                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 07a0623n.06
                             Filed: August 27, 2007

                                              No. 06-1019

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT


NATHAN PAUL HANNA,                                   )
                                                     )
        Petitioner-Appellee,                         )
                                                     )    ON APPEAL FROM THE UNITED
v.                                                   )    STATES DISTRICT COURT FOR THE
                                                     )    WESTERN DISTRICT OF MICHIGAN
JANETTE PRICE,                                       )
                                                     )
        Respondent-Appellant.                        )




        Before: DAUGHTREY and COLE, Circuit Judges, and RESTANI,* Judge.


        MARTHA CRAIG DAUGHTREY, Circuit Judge. Respondent Janette Price, warden

of the Michigan state prison facility in which petitioner Nathan Hanna is serving a life

sentence, appeals the order of the district court issuing a conditional writ of habeas corpus

to Hanna. The district court’s decision to grant relief is based on the Michigan state courts’

unreasonable application of federal law on three grounds: (1) the introduction at trial of a

confession that was secured at a time when the petitioner was incapable of executing a

valid waiver of his Miranda rights, (2) repeated instances of prosecutorial misconduct at

trial, particularly in the denigration of the petitioner’s insanity defense, and (3) ineffective



        *
         The Hon. Jane A. Restani, Chief Judge of the United States Court of International Trade, sitting by
designation.
No. 06-1019
Hanna v. Price

assistance of counsel in the failure to object to obvious instances of that prosecutorial

misconduct. After our study of the record, the magistrate judge’s report (aptly described

by the district judge as a “thoughtful and thorough analysis of Petitioner’s claims”), the

district court’s opinion adopting that report, and the briefs and arguments of the parties, we

find no basis on which to overturn the district court’s decision. We therefore affirm the

judgment below, largely for the reasons given in the magistrate judge’s report and the

district court’s opinion.


                     FACTUAL AND PROCEDURAL BACKGROUND


       The facts of the underlying crime, while undeniably tragic, were not seriously

disputed at trial – indeed, there is no question that the petitioner was the person who killed

the victim in this case. Nathan Hanna was a newspaper carrier at the Sault Sainte Marie

Evening News, when on July 23, 1998, he calmly entered the newspaper’s offices carrying

a shotgun and fatally shot the paper’s circulation manager, Tony Gillespie, in front of a

number of witnesses. The only apparent motive for the murder was Hanna’s delusional

belief that Gillespie was the anti-Christ and that he had to murder Gillespie in order to bring

about what he referred to as the “Second Coming.”


       After shooting Gillespie, Hanna drove to a wooded area where he remained for

three days, waiting, he said, for God to give him further instructions. He did not eat or drink

during this time or shelter himself from the elements. After three days, on July 26, Hanna



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emerged from the woods and was shot three times by police, who were combing the area

in order to find and arrest him.


       Two days later, on July 28, Sault Sainte Marie Police Detective Michael Whitney and

Detective Sergeant Price interviewed Hanna in the intensive care unit of the local hospital

where Hanna had been taken after he was shot. At that point, Hanna had been out of

surgery for about eight hours and was recovering from gunshot wounds that the police had

inflicted to his chest, abdomen, and leg. He had tubes running into his nose; he was

hooked up to an IV; he was on narcotics, had not had anything to eat for almost five days,

and was suicidal and extremely mentally ill. Before the interview, Whitney received

authorization from the nurse to speak with Hanna and read Hanna the warnings required

by the decision in Miranda v. Arizona, 384 U.S. 436 (1966). Whitney later testified that

Hanna indicated that he wanted to waive his rights, although he was unable to speak

above a whisper. Indeed, his breathing was later described as louder than his voice.


       Although Hanna was able to communicate with the officers during the interview, his

answers to their questions were not clearly responsive but instead expressed obviously

delusional beliefs and were sometimes confused and nonsensical. Of later significance,

the officers asked Hanna about his understanding of the wrongfulness of his conduct and,

according to their testimony, he appeared to have agreed with their assessment that his

conduct was “wrong,” “bad,” and “illegal.” Later in the day, Hanna was also questioned by

Detective Sergeant Robin Sexton and again waived his Miranda rights. This interview was


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interrupted by the arrival of Hanna’s court-appointed counsel, who advised Hanna not to

answer any more questions. Sometime after this, and out of the presence of Hanna’s

counsel, Sexton attempted to re-initiate the interview, but Hanna refused to speak any

further based on his attorney’s advice.


       The petitioner filed a motion to suppress his two statements to police. At the

subsequent suppression hearing, Dr. Robert Mogy, a court-appointed expert in forensic

psychology, testified for the defense that Hanna was obviously mentally ill and delusional.

Of central importance was Mogy’s testimony that he had spoken with Hanna about

Hanna’s statements to police that he had done something “wrong” and “bad” and had

discovered that Hanna was referring to the fact that the Second Coming had not taken

place immediately after the shooting. It was the failure of this event to occur that

apparently led Hanna to believe that something was “wrong” and that what he had done

was “bad.” Mogy also testified that, in his opinion, Hanna’s mental and physical condition

was such that he was not able to think through the decision to waive his Miranda rights.


       Jill Halsey, a nurse who tended to Hanna the night before he was interviewed, also

testified at the suppression hearing, describing the serious nature of Hanna’s wounds,

reporting that Hanna had attempted to commit suicide by holding a pillow over his face,

and indicating that Hanna believed that the doctors were poisoning him through his

nasal/gastric tube. She also testified that prior to the police interviews, the defendant had




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not been allowed to eat or drink because of his surgery. Despite this testimony, the trial

court denied the motion to suppress.


       At trial, the only contested issue was Hanna’s mental state at the time of the

offense. Recognizing that the defendant was obviously impaired, the prosecution argued

that Hanna should be found “guilty, but mentally ill,” an option under Michigan law since

1975 that, at least theoretically, requires imposition of a conventional sentence and

incarceration but entitles a convicted defendant to “evaluation and . . . such treatment as

is psychiatrically indicated for his mental illness or retardation.” M.C.L.A. 768.36(3).

However, the state presented no expert testimony whatever concerning the defendant’s

mental condition.    By contrast, Hanna interposed the defense of insanity which, if

successfully established, would of course mean that the requisite mens rea was lacking

and would require a verdict of not guilty. Defense counsel presented the testimony of four

expert witnesses, all of whom provided testimony in support of Hanna’s insanity defense.

Dr. Mogy was among this group, and he testified that, in his expert opinion, Hanna was

legally insane at the time he killed Tony Gillespie. He also reiterated his testimony that

Hanna’s statements that he had done something “bad” and “wrong,” taken in context, did

not refer to an admission by Hanna that he understood killing Gillespie was morally or

legally wrong in the abstract but, instead, reflected Hanna’s confusion that the anticipated

Second Coming had not occurred despite his personal efforts to bring it about.




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       In rebuttal, the prosecution offered only the testimony of Tony Gillespie’s three adult

children, who were marginally acquainted with Hanna through their father. They all testified

that Hanna appeared “normal” in their interactions with him, and none testified as to any

animosity between Hanna and Gillespie.            The prosecution also relied on Hanna’s

concession that he had done something “bad” and “wrong” in arguing its case against

insanity.


       The jury found Hanna guilty of first-degree murder, but mentally ill, and he was

sentenced to life imprisonment without the possibility of parole. Post-trial, newly appointed

counsel moved for a new trial raising several issues, including those now before this court.

The trial court held a hearing in which Hanna’s trial counsel testified that Hanna’s was the

only murder case she had defended. She also testified about a note in Hanna’s medical

records that stated, “Further pain medication held per request of the detective to facilitate

communication,” explaining that she was aware of the note prior to the suppression hearing

but had not managed to get it into evidence. The note was entered into the record as a

defense exhibit at the post-trial hearing. The trial court found no basis on which to order

a new trial on any of the issues raised and denied the motion.


       The Michigan Court of Appeals affirmed Hanna’s conviction and the Michigan

Supreme Court denied Hanna’s application for leave to appeal. Hanna then filed the

instant petition in federal district court. From the district court’s conditional grant of habeas

relief, the respondent now appeals.


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                                       DISCUSSION


       Our review in this habeas case is governed by the standards set out in the

Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214

(1996), which permits a federal court to grant a writ of habeas corpus only when the state

court judgment:


       (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) (emphasis added). The statute itself mandates a high level of

deference for state court factual findings. See § 2254(e)(1) (“[A] determination of a factual

issue made by a state court shall be presumed correct [and] [t]he applicant shall have the

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

We review the district court’s legal conclusions de novo, its factual findings for clear error,

and mixed questions of fact and law de novo. See Lott v. Coyle, 261 F.3d 594, 606, 610

(6th Cir. 2001).


       The district court held that the Michigan Court of Appeals “unreasonably applied

clearly established federal law” when it found that Hanna’s waiver was voluntary. The

district court noted the appeals court’s ruling that the question of voluntariness had not

been raised in the state trial court, but pointed out that the appeals court had nevertheless

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addressed the issue on the merits. That discussion was peculiarly inadequate, however,

because the court addressed only the note in the medical charts concerning the request

by police that “further pain medication [be withheld] per request of detective to facilitate

communication,” a piece of evidence that had not actually been introduced at trial. The

Michigan court rejected the defendant’s argument that the police had threatened to

withhold medication as an interrogation tactic, saying that it discerned “a less troubling

explanation for the detective’s request: that the detective asked that Hanna not be sedated

to the point where he could no longer listen and speak coherently.” But, as the magistrate

judge pointed out in his report to the district court, the appeals court “did not . . . address

the other issues of police coercion raised on direct appeal and in this habeas petition,”

specifically:


       that police, in taking the statement were aware of the following: (1) that
       Petitioner was in the ICU recovering from multiple gunshot wounds and
       surgery within the past eight hours; (2) that he had tubes in his nose and
       throat; (3) that he was medicated with Demerol and other drugs; (4) that
       police officers admitted he was in pain; (5) that he advised officers he had
       not eaten in three days; (6) that he could barely be heard over the sound of
       his own breathing; and (7) that his thought processes were sufficiently
       delusional to make officers inquire into his competence.


From all of this, the magistrate judge recommended that the district court find the resulting

statement involuntarily obtained.


       The district court did so, concluding that the holding of the state court was “in direct

conflict with a line of Supreme Court cases establishing that a law enforcement officer’s


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knowledge of a suspect’s physical and mental condition prior to questioning may be

sufficient to establish the necessary police conduct to constitute a due process violation”

and citing Colorado v Connelly, 479 U.S. 157 (1986); Mincey v. Arizona, 437 U.S. 385

(1978); Townsend v. Sain, 372 U.S. 293 (1963) overruled on other grounds by Keeny v.

Tomayo-Reyes, 504 U.S. 1 (1992); and Blackburn v. Alabama, 361 U.S. 199 (1960). The

district court held, correctly we conclude, that the Michigan Court of Appeals’s failure to

consider the claim in light of those cases “rendered the court’s decision an unreasonable

application of Supreme Court precedent.”


       The district court further held that the state court’s finding that Hanna’s statements

were knowing and intelligent was undermined by “an unreasonable determination of the

facts in light of the record in the state court proceeding.” That record contained testimony

that Hanna had not had food or water in the almost five days since Gillespie’s murder, a

fact that Hanna apparently conveyed to the officers during the interview. However, the

Michigan Court of Appeals “quickly dismissed Petitioner’s lack of food and water because

it was a consequence of his decision to flee after his crime and because ‘the nasal/gastric

tube indicates, rather obviously, that Hanna was receiving nourishment through that

mechanism.’” The district court emphasized that the cause of the petitioner’s lack of food

and water was irrelevant to the question of the impairment to his physical and mental

condition and pointed out that the record established that he was not, in fact, receiving any

nourishment from the gastric tube. It is virtually impossible to conclude, under the totality

of the circumstances outlined above, that Hanna was able to think rationally such that he

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had the “requisite level of comprehension” to have waived his rights “with a full awareness

of both the nature of the right being abandoned and the consequences of the decision to

abandon it.” Moran v. Burbine, 475 U.S. 412, 421 (1986); see also Colorado v. Spring, 479

U.S. 564, 573 (1987) (courts must consider the “totality of the circumstances” when

analyzing knowing and intelligent prong); United States v. Cristobal, 293 F.3d 134, 142 (4th

Cir. 2002) (explaining that a confession may be invalid where the defendant cannot “think

rationally”).


       In making the final determination with regard to Hanna’s statement to police, the

district court concluded that its introduction into evidence at trial could not be considered

harmless error. We agree. The only evidence produced by the state to rebut the insanity

defense raised at trial was, preposterously, Hanna’s supposed acquiescence in the police

interrogators’ reference to his having done something “wrong” or “bad.” The prosecutor

dwelled on this characterization of Hanna’s remarks as evidence that he knew that it was

legally wrong to shoot Tony Gillespie and, therefore, could not be considered legally insane

under Michigan state law. As the magistrate judge noted, the proof introduced by the state

in an effort to carry its burden of refuting the defense of insanity was so thin that the

“Petitioner’s inadmissible statement about his capacity to appreciate the wrongfulness of

his conduct was essentially the only evidence [offered to support] the jury’s finding of

sanity.” Without that evidence, the magistrate judge concluded, Hanna “was likely entitled

to a directed verdict of acquittal . . . on the basis of his insanity defense.” Under these



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circumstances, introduction of an inadmissible statement cannot be said to constitute

harmless error.


       Turning to the question of prosecutorial misconduct, we endorse the analysis

underlying the magistrate judge’s determination that, taken together, the three instances

raised on habeas entitle the petitioner to relief. Admittedly, the standard of review in this

area of habeas jurisprudence is strict: in order to establish that prosecutorial misconduct

is a basis for relief, the petitioner must demonstrate the conduct “‘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) (quoting Donnelly v. DeChristoforo, 416 U.S. 637,

643 (1974)). However, under the unique circumstances of this case – principally the fact

that the state offered no evidence whatever concerning Hanna’s mental condition at the

time of the offense, despite ample proof from the defense to establish that he was

completely delusional – we have little difficulty in concluding that the prosecutor’s

denigration of the insanity defense, standing alone, constituted a violation of due process.


       In this circuit, we utilize a two-step process for determining whether a prosecutor’s

alleged misconduct violated a defendant’s due process rights, looking first at whether the

remarks were improper and then determining whether or not the impropriety was harmless.

See Boyle v. Million, 201 F.3d 711, 717 (6th Cir. 2000). The latter question is resolved

under a four-factor test: (1) whether the conduct tended to mislead the jury or prejudice

the defendant; (2) whether the conduct was isolated or extensive; (3) whether the conduct


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was deliberate or accidental; and (4) whether the evidence against the defendant was

strong. See United States v. Carroll, 26 F.3d 1380, 1385 (6th Cir. 1994) (citing United

States v. Leon, 534 F.2d 667, 679 (6th Cir. 1976), abrogated on other grounds, as

recognized in United States v. Ellerbee, 73 F.3d 105 (9th Cir. 1996)). Moreover, “[i]n

assessing whether the error amounts to a constitutional deprivation, the court must view

the totality of the circumstances.” Gall v. Parker, 231 F.3d 265, 311 (6th Cir. 2000),

superceded by statute on other grounds, as recognized in Bowling v. Parker, 344 F.3d 487,

501 n.3 (6th Cir. 2003).


      During the final phase of the state’s closing argument to the jury, the prosecutor

made the following comments:


      We do not want to create a ready avenue of escape for a person who does
      a dastardly deed and kills another human being via the reason of insanity
      because you enjoy some beliefs you think you have so therefore that puts
      me home free for whatever I do.
      The word we are really speaking about is responsibility. We all have to be
      responsible at one time or another for the course we choose to follow. Mr.
      Hanna elected to read the Bible, perhaps focus on the very controversial
      parts, as has been indicated, talking about Revelations, which was his
      understanding, not your understanding, perhaps. This is what makes it a
      controversial area. It is a controversial book in itself. This whole area is
      somewhat controversial. I don’t think we can allow fixations of the mind to
      allow anyone to destroy another person and to be excused by reason of
      saying they’re insane.




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There was no objection to this argument at trial and, as the Michigan Court of Appeals

pointed out, it is therefore the basis for reversing the jury’s verdict only if it constitutes plain

error resulting in manifest injustice to the defendant.1


        In this case, we conclude that in making the comments quoted above, the

prosecutor engaged in plain error on several grounds, resulting in an injustice that is

certainly manifest and in clear violation of the Supreme Court’s oft-cited principle that the

right to due process guarantees a fair trial, one in which the prosecutor in a criminal case

may strike hard blows but not foul ones. See Berger v. United States, 295 U.S. 78, 88-89

(1935). Within a span of only a few sentences, the state prosecutor at Hanna’s trial

managed to express his personal beliefs about the defendant’s theory, to convey to the jury

that the defendant would go free if found to be insane, to connect the insanity defense with

the word “controversial” and, in general, to denigrate the insanity defense in a manner that

invited the jury to engage in nullification, despite the fact that the state had offered no valid

evidence in support of its burden to establish that Hanna was sane at the time he killed

Gillespie. It is abundantly clear that in the absence of any actual evidence to rebut the

proof of insanity offered by the defense, the prosecutor simply attacked the theory of

insanity itself.



        1
          Despite the respondent’s contention that this claim has been procedurally defaulted, it appears that
the state appellate court elected to decide the issue on its m erits, which then provides us with a legitim ate
basis for review. Moreover, the failure to object to the argum ent at trial can only be ascribed to ineffective
assistance of counsel, there being no basis on which to conclude that the om ission was based on strategic
choice – there sim ply is nothing strategic to be gained from having the state prosecutor m ake the kind of
argum ent apparent from the transcript of the state trial.

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      Compounding the error, the Michigan Court of Appeals side-stepped the central

question by engaging in the following analysis:


      Where the issue at trial is the insanity defense, the question before the jury
      is that of the defendant’s sanity or insanity at the time of the crime, not the
      possibility or even probability that an accused will in the future commit some
      other criminal act. Thus, inflammatory argument suggesting that a
      wrongdoer may go free and “to go out and shoot somebody else,” warrants
      reversal even if there was no objection. However, although the remarks
      about which Hanna complains did suggest that Hanna hoped to escape
      responsibility for his conduct through the insanity defense, the prosecutor did
      not suggest that the jury should eschew that verdict in order that Hanna not
      be allowed to kill again. This is distinguishable from People v. Lewis [195
      N.W.2d 30 (Mich. App. 1972)], in that Lewis involved extensive argument
      concerning the penal ramifications of the various verdicts. Here the
      prosecutor, at worst, only glanced off such an argument. Although a curative
      instruction could not have remedied the prejudice in Lewis, one in this case
      would have cured any prejudice stemming from the prosecutor’s remarks.
      Further, the trial court did provide the customary instruction, “Possible
      penalty should not influence your decision,” and we presume that juries
      follow their instructions. Such a result squares with respect for juries.
      Additionally, a trial court may cure improper civic-duty arguments when it
      instructs the jury that arguments of counsel are not evidence. Here, the trial
      court specifically so instructed the jury.


      As the magistrate judge noted, this analysis is both factually and legally flawed

because it failed accurately to characterize both the content of the prosecutor’s comment

and the nature of Hanna’s claim. Instead of analyzing the issue in terms of an improper

denigration of a legally recognized defense, the state court recharacterized the claim as

one improperly suggesting that if not convicted, Hanna would be free to harm someone

else. The court then reviewed the record to determine whether the prosecutor’s comments

in this regard had resulted in manifest injustice and concluded that, because the foul blow

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was merely a “glancing” one, it did not implicate fundamental fairness. Calling this analysis

a “straw-man argument,” and pointing out that the state court did not discuss the claim

actually made by Hanna, the magistrate judge held that the Michigan Court of Appeals had

engaged in an unreasonable application of the due process principles set out in Donnelly

and Darden.


       We agree and, in doing so, point to our opinion in Gall v. Parker, in which we

reviewed a similar attack on the insanity defense and reached the same conclusion as did

the district court in this case, finding that under Supreme Court precedent in Donnelly and

Berger, among other cases, the prosecutor’s remarks in denigration of the insanity defense

violated due process and warranted habeas relief, even in the absence of a

contemporaneous objection. See 231 F.3d at 312-16. In Gall, the prosecutor used closing

argument both to misrepresent the defendant’s psychological evidence of insanity and to

suggest that such evidence was unworthy of belief. We held that this line of argument

“comprised part of a broader strategy of improperly attacking Gall’s insanity defense by

criticizing the very use of the defense itself, rather than addressing its evidentiary merits

head on.” Id. at 313. We recognized in that case that when the state is burdened with the

necessity of establishing sanity in response to a defendant raising a defense of insanity,

it is permitted vigorously to press its case, but we added:


       [B]ecause ours is a system of law, the arsenal available to a prosecutor to
       achieve that legitimate goal is limited to arguments rooted in properly
       introduced evidence and testimony rather than words and tactics designed


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       to inflame passions, air unsubstantiated prosecutorial beliefs, and downplay
       the legitimacy of a legally recognized defense.


Id. at 316. The problem in this case, as in Gall, is the state court’s failure to grapple with

the actual due process violation apparent from the record and to analyze its effect on the

fairness of the defendant’s trial. Although the attack on the validity of Hanna’s insanity

defense was not as extensive as in Gall’s case, we emphasize that it was particularly

harmful in this case because of the state’s failure to present any scientific evidence or

relevant testimony to rebut the expert testimony introduced by the defense to establish

insanity.


       Thus, in finding that the violation of due process in this case could not be

considered harmless, the magistrate judge carefully analyzed the four-part Leon test as

follows:


       First, the remarks [in question] were likely to mislead the jury and were of the
       same kind as those described in Gall. The sole issue in the instant case was
       Petitioner’s sanity at the time of the killing. In the context of the instant case,
       in which the prosecutor presented essentially no evidence to contradict the
       testimony of the four psychologists and psychiatrists who had examined
       Petitioner and found him to be insane, an attack on the defense itself was
       very likely to mislead the jury. Further, the remarks were made during
       rebuttal argument, at a time the defendant had no further opportunity to
       argue.
       Second, the remarks did not consist of an isolated comment. Instead, the
       prosecutor’s statements involved two full paragraphs of argument during a
       relatively brief rebuttal. The prosecutor directly and flagrantly asked the jury
       to reject the law and not allow Petitioner to escape punishment because he
       is insane. While the comments were not as pervasive as those present in



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        Gall, they were more pointed, directly arguing what the comments in Gall
        merely implied.
                                                  * * * * *
        Third, the remarks unquestionably were intentional. The prosecutor clearly
        and unequivocally told the jury that it should not allow “a ready avenue of
        escape for a person who does a dastardly deed and kills another human
        being via the reason of insanity because you enjoy some beliefs you think
        you have so therefore that puts me home free for whatever I do.” This
        argument reflects the prosecutor’s choice to disparage the very existence of
        the defense.
        Finally, the evidence of Petitioner’s sanity was virtually nonexistent, while the
        evidence of his insanity was substantial. In the context of the whole case,
        the remarks were of increased importance. As in Gall, because the
        prosecution failed to present an expert who had examined the defendant and
        assessed his sanity, the prosecution was limited to attacks on “[Petitioner]’s
        insanity defense compris[ing] largely ‘foul blows’ having little to do with
        cognizable facts or evidence.” 231 F.3d at 311. (Remaining citations
        omitted.)


        Based on this analysis, the magistrate judge concluded that the prosecutor’s

argument constituted a due process violation that deprived the petitioner of a fair trial.

Moreover, he also determined that the failure of counsel to object to the argument rose to

the level of ineffective assistance of counsel because the argument was so clearly

improper that any “reasonable counsel” would have objected.2 There was, the judge noted,


        2
           Under Michigan case law, there is som e question about whether an objection would even be required
in this situation. As the Michigan Court of Appeals noted in a sim ilar case, “The test for determ ining whether
appellate review should occur despite a defendant’s failure to object is whether the prejudice was so great
that it could not have been corrected by a curative instruction even if a tim ely objection had been m ade.”
People v. W allace, 408 N.W .2d 87, 90 (Mich. App. 1987). There, the prosecutor, attem pting to avoid a not-
guilty-by-reason-of-insanity verdict by disparaging the insanity defense in closing argum ent, said to the jury,
“[W ]e are seeing m ore and m ore of [insanity] as a defense, and m ore and m ore [defendants] are . . . getting
off because of it.” Id. The Michigan appellate court held in response, “This is a clear disparagem ent of the
defense itself. This is not a case where the prosecutor is saying that the defense should not be applied for
reasons unique to this case. Rather, the prosecutor is urging the jury not to apply the defense of insanity
because the prosecutor does not like it. This is not only using the prestige of the prosecutor’s office in support

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no strategic reason to refrain from objection – if not during argument, then certainly at its

conclusion. Finally, the magistrate judge held that counsel’s failure resulted in actual

prejudice, thereby satisfying the standard of Strickland v. Washington,3 because the record

reflected “a reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different.” 466 U.S. 668, 694 (1984). We agree with

these conclusions.


         This record calls for an additional observation pertinent to the possible retrial of this

case. Although it has not been argued as a ground for relief in federal court, the state’s

proof against Hanna appears to have failed to satisfy basic concepts of due process. Our

review of state law indicates that Michigan’s statutory definition of insanity permits a

defendant to establish insanity by alternative means, proving that he “lacks substantial



of its position but it is telling the jury to disregard the law sim ply because either the prosecutor or the jury m ight
not approve of the defense of insanity. Such disparagem ent of a defense allowed by law is not proper and
constitutes error requiring reversal even if no objection is m ade.” Id. at 90-1. The court sum m ed up its ruling
by observing that “it is not perm issible for a prosecutor to specifically invite a jury to com prom ise between a
verdict of guilty and not guilty by reason of insanity by picking the m iddle ground of guilty but m entally ill . . .
. W e recognize that in a particularly brutal case where the defendant adm its perpetuating the acts and raises
the defense of insanity, the tem ptation will be great to place the insanity defense on trial along with the
defendant. However, it is not the function of the prosecutor to question the wisdom of the insanity defense
once the Legislature has adopted it and defined it.” Id. at 92.

         3
          Strickland sets out a two-prong test for evaluating a claim of ineffective assistance of counsel. To
prevail, the petitioner m ust show both that defense counsel’s perform ance was constitutionally defective
because it fell below the range of objectively reasonable professional assistance, and that counsel’s deficient
perform ance prejudiced his client, i.e., that there is “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Strickland v. W ashington, 466
U.S. 668, 687, 688, 694 (1984). According to the Suprem e Court, “[a] reasonable probability is a probability
sufficient to underm ine confidence in the outcom e.” Id. at 694. W e have held that “[b]oth the perform ance
and prejudice com ponents of the ineffectiveness inquiry are m ixed questions of law and fact,” Combs v. Coyle,
205 F.3d 269, 278 (6th Cir. 2000), rather than findings of historical facts that are subject to the presum ption
of correctness for state court factual findings m andated by section 2254(e)(1). McGhee v. Yukins, 229 F.3d
506, 513 (6th Cir. 2000).

                                                        - 18 -
No. 06-1019
Hanna v. Price

capacity either to appreciate . . . the wrongfulness of his . . . conduct or to conform his . . .

conduct to the requirements of law.” M.C.L.A. 768.21a(1) (1994) (emphasis added). As

we have already held in this case, the prosecutor relied upon nothing more than

inadmissible evidence in an effort to establish that the petitioner “appreciated the

wrongfulness of his conduct.” Even more significantly, the prosecutor offered no evidence

at all to rebut extensive testimony by defense witnesses that established Hanna’s utter

inability “to conform his conduct to the requirements of the law,” thus meeting Michigan’s

statutory definition of insanity.


                                        CONCLUSION


       For the reasons set out above, we AFFIRM the order of the district court granting

the petitioner a conditional writ of habeas corpus and REMAND the case to the district

court for issuance of the writ.




                                             - 19 -
