claim was waived due to Petitioner’s failure to object at trial on due

process grounds. Petitioner argues that his claim was not procedurally defaulted because his trial

counsel objected at trial and requested a mistrial, but did so based on the Fifth Amendment and not

the Fourteenth Amendment. Petitioner asserts that the Michigan Court of Appeals only denied him

relief because his appellate counsel, who also raised this constitutional issue, also incorrectly based

their argument on the Fifth Amendment and not the Fourteenth Amendment. Petitioner contends

that his argument was not ignored by the Michigan Court of Appeals and that to the extent it was

unsuccessful it was because his trial and appellate counsel should have known that a Doyle challenge

is based on the Fourteenth Amendment’s Due Process Clause. Therefore, Petitioner argues, if he

is entitled to relief but denied relief due to the ineffective assistance provided by his counsel, this

would excuse his procedural default.

        In the R&R, the magistrate judge indicated that since the procedural default issue raised so

many questions and was particularly complex, it was appropriate to address the merits of Petitioner’s

claim and deny it on that basis, rather than conducting an analysis of the procedural default issue.


                                                  15
See Binder v. Stegall, 198 F.3d 177, 178 (6th Cir. 1999) (reviewing case on the merits rather than

addressing procedural default issue since it raised more questions than the case on the merits);

Hudson v. Jones, 351 F.3d 212, 215 (6th Cir. 2003) (stating that the “Supreme Court has held that

federal courts are not required to address a procedural-default issue before deciding against the

petitioner on the merits.”). In addressing the merits, the magistrate judge applied a de novo standard

of review. Respondent argues that, in the event the issue is reviewed on the merits, the court should

utilize the deferential AEDPA standard because the Michigan Court of Appeals addressed the issue

on the merits. The court finds this argument to be well-taken. The Michigan Court of Appeals noted

that Petitioner did not request relief under Doyle, despite citing the case, and that he failed to object

on due process grounds in the trial court. It found that Petitioner did not cite any viable authority

to support his assertion that the use of his post-arrest silence violates his Fifth Amendment right

against self-incrimination. Nevertheless, referencing Doyle, the Michigan Court of Appeals found

the trial court did not abuse its discretion in denying Petitioner’s motion for a mistrial since the effect

of the prosecutor’s improper comments was not devastating, and the trial court reasonably concluded

that the curative instruction remedied any error. In reaching this conclusion, the Michigan Court of

Appeals relied on Greer v. Miller, 483 U.S. 756, 767 n.8 (1987). Thus, the Michigan Court of

Appeals relied on the two applicable Supreme Court cases, Doyle and Greer, to address the issue

raised by Petitioner, and there is no question that the court intended to do an analysis of the issue.

While the magistrate judge and district court conducted a de novo analysis of Petitioner’s claim

without providing a basis for doing so,3 this court finds the deferential analysis under AEDPA is


        3
            This court stated in Durr v. Mitchell, 487 F.3d 423, 432 (6th Cir. 2007), that

        [d]eferential review under AEDPA applies only where the state court has adjudicated

                                                    16
warranted here. Despite the reference to Petitioner’s failure to articulate the appropriate basis for

his claim, the Michigan Court of Appeals reviewed his claim on the merits.4

                                         b. Due Process Claim

        This court has stated that “[t]he relevant question in cases of alleged prosecutorial

misconduct is ‘whether the prosecutors’ comments so infected the trial with unfairness as to make

the resulting conviction a denial of due process.’” Mason v. Mitchell, 320 F.3d 604, 634-35 (6th Cir.

2003) (quoting Darden v. Wainwright, 477 U.S. 168, 181 (1986)). The Supreme Court has stated

that in order “[t]o constitute a due process violation, the prosecutorial misconduct must be of

sufficient significance to result in the denial of the defendant’s right to a fair trial.” Greer v. Miller,

483 U.S. 756, 765 (1987) (internal citation and quotation marks omitted). For purposes of habeas

analysis, the role of the court is “to determine whether the conduct was so egregious so as to render

the entire trial fundamentally unfair.” Serra v. Michigan Dept. of Corrections, 4 F.3d 1348, 1355

(6th Cir. 1993) (internal citation and quotation marks omitted). This determination must “be made

by evaluating the totality of the circumstances surrounding each individual case.” Lundy v.



        a claim on the merits. When the state court has not assessed the merits of a claim
        properly raised in a habeas petition, the deference due under AEDPA does not apply.
        In that case, [the] Court reviews questions of law and mixed questions of law and fact
        de novo.

(internal citations omitted).
        4
        This court has recently stated that “[t]o warrant AEDPA deference, a state court’s ‘decision
on the merits’ does not have to give any explanation for its result, Harrington v. Richter, 131 S.Ct.
770, 784 (2011), nor does it need to cite the relevant Supreme Court cases, as long as ‘neither the
reasoning nor the result of the state-court decision contradicts them,’ Early v. Packer, 537 U.S. 3,
8 (2002) (per curiam).” Otte v. Houk, 654 F.3d 594, 600 (6th Cir. 2011). Further, “[t]he law requires
such deference to be given even in cases, such as this one, where the state court’s reasoning is flawed
or abbreviated.” Holder v. Palmer, 588 F.3d 328, 341 (6th Cir. 2009).

                                                    17
Campbell, 888 F.2d 467, 474-75 (6th Cir. 1989) (internal citation and quotation marks omitted).

Also critical to the court’s determination is whether a curative instruction was given. Serra, 4 F.3d

at 1356.

        Petitioner’s claim implicates the Supreme Court’s holding in Doyle. In Doyle, the Supreme

Court held that “the use for impeachment purposes of petitioners’ silence, at the time of arrest and

after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment.”

426 U.S. at 620. There, the defendants testified at their trials and indicated, for the first time, that

they had been framed by an informant. Id. at 613. On cross-examination, the prosecutor repeatedly

asked why they had not told this story to the police when they were arrested. Id. at 614. The

Supreme Court stated that there is an implicit assurance that anyone who receives Miranda warnings

will not be penalized for choosing to remain silent and that it “would be fundamentally unfair and

a deprivation of due process to allow the arrested person’s silence to be used to impeach an

explanation subsequently offered at trial.” Id. at 618. The Supreme Court later ruled in Greer that

a prosecutor’s single reference during cross-examination to a defendant’s post-Miranda silence,

which was immediately objected to and remedied by two curative instructions, did not violate the

defendant’s due process rights. 483 U.S. at 766. The Greer court found there was no Doyle error

because the prosecutor was stopped before he was able to improperly use the defendant’s silence in

his questioning of the defendant. Id. at 764-65.

        Since Petitioner did not testify at trial, this case is unlike Doyle, where the prosecutor

attempted to impeach the petitioner through his post-Miranda silence. Instead, it is closer to Greer,

where no testimony was actually elicited regarding the defendant’s silence; rather, only the

prosecutor’s statement regarding the post-Miranda silence was brought up at trial. Although there


                                                   18
was only one reference by the prosecutor in Greer to the defendant’s post-Miranda silence, whereas

there were several references in the instant case, the decision of the Michigan Court of Appeals that

there was no due process violation was still a reasonable application of Supreme Court precedent.

In Greer, the Court found no due process violation where the trial court sustained an immediate

objection to a single question and gave two curative instructions to the jury. Similarly, here, there

were sufficient steps taken by the court to ensure that Petitioner’s due process rights were not

violated. As indicated previously, the prosecutor questioned Lindsey and Mrs. Shaieb regarding their

failure to provide information to Detective Deprez regarding Petitioner. The prosecutor also elicited

testimony from Detective Deprez regarding these failures, as well as Petitioner’s failure to contact

her. In her closing arguments, the prosecutor reemphasized these failures. Immediately after the

prosecutor made these comments, Petitioner’s counsel objected. Thereafter, the trial court proceeded

to hear arguments on the objection outside the presence of the jury. The objection was sustained,

and the prosecutor did not make any further arguments regarding Petitioner or his family’s silence.

After closing arguments and a break lasting several hours, but before jury deliberations, the judge

provided the jury with a curative instruction, telling it to disregard the prosecutor’s reference to the

decision of Petitioner, his wife, and his daughter not to contact Detective Deprez after her initial

investigation. He further instructed them that “[Petitioner] and his family have an absolute right not

to do anything with regard to the People’s investigation.” The trial court went above and beyond

what was necessary by including in the curative instruction the fact that the jury should not consider

the Petitioner’s wife and daughter’s decision not to speak with police. This instruction was sufficient

to cure the prosecutor’s improper references in the closing arguments and during testimony.




                                                  19
Furthermore, the judge gave the following instruction to the jury after it had been sworn in and

before the prosecution began its case-in-chief:

       After the prosecutor has presented all of her evidence, [Petitioner’s] attorney may
       also offer evidence, but does not have to. By law, [Petitioner] does not have to prove
       his innocence or produce any evidence. If the defense does call any witness, the
       prosecutor has the right to cross-examine them. The prosecutor may also call
       witnesses as to contradict the testimony of the defense witnesses.

       After all the evidence has been presented, the prosecutor and [Petitioner’s] attorney
       will make their closing arguments. Like the opening statements, these are not
       evidence. They are only [] meant to help you understand the evidence and the way
       each side sees the case. You must base your verdict only on the evidence.

In addition, the trial court provided the jury with the following instruction when delivering the final

jury instructions prior to deliberations:

       It is my duty to instruct you on the law. You must take the law as I give it to you.
       If a lawyer says something different about the law, follow what I say. At various
       times I have already given you instructions about the law. You must take all my
       instructions together as the law you are to follow. You should not pay attention to
       some instructions and ignore others. To sum up, it is your job to decide what the
       facts of the case are, to apply the law as I give it to you, and in that way to decide the
       case.

 The Greer court has stated that courts are “normally [to] presume that a jury will follow an

instruction to disregard inadmissible evidence inadvertently presented to it, unless there is an

‘overwhelming probability’ that the jury will be unable to follow the court’s instructions, and a

strong likelihood that the effect of the evidence would be ‘devastating’ to the defendant.” Greer,

483 U.S. at 767 n.8. Petitioner has not pointed to anything that would demonstrate there was an

“overwhelming probability” that the jury was unable to follow the trial court’s instructions.

Therefore, the references made by the prosecutor regarding Petitioner’s post-arrest, post-Miranda

silence were sufficiently remedied by the trial court’s curative instruction along with the preliminary



                                                  20
and final instructions given to the jury, and thus, there was no denial of due process. Furthermore,

any references regarding Petitioner’s wife’s and daughter’s failures to contact Detective Deprez do

not implicate Petitioner’s Fourteenth Amendment rights.

        Although the references during questioning and closing arguments by the prosecutor to

Petitioner’s post-arrest, post-Miranda silence were improper and could potentially require this court

to reach a different result were the case on direct appeal, the court is required to apply the deferential

AEDPA standard. Federal courts conducting habeas review can only grant relief if the state court’s

application of federal law was unreasonable. The state court’s application of federal law must be

“objectively unreasonable,” not just incorrect. Williams, 529 U.S. at 409-11. The standard put forth

by § 2254(d) requires that:

        [a]s a condition for obtaining habeas corpus from a federal court, a state prisoner
        must show that the state court’s ruling on the claim being presented in federal court
        was so lacking in justification that there was an error well understood and
        comprehended in existing law beyond any possibility for fairminded disagreement.

Harrington, 131 S. Ct. at 786-87. Petitioner has failed to meet this standard. Therefore, he is not

entitled to habeas relief on this claim, and this court AFFIRMS the decisions of the state court and

the district court.

                                B. Ineffective Assistance of Counsel

        The district court certified the following issues regarding ineffective assistance of counsel

for appeal:

        (2)     Whether Petitioner was denied the effective assistance of trial counsel
                because counsel failed to argue that [Mariana] was thirteen years old at the
                time of the alleged crime?




                                                   21
        (3)     Whether Petitioner was denied the effective assistance of trial and appellate
                counsel because they failed to move for a new trial when the great weight of
                the evidence showed that [Mariana] was thirteen years old at the time of the
                alleged crime?


        (4)     Whether Petitioner was denied the effective assistance of trial and appellate
                counsel because they failed to sufficiently argue a Fourteenth Amendment
                violation when the prosecutor used Petitioner’s silence, after his arrest and
                receiving Miranda warnings, as evidence in trial?

To prevail on an ineffective assistance of counsel claim, a petitioner must show: (1) “that counsel’s

performance was deficient”; and (2) “that the deficient performance prejudiced the defense.”

Strickland v. Washington, 466 U.S. 668, 687 (1984). In order for counsel’s performance to be

deficient, a petitioner must show “that counsel’s representation fell below an objective standard of

reasonableness.” Id. at 688. Claims of ineffective assistance of appellate counsel are also reviewed

pursuant to this standard. Evans v. Hudson, 575 F.3d 560, 564 (6th Cir. 2009).

        This court has stated that “[w]hen deciding ineffective-assistance claims, courts need not

address both components of the inquiry ‘if the defendant makes an insufficient showing on one.’”

Campbell v. United States, 364 F.3d 727, 730 (6th Cir. 2004). In addition, “[i]f it is easier to dispose

of an ineffectiveness claim on the ground of lack of sufficient prejudice, which [the Supreme Court]

expect[s] will often be so, that course should be followed.” Strickland, 466 U.S. at 697.

                                          1. Mariana’s Age

        Because two of Petitioner’s ineffective assistance of counsel claims are in regard to

Mariana’s age, the court will examine the claims together. In his first claim, Petitioner argues that

Mariana was at least thirteen at the time the first-degree CSC crime occurred and that his trial

counsel should have argued that she was over thirteen at the time of the incident and/or that she was



                                                  22
uncertain of when the offense occurred. Petitioner asserts, in his second ineffective assistance of

counsel claim, that his trial counsel committed error by failing to move for a new trial based on the

weight of the evidence. Petitioner argues that his appellate counsel committed error because they

failed to timely move for a new trial on the age issue and therefore the issue was not preserved for

appellate review. Petitioner maintains that had the new trial motion been timely filed, the issue

would have been presented to the trial court where relief could be granted, or in the alternative, the

issue would have been preserved for appellate review.

       Petitioner was convicted of one count of first-degree CSC involving a victim younger than

thirteen years of age (Mariana), in violation of Mich. Comp. Laws § 750.520b(1)(a).5 The elements

of a first-degree CSC offense are: (1) that the defendant engaged in sexual penetration of another

person; and (2) the other person was under thirteen years of age. Id.; People v. Hammons, 534

N.W.2d 183, 184 (Mich. Ct. App. 1995). Sexual penetration is defined as “any . . . intrusion,

however slight, of any part of a person’s body or of any object into the genital or anal openings of

another person’s body.” Mich. Comp. Laws § 750.520a(r).

       Of the two arguments raised by Petitioner, the only argument raised on direct appeal was that

his trial and appellate counsel were ineffective for failing to move for a new trial based on the fact

that Mariana was thirteen at the time of the offense.6 The Michigan Court of Appeals concluded that



       5
       Petitioner is not raising any arguments regarding his second-degree CSC convictions as to
Mariana.
       6
         On direct appeal, Petitioner did not raise his claim regarding the failure of his trial counsel
to move for an acquittal. The magistrate judge noted that Petitioner raised this argument for the first
time in his motion for relief from judgment. The trial court found this argument was procedurally
defaulted. Nevertheless, because the procedural default issue was more difficult than deciding the
claim on the merits, the magistrate judge considered the merits of Petitioner’s claim.

                                                  23
neither trial nor appellate counsel were ineffective for their failure to move for a new trial on this

basis, stating the following:

        In a related argument, defendant asserts that his trial attorney was ineffective for
        failing to move for a new trial on the basis that the great weight of the evidence did
        not support his conviction. Defendant also argues that his appellate attorneys were
        similarly ineffective for failing to raise the issue in an appropriate motion.

        To prove ineffective assistance of counsel, a defendant must demonstrate that his
        counsel's performance fell below an objective standard of reasonableness and that the
        defendant was so prejudiced that he was deprived of a fair trial. Strickland v.
        Washington, 466 U.S. 668, 688 (1984); People v. Pickens, 446 Mich. 298 (1994);
        People v. Tommolino, 187 Mich. App 14, 17 (1991). Because defendant did not move
        for a Ginther hearing, our review of this issue is limited to mistakes apparent on the
        record. People v. Rodriguez, 251 Mich.App 10, 38 (2002).

        The record does not indicate why defendant’s attorneys failed to contest the weight
        of the evidence in an appropriate motion. Furthermore, as we have already
        determined, the jury was in a better position to judge the credibility of the trial
        witnesses. The trial judge may not sit as a “thirteenth juror” to veto the jury’s verdict.
        Lemmon, supra at 636. Considering the trial court’s limited role in reviewing the
        jury’s determination of credibility, we cannot say that a motion for new trial on this
        ground would have been successful. Therefore, defendant has not established that he
        was prejudiced by his attorneys’ failures to raise this issue.

Shaieb, 2003 WL 22092593 at *5 (footnote omitted).

        Mariana was born on February 6, 1982 and therefore, she turned thirteen on February 6,

1995. At trial, she testified about the two incidents of sexual abuse by Petitioner. The first incident

occurred in the early morning of October 15, 1993, when she was eleven. The second incident she

believed occurred in the spring of 1994, when she was twelve. Petitioner’s sufficiency of the

evidence claim is in regard to this second incident. Mariana testified that she recalled this incident

occurring when Lindsey’s room was being redecorated because there was a sheet over the window

at the time. It is this time frame that forms the basis of Petitioner’s sufficiency of the evidence claim.




                                                   24
       Mariana testified that she was twelve at the time of this incident, but Petitioner argues she

was thirteen at the time, referencing the testimony of his wife and daughter that the redecorating of

Lindsey’s bedroom occurred between March and May of 1995. In March of 1995, Mariana would

have been thirteen. Mrs. Shaieb produced several receipts from 1995 in an effort to corroborate the

redecoration expenses.

       The magistrate judge found the Michigan Court of Appeals’s conclusion was a reasonable

application of the prejudice prong of Strickland. The magistrate judge ultimately held that the

Michigan Court of Appeals’s conclusion that Petitioner was unable to demonstrate the necessary

prejudice was not an unreasonable application of clearly established Federal law. In its order

adopting the magistrate judge’s R&R, the district court stated that it agreed that Petitioner was

unable to demonstrate the necessary prejudice and also failed to raise or preserve his claim.

       Petitioner’s first ineffective assistance of counsel claim, that his trial counsel committed error

by failing to argue that Mariana was at least thirteen at the time of the offense and that she did not

know when the offense occurred, must be reviewed de novo because it was not addressed by the

Michigan Court of Appeals. See Durr, 487 F.3d at 431. Although the magistrate judge addressed

this claim and the second claim together, this was improper because the first claim was not addressed

by the Michigan Court of Appeals. Rather than address whether the first claim was procedurally

defaulted, we address the merits of the claim and find that it should be denied because it fails under

the first prong of Strickland. See Hudson v. Jones, 351 F.3d at 215 (stating that the “Supreme Court

has held that federal courts are not required to address a procedural-default issue before deciding

against the petitioner on the merits.”). This court does not find that the performance of Petitioner’s

trial counsel fell below an objective standard of reasonableness. It is clear that his trial counsel


                                                  25
strongly argued that Petitioner did not commit the crimes and that the alleged crimes could not have

occurred on the dates asserted by Mariana. He presented the testimony of Petitioner’s wife and

daughter that the home was not being redecorated on the date on which Mariana maintained she was

attacked, which was corroborated by receipts provided by Petitioner’s wife. Petitioner’s trial counsel

stated the following in his closing: “[t]he reasonable doubt in this case is beyond any thought

process, it is complete doubt, from the credibility of the stories to the dates[,] which are refuted by

the documentation[s] . . . . The case lacks credibility.” In addition, the trial court gave a clear

instruction to the jury that to find Petitioner guilty of first-degree CSC, the jury needed to find that

the victim was under thirteen. In the face of a clear instruction by the court and a substantial defense

at trial regarding Petitioner’s guilt, this court cannot say it was impermissible trial strategy for

Petitioner’s trial counsel to choose to forgo making an argument regarding the age of Mariana. See

Miller v. Francis, 269 F.3d 609, 615 (6th Cir. 2001) (“The petitioner bears the burden of overcoming

the presumption that the challenged action might be considered sound trial strategy.”) Petitioner’s

trial counsel may have concluded that he did not want to pursue an “If Petitioner did it strategy”

since it could send the wrong message to the jury regarding the possible guilt of Petitioner. Thus,

under the circumstances, the failure to make an explicit argument concerning Mariana’s age does

not demonstrate that trial counsel’s representation fell below an objective standard of reasonableness.

In any event, Petitioner was not prejudiced because evidence was clearly presented regarding the

time frames and because the court clearly instructed the jury that the victim needed to be under

thirteen in order to find Petitioner guilty of first-degree CSC as to Mariana. Consequently, Petitioner

is not entitled to relief on this basis.




                                                  26
        This court holds Petitioner’s second ineffective assistance of counsel claim, that his trial and

appellate counsel committed error by failing to move for a new trial based on the weight of the

evidence, also to be without merit. Faced with the testimony of the two victims and the additional

evidence presented by the prosecution on one hand, and the testimony by Petitioner’s wife and

daughter and the additional evidence presented by Petitioner on the other, the jury was clearly faced

with making a decision based on the credibility of the witnesses. Given the difficulty of establishing

that a new trial is justified based on the fact that the verdict is against the great weight of the

evidence, this court finds that Petitioner has not shown that the state court’s determination, that he

failed to demonstrate the necessary prejudice, constitutes an unreasonable application of Strickland.

Thus, the decision of the state court was not an unreasonable application of clearly established

Federal law. Accordingly, Petitioner is not entitled to relief on this claim, and this court AFFIRMS

the decisions of the state court and the district court.

                                        2. Petitioner’s Silence

        Petitioner argues that his trial and appellate counsel were ineffective for failing to sufficiently

argue a Fourteenth Amendment violation when the prosecutor used his post-arrest, post-Miranda

silence as evidence in his trial. Petitioner raised this argument in his motion for relief from judgment

in the trial court. The trial court stated the following in denying his motion:

        [Petitioner] presently raises the following arguments: . . . (3) he was denied effective
        assistance of appellate counsel inasmuch as appellate counsel failed to seek a remand
        to expand the record regarding the ineffective assistance of trial counsel arguments;
        (4) he was denied effective assistance of trial and appellate counsel because they
        failed to sufficiently argue a Fourteenth Amendment violation when the prosecutor
        used his silence after his arrest and receipt of Miranda warnings as reasons to find
        him guilty; and (5) he was denied effective assistance of trial and appellate counsel
        on the ground that they failed to argue that his Fifth Amendment right against



                                                   27
       self-incrimination was violated when the prosecutor referred to his silence during
       closing argument.

                                                ***

       Ineffective Assistance of Trial Counsel

                                                ***

       In any event, the Court notes that the fourth and fifth arguments arise from counsel’s
       alleged failure to object to the prosecutor’s reference to [Petitioner’s] silence. The
       Court has already found above that such reference was addressed by the Court of
       Appeals. Since the appellate court held that the reference was cured by a jury
       instruction, trial counsel’s failure to raise any objections thereto would not have had
       any impact on the outcome. The Court is satisfied that [Petitioner] has failed to
       establish ineffective assistance of counsel, as set forth under Tommolino, supra, and
       Strickland, supra.

       Ineffective Assistance of Appellate Counsel

       Finally, [Petitioner’s] third, fourth, and fifth arguments address, in whole or in part,
       ineffective assistance of appellate counsel. In his third argument, [Petitioner]
       maintains that appellate counsel failed to seek a remand for the purpose of
       developing the record as to his position that he was denied []effective assistance of
       trial counsel. He submits that a remand would have afforded him an opportunity to
       establish that trial counsel’s conduct had not constituted sound trial strategy.
       However, the Court is convinced that [Petitioner] has failed to show that counsel’s
       conduct prejudiced him, especially in light of the appellate ruling that this Court had
       not abused its discretion in denying his motion for a mistrial.

       Further, the fourth and fifth arguments go to the prosecutor’s comments about
       [Petitioner’s] silence. Inasmuch as this issue has been adequately discussed above,
       the Court need not address it again. It is sufficient to hold that such ground does not
       provide a basis for relief.

       The magistrate judge found that the trial court’s conclusions were not an unreasonable

application of Strickland. The magistrate judge found Petitioner was not prejudiced by his counsel’s

failure to argue Fourteenth Amendment violations for references to his post-arrest, post-Miranda

silence, since the trial court’s curative instruction was adequate to remedy any potential prejudice.



                                                 28
The magistrate judge found this was especially true given that the evidence against Petitioner was

strong.

          This court finds this ground for relief to be without merit. As discussed above, the curative

instruction given to the jury regarding Petitioner, Lindsey, and Mrs. Shaieb’s silence, adequately

cured the improper references made by the prosecutor to their silence. In addition, the instruction

given by the trial court prior to the prosecutor beginning its case-in-chief, along with the later

instructions given to the jury regarding the requirement that they adhere to all the instructions on the

law that the judge had provided, further remedied the improper statements put forth by the

prosecutor. Although the evidence is not as strong as the magistrate judge indicated, as the case was

based on witness testimony and did not involve independent eyewitness testimony or forensic

evidence that the Michigan Court of Appeals was responsible in holding that any improprieties by

the prosecutor were sufficiently addressed and remedied by the trial court. Therefore, Petitioner is

unable to demonstrate that he was prejudiced by the failure of his trial and appellate counsel to

sufficiently argue a Fourteenth Amendment violation based on the improper comments made on his

post-Miranda silence and thus cannot meet the Strickland standard. Consequently, this court finds

the trial court’s decision was not an unreasonable application of clearly established Federal law. In

other words, Petitioner has again failed to demonstrate that “the state court’s ruling on the claim

being presented in federal court was so lacking in justification that there was an error well

understood and comprehended in existing law beyond any possibility for fairminded disagreement.”

Harrington, 131 S. Ct. at 786-87. Thus, Petitioner is not entitled to relief on this claim, and this

court AFFIRMS the decisions of the state court and the district court.




                                                   29
                                      IV. CONCLUSION

       For the foregoing reasons, we AFFIRM the decision of the district court denying Petitioner’s

habeas petition.




                                               30
